Cape Town — Pressure continues to mount on the government's new draft expropriation law, with a top Johannesburg businessman and a constitutional rights watchdog joining organised agriculture in condemning it as being in violation of the constitution's property clause.

Before its introduction to Parliament's public works committee last week by Public Works Minister Thoko Didiza, the Expropriation Amendment Bill had been sharply criticised by organised agriculture as being a violation of the constitution. The bill seeks to allow for expropriation in the public interest rather than the public purpose, and if approved would also constrain the courts in their ability to rule on fair compensation.

Sothebys Lew Geffen International Realty SA chairman Lew Geffen said: "The new expropriation law tabled in Parliament this week is arguably the most ominous attack by the national government on the sovereignty of land ownership in this country.

"What's more, Didiza has asserted that courts would now be constrained in terms of their power to adjudicate on compensation issues. Simply put, I believe that the bill is grossly unconstitutional, and the land-owning and general public should challenge the bill to halt its march into SA's statute books.

"While it has always been said that SA 's land reform policies could never bring about another Zimbabwe, this recent development by the public works ministry will send shockwaves through the local property industry and no doubt attract the attentions of the international investment community."

Nichola de Havilland, of the Centre for Constitutional Rights, a unit of the FW de Klerk Foundation, said even before the briefing to Parliament last week, the bill was "clouded in controversy". "It was preceded by a highly emotive policy document, skewed in political ideology, unbefitting a serious legal framework. The bill itself is equally controversial.

"Although its declared purpose is to bring all existing expropriation legislation into line with the constitution, it is neither constitutional nor lawful and poses a serious threat to property rights.

"It is also controversial in that the apparent intent is to elevate expropriation, which is by its nature a drastic remedy, to the primary vehicle for achieving land reform and equitable access to the country's natural resources," she said.

De Havilland said it was only after the planned expropriation authority had issued a final expropriation notice that the land owner would have a formal opportunity to object to the amount of compensation.

She said that while the bill require d compensation to be just and equitable, "in arriving at a decision of what is just and equitable the expropriating authority is explicitly barred from giving preference to the market value of the property".

Referring to the constitutionality of the bill, she said section 25 of the Bill of Rights prescribed that in the event of expropriation, the amount, time and manner of compensation must either have been agreed to, or decided or approved by a court.

"In contrast, the bill provides for the amount to be determined by executive diktat and only permits a review of that decision.

"In practice, this would mean that only the procedure followed in reaching the decision would be scrutinis ed by the court, and not the quantum of the compensation," she said.

De Havilland suggested that the bill violated section 33 of the constitution, which guaranteed "just administrative action that is lawful, reasonable and procedurally fair".