The Legal Boundaries of ‘Public Purpose’ in India and South Africa: A Comparative Assessment in Light of the Voluntary Guidelines

Björn Hoops and Nicholas K. Tagliarino
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Björn Hoops: Faculty of Law, University of Groningen, P.O. Box 72, 9700 AB Groningen, The Netherlands
Nicholas K. Tagliarino: Faculty of Law, University of Groningen, P.O. Box 72, 9700 AB Groningen, The Netherlands

Land, 2019, vol. 8, issue 10, 1-21

Abstract: The Voluntary Guidelines on the Responsible Governance of Tenure (VGGT) call for governments to clearly define the term ‘public purpose’ to allow for judicial review of the goals of expropriations of property. However, recent research indicates that national-level legal frameworks that govern expropriation decision-making not only vary greatly from country to country but also often fail to comply with the VGGT standards on expropriation. This creates the potential for unpredictable and, in some cases, arbitrary applications of expropriation law in practice. Focusing on legal norms and jurisprudence applicable to ‘public purpose’ decision-making in South Africa and India, this article provides a comparative analysis of these countries’ legal frameworks as means of ascertaining (1) the current legal boundaries to decisions on the expropriation’s goal; (2) whether these boundaries comply with the VGGTs; and (3) what these two countries can learn from one another in terms enacting legislation and regulations that comply with the VGGTs. To conduct this comparative analysis, we thoroughly examine constitutional provisions, relevant case law, legislation, regulations, and relevant secondary sources to highlight the current status of India’s and South Africa’s law on ‘public purpose’ and how they relate to the VGGTs. We conclude by distilling some key findings that can inform the decisions of expropriation lawmakers in both countries, especially in South Africa where a draft Expropriation Bill is currently being considered.

Keywords: expropriation; public purpose; land acquisition; judicial review (search for similar items in EconPapers)
JEL-codes: Q15 Q2 Q24 Q28 Q5 R14 R52 (search for similar items in EconPapers)
Date: 2019
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