LAPR 7311

Learning unit 6
 Introduction to
constitutional property
law

Chapter 21
 Features Validity of
Supreme Law common &
customary law

Important
Entrenched values &
principles

Protects
Bill of Rights
property

Independent Horizontal
judiciary application
National unity and reconciliation

Limited government in an Political and cultural

open democracy pluralism

A just and open society Constitutionalism

based on dignity,
freedom and equality
 Direct application of Constitution
Direct vertical Direct horizontal application means that
application means COURTS must give effect to an applicable
that fundamental right by applying and, where
STATE must necessary, developing common law insofar as
respect legislation does not give effect to that right, except
fundamental rights where it is reasonable and justifiable to develop
(and may therefore common law to limit right in accordance with
not infringe them) limitation clause
unless infringement
is reasonable and
justifiable
according to Constitutional provisions protect private persons from
limitation each other in particular circumstances
clause
 Section 36 Limitation
clause
Generally, fundamental rights may be restricted only if this is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including :

 Nature of right
 Importance of purpose of limitation
 Nature and extent of limitation
 Relation between limitation and its purpose, and less restrictive means to
achieve purpose
Property rights :
Section 25

Chapter 22
Propert
y
clause
(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.
(2)Property may be expropriated only in
terms of law of general application

(a) for a public purpose or in public

interest;

and

(b) 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 decided
or approved by a court
(3) The amount of the compensation and the time and manner of payment must be
just and equitable, reflecting an equitable balance between public interest and the
interests of those affected, having regard to all relevant circumstances, including

(a) the current use of the property;

(b) the history of the acquisition and use of
the property;
(c) the market value of the property;
(d) the extent of direct State investment and
subsidy in the acquisition and beneficial
capital improvement of the property; and
(e) purpose of the expropriation
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 Functions of a property clause

property guarantee
3

To provide a guarantee for To provide possibility and

existence and protection of limits for state interference
individual property rights with those same property
rights

OR
 Deprivation Expropriation
Exercise of state’s POLICE POWER Exercise of state’s power of
State’s ability to REGULATE use of EMINENT DOMAIN
private property by restricting owners’ State’s ability to ‘TAKE’ private
entitlements property without owner’s consent, for a
In SA, results of state’s capacity to public purpose or in public interest,
regulate property are referred to as against payment of compensation
deprivations of property, due to
wording of s 25(1), which stipulates
that no one may be arbitrarily
‘deprived’ of property unless certain
conditions are fulfilled

POLI
CE
POW
ER
Propert
y
clause
(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.
 Section 25(1) prohibits ARBITRARY deprivation of
property
What does ‘arbitrary’ mean ?
It means affecting just one person (or group of persons) and
not the public in general

Rational connection
Legitimate Manner in which it
governmental should be achieved
purpose

Adequate
 What is a ‘law of general application’ ?

Law
Infringements can arise from statutes and accompanying legislative regulations, or
from rules of common law or customary law

General application
Limitation must be authorised by democratically elected legislature, acting within
constitutional parameters. Limitation must also be generally applicable i.e. a law will
not be generally applicable if it singles out particular persons for unfairly
discriminatory treatment
Is deprivation
in terms of
section 25 (1) Law of general application
constitutional ?
Not arbitrary

Legitimate purpose
Constitutional DEPRIVATIONS
(s 25(1))
Law of general application
Not arbitrary

Constitutional
EXPROPRIATIONS
(s 25(2) and (3))

For public purpose / in public

interest
Compensation Expropriation is essentially a
particular ‘sub-species’ of
deprivation
 CONFISCATED

Section 114 of Customs and Excise Act 91 of 1964 : SARS allowed to seize
goods without requiring any prior application to court by SARS Commissioner
 s 25(1) deprivations
regulatory powers
Exercise of state’s police powers
restricts owner’s use and enjoyment
in public interest but does not
(usually) have effect of withdrawal of
owners’ entitlements
No compensation is paid
s 25(2) expropriations
powers of expropriation
Amounts to withdrawal of owners’
entitlements, either completely or
partially
Compensation is paid
 Has a

YES
Does affected interest DEPRIVATION of
qualify as ‘property’
that property interest
under s 25 ?
occurred ?

Does deprivation If not in conflict with Is deprivation in

s 25(1), is deprivation conflict with s 25(1) –
amount to an
justifiable in terms of requirement of
EXPROPRIATION general limitations arbitrariness in
(s 25(2)) ? clause (s 36(1)) ? particular ?

If expropriation does
If it is an expropriation,
not comply with
does it comply with
requirements, is it still
requirements of both
JUSTIFIABLE in terms
s 25(2(a) and (b) ?
of s 36 ?
 S 25(2)
Property may be expropriated only in terms of law of general application –

(a) for a public purpose or in public interest;

and

(b) 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
decided or approved by a court
 What is public purpose or public interest ?
No comprehensive definition in Constitution
but requirement is there to ensure that state’s
power of eminent domain is not abused

LEGISLATURE has right to decide WHAT is in public interest,

but COURTS must ensure that constitutional standards are met

Horizontal application of Constitution

Even if measure undertaken benefits private
parties, rather than general public, as long
as purpose is legitimate
e.g. objectives of land reform programme

Formal expropriations of rights in land for

purposes of land reform, or expropriations of
mineral rights or water rights for redistribution of
mineral rights or water rights
 Is
expropriation Law of general application
in terms of
Public purpose or public interest
section 25 (2)
constitutional ? Compensation
Expropriations are CONSTITUTIONAL

They are NOT ARBITRARY and a LAW of

GENERAL APPLICATION applies

They serve a PUBLIC PURPOSE or are in the PUBLIC INTEREST

 Compensation

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Constitutional if compensation
is JUST and EQUITABLE as
regards amount, time and
manner of payment
Affected owner
(expropriatee)
 EQUITABLE BALANCE

Public Individual
interest interests of
expropriate
e / affected
Compensation parties

All relevant circumstances must be considered

 Current use
of property

History of
Purpose of acquisition
expropriation and use
Relevant
circumstances

Extent of state Market value

investment of property
 Thabo wants to demolish
building to make way for
an industrial
NO development
DEMOLIT
ION

Thabo owns 130 year old building

A law prohibits unauthorised demolition

of buildings with particular historical
significance

Is this law constitutional ?

 Does infringement created by this law amount to an
expropriation ?
If YES, compensation is payable to Thabo

BUT if law makes no provision for compensation, then relevant provisions must be
struck down as UNCONSTITUTIONAL

If law is only an ordinary deprivation, it would be permissible and constitutional IF it

is of general application and not arbitrary

If purpose of law = to protect cultural, architectural heritage then law applies

generally and evenly throughout society. It does not intend to expropriate anyone
specifically

Law most likely was intended to be an ordinary deprivation of property (regulation in

terms of police power), rather than to be an extreme inroad or complete withdrawal of
entitlements