'Public Purpose or Public Interest' and Third Party Transfers

In this article the difference between public purpose and public interest in section 25(2) of the 1996 Constitution is considered. It is generally accepted that public purpose is a narrower category than public interest and that the distinction between public purpose and public interest does not make any practical difference. However, in this contribution it is suggested that the difference between public purpose and public interest makes no practical difference only in cases where expropriated property is used by the state for the realisation of a particular purpose. The difference between public purpose and public interest becomes more important when a particular expropriation also involves a third party transfer, since it indicates the level of scrutiny that the courts should apply in determining the lawfulness of the expropriation. When property is expropriated and transferred to a third party for the realisation of a public purpose, such as building and managing electricity plants, the lawfulness of the expropriation is not easily questioned. As such, the application of a rationality test to determine the legitimacy of the expropriation is generally easy to accept. However, this lenient approach cannot be as easily accepted where an expropriation and third party transfer takes place in the public interest. Examples of third party transfers in the public interest include land reform, slum clearance and economic development. In the examples of land reform and slum clearance the expropriation and third party transfer is usually authorised in legislation or, as is the case with land reform in South Africa, the 1996 Constitution. Because (as in the land reform example) the expropriation and third party transfer is authorised by the Constitution and regulated by legislation, the application of a rationality test to determine the legitimacy is acceptable. However, the application of a rationality test where property is expropriated and transferred to third parties for broader purposes such as economic development is problematic, especially if there is no specific legislation authorising such expropriation. Although an expropriation involving a third party transfer for purposes of economic development may well be in the public interest because it can lead to the creation of employment opportunities, it is argued that in the absence of specific legislation that authorises both the expropriation and the transfer of the property to third parties, the justification for the expropriation and the transfer is not entirely clear. Therefore, in the absence of a clear legislative scheme authorising the expropriation and transfer of property to third parties for the purpose of economic development, which can be said to fall within a very broad interpretation of the public interest requirement in section 25(2), the courts should apply a stricter scrutiny in evaluating its legitimacy.


Introduction
The Fifth Amendment read with the Fourteenth Amendment to the Constitution of the United States of 1787 (hereafter US Constitution) embodies the property clause, which consists of two parts, namely the "Due Process Clause" and the "Takings Clause". The Due Process Clause provides that no one may be deprived of property without due process of law, while the Takings Clause provides that property shall not be taken for public use without just compensation. 1 The Takings Clause has two requirements that apply to both formal takings and regulatory takings. 2 The taking has to be for a public use and just compensation must be paid.
Much has been written in academic literature about the understanding of the public use requirement in the US Constitution, especially with regard to third party transfer cases such as Berman v Parker, 3 Midkiff v Hawaii Housing Authority 4 and Kelo v City of New London. 5 A third party transfer occurs when the state expropriates property Section 25(2) of the Constitution of the Republic of South Africa, 1996, (hereafter 1996 states that property may be expropriated in terms of a law of general application only for a public purpose or in the public interest and that compensation must be paid. Numerous court cases have surfaced recently in South Africa that touch upon certain interesting aspects of the public purpose or public interest requirement. 16 Some of these issues have also been addressed in the literature. 17 While South African courts do not clearly distinguish between the public purpose and public interest requirement, it is said that "public purpose" is a narrower concept than "public interest." 18 It was recently confirmed that the public purpose or public interest requirement serves as the justification for an expropriation. 19 Since an expropriation is justified by either the public purpose or public interest, the meaning that can possibly be attributed to the different requirements may become more important.  601-625;Slade 2013 TSAR 199-216. 18 In Offit (SE), the high court stated that "[i]t is clear that an expropriation for a public purpose which would also benefit a third party would be valid under the requirement of 'public purposes'. An expropriation that would benefit a third party would also be valid if it is in the public interest, even if it cannot be said to be for a public purpose". If an expropriation that also benefits a third party is valid if it is in the public interest even though it is not for a public purpose, the only logical conclusion is that public interest is a broader category than public purpose. See the argument below concerning the relevance of the difference. standard works on property law. 20 The relatively sparse amount of literature on the public purpose or public interest requirement with regard to third party transfers outside the area of land reform is probably due to the limited number of court decisions on this issue compared to the case law from the US, which is also more complex than the South African decisions. The cases where the courts considered whether the expropriation and third party transfer for purposes of economic development is for a public purpose or in the public interest includes the high court and Supreme Court of Appeal decisions in Offit as well as Bartsch and Harvey. 21 However, it was only in the high court decision in Offit that the applicant specifically argued that the intended expropriation and transfer of their property to a different private party for economic development purposes was not for a valid public purpose or in the public interest. 22 Although the court discussed the justifiability of third party transfers in South African law with reference to foreign decisions such as Kelo, there was no live dispute between the parties since the respondents that wanted to expropriate the property did not have the authority to expropriate. In both Bartsh and Harvey the issue of third party transfers was addressed ancillary to the main issues raised. 23 20 Van der Walt Constitutional Property Law 458-503; Badenhorst, Pienaar and Mostert Silberberg and Schoeman's Law of Property 566-568. 21 The question whether the expropriation of a lease over immovable property for economic development purposes (that does not involve a third party transfer) would be for a public purpose or in the public interest came up in eThekwini Municipality v Sotirios Spetsiotis 2009 ZAKZDHC 51. 22 Offit (SE). On appeal in Offit (SCA), the applicant raised three arguments regarding the unlawfulness of the expropriation. Firstly, the applicant argued that the operator permit that allowed the Coega Development Corporation to operate in the Coega Industrial Development Zone was unlawfully issued and extended. Secondly, the applicant argued that the expropriation fell outside the ambit of the authorising legislation. The third argument was that any expropriation of his land would be in conflict with his right to just administrative action. The Constitutional Court (Offit Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd 2011 1 SA 293 (CC)) directed the parties to address the following issues: whether the applicants were deprived of their property and if so, by whom, and what would the appropriate relief be: Constitutional Court 2010 www.constitutionalcourt.org.za/Archimages/15016.PDF. 23 In Bartsch the applicant argued that the expropriation of his entire parcel of property was unlawful, since strictly speaking only part of the property was required for the primary purpose of the expropriation, namely building a road. There was evidence that the remainder of the property would be turned over to another party for the purpose of building a shopping complex.
In Harvey, the court had to consider whether or not it was competent to order the re-transfer of expropriated property to the previous owner if the purpose for which the property was originally The 1996 Constitution does not define what is meant by "public purpose," but the Expropriation Act 63 of 1975 (hereafter the 1975 Expropriation Act) states that "public purpose includes any purpose connected with the administration of the provisions of any law by an organ of state." 24 The 1996 Constitution does not define public interest either, but in section 25(4)(a) it states that "the public interest includes the nation's commitment to land reform, and to bring about the equitable access to all South Africa's natural resources". The Draft Expropriation Bill 25 defines both the public purpose and the public interest. Unfortunately, the definition of the public purpose is the same as the definition in the 1975 Expropriation Act and the definition of the public interest corresponds exactly with section 25(4)(a) of the 1996 Constitution. 26 As a result, no clearer indication is given as to what would qualify as an expropriation for a public purpose or an expropriation in the public interest, especially when it involves a third party transfer.
This article firstly considers the phrase "public purpose" in the context of case law that predates the 1996 Constitution. Once the public purpose requirement is understood in terms of pre-1996 law, it might be easier to understand the meaning of the "public purpose or public interest" requirement in section 25(2) of the 1996 Constitution. This article also considers the important question concerning the extent to which the two phrases are able to justify an expropriation that involves a third party transfer. It is accepted that property may not be expropriated for the sole expropriated could not be realised. When the original purpose was abandoned the municipality awarded the property, on tender, to a third party for the purpose of establishing a mediumdensity residential area. Therefore, when the court addressed the issue of re-transfer it also considered if an expropriation that benefits a third party because the property is transferred to that party for economic development could be for a public purpose if the development did not form part of a land reform programme. benefit of third parties. 27 However, in certain instances the state is justified to transfer expropriated property to third parties, and these expropriations may be for a valid public purpose or in the public interest. Whether the expropriation and third party transfer is classified as being either for a public purpose or in the public interest may play an important role in signalling the level of scrutiny that the courts should apply in their evaluation of whether the expropriation is justified or not.

2
Public purpose before the Interim Constitution of 1993

Introduction
Before South Africa became a Union in 1910, the two colonies (the Cape Colony and the Natal Colony) and the two republics (the South African Republic and the Republic of the Orange Free State) each had their own expropriation legislation. 28 When the Union of South Africa was established in 1910 the expropriation legislation that applied in the different areas remained in force. It is said that English law had a notable impact on the development of South African expropriation law, especially in the two former British colonies, 29 and that the influence of English law continued even after the Union of South Africa was established. 30 It has also been stated that the English law of expropriation, or compulsory acquisition as it is more commonly known in English law jurisdictions, is a highly practical subject and more attention is paid to the payment of compensation than the public purpose requirement. 31  of 1882 32 and the Natal Lands Clauses and Consolidation Law of 1872. 33 These acts did not confer expropriation powers but regulated the expropriation process and contained extensive provisions regarding the calculation of compensation.
In accordance with the principle of parliamentary supremacy, the notion of the public purpose served by a compulsory acquisition is established during debates in parliament and not in the courts. 34 In this regard the legislature indicates the purposes for which the property may be taken. Therefore, even before the Union of South Africa was established, specific legislation was enacted by the legislature to expropriate property for a specific public purpose, such as the construction of railway lines. 35 For instance, the Cape Act 16 of 1833 authorised a company, The Cape Central Railways, to construct a railway line from Worcester to Roodewal via Robertson and to use expropriation powers to construct the railway line. 36 As a result of the influence of English law, parliament promulgated legislation specifically aimed at expropriating property for a specific public purpose. For this reason, it is arguable that there was no need for the acts that authorised the expropriation of property for these purposes to refer to a general public purpose requirement. The adoption of the principle of parliamentary supremacy and the influence of English law on the expropriation law of South Africa also meant that South African courts were rather deferential to the decisions of parliament. However, now that parliamentary supremacy has been replaced by constitutional supremacy the courts may no longer be able to continue applying a mere rationality test when considering the public purpose requirement. The exact meaning of phrases like 32 This Act also provided that disputes concerning the calculation of compensation could be settled by arbitration and therefore contained wide-ranging arbitration provisions. See Gildenhuys Onteieningsreg 40. "public purpose" and "public interest" therefore becomes more important than it used to be.

Public purpose before the 1965 Expropriation Act
The first general and comprehensive expropriation act applicable throughout the Republic of South Africa, namely the Expropriation Act 55 of 1965 (hereafter 1965 Expropriation Act), required an expropriation to be for a public purpose. This Act did not define public purpose and it was up to the courts to give meaning to this phrase. Both Rondebosch and Rudolph dealt with the interpretation of the phrase "public purpose," but not with reference to expropriation legislation or expropriation proceedings. In Rondebosch the court had to interpret the phrase "public purpose" to determine if the respondent was exempt from paying municipal tax in terms of the Municipal Act 45 of 1882. The Appellate Division (as it was then known) stated that the word "public" is one of wide significance, despite its common origin. 42 For instance, in the broad sense "public" can include things that affect or pertain to the whole public or a local community, such as public opinion, public place or hall. In the narrower sense it may not include things that affect or pertain to the public, but only things related to the state, such as public revenue and public lands. Therefore, public purpose can mean all purposes benefitting the public in contradistinction to private individuals, or it can mean only purposes that relate to the state, which the court termed "government purposes". The court effectively distinguished between a narrow and a broad meaning of the phrase "public purpose" and although the court interpreted the phrase narrowly in the specific context, subsequent cases acknowledged and applied the distinction between the broad and narrow meaning of the phrase "public purpose" as it was described in this case. 43 The distinction between the broad and narrow meaning of the public purpose phrase as explained by the court in Rondebosch was accepted in the later decision of Rudolph, 44 African Farms and Townships 45 and Slabbert.

Slabbert dealt with the Transvaal Expropriation of Land and Arbitration Clauses
Proclamation 5 of 1902, making this the first decision where the phrase "public purpose" was interpreted specifically in terms of expropriation legislation. 46 In this decision the applicant's property was expropriated to provide better security and 43 Mostert Constitutional Protection and Regulation of Property 235. See also Slabbert and Fourie. 44 In Rudolph, the high court of the then Southern Rhodesia had to decide whether or not the expropriation of a right of way was for a public purpose. The court confirmed the position concerning the narrow and broad interpretations of the phrase "public purpose" as explained in Rondebosch. Therefore, the court stated that "'public purposes' may either be all purposes that pertain to and benefit the public in contradistinction to private individuals or they may be more restricted purposes relating to the State": Rudolph 129. 45 In African Farms the court accepted that the phrase "public purpose," as discussed in the Rondebosch decision, is one of very wide significance and that public purposes can affect either the whole or the local public. In this decision the court held that expropriation of the applicant's property for purposes of implementing a town-planning scheme, which included the transfer of a section of the property to a private party, was legitimate in terms of the over-all purpose of town planning as authorised in the legislation. (1) The construction and maintenance of works for the defence of this Colony and the erection of buildings for the use of any Police or Defence Force therein.
(2) The construction and maintenance of railways, tramways, telegraphs, telephones, public roads, streets…" The words emphasised words inserted by s 1 of the Expropriation Amendment Act 31 of 1958.
privacy to the prime minister. Relying on the decisions in Rondebosch and Rudolph, the court stated that public purpose can have a broad as well as a narrow meaning and the interpretation would depend on the context of each case. According to the court the safety of the prime minister was a public matter, which means that the improvement of any security measure relating to the safety of the prime minister was also a public matter and that the expropriation of the applicant's property was therefore not for a private or personal purpose. The court found that the public purpose for which the property was expropriated fell within the ambit of what was meant by public purposes in terms of the authorising legislation.
As a result, before the passing of the 1965 Expropriation Act the public purpose requirement could either be interpreted broadly or narrowly. The broad interpretation would include all things that affect or benefit the public at large, while the narrow interpretation would be limited to government purposes. The decisions discussed above established the principle that the choice between the wide and the narrow interpretation would depend on the legislation involved and the facts of each case. Therefore, it can be deduced that for an expropriation to be justified by its purpose it is not necessarily so that the property has to be used by the state for a purely government purpose, but that the public purpose is also served when the public derives a benefit from the expropriation. Furthermore, on the basis of the African Farms decision it is clear that the public purpose requirement does not oblige the expropriating authority to use all of the expropriated property. It can be used by or transferred to third parties. 47 However, whether or not this is justified depends on the specific context of each case.

The Expropriation Act 55 of 1965
The 1965 Expropriation Act was promulgated in an attempt to centralise expropriation by conferring expropriation powers on the minister of lands, who was 47 See Eisenberg 1995 SAJHR 219-220.
forthwith responsible for the expropriation of property on behalf of the national government. 48 In terms of section 2 of the Act the minister of lands may expropriate property for a public purpose and is subject to the payment of compensation. This Act did not define public purpose and it was therefore up to the courts to determine the meaning of this requirement in terms of the Act. In Fourie the court had to decide if the expropriation of the applicant's property to enable the Department of Post and Telegram Services to provide housing for its technicians was for a public purpose. The applicant argued that the expropriation of his property was not for a valid public purpose since the provision of housing for the technicians of the department was a private matter. Deciding whether the expropriation was for a valid public purpose or not, the court had recourse to the earlier decisions discussed above. According to the court, the term "public purpose" had been interpreted by courts in terms of previous legislation and that interpretation was still in force. The court held that since the maintenance and expansion of the communication network was not only a government purpose but also a public purpose in terms of the broad understanding of the phrase, the expropriation of the applicant's property to provide housing for the technicians of the department responsible for the expansion and maintenance of the communication network was a public purpose as meant in section 2(1) of the 1965 Expropriation Act.
The Fourie decision is therefore the first decision in which a court interpreted the phrase "public purpose" in terms of a general expropriation act applicable throughout the Republic of South Africa. The court accepted the distinction between the broad and the narrow interpretation of the phrase "public purpose" as established in previous case law. Furthermore, the court held that the broad 48 This Act also gave the administrator of each province and local authorities the power to expropriate property. Since this Act did not repeal all expropriation legislation that existed at the time it was promulgated, other state organs were still able to expropriate property in terms of different legislation. Therefore, expropriation continued to be carried out in terms of different pieces of legislation. See Gildenhuys Onteieningsreg 44.
meaning of the public purpose requirement (purposes which affect the whole public) includes the narrow meaning of the public purpose (governmental purposes).

The Expropriation Act 63 of 1975
Since the 1965 Expropriation Act did not repeal all other expropriation legislation, ministers other than the minister of lands were still able to expropriate property in terms of other expropriation legislation that remained in force. 49  It is unclear as to why this vague formulation of the public purpose requirement was included in this Act, but it is possible to argue that since this Act is regarded as the primary act conferring expropriation power and has to be able to justify the expropriation of property for various purposes, the legislature did not want to limit the scope of purposes in the act.
Case law heard in terms of this Act before the commencement of the constitutional era indicates the continued application of the interpretation of the phrase "public purpose" as laid down in previous case law. For

Distinguishing public purpose from public interest
In Van Streepen the court stated that an expropriation must generally be for a public purpose or in the public interest. In earlier case law a distinction was made between the narrow and broad understanding of the public purpose requirement. understanding was said to relate to government purposes, while the broad understanding related to a purpose that benefitted the public at large. Since the court in Van Streepen stated that the expropriation of property for the benefit of another private party can never by for a public purpose, it is possible to argue that when it referred to the public purpose it referred only to the narrow understanding of the public purpose requirement, namely government purposes. However, since the expropriation of the property and the transfer of it to a third party benefitted the public at large, it could be said that it fell within the broad understanding of the public purpose requirement. Since the court did not refer to the broad and narrow understanding of the public purpose requirement, but to the public purpose and the public interest, it is arguable that the court equated the broad understanding of the public purpose requirement with the public interest, while the reference to the public purpose was limited to the narrow understanding of the public purpose requirement as it was understood in earlier case law.

Interim Constitution
Although the 1975 Expropriation Act is still valid, both the Interim Constitution and the 1996 Constitution had an effect on the understanding of the public purpose requirement in the Act. Like expropriation legislation such as the 1975 Expropriation Act, section 28 of the Interim Constitution required only that an expropriation be for a public purpose, but it has been indicated above that prior to 1994 an expropriation could be justified if it was for a public purpose or in the public interest. Section 28 (3) stated that "[w]here any rights in property are expropriated … such expropriation shall be permissible for public purposes only". It has been suggested that when the multi-party negotiating forum decided to include public purpose, they were under the impression (created by the Technical Committee) that public purpose was a broader category than public interest. 68

The 1996 Constitution
Due to the uncertainty regarding the constitutional validity of the expropriation of property for land reform purposes, the drafters of the 1996 Constitution included a reference to the public interest in section 25(2). 72 Section 25(2) now states that "[p]roperty may be expropriated … for a public purpose or in the public interest".
The question that arises is if there is a difference between these two phrases in the light of the 1996 Constitution, and if so, what the relevance of the difference may be.
It could be said that the public interest is a broader category than public purpose. 73 Given the historical analysis above, the public purpose probably refers to government purposes while public interest probably refers to purposes that benefit the public. It is accepted that these two terms may be used interchangeably with regard to expropriation. 74 In other words, an expropriation that satisfies either the public purpose or the public interest requirement would be a valid expropriation in terms of the constitutional requirements.
It is also suggested that the difference between the two phrases in justifying an expropriation does not matter much in practice. Van  interest. 76 While this is true in cases where the property is expropriated and used by the state for fulfilment of a particular public purpose (so called "straight-forward expropriations"), the same cannot be said when property is expropriated and transferred to third parties. When property is transferred to third parties, whether or not the expropriation is for a public purpose or in the public interest is relevant in so far as it indicates the level of scrutiny the courts should apply in evaluating the expropriation and the third party transfer.
Given that it is not the practice in South African law to have detailed expropriation legislation, but rather to grant the relevant authorities the power to expropriate for a variety of purposes as long as it is for a public purpose or in the public interest, it is probably better to have the public purpose and public interest requirements openended than to have them clearly defined. However, an expropriation must still comply with the constitutional provisions, and it remains the duty of the courts to ensure that expropriation takes place for a public purpose or in the public interest.

Public purpose, public interest and third party transfers
It can be accepted that the public interest, the broader category, includes the narrower category of public purpose. 77 Although section 25 (4)  Van der Walt Constitutional Property Law 462 also states that it is possible for a statute to specifically provide for expropriation in the narrow sense, in which case expropriation for a wider purpose in terms of that particular statute would not be permissible. 77 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's Law of Property 591-592. See also Chaskalson 1995 SAJHR 237. 78 The phrase "public interest" also appears in other areas of the law: Du Plessis Re-Interpretation of Statutes 167-138; Du Plessis 1987 THRHR 290-298. Although this term seems to be indeterminable, Du Plessis 1987 THRHR 293-294 identifies certain aspects that can be used to determine the public interest. These include state security, economic interests, individual interests as collective interests, legal interests, administrative interests and strategic interests.
Du Plessis 1987 THRHR 298 comes to the conclusion that "public interest" is a generic term used notions of public purpose and public interest are to be distinguished, since in some instances it seems as if these two notions overlap.
In Van Streepen the court held that the expropriation of property for the benefit of a third party cannot be for a public purpose, but because the third party's business enterprise in that decision was important for the public as a whole it was accepted that it was in the public interest and consequently valid. This was also accepted in Bartsch. In Bartsch the court accepted that the expropriation of property for the benefit of a third party cannot be for a public purpose, but "it could qualify as a valid act of expropriation if it could be brought within the realm of an act performed in the public interest." 79 As a result, it is arguable that the public purpose is not able to justify an expropriation that is undertaken for the benefit of a third party. However, this should be distinguished from situations where the expropriated property is transferred to a third party to enable the third party to realise a public purpose.
In Offit (SCA) the Supreme Court of Appeal stated that: There is no apparent reason why the identity of the party undertaking the relevant development as opposed to the character and purpose of the development should determine whether it is undertaken for a public purpose. 80 Therefore, in cases where the property is transferred to a third party for the fulfilment of a public purpose -such as the building of roads or railways -the expropriation and subsequent transfer would be for a public purpose. The mere fact that the property is transferred to a third party does not automatically invalidate the expropriation. 81 to describe interests worthy of protection, that have crystallised over time and that are determined both objectively and subjectively to ensure that the proper balance is struck between the interest of the community and the interest of the individual who is part of the community. 79 Bartsch para 5 2.
As a result, certain expropriations that also involve a third party transfer are deemed to be for a public purpose. The purpose of the expropriation is for the fulfilment of a public purpose and the fact that the purpose is to be realised by a third party does not detract from the legitimacy of the expropriation. In this regard, the third party may also receive a benefit, but because the benefit is merely incidental to the fulfilment of the public purpose it is irrelevant. The purpose of the expropriation is not to benefit the third party but to allow the third party to fulfil an obligation, usually in terms of a legislative scheme, on behalf of the state. In these cases the purpose of the expropriation would qualify as an expropriation in terms of the narrow understanding of the public purpose requirement. dormant company whose purposes changed to include a matter of public importance. According to the court, the industrial development that brings about benefits such as increased employment opportunities and economic stimulation is a matter of public importance and therefore also constitutes a public purpose. The expropriation of the property to realise this objective was therefore permissible in terms of section 3(2)(h) of the Act.

Provision is made in South
In terms of section 3 of the 1975 Expropriation Act, the minister can expropriate property on behalf of a juristic person for the achievement of a public objective. The juristic person to whom the Act specifically refers is usually, but not limited to, educational institutions whose purpose is undoubtedly a public purpose.
Furthermore, legislation such as the Higher Education Act 101 of 1997 sets out certain regulations with regard to the management of higher education institutions.
The expropriation of property for purposes of an objective of public importance is therefore lawful, irrespective of whether or not the property is expropriated in favour of a third party. This can also be distinguished from the transfer of expropriated property to third parties for economic development purposes in that the primary aim of the third parties in terms of section 3 is a matter of public importance, such as education, and not to generate profit.
In order to meet its constitutional obligations the state may expropriate property for the purposes of building public utilities such as hospitals and schools. 84 Therefore, if the state expropriates property for purposes of these public utilities, the justification is not questioned. However, it often occurs that a third party is responsible for constructing, providing for, or managing the utilities on behalf of the state. In the event that property is expropriated to enable the third party to build the necessary 84 See Van Wyk Planning Law 219.
infrastructure it is deemed to be for a public purpose, provided that the third party fulfils a public function on behalf of the state. 85 It is also accepted that the state must rely on private or semi-private companies to aid in the building of infrastructure. 86 In Offit (SCA), the Supreme Court of Appeal stated that the ... expropriation of land in order to enable a private developer to construct low-cost housing is as much an expropriation for public purposes as it would be if the municipality or provincial authorities had undertaken the task itself … 87 As a result, if the expropriation is for a public purpose the expropriation would be valid regardless of the fact that a third party is responsible for fulfilling the purpose.
However, even if the expropriation does not serve a public purpose (as defined narrowly) but benefits a third party, the expropriation can still be valid if it can be "brought within the realm of an act performed in the public interest." 88 An expropriation that involves a third party transfer has also been upheld on the basis that it is in the public interest. 89 In other words, the property is not expropriated for government purposes and not necessarily for use by the public, but for a purpose that is nevertheless deemed to be in the public interest. It should therefore be evaluated whether the expropriation of the property is valid in terms of the broad understanding of the public purpose requirement, or in the public interest as it was termed in Van Streepen, and to which section 25 (2)  of land or a right in land" in respect of a claim that has been lodged in terms of this Act. The property expropriated in terms of this Act is to be transferred to the private parties who lodged a claim for restitution in terms of this Act.
There is explicit authority in section 25 (2) Another example that involves a third party transfer that is not for a narrow public purpose but that can be considered to be in the public interest is the expropriation of property for the purpose of slum clearance. The expropriation and transfer of property to third parties can therefore be valid in situations where the property is not needed for a narrow public purpose such as state or public use or even for the provision of public services, but for a purpose that serves a wider public interest. In this regard the property is expropriated for neither government nor public use, or for allowing a third party to fulfil a public function.
Instead, the property is expropriated and transferred to a third party for the third party's own use and benefit, but the expropriation and transfer are still deemed to be in the public interest because they serve some other valid state goal that is in the public interest. In the slum clearance examples the public interest that is served relates to the removal of blighted areas with all their concomitant social problems, such as health and safety concerns. In the area of land reform the public interest is to allow designated groups the opportunity to reclaim property that they originally lost through unfair, discriminatory practices during apartheid. In both the slum clearance and land reform programmes the relevant legislation specifically authorises the expropriation and transfer of property for the relevant purposes, or at least foresees that the property will be used by different parties after it has been expropriated. 95 Cohen There may be instances where purposes such as job creation and stimulating the economy may justify the expropriation of private property for the purpose of transferring it to third parties. However, in the absence of specific legislation that authorises both the expropriation and the transfer of the property to third parties, the justification for the expropriation and the transfer is not entirely clear. 105  , the Presidential Infrastructure Coordinating Commission is empowered to expropriate land or any right in land for the purpose of implementing a "strategic integrated project". A "strategic integrated project" will include, amongst other things, the building of airports, roads, railways, ports and harbours (s 7(1)(a) read with sch 1) as well as projects that "would be of significant economic or social importance to the Republic" (s 7(1)(b)(i)). However, the Infrastructure Development Bill does not make mention of the transfer of expropriated property to third parties to realise the purpose for which the property is expropriated. 106 See note 99 above. See further Walsh 2010 DULJ 1-23; Waring "Prevalence of Private Takings" 419-437. 107 Legislation aimed at stimulating the economy by creating jobs and increasing the tax base, must authorise the expropriation of property in order to realise these specific aims.
realisation of the public purpose. 108 However, it is arguable that the level of scrutiny could be lower in cases where there is a legislative scheme. Nevertheless, it requires the courts to evaluate whether or not the purpose of the expropriation necessitates the expropriation of property. If the economic development also involves a third party transfer, even stricter scrutiny should be applied to both the lawfulness of the purpose and the legitimacy of the transfer in order to realise the purpose. 108 There may be another less invasive means available to achieve the same purpose for which