INTRODUCTION
This write up seeks to compare and contrast; expropriation and deprivation terms as they applied in Zimbabwe`s property law regime. Zimbabwe`s constitutional law has largely observed and maintained a distinction in definition, scope and meaning between the terms expropriation and deprivation. A number of cases have been decided clearly expressing the meaning and scope of the two terms. Section 71 of the 2013 Constitution of Zimbabwe establishes a legal framework not only for the protection and recognition of property rights but also for the deprivation and acquisition of property rights.
Definition of terms
The term expropriation refers to the state`s power to terminate unilaterally, under constitutionally prescribed circumstances, all the entitlements of particular property right holders for public use or public purposes. Whereas deprivation of property could be described as the uncompensated, duly authorized and fairly imposed restriction on the use, enjoyment, exploitation or disposal of property for the sake of the common good
Distinction between expropriation and deprivation.
Certain aspects are often used to distinguish expropriations from deprivations. First termination of an owner`s rights under expropriation if often known to be accompanied by an appropriation or acquisition of benefits by state, whereas no such requirement exists for deprivations. This means that state will be taking over the benefits from their owner for its use. Expropriation, taken from the state`s power of eminent domain and usually involves a situation where the state takes over property from one person or a small group of persons for a public purpose or in the public interest, such as building roads, schools, airports or hospitals upon which the affected owner receives compensation. The limiting of rights in deprivations does not mean that the state have took over the benefits of an individual, put in a simpler way limiting of use, enjoyment and exploitation of property is in the public interest not for state`s benefit. Typical deprivations are nuisance laws and fire regulations. The requirement for compensation for expropriations, as opposed to no such compensation for deprivation looks like the primary difference between these two concepts to be derived from section 71 of the Constitution of Zimbabwe. The requirement for compensation for expropriations clearly shows that the results are different. Expropriation entails losing of rights over a thing therefore to avoid arbitrariness one must be compensated for the losses encountered whereas that is not the position for deprivations. Thus we have seen that in Zimbabwe it has been 20 years since land reform and the issue of compensation for those who lost land through expropriation rumbled on. However the case is that the government was always concerned for compensation for improvements not on the land since the former colonial masters took land from the indigenous Zimbabweans without compensating. The move is political and meant to redress the colonial imbalances and one can note that within the context of the Zimbabwean law of property, only improvements on the land is rendered compensation not the loss of land.
Similarities between expropriation and deprivation
It is of paramount importance to note that despite the differences between expropriation and deprivation there are also similarities drawn between the two. Deprivation and expropriation are the only two ways in which the state may interfere with property rights. On one hand, deprivation entails limitations on the use; enjoyment and exploitation of property in the public interest-well-known examples include zoning law, nuisance laws and fire regulations. The public interest is in this regard mostly relates to the protection of public health and safety or the state`s role in resolving civil disputes. Deprivation is sourced in the state`s regulatory police power and usually affects large groups of people in society more or less equally hence for these reasons deprivations are normally not compensated. Expropriation, on the other hand, derives from the state`s power of eminent domain and typically involves situations where the state acquires property from one person or a small group for a public purpose or in the public interest, such as building roads or airports, upon which the affected owner(s) receives compensation. Expropriations forms a subset of deprivation, which means that all expropriations are deprivations. Basing on the above definitions one can notice that both expropriation and deprivation are clearly provided for by the constitution and they both have a negative impact on ones right to property.
It is inevitable to say that although the constitution entrenched fundamental rights and freedoms in line with the principle of constitutional democracy these right and freedoms have got some limitations] Section 86 of the constitution provides for the circumstances under which these fundamental human rights and freedoms can be limited. But, before one looks at the provisions of section 86 of the constitution ,section 71 of the constitution which provides for the property rights provides circumstances under which this right can be limited and what is required for the limitation to be lawful. According to section 71 an expropriation and deprivation can only be exercised in terms of law of general application, in the interests of defense, public safety, public order, public morality, public health or town and country planning or in order to develop or use that or any other property for a purpose beneficial to the community. As per the provision of the constitution before an expropriation or deprivation a reasonable notice must be given to the people to be affected. The important to note is that, the constitution goes on to grant one the right to approach the court for relief if he/she has been affected by the deprivation or expropriation which the court will not have authorized. This brings to light that although an expropriation is different from a deprivation it is a requirement that both have to be authorized by the law and if not, one cannot approach the court for relief.
Conclusion
It is also important to compare and contrast property law clause; that is Section 71 of our Constitution with section 25 of the South African constitution. Deprivation is said to usually involve non-acquisitive interference with property law, although it can in some instances result in states acquiring property, while expropriation mostly entails state acquisition of property, although this (again) need not always be the case. An expropriation is a deprivation.