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Security of tenure: Conditions and trends127Box 5.10 Expropriation and compulsory acquisition: Examples of constitutional provisionsThe 1957 Constitution of Malaysia states that ‘No person shall bedeprived of property save in accordance with law’ and that ‘No lawshall provide for the compulsory acquisition or use of propertywithout adequate compensation’ (Articles 13(1) and 13)2)).Similarly, the 1960 Constitution of Nigeria asserts that:No property, movable or immovable, shall be takenpossession of compulsorily and no right over or interestin any such property shall be acquired compulsorily inany part of Nigeria except by or under the provisions ofa law that (a) requires the payment of adequatecompensation therefore; and (b) gives to any personclaiming such compensation a right of access, for thedetermination of his interest in the property and theamount of compensation, to the High Court havingjurisdiction in that part of Nigeria. (Article 31(1))A different, more nuanced, approach is taken in the 1996Constitution of South Africa, which is formulated as follows(Article 25):1 No one may be deprived of property except interms of law of general application, and no lawmay permit arbitrary deprivation of property.2 Property may be expropriated only in terms of lawof general application:(a) for a public purpose or in the public interest;and(b) subject to compensation, the amount ofwhich and the time and manner of paymentof which have either been agreed to by thoseaffected or decided or approved by a court.3 The amount of the compensation and the timeand manner of payment must be just andequitable, reflecting an equitable balance betweenthe public interest and the interests of thoseaffected, having regard to all relevantcircumstances, including:(a) the current use of the property;(b) the history of the acquisition and use of theproperty;(c) the market value of the property;(d) the extent of direct state investment andsubsidy in the acquisition and beneficialcapital improvement of the property; and(e) the purpose of the expropriation …5 The state must take reasonable legislative andother measures, within its available resources, tofoster conditions which enable citizens to gainaccess to land on an equitable basis.This very carefully worded constitutional provision is indicative ofhow human rights principles in South Africa have taken on addedsignificance within the context of the recognition of propertyrights. The provisions attempt to ensure that those holdingcustomary rights will enjoy protection, while reference to the‘history of its acquisition’ was enshrined to ensure that land restitutionrights emerging from apartheid-era racist land confiscationswould not be ignored.by using the force of ‘eminent domain’). Typically, theserights of state are phrased in terms of limitations on the useof property. Box 5.10 provides some examples of hownational constitutions allow for the expropriation of privateproperty, provided that such expropriation is undertaken ‘inaccordance with the law’. Similar provisions are found in alljurisdictions, and even the Universal Declaration of HumanRights includes similar perspectives.This essential conflict between the right of the stateto expropriate and to control the use of property andhousing, on the one hand, and land and property rights(including security of tenure), on the other, remains a vitallyimportant issue. 40 For it is in determining the scope of boththe rights of individuals and those of the state that it is possibleto determine which measures resulting in eviction aretruly justifiable and which are not. It is important to notethat while expropriation is not in and of itself a prohibitedact, under human rights law it is subject to increasingly strictcriteria against which all such measures must be judged todetermine whether or not they are lawful. The power ofstates to expropriate carries with it several fundamentalpreconditions. When housing, land or property rights are tobe limited, this can only be done:• subject to law and due process;• subject to the general principles of international law;• in the interest of society and not for the benefit ofanother private party;• if it is proportionate, reasonable and subject to a fairbalance test between the cost and the aim sought; and• subject to the provision of just and satisfactory compensation.Once again, if any of these criteria are not met, thosedisplaced by such expropriation proceedings have a full rightto the restitution of their original homes and lands. Recentexamples from China exemplify how expropriations ‘for thecommon good’ may be misused (see Box 5.11). A fictionalcase from Australia (see Box 5.12) exemplifies how suchexpropriations may be successfully challenged in court.Major causes of large-scale evictionsWhile the previous sections have discussed the maincategories of evictions, this section now takes a closer lookat three of the most common causes of large-scale evictions– namely, infrastructure projects, international mega eventsand urban beautification initiatives.Expropriation … issubject to increasinglystrict criteria… to determinewhether or not theyare lawful