Compensation as Radical Transformation

Abstract

This paper draws on the concurring judgment of Froneman J in Agri SA to articulate a "new and fresh approach" to the power to expropriate and duty to compensate in section 25 of the Constitution.  In Agri SA, the Constitutional Court had to consider whether the provisions in the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA) expropriated property and, if so, what form of compensation was required as a result.  The answers that Froneman J provides, rooted in his conception of "compensation in kind", offer a framework to enable rational, purposive and wide-ranging transformation of property through legislation.  Work, though, is needed to clarify the structure and implications of his approach.  This paper provides that clarity. After an introduction, Part 2 unpacks the transformative, i.e., radical, nature of the change effected by the MPRDA, distinguishing it from reform.  Armed with this distinction, it is argued that Froneman J's concepts of expropriation and compensation are rooted in a practical concern for: (a) the good and bad forms of being that Parliament wanted to facilitate and frustrate by way of the MPRDA; (b) the relations constitutive of these forms; and (c) the property that is needed to facilitate or frustrate the relations and forms.  Part 3 clarifies the nature of Froneman's approach, by focusing on s 25(3) of the Constitution of the Republic of South Africa, 1996, demonstrating that the factors it lists are concerned with maximally facilitating old and new goods, whilst always conscious of the fact that transformation by nature cannot avoid the need to sacrifice some goods for the sake of others.  Part 4 offers some concluding thoughts.