Compensation Theories and Expropriate of Customary Property Rights: A critical review
Lucky Kabanga and Manya M Mooya
This article underlines the risks in using conventional valuation methods to estimate compensation when customary land is expropriated. Those unfamiliar with land valuation and compensation concepts will find a good overview, including how different forms of compensation affect ‘the expropriated’. The paper notes how property valuation methods are rooted in western ideas of market values and private property with well-defined bundle of rights held by individuals or firms. Customary rights by contrast are ‘less defined and mostly inalienable’. Thus valuation requires competitive markets that provide the valuer with ‘full information about the market and comparable properties’. These conditions are missing in customary contexts, where land is held collectively for ‘living people, dead people and future generations’; and is ‘a social fabric that protects people through cultural membership’ with a meta-physical and cultural importance. Conventional valuation tools are of little use here; and the assumption that those expropriated can find new, equivalent land is untenable. African valuers are inexperienced, their training ‘rarely covers customary or native rights’, and they serve political and economic actors who stand to gain from expropriation. The result is nearly always ‘inadequate compensation and impoverishment of affected people’. The authors propose research into methods that assess customary rights in their entirety and do ‘not treat them as private ones’. Training must be revised; new curricula should move away from seeing valuation as the privatisation of customary properties, and include customary systems and contexts.