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

Author

Listed:
  • 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)

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.

Suggested Citation

  • Björn Hoops & Nicholas K. Tagliarino, 2019. "The Legal Boundaries of ‘Public Purpose’ in India and South Africa: A Comparative Assessment in Light of the Voluntary Guidelines," Land, MDPI, vol. 8(10), pages 1-21, October.
    • Handle: RePEc:gam:jlands:v:8:y:2019:i:10:p:154-:d:277615
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    References listed on IDEAS

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    2. Dhanmanjiri Sathe, 2017. "The Political Economy of Land Acquisition in India," Springer Books, Springer, number 978-981-10-5326-9, January.
    3. World Bank, 2015. "India Land Governance Assessment," World Bank Publications - Reports 28513, The World Bank Group.
    4. Nicholas K. Tagliarino & Yakubu A. Bununu & Magbagbeola O. Micheal & Marcello De Maria & Akintobi Olusanmi, 2018. "Compensation for Expropriated Community Farmland in Nigeria: An In-Depth Analysis of the Laws and Practices Related to Land Expropriation for the Lekki Free Trade Zone in Lagos," Land, MDPI, vol. 7(1), pages 1-38, February.
    5. World Bank, 2015. "India Land Governance Assessment," World Bank Publications - Reports 24420, The World Bank Group.
    6. Christopher J. S. Gentle, 1996. "Europe in 2010," Palgrave Macmillan Books, in: After Liberalisation, chapter 7, pages 121-132, Palgrave Macmillan.
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