LAPR 7311

Learning unit
6
Introduction to
constitutional
property law

Chapter 21
 Features Validity of
Supreme common &
Law customary
law

Important
Entrenched values &
principles

Protects
Bill of Rights
property

Independent Horizontal
judiciary application
National unity and
reconciliation
Limited government Political and
in an open cultural pluralism
democracy
A just and open Constitutionalism
society based on
dignity, freedom
and equality
Direct application of Constitution
Direct vertical Direct horizontal application means
application that COURTS must give effect to an
means that applicable fundamental right by applying
STATE must and, where necessary, developing
respect common law insofar as legislation does
fundamental not give effect to that right, except
rights (and may where it is reasonable and justifiable
therefore not to develop common law to limit right in
infringe them) accordance with limitation clause
unless
infringement is
reasonable Constitutional provisions protect private
and persons from each other in particular
justifiable circumstances
 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
Prope
rty
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
R
beneficial
capital improvement of the property;
and
 Functions of a property
clause
property
3

guarantee
To provide a To provide possibility
guarantee for and limits for state
existence and interference with
protection of those same property
individual property rights
rights

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

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
Limitation must be authorised application
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 Law of general application
section 25
Not arbitrary
(1)
constitution Legitimate
al ? 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 s 25(2) expropriations
regulatory powers powers of expropriation
Exercise of state’s police Amounts to withdrawal of
powers restricts owner’s use owners’ entitlements, either
and enjoyment in public completely or partially
interest but does not (usually)
have effect of withdrawal of
owners’ entitlements
No compensation is paid Compensation is paid
 Has a
Does affected

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

If not in conflict
with Is deprivation in
Does deprivation s 25(1), is conflict with s
amount to an deprivation 25(1) –
EXPROPRIATION justifiable in terms requirement of
(s 25(2)) ? of general arbitrariness in
limitations clause particular ?
(s 36(1)) ?

If it is an If expropriation
expropriation, does does not comply
it comply with with requirements,
requirements of is it still
both JUSTIFIABLE in
s 25(2(a) and (b) ? terms 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
expropriatio Law of general application
n in terms
Public purpose or public
of interest
section 25 Compensation
(2)
constitution
al ?
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

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

Public Individual
interest interests
of
expropria
Compensatio tee /
n
affected
All relevant circumstances parties
must be
 Current
use of
property

Purpose of History of
expropriatio acquisition
n and use
Relevant
circumstance
s

R
Extent of Market
state value of
investment property
 Thabo wants to
demolish building to
make way for an
NO industrial
DEMOLIT development
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