Recap-Conference on Fair Compensation (Cape Town)- Day 1 | Land Portal | Securing Land Rights Through Open Data
  • Keynote speaker: Professor Hanoch Dagan (Tel-Aviv University):
    • Professor Dagan dedicated keynote address to Professor Dr. Van Der Walt, South African professor and renowned property law scholar, who passed away in November 2016
    • Professor Dagan's speech discussed the bridges between expropriation law and regulatory takings law.
    • A few of the key takeaways from Professor Dagan’s compelling speech:
      • Good citizens should not be obliged to make disproportionate sacrifices as a result of regulatory takings.
        • Property law should not be oblivious to huge costs of regulation.
        • Distributive justice is important. The question of “who should bear the burden?” should not be answered arbitrarily.
      • The significance of the project or the legitimacy of the project should not have a bearing on how compensation is calculated.
      • Regulatory takings should take seriously the distinction between constitutive and fungible resources.
        • There is a difference between taking property with personal value (constitutive value) and property with non-personal value (fungible resources).
        • Targeting owners of constitutive land has become more expensive than targeting owners of fungible land in the US context.
      • Both full compensation and no compensation may lead to the same perverse incentives for private landowners (from a fairness and efficiency perspective, these two extreme positions are sub-optimal).
      • Regulatory takings law and eminent domain law can learn from each other.
      • We all share some social responsibilities as part of a “property pact.” We need to reach a middle ground between full compensation and no compensation.

Session 1: Property and Politics: Is Fair Compensation Full Compensation?

This session focused on the correlation between fair compensation and full compensation. Here are some of the key points made by the presenters:

  • Dr. Antonie Gildenhuys (South Africa High Court and Land Claims Court)
    • In some cases, such as in case of land reform, social necessity justifies the payment of less than full compensation.
    • In cases of land reform, in order to ensure the land reform objectives are achieved, fair compensation may be less than full compensation.
  • Mr. Jean du Plessis (UN Habitat and Global Land Tool Network)
    • The process for expropriating land needs to be inclusive of all legitimate tenure along the continuum of land rights.
    • Any decision to expropriate land should be a last resort.
    • Affected tenure rights holders should be actively involved and allowed to participate in the process.
  • Dr. Rachael Walsh (Trinity College, Dublin)
    • Progressive values and ideas of social justice shouldn’t lock us into a “more” or “less” compensation approach, we need a suite of options.
    • Constitutional silence on compensation does not necessarily lead to a weak compensation regime, it creates a deliberative space and functions as triggers for a dialogue on democratic accountability.
  • Mr. Khomotso Moshikaro (University of Cape Town)
    • All property entails value, but should not be exhausted by it. It may be difficult to value some property in monetary terms.
    • Any kind of compensation does not have to be full or monetary compensation, but the government must provide some form of compensation for expropriation.

Session 2: Who determines compensation?

This session focused on the individuals or institutions that determine the amount of compensation to be paid. Here are some of the key points made by the presenters:

  • Professor Elmien du Plessis (North West University(South Africa)):
    • In South Africa, when there is no land market, valuers/courts will switch to alternative "replacement cost" approach to valuing compensation, but courts keep coming back to market value even in these cases.
    • Either land value in general or the courts should have direction to find the sweet spot where all parties are happy. Value is totally different from compensation in South African law, but value and compensation has often been mathematically conflated.
  • Professor Yifat Holzman-Gazit (The College of Management Academic Studies (Israel))
    • The practice of valuation has become more regulated after legal reform of the compensation procedures in Israel, and the ability of appraisers to act independently has been reduced.
    • Appraisers don't have the best reputation in Israel. Low quality appraisal carries long-term negative effects.
  • Jacques Sluysmans (Radboud Universiteit (the Netherlands))
    • Compensation defines the way in which it should be determined.
    • A fair system ensures that court fees do not bar the parties from seeking redress in court. Experts should be independent and continue to build their expertise.

Session 3: Rules for Fair Procedure

This session focused on how regulation can ensure fair procedures in the caluclation of compensation.

  • Mr. Gianluca Crispi (UN Habitat)
    • Expropriations are usually easily challenged and they are subject to long and expensive proceedings in the courts during which the level of compensation is usually determined through lengthy negotiations with the landowners.
    • It might be problematic when building a major infrastructure to assemble multiple plots belonging to different owners and each of these can turn into a separate process. UN-Habitat believes that cities need a larger tool kit of instruments to provide an adequate amount of public space.
  • Dr. Liz Alden Wily (Independent Land Tenure Expert)
    • Democratization of procedure is an important entry point to decolonization of received law norms around eminent domain built upon circumstances that do not apply in developing economies.
    • Retuning inherited eminent domain procedure to local agrarian realities could punch above its weight in contributing to fairer property rights recognition, good governance, and social stability, all critical for a safer majority agrarian world.
  • Mr. Marcello De Maria (University of Reading; Land Portal Foundation)
    • We might think that fair compensation is achievable from an economic efficiency perspective, but does not come for free.
    • The nature of the investment and the features of the concession matter.
    • Without perfect information, there is no room for the payment of a fair compensation to local populations.

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