Codel assignment cover 2021 academic year
Expropriation of investors’ property
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| Expropriation of investors’ property Article 16 of the Namibian Constitution 50 deals with the constitutional right to property and expropriation. It stipulates that all persons have the right in any part of the Namibian land to acquire, own and dispose of all forms of immovable and movable property on an individual basis or in association with others and to bequeath such property to their heirs or legatees. Accordingly, Namibian courts have adjudicated in the case of Black Range Mining (Pty) Ltd v Minister of Mines & Energy & Others 51 that “property” includes incorporeal property as well and may thus consider mining licences. Moreover, this article is not restricted to Namibian nationals only, but warrants the right to property to all persons in the country. This basic right to property is, nonetheless, not outright. Article 16 52 further stipulates that Parliament may, by legislation, forbid or regulate as it views appropriate the right to assume property by individuals who are not Namibian nationals. Article 16 53 in conclusion states that the State or a competent body or government agency authorised by law may expropriate property in the public interest susceptible to the payment of 47 Mondaq. Available at https://www.mondaq.com/; last accessed on 25 March 2021. 48 No. 22 of 2015. 49 Ibid. 50 Of 1990. 51 NNO 2014 (2) NR 320 (SC). 52 Of the Namibian Constitution of 1990. 53 Ibid. “just compensation”, and in conformity with the postulates and routine to be ascertained by an Act of Parliament. In South Africa, with respect to expropriation, section 10 of the Protection of Investment Act 54 stipulates that investors have the right to property in terms of section 25 of the Constitution 55 . Essentially, section 25 of the Constitution 56 as similar to Namibia renders for a just and equitable recompense in the event that an expropriation has taken place. According to section 25(3) of the South African constitution 57 , just and equitable recompense contemplates an evenhanded equilibrium between the public interest and the private interests of those affected, having attentiveness to all pertinent considerations such as inter alia the occurrent usage of the property, the intention of the expropriation, the history of the attainment of the property in addition to the market value and utilisation of the property. In contrast, BITs often more straightforwardly guarantee fair market value recompense in the circumstance of expropriation. Furthermore, customary international law demands the same level of recompense and thus, the current South African regime might render for less recompense to a foreign investor in the circumstance of an expropriation in comparison to the principles of customary international law. 58 54 No. 22 of 2015. 55 Of 1996. 56 Ibid. 57 Ibid. 58 Mondaq. Available at https://www.mondaq.com/; last accessed on 25 March 2021. |