Section 25 of the Constitution

Section 25(1)-(3)
Protective purpose To guarantee or protect existing property rights and interests mainly against unconstitutional state interference

Section 25(5)-(9)
Reform purpose To legitimate and promote land and related (minerals and water) reforms in property holdings and property law.

 Section 25(4) Purpose is to resolve tensions

In the property clause itself Between the property clause and other fundamental rights and legislation

The property clause and the common law

For purposes of this section (a) the public interest includes the nations commitment to land reform and to bring about equitable access to all South Africas natural resources; and (b) property is NOT limited to land.

Deprivation
Section 25(1) Normal exercise of government power police power Ability of the state to regulate the use of private property by restricting the exercise of certain ownership entitlements

Expropriation
Section 25(2) Is the result of an extraordinary exercise of government power eminent domain Ability of the state to take private property from an individual owner without her consent for a public purpose or in the public interest against the payment of compensation

Deprivation
NO compensation Limit ONE entitlement Individual owner RETAINS rights

Expropriation
Compensation Extinguish ALL entitlements The state TAKES OVER all rights

The following questions arise: (a) Does that which is taken away from FNB by the operation of s 114 amount to 'property' for purpose of s 25? (b) Has there been a deprivation of such property by the Commissioner? (c) If there has, is such deprivation consistent with the provisions of s 25(1)? (d) If not, is such deprivation justified under s 36 of the Constitution? (e) If it is, does it amount to expropriation for purpose of s 25(2)? (f) If so, does the deprivation comply with the requirements of s 25(2)(a) and (b)? (g) If not, is the expropriation justified under s 36? FNB t/a Wesbank v CSARS; FNB t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) par 46

 Regulation must NOT be arbitrary

Connection between legitimate government purpose and the manner in which it is sought to be achieved There MUST be a cause or reason for the regulation

Test
Procedural safeguard (Section 33 of Constitution and PAJA 3/2000) Substantive safeguard Level of scrutiny
Court have much room for judicial discretion as to the level of the enquiry that it undertakes Thin level/rationality
Limited real rights and incorporal property is concerned Where the interference affects one or a few of the ownership entitlements

Thick level/proportionality
Ownership of land or corporeal, moveable property Where the interference affects all the ownership entitlements Will overlap with the provisions of section 36 of the Constitution

Nexus (FNB par 100)

 The Constitution of the Republic of South Africa Legislation

National legislation (Full, partial, technical) Expropriation Act 63 of 1975 Provincial legislation By-laws

Common law

Customary law

 Introduction
An expropriation is a sub-set of deprivations, THUS all the requirements for a deprivation applies equally Who decides what is in the public interest? Parliament and provincial legislatures BUT, courts may review these decisions to ensure that there is no abuse of power

Meaning of public interest

Section 25(4) of the Constitution the nations commitment to land reform and to reforms to bring about equitable access to all South Africas natural resources Section 25(5)-(9) of the Constitution Minerals and petroleum resources Act 28 of 2002 Water Act 36 of 1998 Value of pre-democratic interpretations of public interest?
Legitimate government purpose

General public benefit

 Requirements of the authorising legislation

Must provide for the amount, time and manner in which compensation should be paid Must be paid by the state to private owners Must provide for judicial oversight of (a) the determination of the amount and (b) payment of the compensation

Calculation of compensation
Just and equitable Balance the communal interests of the public and the individual interests of the private owner(s) Considerations Current use of the property The history of acquisition and use of the property Market value of the property The extent of direct state investment and subsidy in the acquisition Beneficial capital improvement of the property The purpose of the expropriation

 Constructive expropriation?
Where regulation of property is so severe that it erodes almost all of the ownership entitlements BUT, in theory the regulation stops short of being an expropriation

Protection
Casting the net to wide Constitutional damages? Unclear whether individual owner should bear the burden of regulation Need to develop alternative protective mechanisms
Remedy that can provide immediate relief Request Parliament to deliberate

BUT, the courts appear reluctant to award constitutional damages Possibility still exists in theory for instances where it is not sensible to strike down the provisions