IURA 414

LAND LAW AND

REGISTRATION
DEPRIVATION
 Objectives:

 By the end of this lecture; students should be able to:

 Discuss deprivation in terms of section 25 of the Constitution

Section 25. (1)

No one may be deprived of property except in terms of law of

general application, and no law may permit arbitrary
deprivation of property.
 Interpretation

 This provision protects property owners, whether historically-

advantaged or historically disadvantaged, from having their
property arbitrarily deprived.

(a) Law of general application

 The first requirement ensures that when the state deprives a person of property rights, it only does
so only when it has the requisite legal authority from an empowering provision. This flows
from the rule of law which requires every exercise of public power to be authorised by law in
order to be legitimate and lawful.
(b) Non-Arbitrariness

 A deprivation is arbitrary if the ‘law’ referred to in section 25(1) does

not provide sufficient reason for the particular deprivation in question
or where the deprivation is procedurally unfair’. This second
requirement if often the primary focus of the property clause inquiry.
Guiding principles for non-arbitrariness:

 In the First National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services [2002] ZACC 5; 2002 (4) SA 768; 2002 (7) BCLR 702 (CC)
case,

 The relationship between the deprivation and its purpose;

 The relationship between the purpose of the deprivation and person affected by the
deprivation;

 The relationship between the purpose of the deprivation and the degree of the deprivation
taking into account the nature of the property; and

 Balance these factors to determine whether non-arbitrariness should take the form of mere
rationality or a threshold akin to proportionality [read para 97-100].
 The courts have on the whole interpreted deprivation quite
widely (as compared to expropriation which has been
interpreted quite narrowly).
Example of a court case were deprivation was widely interpreted:

(i) In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties

39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) the court stated that:

“The South African constitutional order recognises the social and historical
context of property and related rights. The protection against arbitrary
deprivation of property in section 25 of the Constitution is balanced by the right of
access to adequate housing in section 26(1) and the right not to be evicted arbitrarily
from one’s home in section 26(3).
Historical context is relevant to one’s understanding of the constitutional protection against
arbitrary deprivation of property and to access to adequate housing. Apartheid legislation
undermined both the right of access to adequate housing and the right to property… It could
reasonably be expected that when land is purchased for commercial purposes the owner, who is
aware of the presence of occupiers over a long time, must consider the possibility of having to
endure the occupation for some time. Of course a property owner cannot be expected to provide
free housing for the homeless on its property for an indefinite period. But in certain
circumstances an owner may have to be somewhat patient, and accept that the right to
occupation may be temporarily restricted, as Blue Moonlight’s situation in this case has
already illustrated…” [paras 35 – 40].
Further Reading:

Unpacking Section 25: Is South Africa’s property clause an obstacle or engine

for socio-economic transformation?

- J. Dugard