Can the Government Take My Property?

Section 53 of the Constitution protects against unjust deprivation of property. It is detailed, and every element of the test has to be met.

Section 53(1) — the conditions

Subject to section 54 and except as permitted by section 53, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except:

in accordance with an Organic Law or an Act of the Parliament; and unless
(a) the property is required for (i) a public purpose, or (ii) a reason that is reasonably justified in a democratic society having proper regard for the rights and dignity of mankind — and that purpose or reason is so declared and so described, for the purposes of this section, in an Organic Law or an Act; and
(b) the necessity for the taking, for the attainment of that purpose or reason, is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.

The declaration requirement

The public purpose or reason must be declared and described, for the purposes of section 53, in an Organic Law or an Act. A purpose asserted only in a departmental decision, a policy or a Gazette notice does not satisfy paragraph (a). This is a checkable requirement, and it is often where an acquisition fails.

Section 53(2)–(3) — just compensation on just terms

Just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by Parliament, as well as to the person affected.

Section 53(3) then clarifies that compensation is not to be deemed not just and on just terms solely because of fair provision for deferred payment, payment by instalments, or compensation otherwise than in cash. Non-cash or staged compensation is permissible — if the provision for it is fair.

Section 53(4) — a wide definition of taking

A reference to taking possession, or acquiring an interest or right, includes:

(a) the forfeiture; or
(b) the extinction or determination — otherwise than by reasonable limitation of actions or a reasonable law of prescription or adverse possession —

of any right or interest in property. Extinguishing a right can therefore be an acquisition for section 53 purposes even where nothing physically changes hands.

Section 53(5) — six exclusions

Nothing in the preceding provisions prevents:

(a) a taking or acquisition authorised by another provision of the Constitution;
(b) a taking or acquisition — in accordance with a law reasonably justifiable in a democratic society — (i) in consequence of an offence, attempted offence or breach of a law; (ii) in satisfaction of a debt or civil obligation; or (iii) where the property is or may be required as evidence in proceedings;
(c) a taking that was an incident of the grant or acceptance of the property or an interest in it, by the holder or a predecessor in title;
(d) a taking or acquisition in accordance with custom;
(e) a taking of ownerless or abandoned property — expressly other than customary land;
(f) a restriction on the use of or dealing with property that is reasonably necessary for preserving the environment or the national cultural inheritance.

Section 53(6) limits paragraph (b)(iii): it does not authorise retention of property after the end of the period for which retention is reasonably required for that purpose. Property held as evidence must be returned when it is no longer needed — see getting seized property back.

Section 53(7) — non-citizens

Nothing in the preceding provisions of section 53 applies to the property of a person who is not a citizen. The power to compulsorily acquire a non-citizen’s property is as provided for by an Act of the Parliament.

Section 54 — special provision for certain lands

Nothing in section 37 or section 53 invalidates a law that is reasonably justifiable in a democratic society having proper regard for human rights and that provides:

(a) for recognition of the State’s claimed title to land where there is a genuine dispute whether the land was validly acquired from the customary owners before Independence Day — and where, if acquired compulsorily, the acquisition would comply with section 53(1);
(b) for the settlement by extra-judicial means of disputes as to the ownership of customary land that appear not to be capable of being reasonably settled in practice by judicial means — the constitutional basis of the Land Disputes Settlement Act (Chapter 45) and the mediation and Land Court system; and
(c) for prohibiting or regulating the holding of certain interests in land by non-citizens.

Note also section 56(1)(b): only citizens who do not hold dual citizenship may acquire freehold land.

If your land is being acquired

Ask four questions in writing: which Act or Organic Law authorises this; what declared public purpose is relied on and where it is declared; what compensation is offered and how it was assessed; and what hardship was taken into account. Keep every notice and letter. Get advice quickly — challenges to acquisitions are time-sensitive.

Sources

Check the section yourself

Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.