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CONSTITUTIONAL PROPERTY LAW
AJ VAN DLR ALTF*
SECTION 25(1) OF THE CONSTITUTION: REGULATORY DEPRITATION

OF PROPERTY
Regulatry controls that constitute deprivation of property

In constitutional property law, questions about the validity of
regulatory control over the use and exploitation of property are
decided with reference to the deprivation provision in section
25(1) of the Constitution of the Republic of South Africa, 1996, as
interpreted in FNB (First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service; First National
Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768
(CC)). The general policing power or regulatory principle
adopted in this decision means that state regulation of the use
and exploitation of property (such as land use planning, regula-
tory control over the development of or building on land, and
conservation of the environment) is regarded as a legitimate
exercise of state regulatory power that does not require compen-
sation. Accordingly, regulatory deprivation of property is constitu-
tionally unassailable, without compensation, even when it causes
loss of value for the property holder, provided the regulatory
action was properly authorized, administrative justice principles
were adhered to and the effects of the regulatory action are not
arbitrary, excessive or disproportionately unfair (see the cases
discussed in AJ van der Walt Constitutional Property Law 3 ed
(2011) 213-18; more recent case law is discussed below).
The general test for non-arbitrariness in terms of section 25(1)
was authoritatively set out and explained in paragraph [100] of
FNB, where it was said that a deprivation of property will not be
arbitrary if there is sufficient reason for it, taking into consideration
* B lur et Art Honns (BA) LLB LLD (Potchefstroom) LLM (Witwvatersrand).

Professor in the Faculty of Law, University of Stellenbosch, and South African
Research Chair in Property Law, hosted by the Univeiisityof Stellenbosch, funded by
the Department of Science & Technology, administered by the National Research
Foundation. Thanks toJanke Strydoi, Carolien Koch and Karen Bezuidenhout for
research assistance. This chapter is based, in some places directly and extensively, on
contributions previously published as part of 2011 ]uta\ Quarterly Review Constitu-
tional Property.
245
246 ANNUAL SURVEY OF SA LAW
the complex relationships between the purpose of the depriva-

tion; the means of its implementation the effects and impact of
the deprivation: the property object involved; and the rights and
interests of the owner and other interested parties. As a rule,
unauthorized, procedurally unfair or excessive (arbitrary) regula-
tory controls are invalid in terms of section 25(1). As is apparent
from the overview in preceding years, these principles have since
been applied and expanded upon in a number of cases, many of
which involved the regulation of land use. This trend continued to
be apparent in case law from 2011. Several decisions handed
down in 2011 illustrate the courts' approach to the question of
what constitutes arbitrary deprivation. In a number of examples,
the alleged deprivation was brought about by a court order
issued in terms of the authorizing legislation. In one case, the
court held that the action complained of was not authorized by
the relevant law and that the deprivation issue therefore did not
arise. In a second case, the action complained of was authorized
but did not constitute a deprivation of property for the purposes of
section 25(1) because the complainant failed to prove the
existence of a right. In other instances, there was a deprivation
but the court held that it was not arbitrary in the light of the FNB
test. In a few decisions, the conclusion that the deprivation
was not arbitrary followed on what the courts described as a
balancing of conflicting constitutional rights.
The first case demonstrates the principle that an alleged depri-
vation of property will only be considered legitimate in terms of
the policing power principle if the action that brought about the
deprivation was properly authorized and carried out in terms of
the authorizing law, which must be law of general application. Ifthe
disputed action was not authorized by the law in question,
the deprivation issue did not arise because the deprivation has to
be authorized before a complaint about its arbitrariness can even
be considered. Without proper authorization, the action is simply
invalid for lack of authority and the arbitrariness issue does not
arise. In SM! Trading CC v Mobile Telephone Networks (Pty) Ltd
(reported at 2012 (2) SA 642 (GSJ)), the question was whether
section 22 of the Electronic Communications Act 36 of 2005 ('ECA)
authorized a particular action that allegedly constituted a depriva-
tion of property. The first respondent previously leased land (now
owned by the applicant) from the applicant's predecessor in title
and established on it a tower and equipment for the cellular phone
business conducted by the second respondent. When the lease
ONSTITUT ONAL PROPERTY LAW 247
expired, the first respondent, who had sublet the land to the
second respondent, failed to renew the principal lease. The
applicant purchased the land after the lease had expired. The
applicant and the first respondent could not agree on the terms of
a new lease, whereupon the first respondent initiated a process to
relocate the equipment. However, before the equipment could be
removed from the land the second respondent indicated that it
would continue to occupy the premises and pay a fair rental for
them, claiming that this procedure was authorized by section 22 of
the ECA. The second respondent argued that section 22 of the
ECA effectively created a statutory servitude in favour of electronic
communications network licensees: that such servitude did not
have to be registered and that it was valid in perpetuity, to be
terminated by the holder of such servitude and that the unilateral
creation of such a statutory lease did not amount to expropriation
of private land but to a deprivation for which no compensation is
required (para [13]).
The court held that section 22 indeed applies to all land,
including private land (para [16]), but that the 'applicable law'
referred to in section 22 includes all law, including laws relating to
ownership, trespass, expropriation and so forth (para [23]): and
that the reference to 'due regard' in section 22 means that the
licensee, in exercising its entitlements under section 22, must
respect and comply with those laws (para [24]). Therefore, even if
section 22 authorizes some form of deprivation of private prop-
erty by licensees, it does not authorize arbitrary deprivation of
property. Administrative deprivations of property in terms of this
section, insofar as they are authorized by it, 'have to be fair and
must comply with the procedural prescripts of the relevant
administrative justice provision' (para [25]: in para [24] the court
referred to First National Bank of SA Ltd t/a Wesbank v Commis-
sioner, South African Revenue Service: First National Bank of SA
Ltd t/a Wesbank v Minister of Finance (supra)). The court found
that section 22 was capable of a restricted interpretation that is in
line with the Constitution, in terms of which it does not authorize
arbitrary deprivation of property in the form envisaged by the
respondents, namely by establishing a statutory servitude or
lease in the second respondent's favour (para [29]). A landowner
is ordinarily entitled to occupy his own land and to exclude others
from occupying it. The respondents did not have the current
owner's consent to occupy his land and accordingly, in principle,
he could evict them. The respondents' argument that they were
occupying the land on the basis of a lease created by section 22
248 ANNUALSURVEY OFSA LAW
was 'misplaced and based on a misconception of that section'

(para [33]). The court consequently held that the original lease
had been terminated: that section 22 did not establish a statutory
lease or servitude; and that the respondents therefore had no
legal ground for continued occupation of the applicant's land.
Effectively, although it did not use the exact words, the court
held that the question whether the deprivation was arbitrary in this
case did not arise since the deprivation, in the form of the
creation of a statutory servitude or lease, was not authorized by
law and therefore never in fact existed. Continued occupation of
the land by the second respondent was not authorized by the Act
and was therefore unlawful. The applicant should therefore
succeed with eviction proceedings. To give the respondents
enough time to relocate the equipment, the court ordered that
the equipment be removed within the specified period; that the
respondents continue to pay the rental they had offered during
that time; and that the applicant could claim compensation for
any further damage caused by the continued occupation, includ-
ing the difference between the rental offered and what was
proved to be fair rental. (On the compensation order, see the
discussion of City of Johannesburg Metropolitan Municipality v
Blue Moonlight Properties39 (Pty) Ltd and Another [2011] ZACC
33 (1 December 2011) (reported at 2012 (2) SA 104 (CC)) below.)
InGainsford NO and Others v Tiffski Property Investments (Pty)
Ltd and Others 2011 JDR 1267 (SCA), the court concluded that
there was no deprivation of property because the complainant
could not prove the prior existence of a property right of which the
court order (authorized by the relevant legislation) could have
deprived it. The Supreme Court of Appeal held that a court order
that declared a transfer of land void, with the result that subse-
quent registration of a mortgage bond over the land in favour of
the creditor was invalid, did not constitute arbitrary deprivation of
the creditor's property because there was no proof of a protected
property interest and thus no deprivation of such property
interest.
On the facts, the court held that the transfer of a business,
including transfer of the land and movables belonging to the
business, from the seller to the first respondent was invalid and
had to be declared void for being in contravention of section
34(1) of the Insolvency Act 24 of 1936. Accordingly, the mortgage
bonds registered by the first respondent (transferee of the
business) in favour of the second respondent were void as well. It
CONST TUTIONAL PROPERTY LAW 249
is the latter part of the order that, according to the second
respondent, constituted an arbitrary deprivation of its property.
The second respondent (the bank in whose favour the mortgage
bonds had been registered) argued that the order of invalidity
would result in the bank's being deprived of its property, in the
form of the real security rights created by the mortgage bonds,
and that such a deprivation of its rights violated section 25(1) of
the Constitution (para [43]). However, the court rejected this
argument (para [47]). If the transfer of the land was void ab initio
for violating the Insolvency Act (as the court held it was), the first
respondent never acquired ownership of the land and therefore a
valid real right of security could not have been created over the
land in favour of the bank (para [44]). Consequently, the bank
never had property of which it could be deprived by the court
order. The declaration of invalidity of the registered mortgage
bonds therefore did not bring about a deprivation of property that
had to be justified in terms of section 25(1) of the Constitution.
In the alternative, the court held that even if the main argument
was false and the second respondent had indeed been deprived
of property, the deprivation would satisfy the requirements of
section 25(1). The Insolvency Act (on the authority of which the
transfer and registration of the mortgage bonds were declared
invalid) is law of general application as required by section 25(1).
If one accepts that the Act did authorize deprivation of the
second respondent of its property in the registered mortgage
bonds, such deprivation would not have been arbitrary because
the deprivation would be justified in terms of the FNB test. In such
a case, there would be sufficient reason for the deprivation
because there is a rational connection between the purpose of
the regulation, namely to protect creditors of a trader who
transfers its property at a time when it is in financial difficulties,
and the effect of the regulation, namely rendering such a
potentially fraudulent and damaging transfer void (para [46]).
The finding is relatively straightforward and cannot really be
faulted. However, with reference to the alternative argument it
needs to be pointed out that the test for substantive arbitrariness
of a deprivation, as set out in FNB, is not necessarily satisfied in
all cases where there is a rational connection between the
regulation and its effects (First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service
(supra); see Van der Walt op cit (2011) at 245ff). It is true that,
since the legislation involved regulates conflicting individual
2bU ANNUAL SURVEY OF SA LAW
property interests and not public health or safety in the narrow

sense, a thin rationality version of the FNB test would probably be
applicable rather than something closer to proportionality. As was
pointed out in FNB, the extent of the analysis may vary from case
to case, with some cases requiring no more than a thin rationality
analysis and others involving a more substantive test that comes
closer to proportionality analysis. In the former cases, the mere
existence of a rational link between the purpose of the regulation
and the means selected to achieve it will suffice to justify
the deprivation. In the latter instances, the actual effect of the
regulation on the affected party has to be taken into account
before it can be determined whether the deprivation was arbi-
trary. As FNB indicated, the complexity of relationships between
the reason for the regulation, the means selected, the nature of
the property, the identity of the property holder and the effect
of the regulation on the property right will indicate whether the
justification will require mere rationality analysis or something
closer to proportionality. In this case, the legitimacy of a rationality
analysis and the scope of an arbitrariness analysis were not in
issue, seeing that there was no property interest and therefore no
deprivation in the first place. Whether the justification for the
Insolvency Act's strict protection of creditors as against bona fide
acquirers of real security rights (such as the bank in this case) is
open to constitutional attack is a different matter. It would appear
from this decision that the FNB methodology blocks the section
25 route for those who are aggrieved by legislation that renders
the acquisition of their property rights void ab initio. If the bank
wished to challenge this policy approach and the way in which it
is embodied in the Insolvency Act it should probably not have
relied on its property rights in terms of the registered mortgage
bonds (which were invalid according to the Act), but rather on
a direct constitutional attack against the Act, possibly based on a
different constitutional provision such as equality, administrative
justice or access to courts. However, the court's alternative
reason for its decision suggests that such an attack might have
been futile in any event. The question whether the policy choice
inherent in the Act is justified and whether it should be open to
constitutional attack in cases like this requires a broad contextual
analysis that exceeds the scope of this discussion, but it may be
worth investigating.
In a number of other cases, there was proof of a property
interest and it was agreed that the relevant action deprived
the complainant of this interest but, for one reason or another, the
deprivation was held not to have been arbitrary. In some of these
cases, the decision that the deprivation was not arbitrary was
based on, or at least cast in the terminolagy of, a balancing of
conflicting constitutional rights. In Curators, Emma Smith Educa-
tional Fund v University of KwaZulu-Natal 2010 (6) SA 518 (SCA),
the Supreme Court of Appeal held that judicial removal of racially
discriminatory provisions from a will establishing a charitable
trust did not bring about an unlawful deprivation of property
because the deprivation was not arbitrary. The trust in question,
which established a university-administered bursary programme,
restricted the class of potential beneficiaries from the trust to
white South African women, which violates public policy because
it offends against the constitutional right to equality. The Bill of
Rights applies to all law, including the law of charitable trusts, and
therefore trusts must conform to the constitutional prohibition
against racial discrimination (para [37]). Section 13 of the Trust
Property Control Act 57 of 1988 predates the Constitution but
nevertheless gives effect to the constitutional prohibition against
discrimination of this kind insofar as it empowers a court to vary
trust provisions that have consequences that the founder of the
trust did not contemplate and that violate the public interest (para
[25]). The constitutional prohibition against racial discrimination
takes precedence over freedom of testation. Consequently, judi-
cial removal of the offending racially discriminatory provisions in
the will in terms of section 13 of the Act does not amount to
unlawful deprivation of property (para [42]).
This decision confirms the general principle that regulatory
restriction or even removal of existing rights, authorized by a law
in order to give effect to a constitutional duty or principle, may
well constitute deprivation of property but is not arbitrary pro-
vided the deprivation is not otherwise unlawful (for example, for
exceeding the statutory authority or failing to comply with proce-
dural justice requirements). In this case, the deprivation brought
about by application of the powers granted in terms of section 13
of the Act was not arbitrary because it was properly authorized by
and carried out in terms of the Act, which in turn was justified by
the constitutional prohibition against racial discrimination. Owner-
ship is not absolute, and therefore regulatory restrictions that
deprive an owner of free exercise of an entitlement of ownership
(such as free testamentary disposition) are justified (not arbitrary)
if they are authorized by law of general application (such as the
Act), properly applied and not disproportionate. The authorizing

legislation in this case was law of general application; the power
to vary the provisions of a will is exercised by a court of law
and no argument based on disproportional harm would unsettle
the constitutional prohibition against racial discrimination in this
particular instance. The nature of the section 25(1) analysis in
this case is therefore pure rationality; the mere existence of a
rational link between the purpose of the deprivation (prohibiting
racial discrimination) and the method employed to serve it
(allowing judicial variation of the terms of a will to exclude
consequences that are against public policy) justifies the depri-
vation, without further reference to the effect that the deprivation
has on the affected property holder. The fact that the relevant
power is exercised by a court of law excludes any possibility of
unjust administrative action. Justification of the deprivation was
therefore straightforward.
The remaining issue arising from this decision is whether it was
in fact decided on the basis of balancing two conflicting constitu-
tional rights (the property right of free disposal and the right not to
be discriminated against on the basis of race, respectively).
Several points suggest that the decision was not informed by a
true balancing of conflicting constitutional rights, but rather by
straightforward constitutional interpretation and application of
one right. Firstly, there was no actual complainant whose right to
be protected against racial discrimination was being infringed by
a discriminatory bursary award under the trust. Secondly, it is
possible to explain the decision purely on the basis of a section
25(1) analysis, without resorting to the contested and complex
strategy of balancing conflicting rights. The court varied the
provisions of the will and in doing so infringed upon the property
entitlement of free testamentary disposition. This deprivation of
property was authorized by law of general application (the Act),
which in turn was justified by (and had to be interpreted in terms
of) a constitutional provision that prohibits racial discrimination.
The fact that the legislation that authorizes and justifies the
deprivation was itself giving effect to a different constitutional
right does not, in my view, change the nature of the decision from
a straightforward section 25(1) analysis to a balancing of conflict-
ing constitutional rights. The fact that one of the supposedly
conflicting rights (non-discrimination) has already been given
effect in legislation (in this case the Act) implies that future
conflicts between the exercise of property entitlements and the
Act will primarily involve the limitation of property by legislation,
not a conflict between constitutional rights. I return to this
subsidiarity matter in the discussion of the Growthpoint decision
below.
The next example illustrates the fact that the application of the
FNB arbitrariness test is more complex when a rationality analysis
is insufficient and a proportionality analysis is required, with the
result that the justification for the deprivation has to be assessed
with reference to its effect on the affected property holder (see
the reference to this aspect of FNB in the discussion of Gainsford
v Tiffski Property Investments above). In City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties39 (supra),
the Constitutional Court confirmed the important principle that a
court order to postpone or suspend the eviction of unlawful
occupiers until alternative accommodation or land could be
provided by the responsible state authority (thus giving effect to
section 26 of the Constitution and the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998
('PIE')) constitutes deprivation of the landowner's property, but
that this deprivation would only be arbitrary if the delay were
unreasonable. In practice, the decision means that such a delay
in enforcing an eviction order would be unreasonable if it were
indefinite.
In Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of
Saratoga Avenue [2010] JOL 25031 (GSJ), the High Court found
that it was justifiable to order eviction of a number of desperately
poor people from private land, but found it necessary to postpone
the eviction until alternative accommodation or land could be
provided by the local authority, even though that implied that the
landowner would have to suffer temporary continued occupation
of its land. The trial court therefore postponed implementation of
the eviction order and ordered the appellant to pay the first
respondent an amount equivalent to the fair and reasonable
monthly rental of the premises for the period during which the
order would be suspended. On appeal, the Supreme Court of
Appeal concluded that the City was obliged, and in this case was
able within the constraints of its available resources, to provide
the temporary, emergency shelter that would be required if the
occupiers were evicted (City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2011 (4) SA
337 (SCA) paras [42]-[48] and [49]-[55]; see S Maass & AJ van
der Walt 'The case in favour of substantive tenure reform in the
landlord-tenant framework: The Occupiers, Shulana Court, 11

Hendon Road, Yeoville, Johannesburg v Steele; City of Johan-
nesburg Metropolitan Municipality v Blue Moonlight' (2011) 128
SALJ436-51 for a discussion of the decision). However, the court
overruled the trial court's order that the City should pay constitu-
tional damages to the private landowner for the period during
which the occupiers remained on its land. The court noted that
the compensation order was ostensibly modelled on the decision
of the Supreme Court of Appeal in Modderklip (Blue Moonlight
(SCA) para [70], referring to Modderfontein Squatters, Greater
Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and
Legal Resources Centre, amici curiae); President of the Republic
of South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and
Legal Resources Centre, amici curiae) 2004 (6) SA40 (SCA). This
decision was confirmed in President of the Republic of South
Africa v Modderklip Boerdery (Pty) Ltd (Agri SA, amici curiae)
2005 (5) SA 3 (CC) para [66]. On Modderklip, see AJ van der Walt
'The state's duty to protect property owners vs the state's duty to
provide housing: Thoughts on the Modderklip case' (2005) 21
SAJHR 144). However, in the view of the Supreme Court of
Appeal, Modderklip was not applicable because it 'certainly is
not authority for the proposition that constitutional damages
are always available, or ordinarily appropriate, as a remedy
whenever a fundamental right has been breached' (Blue Moon-
light (SCA) para [70]). A constitutional damages order was, in the
court's view, not suitable in Blue Moonlight because the case was
distinguishable from Modderklip on the facts: in Blue Moonlight
the damages order was ancillary to an eviction order, while in
Modderklip eviction had been ordered but not executed for a
long time. Furthermore, in Modderklip the state had failed to
assist the landowner in executing the eviction order, thereby
violating its fundamental rights, while the owner in Blue Moonlight
would be able to execute an eviction order if granted. Finally, the
large numbers of people made it practically impossible to
execute an eviction order in Modderklip, so that compensation
was really the only viable and appropriate remedy, whereas the
owner in Blue Moonlight bought the property in the knowledge
that it was being occupied. For these reasons, Modderklip could
not serve as authority for a constitutional damages award in Blue
Moonlight (Blue Moonlight (SCA) para [71]). The owner had
satisfied the requirements for an eviction order and the City
merely had to be given time to provide temporary emergency
accommodation for the occupiers. As long as the delay was not
indefinite (or, one assumes, unreasonably long), the landowner
simply had to put up with it and compensation was not required.
The conflicting decisions on the compensation order are
interesting. The constitutional damages award in Modderklip
resembles, in some respects, the equalization payments that
German administrative courts sometimes award to compensate
affected property holders for the unforeseen harsh effects that
lawful regulatory action may have on them (see Van der Walt op
cit (2011) at 276-82, and 345-6). In German law, these awards
are based on statutory provisions and cannot be made by the
courts on their own initiative. Similar or comparable practices
exist in French, Belgian and Dutch law. Such payments amount to
compensation for unjustifiably harsh and unequal loss or damage
to property caused by otherwise lawful regulatory state action.
This differs from compensation for a delict because the state
action that caused the damage was lawful, and from compensa-
tion for expropriation because there was no formal expropriation.
In the absence of authorizing legislation, it is arguably difficult to
justify and structure such an award in South African law, although
the courts do have the general authority to award constitutional
compensation in terms of section 172 of the Constitution. In some
circumstances, such an award of compensation for loss or
damage caused by otherwise lawful state regulatory action might
save necessary and important regulatory action and its authoriz-
ing legislation from being invalidated simply because of the harsh
effects that it may have on one property holder or a small number
of affected property holders, and therefore it isnecessary to explore
the possibilities of developing something similar to provision for
equalization payments in South African law.
In City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (supra), the Constitutional Court upheld
the decision of the Supreme Court of Appeal to grant, but
temporarily postpone, the eviction order. The decision mostly
turned on the justification of the eviction order, but the court also
considered the question whether the unlawful occupation and the
landowner's failure to obtain an eviction order might constitute
arbitrary deprivation of its property in terms of section 25(1) of the
Constitution. The eviction issue was whether it would be just and
equitable to uphold the eviction order in view of the personal
and socio-economic circumstances of the unlawful occupiers,
the landowner's desire to use its own property and the local
2bb ANNUAL SURVEY OF SA LAW
authority's inability to provide emergency accommodation for the

occupiers when they were eventually evicted. The court held that
the local authority had to provide emergency accommodation if
possible; that it had not been proved that it was impossible in the
circumstances for the local authority to provide emergency
accommodation: and that the housing policy in terms of which the
local authority did not take responsibility for unlawful occupiers
evicted by private owners of occupied land was unconstitutional.
The eviction order was therefore upheld, but the local authority
was instructed to provide emergency accommodation two weeks
before the eviction took place.
For present purposes the court's perspective on the clash
between the rights of the landowner and the interests of the
unlawful occupiers is most interesting. The court pointed out that
the case involved a clash between the constitutional rights of the
landowner (the s 25(1) right not to be arbitrarily deprived of its
property) and the constitutional right of the unlawful occupiers
(the s 26(3) right not to be evicted arbitrarily). The owner wanted
to use its property and was entitled to an eviction order because
the occupiers were in unlawful occupation of its land, but
the occupiers were protected against arbitrary eviction, and the
ability of the local authority to provide emergency accommoda-
tion might be a crucial factor in deciding whether eviction would
be just and equitable (paras [3], [37], [40] and [100]). The
landowner, whose rights are protected against arbitrary depriva-
tion by section 25(1), argued that an eviction may be delayed on
equitable grounds as set out in section 26 and in PIE, but that an
indefinite delay would amount to arbitrary deprivation.
The court reiterated the balancing approach to clashes
between section 25 rights and section 26 rights enunciated in
FNB and PE Municipality, concluding that the PIE mandates the
deprivation of property that follows from a delay in eviction in so
far as the delay is not arbitrary (paras [35] and [36]; see First
National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service: First National Bank of SA Ltd t/a
Wesbank v Minister of Finance (supra) para [50]; Port Elizabeth
Municipality v Various Occupiers 2005 (1) SA 217 (CC) para
[23]). The court stated that '[u]nlawful occupation results in a
deprivation of property under section 25(1)' (para [37]), but
added that a purchaser who purchases land for commercial
purposes, being aware that the land has been unlawfully occu-
pied for a long time, has to expect that it might have to endure the
occupation for some time before the occupiers can be evicted.
The private landowner cannot be expected to provide free
housing for the homeless indefinitely, but under certain circum-
stances the landowner may have to be patient and endure the
temporary restriction of its rights in the form of a temporary
continuation of the unlawful occupation while alternative accom-
modation is found for the occupiers prior to their eviction. In these
circumstances, the owner's common-law right to use and enjoy
its property is justifiably limited in terms of the justice and equity
process mandated by the PIE in terms of section 26(3) (paras
[40] and [100]). Clearly, the date for eviction has to follow within a
reasonable time after the application and has to be determined
with some measure of clarity and precision to prevent the
deprivation, caused by the continued unlawful occupation and
consequent limitation of the owner's rights, from being arbitrary.
This decision looks reasonable and sets out the issues clearly.
However, in so far as the section 25(1) aspect is concerned, it is
necessary to point out that the deprivation of the landowner's
right to use and enjoy its property is arguably not caused by the
unlawful occupation (contra the court's formulation of the prob-
lem in para [37]), but by the statutory obligation (set out in the
court order) to endure temporary continuation of the unlawful
occupation while the justice and equity requirements of section
26 and the PIE are complied with. However, it is to be welcomed
that the court made it clear that this deprivation, caused by a
delay in enforcing an eviction order to which the owner is entitled,
will only be potentially arbitrary when it is indeterminate or (one
assumes) when it takes too long for the eviction to become
possible. Even if the delay were to be extended for an unreason-
ably long time, the deprivation could arguably still be prevented
from being arbitrary if the state or the courts were to employ
equalization measures, such as statutory or constitutional com-
pensation or any other relief that would ease the burden imposed
on the landowner, as in Modderklip (see the discussion of the
decision of the Supreme Court of Appeal above). However, when
a compensation order is made to prevent the burden imposed by
an inordinately long delay from becoming too heavy, it should be
made clear that the goal is to prevent the deprivation from being
arbitrary and not to transform the deprivation into an expropria-
tion.
This decision, read with its predecessor in Modderklip, should
be seen as confirmation that a delay in obtaining an eviction
2bb ANNUAL SURVEY OF SA LAW
order might bring about a deprivation of the landowner's rights;

that such deprivation would normally be justified if it is caused by
compliance with the justice and equity process requirements in
section 26(3) of the Constitution and in the PIE (law of general
application); that the delay should nevertheless not be indetermi-
nate or unreasonably long: that a delay that becomes unreason-
able because of its duration or other factors could still be
prevented from constituting arbitrary deprivation by employing
equalization measures such as constitutional compensation or
other relief granted to the landowner to ease the burden: and that
a delay that does bring about an unreasonable burden on the
landowner might render the deprivation arbitrary and thus uncon-
stitutional, but would not transform it into an expropriation that
requires compensation.
Seen from one perspective, the decision in Blue Moonlight
amounts to a balancing of property interests against other
constitutional rights to establish whether there was arbitrary
deprivation. In that respect the decision follows the earlier
decision in Port Elizabeth Municipality (supra). However, balanc-
ing of seemingly conflicting constitutional rights is arguably
neither the optimal way of deciding section 25(1) arbitrary
deprivation cases nor what the Constitutional Court actually did in
Port Elizabeth Municipality or in Blue Moonlight. In my view, what
Sachs J did in Port Elizabeth Municipality was to point out that
(and how) the Constitution (as given effect to in the PIE) strikes a
balance between section 25 rights and section 26 rights, not to
indicate that conflicts involving eviction should in every individual
case be solved by balancing the conflicting constitutional rights
judicially. Instead, the balance has arguably already been struck
in the PIE; what the courts have to do now is to implement the PIE
in a way that upholds that constitutional balance. Doing so
involves a particular judicial interpretation of the PIE, which is a
very different procedure from striking a judicial balance between
the two sets of constitutional rights in every individual case.
The dangers of resorting to unwarranted judicial balancing of
seemingly conflicting constitutional rights are nicely illustrated
in another recent decision. In Growthpoint Properties Ltd v SA
Commercial Catering & Allied Workers Union 2010 JDR 1015
(KZD), the question was whether striking workers had committed
an actionable nuisance by making a noise and causing a distur-
bance in the shopping mall where they were staging a picket.
The noise made by the picketing workers allegedly exceeded the
CONSTITUTIONAL PROPERTY LAW 2b9
legal noise limit set by the applicable regulations intimidated
members of the public who were visiting the mall; and disrupted
normal business operations in the immediate vicinity of the
picketing action. The applicant relied on the standard private- aw
nuisance case law in support of its argument for a final interdict to
abate the noise (para [7], citing De Charmoy v Day Star Hatchery
(Pty) Ltd 1967 (4) SA 188 (D); Nelson Mandela Metropolitan
Municipality v Greyvenouw CC 2004 (2) SA 81 (SE); Moskeeplein
(Edms) Bpk en 'n Ander v Die Vereniging van Advokate (TPA)
1983 (3) SA 896 (T)). The court formulated the issue in terms of
balancing the picketers' constitutional labour rights on the one
hand (especially the sections 17 and 23 rights to picket and to
strike) and the property rights (s 25), right to a healthy environ-
ment (s 24) and free trade rights (s 22) of the landowner and
occupiers of premises in the mall on the other. The respondent
argued that the Labour Relations Act 66 of 1995 ('LRA') allows
picketing and that the common law of nuisance, which was
developed to regulate the conduct of neighbours, therefore does
not apply to picketers. The court dismissed this argument and
held that whether it had jurisdiction in what might appear to be a
labour dispute depended on the cause of action and how it was
framed. The applicant based its case on the common law of
nuisance and its constitutional right to property, free trade and a
healthy environment - which all fall squarely within the High
Court's jurisdiction. Since the applicant (the owner of the pre-
mises) was not the employer involved in the labour dispute and
its cause of action was based on grounds unrelated to the labour
dispute, the court had jurisdiction and the applicant had locus
standi to bring the application (paras [15] and [19]).
The court held that there was no evidence that the strikers had
committed any offence under the municipal by-laws (paras
[38]-[40]). Accordingly, in the court's view, the dispute turned on
whether the constitutional rights of the strikers could override the
constitutional property rights, free trade rights, and right to a
healthy environment of others; in other words, whether the
picketers' constitutional rights to strike and picket enabled them
to strike and picket in a way that constituted a nuisance to others,
without any legal consequences. The court rejected this possibil-
ity on the grounds that all constitutional rights have to be
exercised in a proportional way (para [46]). It held that the rights
to strike and picket, like all rights in the Bill of Rights, are not
absolute and that limitations therefore have to be imposed on the
rights in order to protect the rights of others (para [57]). Although

others, including non-parties to the dispute, have to have some
tolerance for the effects of lawful striking and picketing, such
tolerance has imits and those limits are exceeded when the
landowner and its tenants cannot conduct their business
because of the effects of the picketing (paras [58]-[59]). Seeing
that it was possible for the respondents to exercise their right to
picket without interfering with the property and other rights of the
landowner, its tenants and the public, the court held that the level
of noise created as part of the picketing was unacceptable and
constituted an unjustifiable limitation of the applicant's rights
(para [60]). What was required of the respondents was not that
they should not exercise their right to demonstrate and picket, but
that they should reduce the level of noise they created during
the picketing to a level that did not infringe upon the rights of the
applicant and occupiers and customers of premises in the mall.
The parties were unable to suggest such a standard and the
court therefore set a standard of noise with which the picketers
had to comply (para [62]).
Several aspects of the decision deserve comment. At face
value, the result seems to be just and fair, but there are a number
of logical and doctrinal points that require further analysis and
discussion. Firstly, the decision is marred by the court's collaps-
ing of the distinction between private and public nuisance. The
case law on which the applicant apparently originally based its
application relates to private-law nuisance, while it was men-
tioned at one point that the picketers had created a public
nuisance (paras [31]-[32], citing East London Western Districts
Farmers'Association v Minister of Education and Development
1989 (2) SA 63 (A)). It was, therefore, unclear whether the case
should have been decided on the basis of private or public
nuisance. Neither the applicant nor the court seems to have
explored this avenue further or to have made a clear distinction
between the two categories It has become customary in recent
case law for the two forms of nuisance to be collapsed into or
confused with each other, but in fact it is important to distinguish
them carefully. Private-law nuisance relates to nuisance caused
between two or more owners (or users) of different pieces of land,
in situations where one of them uses his or her land in a way that
causes either serious annoyance or actual harm on neighbouring
land. Public nuisance refers to instances where a person (not
necessarily a landowner or occupier) does something that
causes a nuisance for the public at large, usually in a public
space (see AJ van der Walt The Law of Neighbours (2010)
302-12). The tort of public nuisance, for which the remedy is a
claim for damages, was not received in South African law (Dale
Hutchinson 'Aquilian liability II (Twentieth century)' in Reinhard
Zimmerman & Daniel Visser Southern Cross: Civil Law and
Common Law In South Africa (1996) 595-623), but the crime of
public nuisance has been adopted in South Africa in an amended
version. In some instances, the English crime of public nuisance
has been replaced by statutory nuisance, but recent case law
indicates that the crime of public nuisance is still relevant in other
instances (see 410 Voortrekker Road Property Holdings CC v
Minister of Home Affairs 2010 JDR 0520 (WCC); Intercape
FerreiraMainliner (Pty) Ltd v Minister of Home Affairs 2010 (5) SA
367 (WCC)).
However, for the courts to apply this common-law institution, for
which the remedy is an abatement order, it is crucial to make a
clear and consistent distinction between private and public
nuisance. The central element of public nuisance is action,
usually but not necessarily in a public space, that causes a
danger or threat to the health and safety of the public. Tradition-
ally, this related to instances where someone blocked a street
or caused dangerous smoke or noise in a public space. In the
present case, the nuisance would have been the threat that
the excessive noise created by the picketers posed to the health
and safety of the owner, occupiers and customers of the shop-
ping mall. Although the shopping mall is of course private
property, it may well be assumed (partly on the basis of public
accommodations doctrine in American law, but see further the
decision in Victoria & Alfred Waterfront (Pty) Ltd v Police Commis-
sioner of the Western Cape 2004 (4) SA 444 (C)), that open
spaces such as the entrances, parking areas and corridors of
a privately owned shopping complex are sufficiently open to
and used by the public that a threat or danger to public
health and safety caused there could (and arguably should) be
adjudicated on the basis of public rather than private nuisance. In
any event it seems reasonably clear that a private-law nuisance
action, which requires the existence of at least two land parcels
occupied and used by different owners or users, is out of place in
the context of a shopping mall. At the very least it would be
problematic and contentious to rely on private-law nuisance
doctrine to complain about the effect that the actions of one user
may have for passers-by, such as customers and casual visitors

to the mall. References to private nuisance would be out of place
and superfluous, except in so far as the action is based purely on
the effect that the noise, created by one or more lessees, had on
lessees of other premises in the mall. Even then, the fact that the
action was brought against picketers, rather than other shop
owners or lessees, would be difficult to accommodate in private-
law nuisance doctrine. Unless the case could be decided on the
basis of statutory nuisance (such as noise regulations in munici-
pal by-laws), public nuisance appears to be the best option in a
case like this, where private nuisance is simply not applicable.
However, in the end it appears as if the nuisance issue was not
really decided at all in this case in any event. Apparently, the
decision was eventually based on a balancing of the constitu-
tional rights of the picketers and the constitutional rights of the
owner, occupiers and customers of the shopping mall. In this
regard the decision vaguely resembles the decision in Victoria &
Alfred Waterfront v Police Commissioner of the Western Cape
(supra), where it was held (on public accommodations grounds
rather than nuisance grounds) that it was possible to regulate
people's actions in a public space if those actions threatened or
harmed others, but not physically to exclude them from the area.
The same or a similar public accommodations approach would
also have been possible in the current case in the sense that it
would have been impossible for the owner of the mall to exclude
the picketers from the premises (being quasi-public space), but it
was possible to expect that their actions in that space should not
unlawfully interfere with or harm the occupiers of shops and their
customers. This line of argument was not raised or considered in
the decision, though.
The constitutional analysis on which the decision was eventu-
ally based is puzzling in certain respects.
Inthe first instance, it is not clear how the strikers' actions could
have constituted a limitation (constitutionally invalid or otherwise)
of the applicant's property rights, since limitations in the sense of
section 25 of the Constitution are probably possible only in terms
of law of general application and not by unlawful private action. A
finding that the strikers' action constituted an actionable limitation
of the applicants rights amounts to an acknowledgement of
direct horizontal application, not only of section 25 but also of the
other rights involved (ss 22 and 24). Whether section 25 is
capable of a reading that would enable such horizontal applica-
tion is contested and remains unclear (see Van der Walt op cit
(2011) at 62-9); in the current context the mere assumption that it
is possible appears inadequate. It is in fact questionable whether
the applicant should have been allowed to argue its claim on the
basis of direct reliance on section 25 at all, given the subsidiarity
principles established in recent Constitutional Court case law
(Van der Walt op cit (2011) at 66-9). The case law indicates that
litigants are not entirely free to select whether they want to base
their cause of action (or defence) on a constitutional provision,
legislation or the common law. Litigants who aver that a right
protected by the Constitution has been infringed must rely on
legislation enacted to protect that right and may not rely on the
underlying constitutional provision directly when bringing action
to protect the right, unless they attack the constitutional validity or
efficacy of the legislation (South African National Defence Union v
Minister of Defence 2007 (5) SA 400 (CC) paras [51]-[52]; MEC
for Education: KwaZulu-Natal v Pillay2008 (1) SA 474 (CC) paras
[39]-[40]; Chirwa v Transnet Ltd 2008 (2) SA 24 (CC) paras [59]
(Skweyiya J) and [69] (Ngcobo J); Walele v City of Cape Town
2008 (6) SA 129 (CC) paras [29]-[30]: Nokotyana v Ekurhuleni
Metropolitan Municipality [2009] ZACC 33, (19 November 2009)
paras [47]-[49]).
Secondly, litigants who aver that a right protected by the
Constitution has been infringed must rely on legislation enacted
to protect that right and may not rely on the common law directly,
when bringing action to protect the right (Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) para
[25]; Minister of Health NO v New Clicks South Africa (Pty) Ltd
(Treatment Action Campaign and Another as amici curiae) 2006
(2) SA 311 (CC) para [96]; Chirwa v Transnet Ltd (supra) para
[23]: Fuel Retailers Association of Southern Africa v Director-
General:Environmental Management, Departmentof Agriculture,
Conservation and Environment, Mpumalanga Province 2007 (6)
SA 4 (CC) para [37]; Walele v City of Cape Town (supra) para
[15]). Direct reliance on the Constitution is possible, apart from
referring to the Constitution to interpret legislation, when the
legislation is being attacked for failing to give proper effect to the
constitutional right (see AJ van der Walt 'Normative pluralism and
anarchy: Reflections on the 2007 term' (2008) 1 CCR 77-128). At
best, in this case a constitutional attack might have established
that the law that allows the picketers' action (the LRA) authorized
or enabled arbitrary deprivation of the applicant's rights. How-
ever, that particular argument would only have been possible if

the LRA did not provide for control over strikes and pickets and in
fact the LRA does provide for such control, as the decision
indicates. The approach followed in the decision should therefore
be restructured to reflect the Constitutional Court's preferred
approach in terms of the subsidiarity principles set out above.
Logically, there seems to be a way to approach the issue in this
case according to the subsidiarity principles, without resorting to
balancing of conflicting constitutional rights. It is clear that the
LRA was promulgated to give effect to the rights to picket and to
strike, while (apart from the LRA) no legislation has been adopted
specifically to protect the section 25 rights of the applicant in
cases of this nature. It is also clear that the respondents' actions
at least infringed upon the section 25 rights (peaceful use and
enjoyment) of the owner and tenants of affected shops in the
shopping mall. The analysis should therefore begin with the LRA
rather than either section 17 or section 23, and the approach
should be to ask whether, and how, the LRA allows for limitations
of the section 25 right. Either the LRA does not allow the kind of
picketing the respondents indulged in (in which case their
actions were unlawful and not protected by the law and no
constitutional issue arises), or the LRA does allow for that kind of
picketing and is therefore open to constitutional challenge on the
basis of section 25(1).
Instead of arguing the decision on the basis of balancing the
seemingly conflicting rights (picketing and property), the deci-
sion should therefore probably be explained in the following
terms: The applicant, whose constitutional rights have not been
given effect to in a specific piece of legislation, should perhaps
have initiated its application in terms of the common law, such as
public nuisance. The respondents would have been likely to base
their defence on the LRA. The subsidiarity principles indicate
that, where possible, the case should be decided on legislation
rather than the underlying constitutional right (thus, the LRA and
not sections 17 or 23 of the Constitution) or the common law
(thus, the LRA and not common-law public nuisance). The basis
for deciding the conflict should therefore have been the LRA. The
LRA allows and protects picketing, but only in so far as it does not
unreasonably and unjustifiably infringe upon the rights of the
owner and occupiers of the premises. The constitutional limits of
lawful picketing are set out and regulated under the LRA, in terms
of which picketers must restrain the noise they make while
picketing to levels that are reconcilable with the rights of reason-
able use and enjoyment of the applicant. Outside of those limits,
picketing is not protected by the LRA and is accordingly unlawful.
The judgment's somewhat superficial and broad-brush treat-
ment of the rights of the owner of the mal, its tenants and
occupiers of shops in the mall and the customers or general
public who move through the mall is unsatisfactory. It is difficult to
see how the rights that were allegedly interfered with by the noise
(the right to a healthy environment, property rights and free trade
rights) were actually infringed. It is clear that the property rights
(reasonable use and enjoyment) and the free trade rights of the
owner and occupiers of premises in the mall could be affected by
the noise, but the customers and general public (who were
alleged to have been intimidated by the noise) obviously did not
have either property or free trade rights that could be affected. As
owner of the mall, the applicant could have brought a constitu-
tional challenge on the basis that its own property and free trade
rights and those of its tenants were infringed upon to the extent
that customers were intimidated by the noise or it could have
brought a public nuisance challenge on the basis that the health
and safety of the public (including shop owners, employees,
customers and the general public) were impaired. The cause of
action would have been very different in each of the two cases,
depending on the approach selected by the applicant. A decision
based on public nuisance might have made it clear how this
common- law institution still functions in our law, and how it might
have applied in the setting of a quasi-public space such as a
shopping mall. However, in the absence of evidence that an
offence had been committed against the relevant by-laws, it
seems improbable that such an action would have succeeded.
A proper section 25 analysis would accordingly have had to be
based on the question whether the property rights of the owner of
the mall and its tenants were lawfully and properly limited (depriva-
tion) by the statutory definition of the picketers' rights in terms of the
LRA, and, whether the picketers' actions were covered by that
statutory limitation. It is very likely that the outcome of such an
analysis would have corresponded to the decision arrived at by the
court, but the explanation of the reasoning would have been more
satisfactory.
Governing Body of the Juma Musjid Primary School v Essay
NO 2011 JDR 0343 (CC) also involved the balancing of conflict-
ing constitutional rights; in this case, property rights and the right
to education. The case concerned an eviction order, granted by

the KwaZulu-Natal High Court, Pietermaritzburg, against a public
school previously conducted on private land. The Member of the
Executive Council for Education ('MEC') in the province failed to
conclude an agreement with the private landowner concerning
the terms and conditions for continuing the tenancy, as is
required by the South African Schools Act 84 of 1996, whereupon
the landowner obtained an eviction order in the High Court. The
Constitutional Court held that the landowner had acted reason-
ably in applying for an eviction order, but that the High Court
should not have granted the eviction order without obtaining
information from the MEC concerning provision for the continued
schooling of the affected learners, in an effort to protect their right
to an education under section 29 and their best interests under
section 28(2) of the Constitution. Since the High Court did not ask
for this information, the Constitutional Court set the High Court
order aside and made a provisional order that required the MEC
and the trustees to attempt to conclude an agreement that would
save the school and render the eviction unnecessary. (This
approach follows the logic of the suspended eviction decisions
discussed above, indicating that the landowner is entitled to an
eviction order, but may have to wait patiently for its execution until
justice and fairness requirements have been complied with.) The
trustees would be able to apply directly to the Constitutional
Court for an order that would be just and equitable, including an
eviction order. The dispute remained unresolved and it seemed
certain that the school would have to be closed. The trustees
applied for an eviction order and the MEC started proceedings
to discuss the closure of the school. A further order was made to
ensure that the MEC complied with the obligation to provide
information about alternative arrangements for the schooling of
the affected learners. After having seen the reports, the Constitu-
tional Court was satisfied that satisfactory arrangements had
been made and that a case for eviction had been established,
and an eviction order was duly granted. This judgment sets out
the reasons for the provisional order and the eviction order.
The interesting issues for property law are whether the trustees,
when vindicating their property rights and applying for an eviction
order, had any constitutional obligations in respect of the learn-
ers' right to a basic education and, if so, whether the common-law
remedy of the rei vindicatio ought to have been developed in
circumstances where the learners' right to a basic education was
likely not to be given effect to as a result of an eviction. These, the
court explained, are questions that involve the balancing of
competing rights, namely the right to a basic education and
property rights (para [7]). Having set out the importance
and nature of the right to a basic education that is contained in
section 29(1) of the Constitution as being an unqualified, immedi-
ately realizable right that can only be limited in terms of law of
general application which is reasonable and justifiable in terms
of section 36(1) (paras [36]-[44]), the court concluded that the
MEC had not fulfilled the constitutional obligation that this provi-
sion places on the state (paras [45]-[60]).
On the basis of these findings, the court considered the
question whether the trustees, as private landowners, owed a
constitutional duty to the learners on the ground of their right to a
basic education. The High Court held that while the trust's
property rights were protected by section 25 of the Constitution,
the trust owed no constitutional obligation to the learners at the
school, since the obligation to provide compulsory education was
an obligation imposed on the Department of Education. The
Constitutional Court chose as its point of departure the view that
private landowners could traditionally evict any tenant if they
could satisfy the requirements of the rei vindicatio, linking that
entitlement to freedom of economic and social life from state
interference and an overemphasis on the division between public
and private law and the 'sheltering' of private power used for
public purposes. This explanation may be an oversimplification,
considering the huge impact that apartheid land law had on the
exercise of private property rights. Be that as it may, one can
agree with the court that, before 1994, private law left significant
scope for the private exercise of public power, among other
things by way of eviction. The question is whether, and how, the
Constitution has changed this state of affairs. This is obviously
extremely important.
The court concluded that section 29(1) clearly does not place a
'primary positive obligation on the Trust [private landowners] to
provide basic education to the learners': nor does it oblige private
landowners to make their property available for use as a public
school (para [57]). Whether such an obligation to make property
available for use as a public school might exist in cases where
the landowner applies for approval of a land use development is
another matter the constitutional legitimacy and scope of so-
called exactions is a complex issue that was not at stake in the

present case. (On South African law see, for example, City of
Cape Town v Helderberg Park Development (Pty) Ltd 2008 (6) SA
12 (SCA); compare SMI Trading CC v Mobile Telephone Net-
works (Pty) Ltd 2011 JDR 0119 (GSJ).) As the law stands, the
landowner may elect to make his or her property available for use
as a school in terms of section 14(1) of the Act on the basis of an
agreement between the owner and the MEC. The so-called
'negative protection' of socio-economic rights does not imply
imposing a state obligation on private persons, but rather
requires private persons not to interfere with or diminish the
enjoyment of such right. In this case, the trust therefore does
have a negative obligation not to impair the learners' right to a
basic education. The question was whether the trust had
breached that negative obligation by applying for a rei vindicatio
and eviction.
The court had found earlier that the trust was entitled to seek
eviction in view of its unsuccessful efforts to get the MEC to
comply with her constitutional obligations, but that the trust was
nevertheless not entitled to an eviction order until it was clear to
the court that acceptable alternative arrangements had been
made for the learners' schooling. The trust's negative obligation
towards the learners was secondary and, once the trust had
allowed the school to be conducted on its property, this negative
obligation amounted to nothing more than minimizing the poten-
tial impairment of the learners' right to a basic education (para
[62]). The trust had repeatedly demonstrated its willingness to
limit the impairment of the learners' rights; it was the MEC who,
through her lack of application, had made it impossible to reach
an agreement that would allow the previous situation to continue
undisturbed. In all its efforts to negotiate a resolution the trust had
acted reasonably and therefore its eventual decision to seek an
eviction order was also reasonable (para [65]). The cause of the
breakdown in the previous situation was not the trust's wish to
evict the school, but the MEC's failure to renew the lease.
The court pointed out that the issue of weighing up conflicting
constitutional rights had received attention in Port Elizabeth
Municipality v Various Occupiers (supra), where the court had
held that the Constitution imposes new obligations upon property
rights, counterposing those rights to other constitutional rights
such as the right not to be evicted from one's home or the right to
a basic education. The judicial function in those circumstances
is -
'not to establish a hierarchical arrangement between the different
interests involved, privileging in an abstract and mechanical way the
rights of ownership over the right not to be dispossessed of a home, or
vice versa. Rather, it is to balance out and reconcile the opposed
claims in as just a manner as possible, taking account of all the
interests involved and the specific factors relevant in each particular
case' (para [70], quoting from Port Elizabeth Municipality v Various
Occupiers (supra) para [23]).
In this case, failing to consider the effect of eviction on the
learners' rights in terms of section 29 at all would amount to
privileging property rights over the section 29 rights in a hierar-
chical way, which is why the original eviction order was set aside
and the provisional order granted. In terms of the provisional
order, the trust's rights under section 25 and the learners' rights
under section 29 were both protected in a non-hierarchical
manner.
Despite the provisional order, the court nevertheless consid-
ered it just and equitable in the end to grant an eviction order in
this case. The last passages of the judgment set out the reasons
for this decision (paras [72]-[79]). The main reason is that,
instead of reaching an agreement with the trustees of the
property that would save the school from closing down, the MEC
succeeded in making alternative arrangements for the schooling
of the affected children. These arrangements were reasonable in
view of the section 29 right, and if they were implemented, there
would be no further reason not to grant the eviction order.
Like the other cases discussed above, the question raised by
the decision in Governing Body of the Juma Musjid Primary
School v Essay NO (supra) is whether this case should indeed be
regarded as a balancing case, where it was necessary to
balance two seemingly conflicting constitutional rights, rather
than simply another case where the lawfulness of a statutorily
authorized deprivation of a section 25 right had to be established.
In terms of the subsidiarity principles mentioned before, alleged
infringements of the section 29 rights of learners should be
adjudicated primarily in terms of the legislation enacted to give
effect to those rights, namely the South African Schools Act, and
not in terms of section 29 directly. The architecture of the case,
namely that refusing an eviction order to which the landowner
would otherwise have been entitled constitutes a deprivation of
property that has to be justified in terms of section 25(1),
suggests that the reasoning should probably have followed the
same logic that was proposed above with reference to the Blue
Moonlight case. The starting point is a complaint about an

alleged infringement of a section 25 right. The complainant (the
trust) clearly holds a section 25 property right, namely ownership
of land. The question is whether there was an infringement of that
right (in the form of forcing the landowner to endure temporary or
even permanent occupation of the land): whether that infringe-
ment qualifies as a deprivation of property (which it clearly does if
it amounts to forcing the owner to endure prolonged occupation
of his or her land against his or her will); and whether the
deprivation is lawful in terms of section 25(1) (properly authorized
by law of general application and not arbitrary). If the issue is
structured in this way, the relevance of section 29 differs from
what it would have been in a case where section 29 rights were
judicially balanced against section 25 rights. In this case, it has to
be assumed that the balancing was done by the legislature when
promulgating the Act and that the judicial role is merely to assess
the justification for specific limitations on the section 25 right
brought about by the Act. Casting the decision in the form of a
judicial balancing of the conflicting constitutional rights negates
the subsidiarity principles and the democratic, constitutional
premises underlying them.
Housing and eviction: scope and effects of theJaftha decision
A number of cases decided in 2011 concerned the effect of
the Constitutional Court's decision in Jaftha v Schoeman: Van
Rooyen v Stoltz 2005 (2) SA 140 (CC) on the established law
regarding foreclosure on mortgage bonds registered to secure a
debt incurred to acquire residential property that is the debtor's
home. More particularly, the question is whether the section 26
defence against execution that succeeded in Jaftha, namely that
the owner of the property would be deprived of his or her section
26 right of access to adequate housing if the property were sold
in execution, might also succeed in instances where the execu-
tion takes place to enforce a mortgage bond registered specifi-
cally to secure a loan incurred to pay the purchase price of the
property. Ifthe section 26 defence would also succeed in such an
instance, the holder of the real security right (the mortgage bond)
would be deprived of a property right (real security right), and the
question is whether such deprivation might be arbitrary and
therefore unconstitutional (compare further Van der Walt op cit
(2011) at 302-8). The most important of the recent decisions on
this point is Gundwana v Steko Development CC and Others
2011 (3) SA 608 (CC). (For a discussion, see AJ van der Walt &
R Brits 'Gundwana v Steko Development CC and Others and
Nedbank Limited v Fraser and Another, Nedbank Limited v
Chabalala and Another, Nedbank Limited v Machitele and
Another, Nedbank Limited v Moccasin Investments' (2012) 75
THRHR 322.)
In Jaftha, the Constitutional Court held that the limitation
imposed on a home owner's section 26 right of access to housing
by a sale in execution of his or her home, as allowed for in the
Magistrates' Courts Act 32 of 1944, could only be justified if
the execution process were accompanied by judicial oversight.
Since oversight was not provided for in the Act, the court read a
suitable provision into the Act to make it clear that execution of
residential property and eviction should not take place without a
court having considered the justification of the procedure in view
of all the circumstances. (The relevant provision in section
66(1)(a)of theAct, as amended by the reading in order, is cited in
Gundwana v Steko Development CC (supra) nl7.) In Jaftha, the
relevant circumstances were that the debt was small, extraneous
to ownership of the house, and not secured by a mortgage bond.
In these circumstances, the court held that execution and evic-
tion would clearly have been unjustifiable, especially since it was
clear that the execution procedure was being abused by the
creditor.
In subsequent cases, the question was whether the estab-
lished practice of obtaining summary judgment and execution
was still possible in view of the Jaftha decision, in 'normal' cases
where a bank issues summons against a debtor who defaults on
repayment of a loan secured by a mortgage bond. In a number of
instances, the High Courts concluded (or simply assumed) that
Jaftha had set higher standards for execution against residential
property, even in 'normal' cases where the debt was secured by a
mortgage bond (compare Standard Bank of South Africa Ltd v
Snyders and Eight Similar Cases 2005 (5) SA 610 (C); Nedbank
Ltd v Mortinson 2005 (6) SA 462 (W)). The High Courts accord-
ingly began to require that creditors applying for execution
should show (by sufficient and suitable allegations in the writ of
execution) that the execution would be justified under section 26
of the Constitution, taking into account all the circumstances,
including the effect of execution and eviction on the defaulting
debtor and his or her family.
The Supreme Court of Appeal reacted to these developments,
in Standard Bank of South Africa Ltd v Saunderson 2006 (2) SA
264 (SCA), by holding that itwas still constitutionally in order for

the Registrar of the High Court to issue warrants of execution
during default judgment proceedings. However, to preclude the
possibility that this procedure might bring about an unconstitu-
tional limitation of section 26(1) rights, the court required credi-
tors to advise their debtors of their right to bring information to the
court if they believed that their housing rights were threatened
(paras [25] and [27]). Ifthe debtor indeed provided information to
that effect, the Registrar was obliged to refer the matter to a
judge. (Nedbank v Mortinson (supra) paras [33]-[34] identified
the information that has to be placed before the Registrar to
assist him or her in establishing whether judicial oversight is
necessary.) The approach followed in Saunderson appeared to
establish a practical arrangement that could prevent injustices
and ensure that the process ran smoothly in practice (but see
Sandra Liebenberg Socio-economic Rights: Adjudication Under
a Transformative Constitution (2010) 357-8). To bring the High
Court procedure into line with the magistrate's court procedure
as amended by the Jaftha decision, High Court Rule 46(1)(a)(ii)
was amended (on 19 November 2010, effective from 24 Decem-
ber 2010). The rule now requires that whenever an application is
made for an execution order against a judgment debtor's primary
residence, a court (and no longer the Registrar) may grant such
an order only after it has taken all relevant circumstances into
consideration. This new practice recognizes a substantive ele-
ment in what was previously seen as a purely procedural matter
(see Standard Bank of SA Ltd v Snyders (supra) paras [ 19]-[ 22]
and the cases referred to there).
In Gundwana v Steko Development CC (supra) (para [50]), the
Constitutional Court confirmed the new approach introduced in
Jaftha and held that the circumstances of each execution case
must from now on be evaluated judicially. The question in this
case was whether the Registrar of the High Court, in the course of
ordering default judgment under Uniform Rule 31(5)(b), may
grant an order declaring mortgaged property that is someone's
home specially executable. (The 2010 amendment of the rule did
not solve the issue in the case because it does not apply
retroactively.) The Constitutional Court held that it was unconstitu-
tional for a Registrar of a High Court to grant such an order in so
far as the order permitted the sale in execution of a person's
home. The court noted that the practice of ordering immovable
property specially executable at the time of judgment, together
with the notion that the execution process could take place free of
judicial oversight, had been amended by its earlier decisions in
Jaftha and Chief Lesapo v North West Agricultural Bank 2000 (1)
SA 409 (CC). The combined effect of the two earlier decisions is
that execution may only take place after judgment in a court
of law. Where execution is to take place against the home of
indigent debtors who may lose their homes, judicial oversight
of the execution process is compulsory (Gundwana para [41]).
The Gundwana judgment is particularly important for dismiss-
ing two arguments, both of which were accepted in previous
case law, against general applicability of the Jaftha principle. The
first restrictive argument was that the Jaftha principle does not
apply if either the applicant or the property does not perfectly fit
the factual context within which Jaftha was decided. More
specifically, this meant that the Jaftha principle regarding judicial
oversight need not apply if the applicant was not indigent or the
property was not the applicants home. The court dismissed this
argument because the constitutional validity of the oversight
principle cannot depend on the subjective position of the particu-
lar applicant - it is either objectively valid or it is not. Further-
more, a fact-bound argument supports judicial oversight rather
than executive decision-making because it requires a close
contextual investigation that exceeds what a Registrar can do on
the face of the summons (para [43]). The second restrictive
argument concerning the effect of Jaftha was that mortgagors
who enter into a mortgage loan agreement willingly accept
the risk of losing the secured property. The implication of this
argument was that the Jaftha principle need not apply when the
debt was secured by a mortgage bond. The court dismissed this
argument as well, noting that the mortgagor's provision of his or
her immovable property as security for the loan does not imply
acceptance that the mortgage debt may be enforced without
judicial sanction; that the debtor also waived his or her section 26
rights of access to housing or protection against eviction; or that
the execution may be enforced regardless, even in bad faith
(para [44]). Whether hypothecated property constituting a per-
son's home should be declared specially executable requires an
evaluation of the facts of each case and that evaluation must be
undertaken by a court of law. In so far as the High Court Rules
and practice allow the Registrar to do the evaluation and order
the property specially executable, Gundwana declared them
unconstitutional (para [49]). The court explicitly made this finding
under section 26 and did not decide the additional argument

under section 25 (para [51]).
Following Gundwana, it is clear that an execution order against
a judgment debtor's primary residence must be issued by a court
and that the court has the discretion to allow or disallow the
execution order, based on its judicial evaluation of all the relevant
circumstances. It is still unclear whether the new rule also applies
to property owned by juristic persons, for example, where the
shareholder of the juristic person occupies the property as his or
her primary residence. (See Nedbank Ltd v Fraser and Four
Other Cases 2011 (4) SA 363 (GSJ) para [12] in favour of the
wider approach; but see FirstRand Bank Ltd v Folscher, and
Similar Matters 2011 (4) SA 314 (GNP) paras [31]-[32] to the
contrary.) In the light of the terminology used in Gundwana
('the home of a person': paras [1], [18] and [55]) and the broad
wording of section 26(3)), the wider approach looks preferable
and Uniform Rule 46(1)(a)(ii) should be interpreted accordingly
(see Van der Walt & Brits (2012) 75 THRHR 324.
The Constitutional Court made it clear that execution of prop-
erty to enforce a real security right is not a bad thing:
'Itis part and parcel of normal economic life. It is only when there is
disproportionaity between the means used in the execution process
to exact payment of the judgment debt, compared to other available
means to attain the same purpose, that alarm bells should start
ringing. Ifthere are no other proportionate means to attain the same
end, execution may not be avoided' (para [54]),
The Jaftha principle, as expanded by the amendment of the
High Court rule and the Gundwana decision, does not undermine
creditors' entitlement to execute their judgment debts against
their debtors' secured property. What it does, is to ensure that the
courts oversee this process, giving due regard to the impact that
execution and potential eviction may have on the debtor, espe-
cially when the secured property is someone's primary resi-
dence. Sale in execution of a person's home is subject to section
26 of the Constitution (Gundwana para [1] n3), but section 26(1)
does not establish an absolute right, and limitations of that right
can be justifiable. This is generally the case with mortgage
bonds. The debtor willingly placed his or her home at risk of
execution by concluding a mortgage agreement and having a
limited real right registered to this effect. Even though the
Gundwana court played down the implications of this factor, it is
still relevant to the possible justification of a sale in execution: the
CONSTTUTIONAL PROPERTY LAW 2/b
fact that the debtor agreed to the creation of a real security right
that includes the right to execute is not strong enough to support
execution without judicial oversight, but in a system that includes
judicial oversight it remains a valid consideration. Secondly, the
National Credit Act 34 of 2005 ('NCA') provides the debtor with
reasonable mechanisms to avoid sale in execution (see Standard
Bank of South Africa Ltd v Hales 2009 (3) SA 315 (D) para [25]).
Thirdly, effective enforcement of mortgage bonds is necessary to
facilitate home loan financing, which is vital for an economy that is
capable of providing every person with adequate access to a
home. In the light of these considerations, the fact that some
individual debtors will lose their homes to sale in execution under
justifiable circumstances does not in itself render the practice
unconstitutional. In the light of Gundwana it is clear that mortgage
creditors can still insist on directly executing their claims against
immovable property specially hypothecated to secure these
claims. However, where these properties constitute the debtors'
primary residences, judicial oversight is necessary to enquire
whether the usual effects of mortgage foreclosure can be
avoided in favour of a reasonable and viable alternative.
In addition to the need for due attention to the interests of
homeowners (especially those lacking legal and financial know-
ledge), stability and certainty in the credit industry require that the
point of departure should be the enforcement of the willingly
agreed-upon terms of the mortgage agreement. Courts would be
willing to refuse a sale in execution where all the procedural
requirements have not been satisfied or where creditors have
acted in bad faith. However, where no exploitive practices are
present, court intervention should generally be limited to ensuring
that the mechanisms of the NCA (and other alternatives) have
been pursued before allowing direct execution against the debt-
ors' home. One of the implications is that the established prac-
tice, according to which a creditor could directly seek execution
against secured immovable property, without first looking at the
debtor's movable property, may have to be reconsidered where
circumstances require (see Van der Walt & Brits (2012) 75
THRHR 325).
Seizure, confiscation, and fofeiture of property
The general principles regarding the policing power that are
set out in the first section above also apply in the sphere of
seizure, confiscation and forfeiture of property. These principles
have been applied in cases dealing with seizure, confiscation

and forfeiture in the post-1 994 era (see Van der Walt op cit (2011)
at 311-33 for a general discussion). During the period under
review, several further cases were decided in this area.
In Falk and Another v National Director of Public Prosecutions
[2011] ZACC 26 (16 August 2011) (reported at 2012 (1) SACR
265 (CC)), the Constitutional Court confirmed some of the prin-
ciples previously laid down with regard to the interpretation and
application of the Prevention of Organized Crime Act 121 of 1998
('POCA') in so far as the effect of restraint orders on property
holders is concerned. The decision is particularly relevant since it
also explains the relationship between the POCA and the Interna-
tional Co-operation in Criminal Matters Act 75 of 1996 ('ICCMA').
The CCMA provides for the enforcement in South Africa of
restraint orders issued in criminal proceedings in foreign states
(and vice versa). A restraint order granted by a German court
against the first applicant (Mr Falk) was registered in South Africa
and the High Court subsequently issued a restraint order inter-
dicting the applicants (Mr Falk and a company in which he is the
sole shareholder) from dealing with affected assets in South
Africa. The issue was whether the applicants were entitled to
have the South African restraint order, issued at the request of the
German authorities, lifted under circumstances where the Ger-
man court had found the first applicant guilty but refused to grant
a confiscation order against him. Additional considerations were
that an appeal against the court's refusal to order confiscation
was successful and that the confiscation issue had been referred
back to the regional court. The applicants argued that the
German issue had been finalized and that failure to lift the South
African restraint order against the first applicant amounted to
arbitrary deprivation of his property in violation of section 25(1).
The respondents argued that the matter was not finalized until the
confiscation issue was finalized in the German courts (para [34]).
The major part of the decision deals with the correct interpretation
of the POCA and the ICCMA and the interrelationship between
them, but for the purposes of constitutional property law the
decision is relevant because of the Constitutional Court's findings
on the purpose, effect and validity of restraint orders.
The Constitutional Court reiterated that the primary purpose of
chapter 5 of the POCA is not punitive but to ensure that nobody
benefits from his or her own wrongdoing, and to promote crime
deterrence and prevention by depriving criminals of the pro-
ceeds of their crimes (para [15], citing S v Shaik 2008 (5) SA 354
(CC) paras [50]-[58]; Mohunram v National Director of Public
Prosecutions (Law Review Project as amicus curiae 2007 (4) SA
222 (CC); Fraser v ABSA Bank Ltd (National Director of Public
Prosecutions as amicus curiae) 2007 (3) SA 484 (CC); Prophet v
National Director of Public Prosecutions 2007 (6) SA 169 (CC)
Phillips v National Director of Public Prosecutions 2006 (1) SA 505
(CC); National Director of Public Prosecutions v Mohamed NO
2003 (4) SA 1 (CC)). The issues in this case had to be decided
against the backdrop of the purpose of the Act as set out in these
decisions. The court decided not to set the registration of the
German order aside. The applicants' failure to show that enforce-
ment of the registered order would be contrary to the interests of
justice, as required by section 26(1)(d) of the ICCMA, supported
the conclusion that the registration of the order should not be set
aside (para [71]). The purpose of the POCA and the interpreta-
tional guidelines developed around that purpose therefore
played a role in interpreting the ICCMA.
As far as the interrelationship between the POCA and the
ICCMA is concerned, the court adopted the view that this
relationship must find expression in an interpretation that would
avoid an outcome that would amount to arbitrary deprivation of
property in contravention of section 25(1) (para [20]). The court
concluded that the interpretation it attached to the relevant
provisions in the POCA and the ICCMA represented a meaningful
and workable means of giving effect to the POCA and to the
ICCMA, within the context of the objects of the two statutes. It did
not offend the spirit, purport and objects of the Bill of Rights.
International co-operation in combating crime to protect society
is a legitimate constitutional objective. The order granted in this
case did not allow for the arbitrary deprivation of property. By
their very nature, restraint orders restrain the use of property
(para [92]). Interpreting the two statutes in the manner chosen by
the court gave effect to the valid and legitimate purpose of the
statutes, but did not impose an arbitrary deprivation of property
on the affected owner. The deprivation that inevitably followed
from the granting of restraint orders under legislation of this
nature was properly authorized, legitimized by its valid purpose,
and not disproportionate. It was therefore not arbitrary or in
violation of section 25(1).
InNational Director of Public Prosecutions v Gardener 2011 (4)
SA 102 (SCA), the Supreme Court of Appeal deliberated on the
278 ANNUAL SURVEY OFSA LAW
discretion that a court exercises when considering whether to

confiscate, in terms of section 18(1) of the POCA, the value of a
benefit that was derived from an offence. The court confirmed
that this discretion has to be exercised in a manner which gives
due regard to the purpose of the Act, which is to confiscate the
proceeds of unlawful activity, even if the consequences appear
harsh. Having found the respondents guilty on charges of fraud,
the High Court handed down prison sentences but refused to
order confiscation of the value of the benefits that the respon-
dents had derived from the offence (paras [15]-[16]). On appeal
the Supreme Court of Appeal confirmed the prison sentences in
part and also considered the NDPP's appeal against the decision
of the trial court not to order confiscation. The court pointed out
that such an order can only be granted once it is clear that
the offender had indeed received and retained a benefit from the
offence and the value of the benefit has been established (paras
[15] and [17]). The purpose of the confiscation provision in the
POCA is to 'strip sophisticated criminals of the proceeds of their
criminal conduct' and 'a court may not, under the guise of the
exercise of its discretion, disregard its provisions - harsh as they
may be' (para [19]). Although a court exercises its discretion in
handing down a confiscation order, it may not disregard the
purpose of the Act simply because the cumulative effect of a
prison sentence and a confiscation order appears to it to be
disproportionately harsh. Section 18(1)(a) provides 'that once a
court has convicted a defendant of an offence from which he or
she has benefited it may, in addition to any punishment, which it
may impose in respect of the offence, grant a confiscation order'
(para [22], original emphasis). The severity of a prison sentence
is a separate matter that is decided on its own and ought not to
be taken into account when exercising the discretion whether to
order confiscation of the value of a benefit of the crime; the latter
is to be decided on its own jurisdictional facts as set out in section
18 (para [23]). In the third stage of the inquiry, when determining
the amount to be confiscated, the rationale of the legislation (in
other words, to deprive offenders of the full extent of the benefit
they received from the crime) must also be taken into account,
which means that they should also be deprived of the value of the
appreciation of assets they may have acquired from the pro-
ceeds of the crime and not just the appreciation of the monetary
proceeds (para [32]).
ONSTITUT ONAL PRIOPERTY LAW 27
279
SECTION 25(2)-(3): EXPROPRIATION AND COMPENSA'ION
A number of cases decided during the period under review
dealt with the public purpose requirement (s 25(2), read with
s 25(4)(a) of the Constitution) and the compensation requirement
(s 25(2), read with s 25(3) of the Constitution) for expropriation.
The most important decision during this period was Agri South
Africa v Minister of Minerals and Energy 2012 (1) SA 171 (GNP)).
This decision follows on Agri South Africa v Minister of Minerals
and Energy; Van Rooyen v Minister of Minerals and Energy 2010
(1) SA 104 (GNP), where the question was raised on exception
whether the Mineral and Petroleum Resources Development Act
28 of 2002 ('MPRDA'), in forcing holders of unused 'old order'
mineral rights to apply for converted 'new order' rights under the
Act, effectively expropriated those rights in instances where the
holders of the old order rights were not in a position to invest the
capital outlay and expertise required for a successful conversion
application. In the earlier case, the court was asked, on excep-
tion, only to decide whether the plaintiffs had a clear case.
However, the court went further and added that it thought that the
plaintiffs could in fact prove their case (para [19]). Based on its
analysis of the transitional arrangements, the court concluded
that the Act 'admits that holders will be deprived of their rights
and that such deprivation coupled with the State's assumption of
custody and administration of those rights constitute expropria-
tion thereof' (para [17]). Accepting that holders of old order rights
can prove that their rights have been expropriated and given that
the Act affords them a right to compensation, the court concluded
that the exception had to be dismissed (para [19]).
In Agri South Africa v Minister of Minerals and Energy [2011]
ZAGPPHC 62 (28 April 2011), the court had an opportunity to
decide the matter on the substance. (For a discussion of the
decision, see Van der Walt op cit (2011) at 436ff.) The plaintiff
claimed compensation in terms of the MPRDA, arguing that the
enactment of the MPRDA amounted to expropriation of its mineral
rights. The MPRDA does not recognize the existence of common-
law mineral rights as they existed prior to its enactment (para [2]).
The plaintiff argued that the coal rights at the heart of this case
had been expropriated on the commencement date of the
MPRDA, by section 5 of the Act, read with sections 2, 3 and 4 of
the Act, and with the Expropriation Act 63 of 1975 (para [7]).
It was common cause that the coal rights held prior to
commencement of the MPRDA constituted property for the
purposes of section 25 of the Constitution. Sebenza bought

the coal rights in 2001 but never obtained a prospecting permit or
a mining authorization under the old Minerals Act 50 of 1991: nor
did it ever conduct prospecting or mining operations on the land.
Sebenza was placed into liquidation two weeks after the com-
mencement of the MPRDA (1 May 2004). The provisional liquida-
tors advertised the coal rights for sale. A purchase offer was
accepted, but the sale was terminated and the purchase price
repaid when the parties received legal advice to the effect that
the sale was void because the coal rights had ceased to exist in
terms of the Act. The liquidators lodged a claim for compensation
against the Department of Mineral Affairs ('DMA') under item 12 of
Schedule I of the MPRDA, read with regulation 82A(1) of the
regulations promulgated under the Act. The plaintiff took cession
of this claim.
The court reduced the remaining issues to the questions
whether the MPRDA had deprived Sebenza of its coal rights;
whether the coal rights had been expropriated and whether
Sebenza (and the plaintiff as its cessionary) was entitled to
compensation (para [8]).
Traditionally, the owner of land also owned everything below
the surface of the land and was entitled to prospect for minerals,
mine them and keep or sell them. The right to the minerals could
be separated from ownership of the land and held and registered
separately. The right to minerals was a real right, the exercise of
which could conflict with the rights of the landowner. The mineral
rights were valuable assets that the holder could sell or bequeath
to his or her heirs, or that he or she could hold as an investment.
The holder of the mineral rights was, however, under no obliga-
tion to exploit the minerals. The right to prospect for, mine and
dispose of minerals was restricted and regulated by legislation
prior to enactment of the MPRDA. The MPRDA introduced a
completely new scheme of regulation (paras [37]-[58]). One of
the goals of the Act is to bring about equitable access to the
country's mineral and petroleum resources. (The constitutionality
of the Act was not in question in this case, as it has been
accepted that the Act serves the legitimate need for substantive
equality: para [39], citing Bengwenyama Minerals (Pty) Ltd v
Genorah Resources (Pty) Ltd (Bengwenyama-ye-Maswati Royal
Council Intervening 2011 (3) SA BCLR 229 (CC) para [3].) The
MPRDA grants the state, as the custodian of the nation's mineral
resources, the power through the Minister to grant and manage
CONSTITUTIONAL PROPERTY LAW 281
prospecting and mining rights and permits. Prospecting and
mining rights are granted for a limited period but are renewable.
Rights are registered in the Mining Titles Office. In terms of
section 11 of the MPRDA, these rights are transferable subject to
the Minister's written consent.
The court declined to express a view on the nature of the state's
custodianship of the country's mineral and petroleum resources
in terms of section 3 of the Act or on the effect that this provision
has on the landowner's ownership of minerals before they are
removed from the land (para [49]). It has become settled law that
the limited real right of the holder of mineral rights that have been
severed from landownership disappeared with the enactment of
the MPRDA (para [50], citing Agri South Africa v Minister of
Minerals and Energy (supra) para [11]; Holcim (South Africa)
(Pty) Ltd v Prudent Investors (Pty) Ltd 2010 JDR 1066 (SCA) para
[25]) and that the holder of the mineral rights no longer has an
asset that can be sold, alienated, used as security or kept as an
investment. The mineral right holder's ownership in the minerals,
contingent upon their removal from the land, has also disap-
peared, as has the right to grant to others the right to prospect
and mine. All that the holders of mineral rights have been granted
is the right to apply for a prospecting or mining right, in
competition with everybody else. These rights are granted on a
first-come-first-served basis; if competing applications are
received on the same day, preference is given to applications
from historically disadvantaged persons. The result, the court
concluded, is that the 'previous system of an underlying private
law real right as a prerequisite for prospecting and mining
entitlements have been subsumed into the Minister's power to
grant mining and prospecting rights' (para [51]).
The transitional arrangements in Schedule II of the MPRDA are
especially important (paras [53]-[58]). The traditional arrange-
ments confer rights to new order rights on the holders of old order
rights, as defined in the Schedule. Old order prospecting rights
and old order mining rights refer to active prospecting and
mining at the time of commencement of the Act, while unused old
order rights refer to rights, entitlements, permits and licences
listed in Table 3 of Schedule I and in respect of which no active
prospecting or mining was being conducted immediately prior to
the commencement of the Act. Sebenza's coal rights fell into the
second category. Item 8 of the Schedule confers on the holder of
an unused old order right the exclusive right, for one year, to
apply for a prospecting or mining right under the MPRDA.

Effectively, Sebenza's coal right continued to exist for one year
after commencement of the Act, which entitled Sebenza to apply
for a new order right under the Act. The content of the right as it
existed prior to the Act was wiped out by the Act (para [57]).
In addition, item 12 of the Schedule provides that '[a]ny person
who can prove that his or her property has been expropriated in
terms of any provision of this Act may claim compensation from
the State'. This provision, the court pointed out, must be read with
section 25 of the Constitution. To determine whether a person has
had his or her property expropriated under item 12, it first has to
be established whether that person has been deprived of prop-
erty as envisaged in section 25(1), since expropriation is a subset
of deprivation (para [61], citing First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service
(supra) para [57]). In this case, it was alleged that the deprivation
had been occasioned by the very enactment of the legislation
(para [63]). It was common cause that a legislative act can
amount to deprivation (First National Bank of SA Ltd t/a Wesbank
v Commissioner, South African Revenue Service being cited as
an example), but the court pointed out that deprivation could also
be effected by an administrative act or a court order (para [63]).
The question was whether the enactment of the MPRDA had
indeed deprived Sebenza of its coal rights.
The court referred to the broad definition of 'deprivation' in FNB
(para [64], citing First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service para [57]) and the
apparent restriction of that definition in later decisions such as
Mkontwana (para [64], citing Mkontwana v Nelson Mandela
Metropolitan Municipality; Bissett and Others v Buffalo City
Municipality, Transfer Rights Action Campaign and Others v
Member of the Executive Council for Local Government and
Housing, Gauteng and Others 2005 (1) SA 530 (CC) paras [32]
(Yacoob J) and [90] (O'Regan J dissenting on that point)). The
court also referred to the confusing passages in paragraphs [35]
and [36] of Reflect-All 1025 CC v Member of the Executive
Council for Public Transport, Roads and Works, Gauteng Provin-
cial Government 2009 (6) SA 391 (CC) and paragraphs [38] and
[39] of Offit Enterprises(Pty) Ltd v Coega Development Corpora-
tion (Pty) Ltd 2011 (1) SA 293 (CC). It concluded that deprivation
for the purposes of section 25(1) does not require the physical
taking of property; that it suffices if one or more entitlements of
ownership are interfered with: and that a court must consider the
extent of the interference with the use and enjoyment of property
(para [65]). Furthermore, the court added with reference to the
words of O'Regan J in Mkontwana, '[i]t should be emphasized,
however, that there may be limitations on property rights which
are either so trivial or are so widely accepted as appropriate in
open and democratic societies as not to constitute "deprivations"
for the purpose of s 25(1)' (paras [64] and [65], citing Mkontwana
para [90]). The definitional issue had no impact on the decision
and is not discussed here (see Van der Walt op cit (2011) at 205).
The court rejected the argument that the MPRDA did not
deprive the plaintiff of its mineral rights but merely regulated
them. Regulating rights, in the court's view, implies that the
affected person still holds those rights, albeit 'in a truncated
form', whereas Sebenza's rights did not exist any longer (para
[67]). The MPRDA regulates the use of minerals and entitlements
to minerals, but it does not regulate the mineral rights of Sebenza
because those rights no longer exist. The court also rejected the
argument that the MPRDA regulated the use of mineral rights by
introducing the internationally accepted 'use-it-or- lose-it' prin-
ciple (para [70]). Relying on the Holcim decision of the Supreme
Court of Appeal, the court concluded that the old system of
common-law mineral rights and the new system of state custodi-
anship over all minerals were mutually exclusive. The state could
not implement the new system if the old rights still existed and
had to deprive the holders of their old order rights in order to
obtain custodianship (para [71], citing Holcim v Prudent Inves-
tors (supra) para [23]). The court further rejected the argument
that Sebenza had lost its rights by reason of its failure to make
use of the transitional arrangements under Schedule l and not
because of the Act. Instead, the court agreed with the earlier Agri
South Africa judgment that the transitional arrangements do no
more than afford the affected holder of rights an opportunity to
mitigate its damages. Deprivation of property is a legal fact:
'Ifan interference with the use, enjoyment and exploitation of property
has occurred that is sufficient to constitute a deprivation, that fact
cannot be undone by offering to the deprived party something in the
place of the deprived property' (para [72], citing Agri South Africa v
Minister of Minerals and Energy (supra) para [17]).
The court accordingly concluded that Sebenza had been
deprived of its property on the day of commencement of the
MPRDA, because on that day it had no more than the right to
apply for new order rights and no longer had the common-law
rights it had had the day before (paras [75] and [77]). The
MPRDA is law of general application and it was common cause
that the deprivation it caused was not arbitrary. In this regard the
court added that the purpose of a law that authorizes deprivation
is relevant to the question whether the deprivation is arbitrary, but
not in order to change what is a deprivation into something other
than deprivation (para [76]).
Two aspects need to be noted with reference to the deprivation
analysis in this decision. One has to agree with the court's
rejection of the argument that a law that merely regulates the use
of property does not constitute deprivation of property. In fact, the
very essence of deprivation is that it follows from the regulation of
property through the state's policing power. It is for this very
reason that deprivation has to be defined widely rather than
narrowly. Deprivation refers to the effect that regulatory restric-
tions on the use, enjoyment or exploitation of property may have
on the owner's entitlements. Unless those effects are so insignifi-
cant as to be excluded by the de minimis principle, they should
be characterized as deprivation. However, it does not follow that
regulation should leave the property in the hands of the owner,
albeit in a truncated state, as the court argued (para [67]).
Analysis of foreign decisions indicates that it is possible legiti-
mately to regulate the use and enjoyment of property, effecting
what we would call a deprivation in terms of section 25(1), in a
way that leaves the owner with either a completely changed right
or even with no right at all, without any claim for compensation.
(The court referred to BVerfGE 58, 300 (NaBauskiesung), but a
more applicable German decision might be BVerfGE 24, 367
(Deichordnung); other comparable decisions are BVerfGE 42,
263 (Contergan) and a decision from Australia, Mutual Pools &
Staff Pty Ltd v The Commonwealth of Australia (1994) 179 CLR;
see further Van der Walt op cit (2011) at 454-5; AJ van der Walt
Constitutional Property Clauses: A Comparative Analysis (1999)
142).) Without going into the details of foreign law, the possibility
of this kind of regulation can be demonstrated with reference to
legislation that controls confiscation and forfeiture of property in
South African law - there is no question that these laws regulate
the use of property and bring about a valid and constitutionally
legitimate deprivation: yet they do not necessarily leave the
affected owner with the property still in his or her hands (see Van
der Walt op cit (2011) at 311ff and case law cited there). The
court's premiss that valid deprivation in terms of section 25(1)
should leave the property in the hands of the owner is therefore
questionable.
The court proceeded to the question whether the deprivation
constituted expropriation for which compensation is required.
The logic of this step in the decision is problematic. On the one
hand, it was common cause that the deprivation brought about
by the MPRDA was not arbitrary. In terms of the FNB decision, a
finding that a deprivation was not arbitrary (or that it was justified
under section 36(1)) is necessary before the court can proceed
to the next step, where the question may be asked whether the
deprivation brought about an expropriation. To get to the expro-
priation issue, where compensation is required in terms of section
25(2), it was therefore necessary for the applicants to agree that
the deprivation brought about by the MPRDA was not arbitrary.
However, that conclusion is undermined by the finding that the
deprivation did not leave the property in the hands of the owner,
unless it is assumed that any deprivation that does not leave the
property in the hands of the owner is by definition an expropria-
tion for which compensation is required. That premiss indeed
seems to inform the applicant's argument and the court's deci-
sion. However, it raises big questions in other contexts where
clearly legitimate and non-arbitrary deprivations do not leave the
property in the hands of the owner, such as criminal or civil
forfeiture in terms of the POCA, acquisitive prescription in terms
of the Prescription Acts 18 of 1943 and 68 of 1969, and others.
The logical error at the root of this problem seems to be the
oversimplified assumption that any deprivation that does not
leave the property in the hands of the owner is an expropriation.
To determine whether expropriation did indeed take place the
court relied on a definition in terms of which the existing right is
extinguished and the state appropriates a right (para [78],
referring to Beckenstrater v Sand River Irrigation Board 1964 (4)
SA 510 (T)as quoted in Harksen vLane NO 1998 (1) SA 300 (CC)
para [32]: Reflect-All 1025 CC v Member of the Executive Council
for Public Transport, Roads and Works, Gauteng Provincial
Government (supra) para [64]). For this purpose, the court
accepted that it does not matter whether the expropriator ends
up with the rights, but merely whether the expropriator acquires
the substance of the rights (paras [80] and [83]). The Minister,
acting in terms of sections 3 and 5 of the MPRDA, grants rights
that are substantially the same as those previously held by the
common-law mineral rights holder, which the court interpreted as

meaning that the state had acquired the substance of those
rights by enacting the MPRDA (para [82]). The court concluded
that Sebenza's property had been expropriated by the enactment
of the MPRDA (specifically by s 5 read with ss 2 and 3). It was
common cause that the MPRDA is law of general application and
that expropriation was for a public purpose or in the public
interest (paras [87] and [88]).
The MPRDA makes provision for compensation for expropriation
in item 12(3) of Schedule 11,which must be read with section 25(2)
and (3) of the Constitution. Regulation 82A(7) of the regulations
published under the MPRDA provides that the method of determin-
ing compensation is informed by sections 14 and 15 of the
Expropriation Act. These provisions leave it to the court to deter-
mine just and equitable compensation, taking the provisions of
section 25(3) into account. The court accepted the market value
of the property as its starting point and amended that value with
reference to the effect of other relevant circumstances (para [93]:
this was the approach adopted in Ex parte Former Highland
Residents. In re Ash v Department of Land Affairs [2000] AlI SA 26
(LCC) paras [25]ff and Khumalo v Potgieter [2000] 2 All SA 436
(LCC) para [23]; see Van der Walt op cit (2011) at 519). Inthe end,
the court awarded compensation in the sum of the amount the
liquidators would have been willing to accept for the rights at
the time when the MPRDA came into operation, but without
realizing its effect on the value of the rights.
The most important question that should be asked in response
to the decision is whether there was indeed an expropriation. The
basis for the court's decision that there was an expropriation
seems to be the considerations that the deprivation brought
about by the MPRDA did not leave the property in the hands of
the previous owner that the state acquired the rights because it
had acquired the right to award basically similar rights after the
commencement of the Act; and that the MPRDA provides for
compensation. An alternative explanation of the effect of the
MPRDA is that it brought about a legitimate change of regulatory
regime that did not expropriate affected rights - except in cases
where such rights were explicitly expropriated - and for which
compensation is therefore not payable merely because affected
holders of rights suffered loss as a result of the change of regime.
This explanation would seem to apply especially well in those
circumstances where the former holders of old order rights failed
to convert their old order rights into new order rights. Two
alternative explanations of this nature have been mooted. Van der
Walt (op cit (2011) at 436ff, with reference to foreign case law) has
suggested that the effect of the MPRDA should be explained as a
regulatory regime change, which brings about certain regulatory
deprivations of property (that have to be justified in terms of
section 25(1)), but is not equivalent to expropriation. Elmarie van
der Schyff (The Constitutionality of the Mineral and Petroleum
Resources DevelopmentAct 28 of 2002 (unpublished LLD thesis,
North West University Potchefstroom 2006) and 'Who "owns" the
country's mineral resources? The possible incorporation of the
public trust doctrine through the Mineral and Petroleum
Resources Development Act' 2008 TSAR 757, with reference to
US law) has suggested that the effect of the MPRDA should be
explained with reference to the doctrine of public trust. This
explanation does not exclude the possibility that the wholesale
effect of the MPRDA could amount to expropriation.
It is crucially important to establish quickly and authoritatively
what the section 25 effect of the MPRDA is, especially insofar as it
abolished old order rights and replaced them with new order
rights. The fact that the old order rights disappeared, that the
state was subsequently able to make awards of apparently
similar rights and that the MPRDA allows for compensation for
expropriation are insufficient to establish that any loss of old order
rights should be seen as an expropriation that requires compen-
sation. It is possible that some instances of loss of rights under
the MPRDA could and should be treated as expropriation that
requires compensation, but the broad sweep of this decision is
unsatisfactory. At least in some instances (perhaps the majority of
instances) it might be argued with just as much conviction that
the effect of the MPRDA is purely regulatory, even if the result is
that some people obtain less valuable and more stringently
regulated rights and that others lose their rights altogether. There
is a strong case to be made, both on the basis of the constitu-
tional arrangements and with reference to foreign law, for the view
that the state has the regulatory power to change the structure
and workings of a particular property regime, without compensa-
tion, in order to improve the efficient regulation of and increase
equitable access to property under that regime. In addition, it has
been argued that we could and should avoid adopting the
American doctrine of regulatory or constructive expropriation in
South African law (see Van der Walt op cit (2011) at 376ff for the
arguments). The result arrived at in Agri South Africa can be

supported only on the basis of something like regulatory or
constructive expropriation. If the effect of the legislation can be
explained in a way that avoids that outcome, the alternative
explanation has to be considered seriously.
The question in Haffejee and Others NNO v eThekwini Munici-
pality 2011 (6) SA 134 (CC) was when compensation for expro-
priation has to be determined. The respondents argued that
compensation can be determined after the expropriation has
been completed, while the applicants countered that it would be
unconstitutional not to determine the amount of compensation
prior to the expropriation. On that basis the applicants also
challenged certain provisions of the Expropriation Act for violat-
ing section 25(2)(b) of the Constitution. This section merely
provides that property may only be expropriated subject to
compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected
or determined or approved by a court. The trial court held against
the applicants and refused leave to appeal. A petition for leave to
appeal to the Supreme Court of Appeal was likewise refused and
the applicants asked permission to appeal to the Constitutional
Court.
The decision of the Constitutional Court is fairly straightforward.
The Expropriation Act, which dates from before the 1996 Consti-
tution, clearly foresees that compensation can be determined
after expropriation (para [14]). The question is whether this
position violates the Constitution. Neither the wording of section
25(2)(b) nor foreign law on the topic is decisive of the issue and
there are equally strong arguments in favour of and against
determination of compensation being a condition precedent to a
valid expropriation (paras [33]-[35]). The court therefore relied
on the wording of section 25(3) (the amount of compensation and
the time and manner of payment must be just and equitable,
reflecting an equitable balance between the public interest and
the interests of those affected) for its decision, namely that the
answer to the question whether compensation must be deter-
mined prior to or simultaneously with the expropriation depends
on the context and circumstances of every particular case. There
are times when prior determination of the compensation would be
just, for instance where those affected stand to lose their homes
and livelihood through the expropriation: just as there are times
when requiring prior determination of compensation would be
unjust, for instance when the expropriation is urgent (para [40]).
In both cases, there are other constitutional provisions (protection
against eviction, access to the courts) that would provide equi-
table relief (para [41]). The issue could be argued both ways,
because allowing expropriation prior to determination of compen-
sation 'triggers repellent memories of pre-constitutional arbitrary
deprivations', while making prior determination of compensation
a requirement could burden the state unduly in certain contexts
(para [42]). The context and circumstances of each case must
therefore indicate whether prior determination would be required.
The Constitutional Court concluded that the wording of section
25(2) does not require prior determination of compensation in all
cases, although prior determination of compensation in accor-
dance with section 25(3) would generally be just and equitable.
In cases where compensation may be determined after the
expropriation, this has to be done as soon as is reasonably
possible, in accordance with section 25(3). To protect vulnerable
individuals or groups from harm, eviction that follows from
expropriation may only take place when agreed on between the
parties or under court supervision. In disputed cases, the courts
must ensure that the outcomes of expropriation are just and
equitable in terms of sections 25(3) and 26(3) (para [43]).
The decision is significant in so far as it explicitly confirms the
continued applicability and authority of the decision in First
National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service (supra) (paras [57] and [60]) in all cases
concerning the meaning and interpretation of section 25, as well
as the principle, laid down in FNB, that section 25(1) is the
starting point for constitutional analysis of any challenge under
section 25 for infringement of property rights (para [29]). How-
ever, this confirmation that FNB is still the starting point is perhaps
less significant than it appears. Superficially, the court adhered to
the FNB principle and methodology when deciding that the trust's
property was property for the purposes of section 25; that the
municipality had deprived the trust of that property that it had
done so in terms of law of general application that was not
arbitrary; that the deprivation qualified as expropriation in terms
of section 25(2); and that it was undertaken for a public purpose
or in the public interest as intended in section 25(2) (para [27]).
However, upon further reflection it is striking that the court did not
follow the FNB methodology in full. For one thing, the court did not
really consider or analyse the question whether the deprivation
was arbitrary. Doing so might have required the court to enter into
the academic argument to the effect that, if the FNB methodology
were followed strictly, any expropriation that could be challenged
seriously under section 25(2) should in principle have failed the
non-arbitrariness test in the deprivation stage of the analysis.
Stated differently, if it was so self-evident that the deprivation
brought about by the expropriation was not arbitrary, there could
have been no serious reason still to ask whether it complied with
the 'just and equitable' requirements under section 25(3). To state
it differently: if there was serious doubt whether the expropriation
was contrary to the just and equitable requirement in section
25(3) because compensation was not determined beforehand, it
should have failed (or should at least have been tested against)
the non-arbitrariness requirement. (Theunis Roux 'Property' in Stu
Woolman & Michael Bishop (eds) Constitutional Law of South
Africa vol 3 2 ed OS (2003) chap 46 2-5 argues that the
'telescoping' effect of the FNB approach means that all property
cases will be treated as deprivations first, which means that
the law of general application issue will be decided during the
deprivation analysis and that most, if not all, irregularities that
might disqualify an expropriation under section 25(2) or (3) would
probably already taint it as arbitrary deprivation in terms of
section 25(1): see Van der Walt op cit (2011) at 75.) It is a pity that
the court failed to consider or even mention the academic
literature on this point. It is of course quite possible that the court
would have rejected the 'vortex' effect of FNB identified by Roux,
but unfortunately its position on this point remains unclear
because the court merely stated its adherence to the FNB
methodology without mentioning the possibility that doing so
might require a different approach from the one followed in this
decision. The effect is that the court appears to have assumed
too readily and too quickly that the deprivation in this case was
not arbitrary in the sense established in the FNB decision.
A second aspect that is noteworthy is the court's confirmation
that its interpretation of section 25 must promote the values that
underlie an open and democratic society based on human
dignity, equality and freedom; that pre-constitutional expropria-
tion law must be approached circumspectly (para [29]); and that
protection of property holdings in terms of section 25 must
include recognition of the need for redress and transformation of
the legacy of grossly unequal distribution of land. The historical
context within which the property clause was included in the
'ONSTITUTIONAL PROPERTY LA 2
291
Constitution must be kept in mind. Under the Constitution the pro-
tection of property as an individual right is not absolute this
protection is subject to societal considerations and it includes
balancing the protection of individual rights against public inter-
est (para [30]). At a time when the government is apparently
considering the removal of section 25 from the Constitution, these
reminders are both timely and significant.
In Erf 16 Bryntirion (Pty) Ltd v Minister of Public Works [20111
ZASCA 246 (1 December 2011), the Supreme Court of Appeal
considered an appeal from the North Gauteng High Court,
Pretoria (Erf 16 Bryntirion (Pty) Ltd v Minister of Public Works
[2010] ZAGPPHC 154 (12 October 2010)) in which the High Court
had held that expropriation of the appellant's property was for a
public purpose or in the public interest as required by section
25(2) of the Constitution. The applicant's property is the only
privately owned property in the Bryntirion Estate, which includes
the State Presidents residence, the state guest house and
several ministerial homes. The respondent intended to expropri-
ate the property with a view to consolidating the properties on the
Estate and upgrading the security of the presidential and other
state properties on the Estate. The appellant argued that this goal
could be achieved by other means and that the expropriation of
its property was therefore not justified by the public purpose it
was supposed to serve.
The trial court confirmed that the decision to expropriate under
the Expropriation Act is administrative action under the Promotion
of Administrative Justice Act 3 of 2000 ('PAJA') and that, if
property is expropriated for what is clearly a public purpose, the
fact that there are other ways of achieving that purpose is
irrelevant because the decision to expropriate lies with the
authority (paras [53] and [54]; see Fourie v Minister van Lande
1970 (4) SA 165 (0) at 169D-E and 176F-G; Administrator
Transvaal and Another v J Van Streepen (Kempton Park) (Pty)
Limited 1990 (4) SA 644 (A) at 657C-F). As long as the decision
was generally valid and rational (in the sense that the means
selected were rationally connected to the valid public purpose to
be served), the decision of the Administrator would not be open
to attack on the basis that less invasive means were available.
The Supreme Court of Appeal held that the procedures fol-
lowed in this expropriation were fair in terms of the PAJA, and
confirmed that the expropriation 'had a rational purpose related
to legitimate security concerns' (para [10]). Moreover, pre-consti-
292 ANNUAL SURVEY OF SA LAW
tutional precedent indicates that expropriation for exactly this

kind of security purpose is indeed for a public purpose as
intended in the Expropriation Act (Slabbert v Minister Van Lande
1963 (3) SA 620 (T)). As for the appellant's argument that the
security concerns could have been met by alternative means that
would have been less invasive of its rights, the court confirmed
that it is for the expropriating authority to decide how to achieve
its legitimate public purpose - as long as the expropriation is
indeed for a public purpose, the fact that alternative means may
be available or expedient is irrelevant. The appeal was accord-
ingly dismissed.
Arguments concerning the exercise of the discretion to expro-
priate depend largely on administrative law and nothing further
needs to be said about that aspect here. Clearly, the Minister
exercises her statutory discretion when deciding to expropriate
and as long as the expropriation is for a public purpose, the mere
fact that other means to achieve that purpose may be available is
generally indeed irrelevant.

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AJ VAN DLR ALTF*

SECTION 25(1) OF THE CONSTITUTION: REGULATORY DEPRITATION

Regulatry controls that constitute deprivation of property

* B lur et Art Honns (BA) LLB LLD (Potchefstroom) LLM (Witwvatersrand).

the complex relationships between the purpose of the depriva-

was 'misplaced and based on a misconception of that section'

property interests and not public health or safety in the narrow

Act), properly applied and not disproportionate. The authorizing

landlord-tenant framework: The Occupiers, Shulana Court, 11

authority's inability to provide emergency accommodation for the

order might bring about a deprivation of the landowner's rights;

rights in order to protect the rights of others (para [57]). Although

may have for passers-by, such as customers and casual visitors

ever, that particular argument would only have been possible if

to education. The case concerned an eviction order, granted by

called exactions is a complex issue that was not at stake in the

Moonlight case. The starting point is a complaint about an

264 (SCA), by holding that itwas still constitutionally in order for

under section 26 and did not decide the additional argument

have been applied in cases dealing with seizure, confiscation

discretion that a court exercises when considering whether to

purposes of section 25 of the Constitution. Sebenza bought

apply for a prospecting or mining right under the MPRDA.

common-law mineral rights holder, which the court interpreted as

arguments). The result arrived at in Agri South Africa can be

tutional precedent indicates that expropriation for exactly this

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