Section 25(2) (a) of the Constitution permits expropriation of property to take place only for a public purpose or in the public interest. Section 1 of the Expropriation Act defines public purpose as “any purpose connected with the administration of the provisions of any law by an organ of state”. Put simply, public purpose refers to anything done by the State which benefits the public at large. Public interest, on the other hand, is a broad aspect and it is not easy to demarcate clearly. However, in the case of Administrator, Transporter v Van Streepen (Kempton Park)(Pty) Ltd Judge Smalberger attempted to explain it when he made a difference between both public interest and public purpose.
The requirement for a public purpose or public interest is provided in the Constitution mainly to prevent expropriation for improper and unlawful purpose, and to avoid abuse of power by the State. The court may either approach this requirement in a strict or wide sense. The latter simply refers to all purpose that relate to the public in general and not private persons. Due to this wide approach, it is said that terms “public purpose” and “public interest” interchangeably when one deals with expropriation. The strict approach make it possible for this requirement to be met even if it benefit individual.
3.3.2 Subject to payment of compensation
The current Constitution provides that the affected owner must be compensated. Failure to provide such compensation may result in the expropriation be rendered invalid, therefore unconstitutional. The determination of the amount of compensation is made in terms of the Constitution and Expropriation Act. Determination of compensation based on the Act must always be conformity with the Constitution.