Expropriation and the Endurance of Public Purpose

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Expropriation and the Endurance of Public
Purpose
Comparative observations on the effects of a subsequent change
in the purpose for which expropriation was undertaken for South
African law
Björn Hoops*
Jonathon Saville**
Hanri Mostert***
1 Introduction
In South Africa as in the overwhelming majority of jurisdictions, the public interest or public
purpose requirement is a tenet of expropriation law. Expropriation of land can be undertaken
only if warranted by a public purpose or if it is in the public interest.1 But what if a state
organ expropriates land, only to find out later that it cannot be used for the purpose for which
it was expropriated? Is it possible simply to abandon the original purpose and use the land for
whatever purpose seems prudent or desired? Is it possible for such action to be taken
unilaterally, given the rigorous requirement and the concomitant process for expropriation?
These are the questions we seek to answer for South African law in this contribution.
The impetus for our analysis comes from a case heard by the South African High Court in
KwaZulu-Natal: Harvey v Umhlatuze Municipality and Others.2 The appellant (Harvey) was
unsuccessful in persuading the Court that as previous owner, whose land had been
expropriated by the respondent municipality (Umhlatuze), he had a right to reclaim the land if
the purpose for which it was initially expropriated could no longer be achieved. The land in
question was residential land, expropriated for the purpose of developing recreational open
space and a conservation area3 in the town of Richards Bay. After Harvey’s land was
* LLM (Groningen), LLM (Bremen/Oldenburg). PhD Candidate and Lecturer, Department of Private Law and
Notarial Law, Rijksuniversiteit Groningen. Section 3 of this contribution is based upon an earlier contribution,
entitled ‘Change of Purpose in Expropriation Law: A Comparative Perspective’, that Björn Hoops presented at
the 2015 World Bank Land and Poverty Conference in Washington, D.C.
** BSc LLB (UCT). Candidate Attorney: Edward Nathan Sonnenberg, Cape Town.
*** BA LLB LLM LLD (Stell). Professor of Law, University of Cape Town; Visiting Professor, Department of
Private Law and Notarial Law, Rijksuniversiteit Groningen. Financial support of the National Research
Foundation, the University of Groningen and the Programme for the Enhancement of Research Capacity at the
University of Cape Town is hereby gratefully acknowledged. The participants of the 2014 Advanced Property
Law Course at UCT and the members of the Department of Private Law at UCT commented on earlier versions
of the work. We are grateful for their ideas. The opinions and remaining errors are ours and should not be
attributed to institutions or individuals who supported the research.
1 Constitution of the Republic of South Africa 1996, s 25(2)(a) (hereinafter “the Constitution”).
2 Harvey v Umhlatuze Municipality and Others (4387/08) [2010] ZAKZPHC 86 (ZAKZPHC) (hereinafter
“Harvey”).
3 Harvey (n2) [9].

expropriated, more than a decade passed in which he was permitted to remain living on the
land as a tenant, while the municipality solicited proposals for the development of the area.
Several rounds of feasibility studies later it was clear that the area was never going be
developed for recreational purposes. The municipality redirected by changing the purpose for
which the land was to be developed to residential, and issuing a public tender.4 It is under
these circumstances that Harvey, the former owner, took his objections to court, reclaiming
the property and offering to pay market-related values.5
Harvey’s argument involved the following: both statute and the Constitution provide that
expropriation may only be for a public purpose or in the public interest. Thus, if the identified
purpose or interest could no longer be realised, the very basis for the expropriation falls away
and the original owner should be entitled to repurchase the property.6 The Umhlatuze
Municipality effectively argued that the previous owner had no standing in law to bring the
application: once the municipality had expropriated and acquired the properties, as owner it
was free to deal with the property as it would with any of its other properties.7
The Court held that the land was originally expropriated validly. Also, it was beyond doubt
that “at the time of the expropriation the first respondent intended using the expropriated
properties for a public purpose and to that extent it acted in good faith.”8 In the eyes of the
court, initial good faith on the part of the State and an acceptable public purpose-justification
when the property is expropriated exonerate the State of accountability further down the line,
once it has acquired the property, to use it in line with the stated purpose for the
expropriation.9 No scrutiny of the “revised purpose” was thought necessary. In Court, only
little guidance was taken from the examples offered by foreign law. Instead, the Court
dismissed foreign law permitting return of expropriated land in similar situations. It indicated
that, unlike Germany, South Africa does not have a general principle that land should be
returned if it is the purpose for which it is expropriated is not realised.10
The outcome of Harvey was that the state’s action - that of redirecting the use of the land for
a purpose other than the one which originally motivated the expropriation - was endorsed
without more. The former owner would have no claim for a retransfer if the purpose of the
expropriation proved unattainable after conclusion of the expropriation proceedings. The
implication of this stance is that it gives the state considerable discretion in using land that
was acquired unilaterally from private individuals for reasons other than the motivation
which spurred the acquisition. At first glance, this stance may seem completely justifiable:
once the acquisition has been made, the state is the owner of the land and as owner it should
be able to take decisions about the use of the land without interference by any previous
4 Harvey (n2) [3].
5 Harvey (n2) [31].
6 Harvey (n2) [80].
7 Harvey (n2) [33].
8 Harvey (n2) [136] (Moodley J).
9 Harvey (n2) [133] et seq.
10 Harvey (n2) [133].

owner. However, the implications of such an approach smack of an imbalance in the
positions of land owners (and other interested parties) vis-à-vis the state.
Expropriation is different from other types of unilateral acquisition of property, precisely
because it is undertaken not by a private entity, but the state; and because it is motivated by a
pressing public purpose. The acquirer always is the state (or rather one of its organs), in its
public-law capacity. The state never acts as a private party when expropriating property.
Under such circumstances, expectations may legitimately be different from the state (as
opposed to any private owner) as to the use of the property.
The conundrum is that South African law has never before Harvey been confronted with this
problem. The problem was created by the peculiar circumstances of the case: a former owner
still residing on the land, and wishing to reside on it further, confronted with the reality that
he had been forced earlier to relinquish his ownership of valuable realty. What is more, the
local government stands to make considerable profit now, ten years on, from subdividing and
selling the land to people who could have been his buyers, not the state’s. No transformative
purpose was to inform the intended residential development in Harvey. The revised use of the
land for residential purposes had no particularly obvious public purpose. Nothing spoke in
favour of the expropriating municipality other than that the property now was registered as
the municipality’s.
Was Harvey poorly decided? What might the better solution have been under current South
African law? Did the aftermath of this judgment have an impact on formulation of potential
new law in ways that could make the law work better? These are the concerns we seek to
address.
We argue that the High Court’s failure to address the issue of change of purpose in Harvey
created a loophole that may in future be used by the State to evade the implications of the
public purpose/public interest requirements of section 25(2)(a) of the South African
Constitution. South Africa’s Parliament has considered various drafts of a new Expropriation
law, some of which11 appeared to deal better with the change of purpose issue than others.
The most recent version of the draft law raises even more questions, though. This is the
backdrop against which we scrutinise the solution preferred by the High Court. We do so by
considering the critique against the judgment from South African scholars, and by comparing
the Harvey outcome with outcomes of similar questions considered in a range of other
jurisdictions. Thereafter, we consider the proposed reforms in the South African
Expropriation Bill, which Parliament is intent on passing this year.
2 Harvey and its critics
In the four years since the Harvey judgment was passed, various South African authors,
among them Quinot,12 Slade,13 Van Der Walt14 and Du Plessis,15 commented critically on
11 Expropriation Bill (draft) in GN 234 GG 36269 of 20/03/2013 (Hereinafter “the draft Bill”).
12 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41-76.
13 B.V. Slade, The Justification of Expropriation for Economic Development (LLD Stellenbosch, 2012), p. 5.

Harvey’s reasoning. While they all agree that the case was, in part, wrongly decided, they
each have differing suggestions on what the appropriate solution should be. Between them
they raise multiple issues, inter alia (i) that the Court should not have been so quick to
dismiss foreign law solutions;16 (ii) that the Court should have investigated the enduring
nature of the public purpose requirement in section 25(2) of the Constitution, including
whether it is possible to change the purpose; and (iii) that the Court should not have ignored,
as it apparently did, administrative law precedent that prevents government officials from
acting beyond their authorisation.17
The critical comments elicited by Harvey have been varied, though united in their
disagreement with the logic of the judgment, and in their consensus that reform of this aspect
of the law is needed.18 Scholarly comments thus far may be classified according to the
solutions they propose: some propose legislative reform, others prefer to address the obvious
lacuna in our law through judicial mechanisms. Judicial solutions include tackling the issue
by means of a constitutional challenge, as suggested by Du Plessis,19 or a challenge based on
administrative law, founded on the criticisms put forward by Quinot.20 Van der Walt and
Slade advocated for legislative intervention along the lines of German law, but also
additionally suggested a more subtle, but still effective, legislative solution.21 The
commentaries make it clear that the lacunae left by the Harvey decision render it a highly
contentious judgment, both from a constitutional property law perspective, and from an
administrative law perspective.
14 A.J. van der Walt, Constitutional Property Law (3rd edn, Juta 2011).
15 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579-592.
16 See Harvey [94]-[97] where the Court states that German law allows for “re-expropriation” in cases where the
expropriated property has not been used for the purpose for which it was expropriated. In some instances
statutes provide of ‘re-expropriation’ however when statutes do not specifically provide for it the courts have
been willing to read it in from the constitutional guarantee of private property rights of the German Constitution.
Also see Harvey [134]-[135] where the Court rejects the submission that the same interpretation can be implied
from the South African Constitution.
17 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57; A.J. van der Walt &
B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze Municipality & others: notes’
[2012] SALJ 219, 225-7; E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public
purpose’ [2011] TSAR 579, 584.
18 Various scholarly critiques of the Harvey decision may vary in the focus they place on different aspects of the
decision, but they are unanimous in their rejection of the judgment. Authors such as Van der Walt, Slade and Du
Plessis, focus their criticism on how the Court assessed the way in which the State holds land and how the
public purpose requirement in section 25(2) of the should be interpreted. A.J. van der Walt & B.V. Slade,
‘Public purpose and changing circumstances: Harvey v Umhlatuze Municipality & others: notes’ [2012] SALJ
219, 225-7; E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’
[2011] TSAR 579, 584. These criticisms can all roughly be collated into what B.V. Slade, The Justification of
Expropriation for Economic Development (LLD Stellenbosch, 2012), p. 5 terms “the enduring nature of the
public purpose”, and so are concentrated around the principles of constitutional property law. Other criticisms
are founded in administrative law. G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law
41, 57, for instance, criticised the judgment for purporting to allow administrators to act outside of their
delegated powers, effectively allowing them “to extend their own authority”.
19 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 590.
20 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
21 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 225 and 233.

2.1.1 Harvey’s disregard of constitutional protection of property
Several scholarly arguments point out that the Harvey judgment is objectionable from a
constitutional property law perspective. They argue that the ruling (i) disregards the
constitutional protection of property; and (ii) misunderstands the purpose of the public
purpose requirement.
2.1.1.1 Disregard of the Constitutional Property Clause
The unsettling element of the Harvey judgment lies not so much in the Court’s ruling that a
previous owner does not have a right to reclaim expropriated property, as in the Court’s
complete disregard for the new purpose for which the expropriated land are meant to be
used.22 Counsel for the applicant might not have raised the issue, possibly because the
ultimate goal of the litigation was to reclaim/repurchase the land, but it was nevertheless an
oversight on the part of the Court, in dismissing the application, not to interrogate the new
purpose. Van der Walt, Slade and Du Plessis all agree that the Court in Harvey should have
investigated the new purpose for which the State intended to use the land, separate from the
enquiry into whether South African law permitted the land to be returned to the previous
owner.23 The Court’s failure to do so creates a loophole in the law.
Du Plessis questions the Court’s argument that when the circumstances changed, and the
original purpose could not be met, the municipality could change the purpose, without any
restrictions, because they were exercising their rights as owner.24 Whereas the Court held that
the municipality’s conduct was still an exercise of its rights within the framework of the
Constitution,25 Du Plessis doubts that the municipality had in fact become owner.26 She
argues that the two cases on which the Court relies are “questionable authority for answering
[the] question in the Harvey case”.27 These cases dealt with whether the State could do with
its land as it wished, and not with whether the State could retain land in situations where
expropriated land was not going to be used for the purpose it was expropriated.28 Du Plessis,
in defending her position that the State could not exercise its ownership rights in an
unfettered manner, draws attention to what the Court itself said:29
22 It will be argued below that following foreign jurisprudence, such as that of Germany, may not, on policy
grounds, be suited to the South African context.
23 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 225-7; E. du Plessis, ‘Restitution of expropriated property upon
non-realisation of the public purpose’ [2011] TSAR 579, 584.
24 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583.
25 Harvey (n2) [60].
26 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583 highlights that the constitutional framework that the Court refers to is the framework set by Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] SCA 6 SA 313 (SCA) and Minister of Public
Works v Kyalami Ridge Environmental Association [2001] SACC 3 SA 1151 (CC).
27 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583.
28 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583.
29 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583.

“…for so long as the restriction on the use of the properties (ie. for a public
purpose) was in place, the first respondent was obliged to exercise its rights of
ownership in accordance with that purpose”.30
The Court contradicts itself from one paragraph of the judgment to the next. It indicates that
the municipality is restricted by the public purpose,31 but when the circumstances changed it
was free to change the purpose.32 The implication of this, Du Plessis points out, is that the
State can expropriate for purpose X, and then if it decides that X is not attainable, it can
simply change to purpose Y without any restriction or constitutional scrutiny.33 This seems to
be in complete disregard of the protection envisaged for landowners in section 25(2) of the
Constitution.
2.1.1.2 Misunderstanding of the Public Purpose Requirement
While the question of whether the State actually acquired ownership of the land is an issue,
the real issue in this case stems from the question of how the public purpose and public
interest requirements in section 25(2) of the Constitution were applied. Whether the State
became owner of the property or not, for a Court to find that, in the context of expropriation,
the State acquired the land free of any conditions, has the potential to lead to “undesirable
consequences”.34 These consequences have been highlighted above.
The problem is that the Court failed to scrutinise the new purpose. Slade draws attention to
the fact that, whilst an expropriated owner receives compensation for his land, the
justification for the expropriation is the public purpose and not the payment of
compensation.35 The Court in Harvey reasoned that since the municipality acted in good faith
at the time of the expropriation, it was justified to change the purpose subsequently, when it
became apparent that the original purpose could not be met.36 This argument is erroneous in
the opinion of Van der Walt and Slade.37 They contend that while bad faith would render the
expropriation unlawful, good faith at the time of the initial expropriation cannot act as
justification for either the original or new purpose.38 They further cement their point by
restating that the justification for expropriation, in both the Constitution and the
Expropriation Act, is that it must be for a public purpose (or in the public interest), and that
good faith is thus not sufficient.39 In the view of Van der Walt the minimum expectation is
30 Harvey (n2) [59].
31 Harvey (n2) [59].
32 Harvey (n2) [60].
33 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583.
34 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 583.
35 B.V. Slade, The Justification of Expropriation for Economic Development (LLD Stellenbosch, 2012), p. 169.
36 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 226.
37 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 226.
38 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 226.
39 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 226.

that the Court must be willing to scrutinise the new purpose.40 Furthermore, he contends that
the first question that the Court should have asked was not whether the municipality acted in
good faith when it expropriated the property, but rather whether the new purpose satisfies the
public purpose or public interest requirements.41
To elaborate Van der Walt’s argument, it is necessary to scrutinise the purpose of section
25(2) of the Constitution. Du Plessis argues that section 25(2) “ensures protection and control
by limiting the justification for an expropriation to something that is in the public interest, and
controlling that the expropriated property is used for such a purpose”.42 She further contends
that the State cannot expropriate for the benefit of a private individual (unless this benefit is
incidental). Nor can the state expropriate simply to acquire private property for its own
benefit. Thus a private owner should be protected in that the Constitution must ensure that the
State realises the purpose for which the land was expropriated.43
In the same vein, Van der Walt argues that the public purpose justifies the expropriation, and
hence it should endure beyond the act of expropriation.44 It should remain a permanent
condition for the ownership of the property.45 Du Plessis echoes this, and argues that the
public purpose requirement “places something akin to a modus on the expropriation” and that
thus the public purpose requirement must be adhered to, to protect private property from
State interference.46
2.1.2 Administrative Justice Perspective
Harvey held that expropriation (and a change of purpose) constitutes an administrative action,
and thus it should be reviewable like any other administrative action.47 The case was
discussed widely in administrative law circles, especially with regard to the issue of
“authorised action”, where Harvey is seen as going against the longstanding case of Van Eck
NO & Van Rensburg NO v Etna Stores.48 Van Eck is authority for the rule that if an
administrator acts for an unauthorised purpose, that action or decision will be unlawful, no
matter whether it was made with good intentions or not.49 Quinot questioned the decision in
Harvey with this perspective in mind. In his view, the Court’s reliance on the municipality’s
good faith at the time of the initial expropriation to justify the new purpose implied that “the
authorized purpose of administrative power is to be assessed at a single moment in terms of
40 A.J. van der Walt, Constitutional Property Law (3rd edn, Juta 2011), p. 497.
41 A.J. van der Walt, Constitutional Property Law (3rd edn, Juta 2011), p. 498.
42 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 584, emphasis added by Du Plessis.
43 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 584.
44 A.J. van der Walt, Constitutional Property Law (3rd edn, Juta 2011), p. 226.
45 A.J. van der Walt, Constitutional Property Law (3rd edn, Juta 2011), p. 226.
46 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 590.
47 Harvey (n2) [56].
48 Van Eck NO & Van Rensburg NO v Etna Stores [1947] Appellate Division of the Supreme Court (2) SA 984
(A); C. Hoexter, Administrative Law in South Africa (2nd edn, Juta 2012), p. 309.
49 Van Eck NO & Van Rensburg NO v Etna Stores [1947] Appellate Division of the Supreme Court (2) SA 984
(A); C. Hoexter, Administrative Law in South Africa (2nd edn, Juta 2012), p. 309.

lawfulness and then becomes irrelevant”.50 This is problematic, since purpose forms part of
the lawfulness enquiry. It is an aspect of authorisation which is meant to keep administrators
within the boundaries of their delegated powers.51
Quinot further highlights that, as a principle of legality, administrators should not be allowed
to “depart from the purpose for which the authority is granted”.52 Doing so effectively allows
administrators to extend their own authority.53 Quinot states that the law should make
provision for changing circumstances.54 However he emphasises that its primary goal should
be to protect the principle of legality, and thus “be aimed at reversing the administrative
action premised on the purpose that [it] no longer justifies the exercise of the power”.55
3 Comparative Analysis
Several of the scholarly critiques outlined above relied on comparative examples in
developing their arguments or in the solutions they proposed. It is useful to cluster the types
of examples available in the comparative context, before attempting to contextualise the
solutions from comparative law for the South African setting. This section aims to discuss the
characteristics of solutions implemented to the change-of-purpose issue across several
jurisdictions (Canadian Federal law, Dutch law, French law, German Federal law, Malaysian
Federal law, Philippine law, US Federal law).
A study across various jurisdictions reveals a broad spectrum of solutions, ranging from very
strict, to very lenient, when viewed from the perspective of the expropriating authority. This
may be depicted on a matrix as follows:
50 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
51 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
52 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
53 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
54 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
55 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.

Figure 1: Matrix of Solutions
The detail on which the placement of each of the jurisdictions examined are positioned is
discussed below. Upfront, however, the following: On the stricter end of the spectrum, the
solutions entail a retransfer to the erstwhile owner or a reconsideration of the expropriation
pursuant to a change of the purpose. On the more lenient end, the change in purpose is not
questioned ex post the expropriation. The discussion below traces the spectrum from
jurisdictions following the most lenient approach, in which no or little scrutiny of a change in
purpose is undertaken, through various intensities of such scrutiny in other jurisdictions, and
to strict or very strict scrutiny in yet other jurisdictions.
3.1 Weak Scrutiny Jurisdictions: Canadian Federal law and US Federal
law
Our investigation of Canadian expropriation law is limited to Federal Law.56 Section 4(1) of
the Canadian Expropriation Act of 198557 empowers the Crown to expropriate property
required for a public work or another public purpose. The Act is silent on whether the
expropriatee may reacquire the expropriated property if the purpose for which the property
was to be used falls away or if the property is used for another purpose.58 By implication, on
the federal level, the erstwhile owner has no right to reacquire expropriated property pursuant
to a change of purpose for which the expropriated property is used.
56 In Canada, the state’s power to expropriate is founded on the sovereignty of the Crown. The powers of the
provinces are entrenched in the prevalent federalist model in Canada.
57 R.S.C., 1985, c. E-21.
58 Section 20(1) of the Canadian Expropriation Act, which addresses the problem of the abandonment of the
public purpose, only refers to the period before compensation is paid.
Weak
scrutiny
jurisdictions
Second
Chance
jurisdictions
Zero
Tolerance
jurisdictions

The main exception to this rule is formulated in the judgment of the Exchequer Court59 in
National Capital Commission v Munro,60 in which conduct of the expropriating authority was
evaluated as being either in good faith, or “colourable”.61 A “colourable scheme”62 on the
part of the expropriating authority refers to a pretense about the purpose for expropriation.
Conduct is “colourable” if, already during the expropriation procedure, the expropriating
authority intended subsequently to use the property for another purpose that would not
qualify as a public purpose.
Federal expropriation law in Canada thus focuses on the motive for the expropriation, and
supports a lenient interpretation in that it does not envisage an act of expropriation to be
reversed simply because the purpose for which it was undertaken can subsequently not be
realized. The “colourable scheme” construction provides some protection for the former
owner, but this protection is very limited.
In Estate of the Late Emerson Woodburn, Edith Woodburn and Douglas Woodburn v.
National Capital Commission63 the matter involved an expropriation, some 29 years earlier in
1961, of the Woodburns’ family land, to integrate it into the green belt surrounding Ottawa.
Subsequently, Emerson Woodburn’s family continued to use the land as tenant farmers. In
the early 1990s, the expropriator (the National Capital Commission) decided that the land
was no longer necessary for the green belt and declared it surplus. The Woodburn family
unsuccessfully attempted to purchase the land from the Commission, and subsequently a
renewal of their lease of the land was refused and the land was rezoned for commercial use.
The land was eventually sold to a private corporation at a considerable profit.
The narrative of this case is remarkably similar to that of Harvey. It was also considered
briefly in the latter judgment.64 In Woodburn, the court held that, in principle, the
expropriating state organ can abandon the purpose for which the property was expropriated
and change it without having to return the property to the expropriatee.65 The judgment
confirmed that there is no nexus between the purpose for which the property was
expropriated, and the expropriatee’s ability to reclaim it. Woodburn’s case considered, but
neither endorsed nor rejected the “colourable scheme” doctrine.66 Justice Heneghan in
Woodburn interpreted the term “colourable scheme” to show that the Woodburns’ case was
distinguishable from the scenarios addressed by the doctrine. Labelling a scheme as
“colourable”, for Justice Heneghan, suggests some measure of duplicity and impropriety in
59 National Capital Commission v. Munro [1965] 2 Ex. C.R. 579 (Justice Gibson).
60 [1965] 2 Ex. C.R. 579. The Exchequer Court was a federal trial court and the predecessor of the Federal
Court.
61 [1965] 2 Ex. C.R. 579, 645.
62 The Estate of the Late Emerson Woodburn, Edith Woodburn and Douglas Woodburn v. National Capital
Commission [2001] (1) F.C. 305.
63 [2001] (1) F.C. 305.
64 Harvey (n2) [141] et seq.
65 [2001] 1 F.C. 305 (F.C.) [42].
66 [2001] 1 F.C. 305 (F.C.) [42], where Justice Heneghan considered that there was “[…] no mechanism in
Canadian law by which the land in this case would revert to the Woodburns, save perhaps [emphasis added]
where the facts of the case merit an application of the comments made by Justice Gibson in Munro […].”

the dealings.67 From Heneghan’s reasoning, the following can be distilled as requirements for
a particular scheme to be labeled as “colourable”: First, it becomes apparent that the
“colourable scheme” inquiry concerns the motives of the expropriating authority before the
property is expropriated, not thereafter.68 Second, examining the motive behind the
expropriation, the new purpose for which the expropriated property is used does not qualify
as a public purpose.69
US Constitutional Law follows a similar approach. The Fifth Amendment permits
expropriation (a “taking”), for public use. In Kelo v. City of New London, 125 S.Ct. 2655
(2005),70 which concerned the expropriation of residential properties for economic
development, it was reasoned that the Fifth Amendment did not permit the expropriation of
property “[…] under the mere pretext of a public purpose, when its actual purpose was to
bestow a private benefit.”71 This line of argument indicates that the motive of the
expropriator must not be in pursuit of a purpose that would not qualify as public. Purposes
that would solely benefit private entities are thus not acceptable; and expropriations
undertaken in such a vein would be void, the property revertable to the erstwhile owner. The
US Supreme Court’s approach thus is similar to the one in Canadian federal law.
Both the US and Canadian contexts are represented here as jurisdictions in which a change of
purpose does not have to be scrutinized, or where scrutiny is relatively weak in terms of what
it expects to achieve. There are differences, however, between the US constitutional
jurisprudence and the jurisprudence of the Canadian Federal Court that are explicated here
only in as far as they are to the point. The pretext-test of the US Supreme Court potentially
will affect the validity of the expropriation, whereas the Canadian Federal Court’s
“colourable scheme” qualifier has the potential of establishing a former owner’s right to
reacquire the property. The latter does not concern the validity of the expropriation.
Furthermore, the US Supreme Court’s approach is more broadly applicable: it concerns not
only situations where the public purpose is not realised, or where there is a change of
purpose, but indeed all cases where the expropriating authority and/or the former owner acted
in bad faith.
3.2 Second-chance jurisdictions: French law, Dutch law and Philippine
law
In the middle range on the spectrum of solutions are a cluster of jurisdictions (France, the
Netherlands, and the Philippines) which require at least some measure of consideration of the
subsequent purpose for which the property is used. In these jurisdictions, unlike those
67 [2001] 1 F.C. 305(F.C.) [34].
68 Heneghan J indicates that the expropriation procedure itself has to be the stage during which the expropriating
authority must acted according to a colourable scheme. [2001] 1 F.C. 305 (F.C.) [38].
69 Justice Heneghan held that unless the expropriation procedure had been “[…] motivated by an intention to
bank land holdings in anticipation of a future sale for financial gain, […]” he was not “[…] prepared to conclude
that the National Capital Commission is party to a colourable scheme.” [2001] 1 F.C. 305 (F.C.) [38]. In relation
to this case, the banking of land holdings to make profit cannot in itself constitute a public purpose.
70 Justice Stevens delivered the opinion of the US Supreme Court in this case.
71 Kelo v. City of New London, [2005] (04-108) 545 U.S. 469 (2005).

discussed above, there is no flagrant denial of the argument that public purpose requires
endurance in expropriation law.
3.2.1 French law
Art. 17 of the Déclaration des Droits de l’Homme et du Citoyen of 1789 still forms the
constitutional basis for expropriation (déprivation) in French law. It states that property is an
inviolable and sacred right. Property can only be expropriated if public necessity (nécessité
publique), lawfully determined, evidently requires the expropriation and if fair compensation
is provided prior to the expropriation. The French legislator and government have specified
the constitutional norms for expropriation, and French expropriation law has been codified in
the Expropriation in the Public Interest Code (Code de l’expropriation pour cause d’utilité
publique).
Article L. 12-6 of the Public Interest Code addresses the issue of the non-realisation of an
envisaged project and a subsequent change of the purpose for which the expropriated land is
to be used.
“Si les immeubles expropriés en application du présent code n'ont pas reçu dans le délai de
cinq ans la destination prévue ou ont cessé de recevoir cette destination, les anciens
propriétaires ou leurs ayants droit à titre universel peuvent en demander la rétrocession
pendant un délai de trente ans à compter de l'ordonnance d'expropriation, […].”72
The principle postulated here is that immoveable property expropriated under the Code, but
not used for the envisaged purpose within five years, may be returnable to the expropriatee
(or his/her universal successors-in-title) upon demand. The same applies if the original
purpose for the expropriation has been abandoned. The expropriatee or his/her successors-in-
title will have thirty years after the decision of expropriate to reclaim the property if the
purpose for which it was originally expropriated is not realised. French expropriation law
thus is oriented on achievement of the original public purpose, an aim sanctioned by the
safeguards of the expropriatee’s interests in the property after the expropriation act has been
completed.
The second part of the quoted paragraph from the Public Interest Code contains a proviso:
this enables the ability to reclaim the property only if “[…] une nouvelle déclaration d'utilité
publique […]” (a new declaration of public interest) is not issued. The declaration of public
interest is a requirement of an expropriation.73 Therein, the Minister or the Prefect of a
French department declares that a project is in the public interest.74 The right to reacquire the
property would thus be precluded if the expropriator pursued a new project or stated that they
continued to carry out the original project and if that project is found to serve the public
interest. The Constitutional Council (Conseil constitutionnel) declared this restriction to the
right of property to be constitutional on 15 February 2013, considering that Art. L. 12-6 of
72 Par 1, Part 1.
73 Art. L. 11-1 French Expropriation in the Public Interest Code.
74 Art. L. 11-2 French Expropriation in the Public Interest Code; Yves Gaudement, Droit administratif des biens
(13th edition, LGDJ 2008), pp. 389 et seq.

the Code might otherwise pose an obstacle to the implementation of the delayed original
project or another project that serves the public interest.75
Despite these provisions, the French approach is still lenient towards the state. It is easy for
the process of obtaining a declaration of public interest to override the interests of a former
owner. Such a declaration can be filed after the expropriatee or their universal successors
have demanded that the property be retransferred. This application can even be filed several
times.76 The procedure of obtaining a public interest declaration thus poses the potential for
abuse. The declaration procedure could be used to block the right to reacquire the
expropriated property. However, the Council of State (Conseil d’Etat) held in 2004 that an
application for a declaration of public interest with the sole aim of preventing the exercise
constituted abuse of power.77
3.2.2 Dutch law
Art. 14(1) of the Dutch Constitution (Grondwet; Gw) stipulates that property can only be
expropriated by or pursuant to a statute, in the public interest and for compensation. The
Expropriation Act (Onteigeningswet; OW) of 1851 is the statutory basis for expropriation.
Art. 61 OW addresses situations where the envisaged purpose of the expropriation is not
realised. Paragraph 1 of this provision stipulates that the expropriator must offer to retransfer
the property78 in its present state to the expropriatee in three situations: First, where the
project for which the property was expropriated has not yet commenced and at least three
years have passed since the expropriation order. Material work aimed at the completion of the
project is what must be evident, on the expropriated property or on another property which
forms part of the project.79 Secondly, a right to retransfer would lie where the work on the
project was halted for three years. Thirdly, a right of retransfer also lies if other
circumstances indicate that the project will not be completed. The obligation to retransfer
applies only, however, if the situations giving rise to the right of retransfer are attributable to
the expropriator. The expropriatee may choose to accept the retransfer and restitute a part of
the compensation that is appropriate to the value of the property; or reject the offer and apply
for additional equitable compensation.80
In Dutch law, the expropriatee can demand that the property must be retransferred if the
envisaged purpose of the expropriation is not realised. The extent to which the expropriator
can change the purpose of the expropriation without having to offer to retransfer the property
is still uncertain. According to Art. 61(4) OW, only minor adjustments of the project and
75 Mme Suzanne P.A. [2013] Conseil constitutionnel, No. 2012-292 QPC.
76 J.M. Auby, P. Bon, J.B. Auby and P. Terneyre, Droit administratif des biens (6th edition, Dalloz 2008), pp.
665 et seq.
77 Département des Alpes-Maritimes et Ministre de l’équipement, des transports, du logement, du tourisme et de
la mer [2004] Conseil d’Etat, No. 253586.
78 According to paragraph 3, the expropriator must make this offer within three months after the first or the
second situation listed in paragraph 1 occurs. If the expropriator fails to make the offer, the expropriatee may
file an action for a retransfer of the property.
79 [1965] Hoge Raad, ECLI:NL:HR:1965:AB3662, [1966] NJ 161; [2011] Hoge Raad,
ECLI:NL:HR:2011:BO9557, [2011] JB 79; P.C.E. van Wijmen, ‘De Terugvordering van het Goed Ingevolge
Artikel 61 Onteigeningswet’ [1984] Tijdschrift voor Agrarisch Recht 2, 9..
80 Art. 61(1), (2) OW.

other adjustments that are compatible with the framework within which the property is
expropriated fall under the term ‘project’ in the first paragraph. Should the adjustments not
qualify as “minor” or “compatible” the project will not be deemed as having commenced and
the expropriatee’s right to reacquire the property will be activated.81
As Art 61(4) OW was only introduced in 2008, it is still not entirely clear which adjustments
fall under it. The provision in particular refers to technical details that improve the
construction of the project, its outer appearance or enhance its utility without changing the
nature of the project.82 The common ground thus seems to be that the purpose of the
expropriation cannot change and that only minor changes can be made to the project.
In the light of the foregoing, Dutch law seems, deceptively, to be strictly oriented on the
implementation of the expropriation. Such an approach (hereinafter called “implementation-
oriented”) does not allow for a change of the purpose for which the expropriated property is
used, regardless of whether the new purpose qualifies as public. In Dutch law, however, the
right of the expropriatee to reacquire the land, is subject to two exceptions:
(i) First, the right to reacquire the expropriated property would be precluded if the
property were sold to third parties.83 In a Harvey-like situation, the original owner
would thus not have a right to reacquire.
(ii) Secondly, the right to reacquire would be precluded if the expropriatee could not
prevent the land from being expropriated for the new purpose.84 It is obvious that
this purpose would have to qualify as public because the expropriation would
otherwise not be valid.
Therefore, although Dutch law is geared towards implementing the public purpose sooner
rather than later, it does provide lenience to the state because the expropriatee would have to
accept a change of purpose if the new purpose qualified as public and the expropriatee could
not challenge another expropriation on any other ground. A difference from French law is
that the new purpose is not scrutinised by the expropriation authority, but by a judge that
decides upon the action for the reacquisition of the property.
3.2.3 Philippine law
Art. III s. 9 of the 1987 Constitution of the Republic of the Philippines stipulates that
“[p]rivate property shall not be taken for public use without just compensation.” In its
judgment on Mactan-Cebu International Airport Authority and Air Transport Authority v
Bernardo L Lozada SR et al,85 the Supreme Court held that the Constitution only permitted
81 Memorie van Toelichting, Invoeringswet Wet ruimtelijke ordening, 8.D.
82 J.A.M.A. Sluysmans, J.J. van der Gouw, W.J. Bosma, Onteigeningsrecht in de praktijk (ibr 2011), p. 26;
Memorie van Toelichting, Invoeringswet Wet ruimtelijke ordening, 8.D.
83 [2011] Hoge Raad, ECLI:NL:HR:2011:BO9554, [2011] NJ 292 (HR) [3.3].
84 [1992] Hoge Raad, ECLI:NL:HR:1992:AD1801, [1993] NJ 755 (HR) [3.4]-[3.5]; [2011] Hoge Raad,
ECLI:NL:HR:2011:BO9554, [2011] NJ 292 (HR) [3.5].
85 Mactan-Cebu International Airport Authority and Air Transport Authority v Bernardo L Lozada SR et al,
Supreme Court of the Philippines G.R. No. 176625. In that case, the Republic of the Philippines initiated
expropriation proceedings for the expansion and improvement of Lahug Airport. The court ordered the
expropriation of the property of Mr Lozada and other owners, along with the payment of compensation in 1961.

expropriation for a particular public purpose. The expropriator is obliged to use the property
for the envisaged public purpose, failing which, Philippine constitutional law offers two
responses:
(i) Where the expropriator applies for approval of the new purpose,86 the new
purpose would be scrutinised as to whether it satisfies the constitutional public use
requirement. If the new purpose is indeed a public purpose and a new
expropriation order is issued, the expropriator can continue to use the land.
(ii) Pursuant to an omission on the part of the expropriator to apply for expropriation
(or rather: a reconsideration of the purpose for the expropriation); or pursuant to a
failure on the part of the expropriator to obtain the requisite order,87 the
expropriatee can reclaim the expropriated property.
The Philippine Supreme Court confirmed these considerations in its 2011 judgment in the
case Ouano and Others v MCIAA; MCIAA v Inocian and Others.88
Philippine constitutional law thus obliges the expropriator to use the property for the
envisaged public purpose. The purpose cannot be changed at will. In particular, it is not
sufficient that the expropriator is in good faith at the moment it decides to expropriate: this
will not eliminate the expropriatee’s right to reacquire the expropriated property. The
Philippine approach is lenient, however, because it allows the expropriator to search for a
new purpose, which will then be assessed as to whether it is a public purpose. If a new
expropriation order is issued, the right to reacquire the expropriated property will be
precluded despite the fact that the expropriator did not use the land for the original public
purpose.
3.3 Zero-tolerance Jurisdictions: German Basic and Statutory Law
Art. 14(3) of the German Basic Law (Grundgesetz; GG) permits expropriation of property
(Enteignung) if the expropriation is effected by a statute or pursuant to a statute that
determines the nature and extent of the compensation and if the envisaged project serves the
public good.89 In a Harvey-like scenario, where a state authority fails to implement the
originally envisaged project for which land was validly expropriated and intends to use it for
another purpose that serves the public good, German constitutional law is strict in its
approach of affording the expropriatee a right to reacquire the expropriated property.90
The property, however, was never used for the envisaged purpose. Instead, the airport was closed in 1989 and
transformed into a commercial complex in 1990, and a prison was built on the property formerly owned by Mr
Lozada. Mr Lozada and (the heirs of) the other owners applied for the retransfer of the expropriated property.
86 Mactan-Cebu International Airport Authority and Air Transport Authority v Bernardo L Lozada SR et al,
Supreme Court of the Philippines G.R. No. 176625.
87 Mactan-Cebu International Airport Authority and Air Transport Authority v Bernardo L Lozada SR et al,
Supreme Court of the Philippines G.R. No. 176625.
88 Ouano and Others v MCIAA; MCIAA v Inocian and Others [2011] Supreme Court of the Philippines, G.R.
No. 168770; G.R. No. 168812.
89 See the most recent judgment on Art. 14(3) GG for a detailed analysis of the requirements for expropriation in
German constitutional law: [2013] Bundesverfassungsgericht, [2014] NVwZ 211.
90 Directly inferred from Art. 14(1) GG in [1974] Bundesverfassungsgericht, [1975] NJW 37.

According to this approach, a change of the purpose for which the expropriated land is used
cannot preclude the exercise of this right.
The Federal Constitutional Court (Bundesverfassungsgericht) laid the foundation of this right
in its decision of 12 November 1974.91 In the case that led to this judgment, the expropriatee
was the owner of a piece of land that was expropriated in 1950 for the construction of a road.
At the time of the judgment, the State had failed to use the land for the construction of that
road. The Federal Administrative Court (Bundesverwaltungsgericht) denied the expropriatee
the right to reacquire the property. The Federal Constitutional Court, by contrast, held that the
expropriatee had a right, but not an obligation,92 to reacquire the property by means of a
retransfer of the property.93 The Federal Constitutional Court opined that the reason why the
expropriation would no longer be legitimate is that the legal justification for it had fallen
away because of the non-implementation of the envisaged project. The legal justification is
found in the combination of the enabling provision of Art. 14(3) GG and the public good
objective of improving road infrastructure.
The German Constitutional property clause guarantees the “Bestand” – the very existence of
the property – in Art 14(1)GG. It is this Bestandsgarantie that allows a revival of the
expropriatee’s property right. Art. 14(1) GG itself thus gives rise to a right to reacquire the
expropriated property.94 Because of the Bestandsgarantie, the right to reacquire exists, even
though compensation has been awarded.95 The Federal Constitutional Court held that the
constitutional empowerment to expropriate a person’s property was not based upon the
intention to carry out the envisaged project for the public good, but upon the implementation
of that project.96 The German approach can hence be described as implementation-oriented.
A change of the purpose for which the land is used would not stand in the way of the right to
reacquire the property, even if the new purpose served the public good. Although the decision
of 12 November 1974 and the subsequent decision of 9 December 1997 deal with cases of
non-implementation without a subsequent change of purpose, the wording of these decisions
clearly indicates that a change of purpose does not preclude the right to reacquire the
property. In particular, the Federal Constitutional Court found in its decision of 9 December
1997 that the expropriation on the basis of Art. 14(3) GG is subject to the reservation that the
expropriated property is actually used for the purpose for which it was expropriated and that
justified the expropriation.97 This is also the prevailing opinion in German literature.98 The
91 [1974] Bundesverfassungsgericht, [1975] NJW 37.
92 W. Schmidbauer, Enteignung zugunsten Privater (Duncker & Humboldt 1989), p. 194; U. Battis, § 102 in: U.
Battis, M. Krautzberger & R.-P. Löhr (eds), Baugesetzbuch (12th edition, Beck 2014), [1a].
93 [1974] Bundesverfassungsgericht, [1975] NJW 37 [38].
94 [1974] Bundesverfassungsgericht, [1975] NJW 37 [38] et seq.
95 [1974] Bundesverfassungsgericht, [1975] NJW 37 [39].
96 [1974] Bundesverfassungsgericht, [1975] NJW 37 [38].
97 “Die im Einklang mit Art. 14 III 1 GG vollzogene Enteignung steht deshalb unter dem Vorbehalt, daß das
enteignete Objekt auch tatsächlich dem Zweck zugeführt wird, zu dem es enteignet worden ist und der die
Enteignung gerechtfertigt hat.” [emphasis added] [1997] Bundesverfassungsgericht , [1998] NJW 1697
[1697].
98 A. Jackisch, Die Zulässigkeit der Enteignung zugunsten Privater (Peter Lang 1995), p. 181; Groß, § 102 in:
W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th edition, Beck 2014),

implementation-oriented approach in German constitutional law is strict, because German
constitutional law does not allow for an assessment of the new purpose as to whether it serves
the public good.
A reservation of historical importance is the territorial and temporal scope of application of
this right. In its decision of 9 December 1997, the BVerfG held that the right was limited to
expropriatory measures adopted under Art. 14(3) GG.99 That means that the right to reacquire
the property does not apply if the expropriation was effected outside the territory of the
Federal Republic or if it had been effected before the Basic Law came into force in a part of
that territory. Consequently, expropriations effected by German Democratic Republic (GDR)
authorities under the constitution of the GDR do not fall within that scope, and the
expropriatees in such cases cannot invoke the right to reacquire the property.100
The right to reacquire the expropriated property is not subject to the reservation of statutory
powers.101 If there is no statutory legislation, it arises directly from Art. 14(1) GG.102 Yet, the
Federal Constitutional Court held in its decision of 12 November 1974 that the legislator
should regulate the details of the right to reacquire the expropriated property, in particular the
consequences of the use of the expropriated land, the moment at which the right arises and
the time frame within which the expropriatee has to exercise the right.103 As the court obliges
the legislator to address these issues, appropriate restrictions to right to reacquire the
expropriated property do not seem to be incompatible with the jurisprudence of the Federal
Constitutional Court. Since the court itself did not provide more detailed rules, however,
uncertainty remains.104
If there is no statutory legislation that addresses these issues, the judiciary must find fair,
reasonable and adequate rules. As to time limits, the BVerfG has not specified the time limits
that the Basic Law sets.105 Rather, the court held that the judiciary could fulfil this task and
might use related legislation as points of reference, such as time limits that apply to the
implementation of plans in which the details of the project are set out.106
The German legislator has taken up the challenge to regulate the right to reacquire
expropriated property, for example in § 102 of the Federal Building Code (Baugesetzbuch;
BauGB). Creating a recreational area within a municipality would be subject to the Federal
[29]; Battis, § 102 in: U. Battis, M. Krautzberger & R.-P. Löhr (eds), Baugesetzbuch (12th edition, Beck 2014),
[4]; Reisnecker, § 102 in:H. Brügelmann (ed), Baugesetzbuch (92nd edition, Kohlhammer 2014), [43].
99 [1997] Bundesverfassungsgericht , [1998] NJW 1697 [1697]
100 [1997] Bundesverfassungsgericht , [1998] NJW 1697 [1698]
101 [1974] Bundesverfassungsgericht, [1975] NJW 37 [38].
102 [1974] Bundesverfassungsgericht, [1975] NJW 37 [38]; H.-J. Papier, Art. 14 in: R. Herzog, R. Scholz, M.
Herdegen & H.H. Klein (eds), Maunz/Dürig, Grundgesetz (72nd edition, Beck 2014), [591]; differing: Wieland,
Art. 14 in: H. Dreier (ed), Grundgesetz, Kommentar, Band I: Präambel, Art. 1-19 (3rd edition, Mohr Siebeck
2013), [107].
103 [1974] Bundesverfassungsgericht, [1975] NJW 37 [39].
104 Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th
edition, Beck 2014), [9].
105 [1974] Bundesverfassungsgericht, [1975] NJW 37 [39]. Cf. [1993] Bundesverwaltungsgericht, [1994] NJW
1749.
106 [1974] Bundesverfassungsgericht, [1975] NJW 37 [39].

Building Code. The municipality would lay down this use of a certain piece of land in its
binding land-use plan (Bebauungsplan). Subsequently, the owner of the land, or other holders
of property rights on it, might refuse to sell the land or to use it in accordance with the
binding land-use plan. In such cases, subject to two proportionality tests,107 the Building
Code108 empowers the expropriation authority to expropriate land for the implementation of
the binding land-use plan. If the municipality subsequently failed to use the property to create
a recreational area, the expropriatee could reacquire the property, subject to § 102 BauGB. In
a Harvey-like scenario, the expropriatee would have the right to reacquire the property if the
municipality did not use the property for the envisaged purpose within the time-limit set by
the expropriation authority.109 A different use of the land cannot qualify.110
It is not entirely clear which phase of the implementation of the project the project developer
would have to reach to avoid an action for the retransfer of the property. Groß and Reisnecker
assert persuasively that the implementation must be at such a stage that it would be
economically and practically unreasonable not to carry out the project further.111 In the
Harvey case, the municipality did not attain this stage. This requirement would thus be met.
The time-limit is an obligatory element of the decision to expropriate, and its length is subject
to the discretion of the expropriation authority.112 The period starts to run upon transfer of the
property to the municipality.113
The expropriatee must apply for reacquisition within two years after the time-limit has
lapsed.114 Reacquisition is precluded in four cases,115 even if the application is submitted on
time. The two exceptions that are most relevant to a Harvey-type scenario are as follows:116
(i) The reacquisition will be precluded if the expropriation authority has initiated
another expropriation procedure on the basis of the Federal Building Code to
expropriate the land to the benefit of a person who is willing to develop the land
(Bauwilliger).
(ii) The expropriatee does not establish that he will use the land for the envisaged
purpose within a reasonable period of time. This provision does not leave any
room for a change of the purpose for which the land is used, because § 102(2) lit.
107 [2013] Bundesverfassungsgericht, [2014] NVwZ 211 [215] et seq. Here, a proportionality test refers to an
assessment of whether a state measure is suitable, necessary, and appropriate.
108 § 85(1) lit. 1 BauGB.
109 §§ 102(1) lit. 1, 113(2) lit. 3 BauGB. See for other cases where a right to reacquire the expropriated property
arises: §§ 102(1), 113(2) lit. 3, 89 BauGB.
110 Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th
edition, Beck 2014), [4].
111 Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th
edition, Beck 2014), [28]; Reisnecker, § 102 in:H. Brügelmann (ed), Baugesetzbuch (92nd edition, Kohlhammer
2014), [41].
112 § 113(2) lit. 3 BauGB; Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds),
Baugesetzbuch (114th edition, Beck 2014), [27].
113 § 114(1) BauGB. See for rules on the extension of that time-limit: § 114(2) BauGB.
114 § 102(3), 1st sentence, BauGB.
115 § 102(2) and (3), 3rd sentence, BauGB
116 §§ 102(2) lit. 2, 103(3), 3rd sentence BauGB.

2 BauGB must be construed as only referring to use of the land in accordance with
the binding land-use plan for which the land was expropriated.117
Furthermore, the reacquisition will be precluded if the municipality starts to use the property
for the envisaged purpose in such a way that the implementation of the property can be
expected within a reasonable period of time.118 This exception does not allow for a change of
purpose either.
The Federal Building Code stresses the importance of the implementation of the original
project and consistently follows the strict implementation-oriented approach in German
constitutional law. The Building Code (§ 102(4) BauGB) contains a discretionary exception
to this model: the expropriation authority may reject an application for the reacquisition of
property in two situations. The one relevant to this contribution is where the land has been
substantially changed, i.e changed permanently and to such an extent that the land can no
longer be considered to be the same land that was originally expropriated.119 If the
municipality had already used the land for a different purpose and had thereby changed the
land substantially, the expropriation authority would thus have the discretion to reject the
expropriatee’s application.120
An issue, which is highly relevant to the Harvey case, is whether the expropriatee could still
exercise a right to reacquire the ownership of the land if the municipality sold and transferred
the land to third parties. Neither constitutional law nor the Federal Building Code explicitly
addresses this problem. Battis, Groß and Reisnecker, however, assert that the right would
cease in such a case.121 Although the strict implementation-oriented approach would normally
dictate that the expropriatee can apply for the retransfer of the expropriated land, the sale and
transfer of the land to a third party would thus be likely to render an application for retransfer
unsuccessful under German law.
3.4 Absolute Enforcement Jurisdictions: Malaysian law
Malaysian law is very strictly oriented on implementing an expropriation for the purposes
stated, and the position is absolute in that it allows no legitimacy for change of purpose. The
State has to realise the purpose for which the property was expropriated, and that purpose
only, or else the acquisition will be void ab initio.
117 Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th
edition, Beck 2014), [35].
118 Battis, § 102 in: U. Battis, M. Krautzberger & R.-P. Löhr (eds), Baugesetzbuch (12th edition, Beck 2014),
[5].
119 [1986] Bundesverwaltungsgericht, [1987] NVwZ 49 [50]. Cf. Battis, § 102 in: U. Battis, M. Krautzberger &
R.-P. Löhr (eds), Baugesetzbuch (12th edition, Beck 2014), [5].
120 Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th
edition, Beck 2014), [29].
121 Groß, § 102 in: W. Ernst, W. Zinkahn, W. Bielenberg & M. Krautzberger (eds), Baugesetzbuch (114th
edition, Beck 2014), [33]; Reisnecker, § 102 in:H. Brügelmann (ed), Baugesetzbuch (92nd edition, Kohlhammer
2014), [13]; Battis, § 102 in: U. Battis, M. Krautzberger & R.-P. Löhr (eds), Baugesetzbuch (12th edition, Beck
2014), [3]. The Bavarian Administrative Supreme Court drew the same conclusion in 1973: [1973] Bayerischer
Verwaltungsgerichtshof, [1973] BayVbl. 493.

Art. 13(1) of the Malaysian Federal Constitution provides that a holder of property can only
be deprived thereof in accordance with the law. Art. 13(2) stipulates that no law shall permit
the compulsory acquisition of land without adequate compensation. Section 3(1)(a) of the
Land Acquisition Act of 1960 provides that the State Authority may acquire any land that is
needed for a public purpose. The Land Acquisition Ordinance provides further detailed
provisions, in particular the obligation to specify the public purpose for which the property
will be used and to publish the acquisition in the Gazette after the approval of the acquisition
by the Yang di-Pertua Negeri, who is the ceremonial governor of a Malaysian State. With the
approval by the Yang di-Pertua Negeri, the purpose of the expropriation is deemed to be
public.122 In Syed Omar bin Abdul Rahman Taha Alsagoff & Anor v Government of the State
of Johore [1979] 1 MLJ 49, however, it was held that the purpose of the expropriation could
be questioned if the acquiring authority had misconstrued its statutory powers or if bad faith
was established.
In Sabah and Sarawak the High Court’s judgment in United Development Company Sdn Bhd
v. The State Government of Sabah & Anor, indicated the implications if the purpose for an
expropriation is not realised. The property of the plaintiff was expropriated for the
development of a State project on the land in 1979. Only in 1996 was the expropriation
publicised in the Gazette, without the approval by the Yang di-Pertua Negeri. As the State
had failed to carry out the project, the plaintiff requested the retransfer of the expropriated
property in 2001. In 2004, the State government stated that they would use the land for a
different project. The High Court held that the Land Acquisition Ordinance empowers the
State to expropriate for a specific public purpose.123 It would be both illegal and unjust to
allow the government to change the use of the expropriated property at its whim after the
acquisition. This applies regardless of whether the new purpose qualifies as public.124 As the
State intended to use the land for a new purpose, the High Court concluded that the State
government had acted mala fide.125 The acquisition of the property was held to be contrary to
Art. 13(1) of the Federal Constitution, because it was unlawful. More specifically, the State
did not comply with the required formalities and acted mala fide when determining the public
purpose. For these reasons, the acquisition was void ab initio.126
3.5 Assessment and positioning of South Africa post Harvey
When studying the levels of scrutiny applicable to change of purpose in the context of
expropriation, there seems to be different levels of legislative sympathy as towards
governments for unrealizable purposes, and those no longer worth pursuing. We have labeled
the Federal laws of the US and Canada ‘weak scrutiny’ jurisdictions precisely because a
change of purpose seems to pose no significant hurdle to the state / expropriating authority’s
122 Section 3(1) of the Land Acquisition Ordinance.
123 United Development Company Sdn Bhd v. The State Government of Sabah & Anor, [2011] High Court of
Sabah and Sarawak 7 MLJ 209 (High Court of Sabah and Sarawak) [29].
124 United Development Company Sdn Bhd v. The State Government of Sabah & Anor, [2011] High Court of
Sabah and Sarawak 7 MLJ 209 (High Court of Sabah and Sarawak) [31].
125 United Development Company Sdn Bhd v. The State Government of Sabah & Anor, [2011] High Court of
Sabah and Sarawak 7 MLJ 209 (High Court of Sabah and Sarawak) [32].
126 United Development Company Sdn Bhd v. The State Government of Sabah & Anor, [2011] High Court of
Sabah and Sarawak 7 MLJ 209 (High Court of Sabah and Sarawak) [33].

continued use of the property, even for purposes that were not approved when the property
was unilaterally taken from private hands. In some of these jurisdictions, the only scrutiny
applicable would be to determine the expropriator’s bona fides at the time of the original
taking. In such situations it seems as if good faith on the part of the state overrides the public
purpose requirement. The use of bona/mala fides as a measure to determine the validity of the
expropriating authority’s conduct is a similarity in the approaches at the extremes ends of the
spectrum of solutions: both in the US and in Malaysia. However, on the US Federal level and
the Canadian Federal level the expropriator is generally permitted not to realise the envisaged
purpose of the expropriation, and is permitted to change the purpose. Under US and Canadian
Federal law, the mere fact that the State does not realise the envisaged purpose, or changes it,
is not sufficient to establish that the State acted mala fide.
Malaysian law, on the other side of the spectrum, allows no change of purpose to be
approved. The very desire on the part of the expropriating author to change the purpose
would be a reflection of its mala fides. German law, which also provides a much stricter
scrutiny of the change of purpose cases, is nevertheless very different from the Malaysian
approach. There are two dogmatic differences between the German and Malaysian situations.
First, under Malaysian law, the transfer of the expropriated property is deemed void if the
envisaged public purpose is not realised. Under German law, by contrast, the transfer of the
property remains valid, and the expropriatee has a right to reacquire the property. Second,
unlike German law, Malaysian law links the non-realisation of the original purpose to the
question whether or not the State acted bona fide during the expropriation procedure. The
answer to this question, in turn, determines whether or not the transfer of the expropriated
property is void under Malaysian law.
How does the South African approach as exemplified by Harvey fit in? According to the
KwaZulu-Natal High Court, the only expectations upon the expropriating state organ is that
the expropriation must be undertaken for a purpose laid down in the legislation, that the
applicable expropriation procedure must be followed, and that the expropriator must act in
good faith at the moment of the expropriation.127 Then a subsequent change of purpose would
be irrelevant. For the latter requirement, the court thought it sufficient that the expropriating
municipality intended to use the expropriated property for a valid public purpose. This allows
a finding that the municipality acted bona fide at the moment of the expropriation.128 The
court concludes that the expropriatee does not have a right to reacquire the expropriated
property.129
The Harvey court’s scrutiny of the intention of the expropriating state organ (in particular the
good faith consideration) seems to determine the question whether the property can be
reclaimed later, when it becomes apparent that the public purpose is not realizable. The court
differentiates between varied case scenarios that go beyond the question whether the
expropriation authority acted bona fide:
127 Harvey (n2) [136].
128 Harvey (n2) [136].
129 Harvey (n2) [150].

“A distinction has to be made between, on the one hand, cases when an authority
expropriates land for a stated purpose and never even commences to apply it for
that purpose or uses it for a different purpose or was mala fide from the outset,
and cases where, on the other hand, an authority expropriates land for a stated
purpose bona fide intending to use it for that purpose and endeavouring to bring
its contemplated project to fruition but is thwart in so doing for one reason or
another including possibly the fact that circumstances have changed since the
time it framed its initial plan.”130
The quoted statement might suggest that an expropriatee would have the right to reacquire the
property if the expropriating state organ acted bona fide at the moment of the expropriation,
yet never even set out to realize the envisaged purpose, or changed the purpose for which the
land is to be used without being warranted to do so by a change of circumstances. But if the
Court really meant to make such a distinction, this statement would be have to be reconciled
with its other statement, that in South Africa “there is no principle of law whereby ‘property
that was expropriated for a public purpose that was never realized (or for a purpose that
ceased to exist) should be returned to the original owner, even if compensation was paid for
it’”.131
The court’s latter, general remark introduces the quoted differentiation. The sequence in
which these points are made suggests, instead, that the differentiation is a qualification of its
general statement. It seems that this differentiation is unique amongst the various regimes
around the world.
The South African solution is not driven by good faith in the same way as the Canadian or
US Federal law’s solutions because not only the motive, but also a straightforward non-
implementation can trigger the right to reacquire. However, it is not driven by the expectation
that the purpose for which the property is expropriated must be implemented either. A mere
change of circumstances would preclude the right to re-acquire. How may the differentiation
be explained?
With the benefit of comparative insight, one could speculate: For one, it might be that the
Court attempts to reconcile an approach motivated by good faith considerations, and
interested mainly in establishing the intentions of the expropriator, with an approach
requiring an implementation of the purpose for which is expropriation, but tempered by
changing circumstances. As inspiration for Harvey’s decision clearly relied on the Canadian
Federal Court Woodburn judgment,132 its approach may also simply entail an expanded
approach to the state’s good faith. The High Court may still base its decision upon an
undesirable motive, but would extend the definition of this motive beyond colourable
schemes at the moment of the decision to expropriate. The undesirable motive would then
include abandoning the project without any proper reason.
130 Harvey (n2) [137].
131 Harvey (n2) [133].
132 Harvey (n2) [141] et seq.

The High Court in Harvey was reluctant to grant a right to reacquire previously expropriated
property without a statutory basis.133 This might motivate the normative distinction it makes
between cases where the original purpose was not pursued and cases where the original
purpose was thwarted. In the former case, the property has not been changed and the original
owner could use it again immediately. By contrast, in the latter case, the property may have
been changed, which would complicate a reacquisition and would supposedly require detailed
statutory rules, for instance on additional compensation. The value of detailed statutory rules
also shows in the middle of the spectrum of possible solutions. It seems that legal solutions
are more readily anticipated and worked out by the legislature there. Less is left to the
discretion of the courts. This provides some insights for the South African conundrum, in that
reform can be pursued in two ways, as discussed below. The High Court could have been
bolder, however, as the example of Germany’s constitutional court shows. The Federal
Constitutional Court introduced a constitutional right to reacquire without a comprehensive
statutory basis.
Based on the comparison with other available solutions, the outcome of Harvey on the matrix
of solutions positions the South African system as follows:
Figure 2: Positioning of South Africa on Matrix of Solutions
Whether or not the High Court’s approach is a desirable outcome is not only a question of
how much value is accorded to the expropriatee’s property right in a legal order, but also a
matter of policy. In our opinion, it has at least three major disadvantages. First, the public
purpose is not only the major legal justification of the expropriation, but also makes the
people more inclined to accept the expropriation. If the public purpose is not realised and the
133 Harvey (n2) [134] et seq.

expropriator wishes to change the purpose for which the expropriated land is used, the
democratic legitimacy falls away and social tension may re-arise. To avoid this tension, the
property should be transferred back to the original owner, or the new purpose should be
scrutinised as to whether it constitutes a public purpose. There are ample exemplary options
in comparative law to provide guidance.
Secondly, unlike Philippine or French law and in contrast to what Van der Walt and Slade
recommend,134 South African law, as interpreted by the High Court, does not subject the new
purpose to scrutiny. This will not only render social tension more likely. The expropriator
may also pursue an illegitimate purpose or carelessly embark on realising a public purpose
with uncertain benefits. For instance, the expropriator may transfer the land to a private
business for the purpose of economic development. Without proper safeguards in place, as is
exemplified by the Kelo case in the United States, the promised economic development is not
only a questionable public purpose, but may also never materialise. The new purpose should
therefore be assessed as to whether it is public.
Thirdly, a right to reacquire may serve as an incentive to implement the project. As the High
Court refused to follow an implementation-oriented approach, changing circumstances may
come as welcome excuse not to implement a project and, instead, to use the land for another
purpose.
However, despite these problems, the distinction of the High Court may, in the absence of
detailed statutory provisions, avoid practical problems. In the Harvey-setting, a third party
would acquire the land to use it for another purpose. The question would be whether the right
to reacquire could be invoked vis-à-vis this third party and, if so, under what conditions. This
is not an easy question as it requires a sophisticated balancing of the expropriatee’s interest in
the property against the third party’s interest in the property and the interest in the stability of
the real estate market. In denying the expropriatee a right to reacquire in principle, the High
Court rendered this question largely irrelevant in Harvey.
One may also think of cases where the land or the environment of the land has significantly
changed since the expropriation of the land. The expropriator may have lost the capacity or
their interest to carry out in the project after demolishing the buildings on the land and
preparing the ground for the envisaged project. If the original owner re-acquired the land and
had to pay back an amount that equals the current market value of the land, it is uncertain
whether they would have the financial means to make good use of the land. In those cases, a
statute would have to provide for the payment of additional compensation to the original
owner. Otherwise, which is also the result of Harvey, it may be more efficient to leave the
land with the expropriator or to transfer it again to another project developer.
134 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 234.

4 Proposed Reforms of South African law
All of the scholarly critiques of Harvey suggested that reform is needed. The scholarly
suggestions can be classified as focusing on either judicial or legislative reform.
4.1 Judicial Reforms
Du Plessis indicates that the Court’s stance that the expropriation achieved an acquisition by
the municipality free from any limitations135 is not reconcilable with the constitutional
property guarantee.136 She argues that section 25(2) of the Constitution restricts the
municipality to the use of the property for the purpose for which it was expropriated.137 Van
der Walt agrees, saying that the Court’s notion, that the State receives expropriated land free
from any conditions, is “simply unacceptable”.138 Du Plessis further substantiates by pointing
out that the very purpose of section 25(2) is to “ensure that expropriation does not become a
way for the State to acquire property outside the market.” Viewed in this light the Court’s
decision subverts the purpose of section 25(2),139 and a strong basis for a constitutional
challenge would lie.
Quinot’s critique represents a further argument in support of challenging the Harvey ruling,
in that public purpose should not just be assessed at the time of the expropriation. Instead, it
is the Court’s task to ensure that administrators do not “extend their own authority”.140 The
Court in Harvey, in confirming locus standi for the applicant to bring his application, held
that the municipality’s decision to change the purpose and sell the properties amounted to
administrative action.141 Thus, per Quinot’s criticisms, a judicial challenge can be brought
under section 33 of the Constitution read with section 6 of the Promotion of Administrative
Justice Act.142 Section 6(2) of PAJA gives a court the power to review an administrative
action. Grounds of review relevant to the Harvey decision can be found in section 6(2)(e).
These include where “the action was taken: (i) for a reason not authorised by the empowering
provision; (ii) for an ulterior purpose or motive;…[or] (v) in bad faith”. If the Court in
Harvey had followed through with a review under PAJA, it would, at the very least, have had
to scrutinise the new purpose.
Challenges focused on achieving a judicial revision of the position as established by Harvey
may seem strong, but they will most likely not be very effective. Such revision would depend
on a case raising the same issues as Harvey reaching the court again. It would not be a
135 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 582-4.
136 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 590.
137 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 590.
138 A.J. van der Walt, Constitutional Property Law (3rd edn, Juta 2011), p. 499.
139 E. du Plessis, ‘Restitution of expropriated property upon non-realisation of the public purpose’ [2011] TSAR
579, 590.
140 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 57.
141 Harvey (n2) [63].
142 Promotion of Administrative Justice Act, 3 of 2000 (hereinafter “PAJA”).

particularly efficient way of revising the law. Also, the solution reached ad hoc would not be
comprehensive.
4.2 Legislative Reforms
The applicants in Harvey presented the Court with jurisprudence from several foreign
jurisdictions, but focused on German law, presumably because of the role the German
example played in the formulation of the South African Property Clause. The comparative
law examples as discussed present a broad range of suggestions for legislative reform:
The first suggested reform may seem rather drastic: i.e. a retransfer of the property to its
former owner in the event of non-realisation of the original purpose. Van der Walt and Slade
criticise the Court in Harvey for refusing to follow the “retransfer” approach, and their
arguments in this respect are useful to demonstrate that a legislative reform to this effect
would be compatible with the South African Constitution.143 Several foreign jurisdictions
follow the “retransfer” approach, most notably Germany, Canada, France as discussed, but
further also Italy and the United Kingdom.144
Van der Walt and Slade note that in German law, the courts accept that when a public
purpose is not realised, the justification for the expropriation falls away and thus the retention
of the property by the State becomes unconstitutional under the constitutional property
guarantee.145 The separate legislation dealing with re-transfer in Germany thus merely
facilitates the process.146 The authors may be correct in saying that section 25(2) of the
Constitution should be interpreted like its German counterpart, and thus legislation
facilitating retransfer would be necessary. However, South Africa’s different context may
render a re-transfer solution suboptimal, especially if it leaves no leeway for upholding a
reasonable and legitimate change of purpose. The Court in Harvey presents the counter-
argument here: circumstances change and the State should be able to change the purpose
along with the changing circumstances.147 It may be important for the State to be able to
change the purpose legitimately, especially in the context of the racially skewed land
ownership that is still very apparent in South Africa. Thus a less drastic means of keeping the
State in check, in the context of expropriation, may be justifiable. Even so, the Court’s
omission to subject any new purpose to the same level of constitutional scrutiny is
questionable and creates an unjustifiable imbalance in the interests of the public at large and
the individual.
143 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 225.
144 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 223.
145 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 224.
146 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 224.
147 Harvey (n2) [153].

A solution along the lines of Phillipine Law (as discussed) was supported by some
commentators as a potentially promising solution for the South African context:148 Where the
original public purpose is no longer attainable, the State may apply for judicial approval of
the new purpose.149 Should the state fail to obtain such approval, it must then offer the land
back to the previous owner, in exchange for the return of the compensation (provided the
previous owner wants the property back).150 The State might thus be able to “shop around”
for a legitimate new purpose, but the integrity of section 25(2) of the Constitution will be
intact. Moreover, the heightened transaction cost of a re-transfer risk might make for better
initial decision-making processes from the outset. Van der Walt and Slade propose this as a
solution to the South African conundrum, arguing further that if the expropriated owner is not
protected by such legislation, the expropriation process would be flawed because the public
purpose requirement will not be met.151 Such circumstances would “[lead] to a violation of
the property owner’s right to justice, fairness and equity”.152
A mandatory re-evaluation of a change of purpose will certainly prevent government from
circumventing the public purpose/interest requirement. It would give land owners sufficient
protection, whilst still allowing flexibility for the government to change a purpose where it is
necessary. Supposing that this solution is the best under the circumstances, the following
section explores how such a legislative change could be formulated and implemented.
4.3 Reforms in the Draft Bill: An evaluation
The South African legislator is currently busy revising its Expropriation Act. A draft
Expropriation Bill was issued in 2013 and followed by a significantly different version of the
Draft Expropriation Bill in 2015.
Provision 4(3)(b) of the 2013 Expropriation Bill attempted to deal with the issue of change of
purpose.153 It refered to “juristic persons”, which according to the definitions clause includes
national and provincial government departments and public entities, as well as
148 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 231.
149 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 233, citing Ouano and Others v MCIAA; MCIAA v Inocian and
Others [2011] Supreme Court of the Philippines, G.R. No. 168770; G.R. No. 168812, and Mactan-Cebu
International Airport Authority and Air Transport Authority v Bernardo L Lozada SR et al, Supreme Court of
the Philippines G.R. No. 176625.
150 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 233.
151 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 232.
152 A.J. van der Walt & B.V. Slade, ‘Public purpose and changing circumstances: Harvey v Umhlatuze
Municipality & others: notes’ [2012] SALJ 219, 232.
153 Provision 4(3)(b) of the Expropriation Bill reads as follows:
‘(3) If the Minister expropriates property on behalf of a juristic person in terms of subsection (1), such juristic
person becomes the owner of that property on the date of expropriation, subject to the following conditions—
….
(b) the juristic person may only use the expropriated property for the purpose for which it is expropriated, unless
written approval is obtained from the Minister to use the property for a different purpose, provided that any
change in the use of the property remains for a public purpose or in the public interest;’.

municipalities.154 This provision stipulated that where property is expropriated on behalf of a
juristic person, the latter becomes the owner subject to certain conditions, one of which is that
it uses the property for the purpose for which it was expropriated. Provision 4(3)(b)
proceeded that a juristic person may deviate from the original purpose, provided written
approval is obtained from the Minister of Public Works and the use of the property remains
for a public purpose or in the public interest. The 2013 Bill thus envisioned that the new use
would also have to be for a public purpose or in the public interest, but assessed only by the
same state power undertaking the expropriation (i.e. the executive). Administrative review
would arguably have been possible. Provisions 4(3)(c)(i) and (ii) of the 2013 Bill then further
provided that if land is not used for the purpose for which it was expropriated, the juristic
person must transfer ownership of the property to the State.155 It was not clear whether the
State would then receive the land subject to any conditions. While the enduring nature of the
public purpose and public interest requirements seems to be the justification for the State to
take expropriated property away from juristic persons who misuse it, there was no provision
in the draft Bill dealing with how the State must use it, if the property falls to it pursuant to
the public purpose becoming impossible.
The 2015 Bill approaches the matter differently. Instead of dealing with the eventuality of a
failed implementation of the public purpose, the 2015 Bill’s provisions are elaborate in their
dealings with governance and process in the pre-expropriation phase. The intention seems to
be to pre-empt and avoid the likelihood of a non-realisation of the purpose, by requiring
compliance with elaborate inspection and motivation procedures.156 The 2015 Bill further
provides a process for withdrawal of a decision to expropriate.157 In this context it is stated
that an expropriation may not be withdrawn if more than three months have passed since the
date of the expropriation, unless the expropriated owner consents or a court authorises a late
withdrawal.
Laudable as the envisaged provisions to improve the process of decision-making around
expropriation are, we submit that the 2015 Bill does not do enough to contemplate the
154 Provision 1 of the draft Expropriation Bill defines ‘juristic person’ as “a juristic person established in terms
of law and who accounts for the management of its finances in terms of the Public Finance Management Act,
1999 or the Local Government: Municipal Finance Management Act, 2003”. The Public Financial Management
Act, 1 of 1999, per section 3 of the Act, applies to departments, various public entities, constitutional institutions
and the provincial legislatures. The Local Government: Municipal Finance Management Act, 56 of 2003, per
section 3 of the Act, applies to all municipalities and all municipal entities.
155 Provision 4(3)(c) of the Expropriation Bill reads as follows:
‘(c) the juristic person must transfer ownership of such property to the State if the juristic person—
(i) fails to give effect to the purpose for which the property is expropriated within the time period determined by
the Minister or within any extended period granted as contemplated in paragraph (a); or
(ii) after receiving written notice from the Minister to desist from doing so, continues to use the property for a
purpose other than for which the property is expropriated or for which approval is given as contemplated in
paragraph (b)’.
156 See e.g. clause 5, which deals with “investigation and gathering of information of purposes of expropriation”
and requires (5 (1)(a)) of the expropriator to ascertain the suitability of the to-be-expropriated property for the
purpose. A land valuer is foreseen to undertake this assessment (5 (2)(b)) and broad powers are granted to
enable the valuer to fulfil this task. Moreover, the expropriating authority is expected to consult across various
state departments and at municipal level to establish the impact of the expropriation (5(5)(b) and 6(1)).
157 See clause 23.

manner in which a Harvey-type scenario is to be treated in future. In particular, the issue of
locus standi of the previous owner needs to be addressed. In Harvey, the Court held that the
applicant had locus standi because the actions of the municipality amounted to administrative
action.158 This presents an extremely generous application of the approach taken in Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works.159 To prevent a situation whereby a
court faced with the same question comes to a different conclusion, it is submitted that the
new Bill must express grant a previous owner locus standi to bring a case in the event of any
violation of the Act relevant to the previous owner.
5 Conclusion
This paper focused on the public purpose and public interest requirement of section 25(2) of
the South African Constitution, and the way in which it was interpreted in Harvey. The
loophole created by the decision is highlighted by considering scholarly criticisms of the
decision. The proposed reforms flowing from these critiques were classified as either judicial
or legislative in nature. The route of judicial reform may not be optimal, because it would be
inefficient and would not necessarily be definitive. Instead, legislative reform seems more
apposite. The drafting of a new Expropriation Bill creates an opportunity to allow the State
much flexibility, while still giving a previous owner sufficient protection. It is submitted that
if the changes suggested above are effected to the draft Expropriation Bill, then it would
enable the envisioned new law to provide adequate protection to an expropriated owner.
It is acknowledged that the proposed changes may not be made to the draft Bill, and even if
they are, it may take some time for the legislation to be passed. In any event, if another case
like the one in Harvey arises, it is hoped that a court may be persuaded by the arguments of
the authors cited above, and the comparative law analysis, at the very least to interrogate the
new purpose critically.
158 Harvey (n2) [40].
159 G. Quinot, ‘Administrative law’ [2011] Annual Survey of South African Law 41, 43; Grey’s Marine Hout
Bay (Pty) Ltd v Minister of Public Works [2005] SCA 6 SA 313 (SCA).