Search

The 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) (FNB) decision led to the development of several questions that need to be answered when deciding whether there had been a deprivation of property for the purposes of section 25(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution). The first question that needs to be asked when deciding whether there has been deprivation is whether that which was taken away from the property holder qualified as property for the purposes of section 25(1). It appears that the Court in post-FNB case law fails to decide the first question in a principled manner. In some cases the Court simply assumed that the interests at issue were property for the purposes of section 25 without a thorough investigation or clear guidelines regarding whether such interests were indeed property. Analysis of post-FNB case law also indicates that there are seemingly two approaches that may need to be followed to decide complicated categories of property interest. The Court has not made it clear which approach should be followed. In this article, I examine the Constitutional Court's approach to deciding what property is for section 25(1) purposes. The purpose is to determine how and to what extent the Court has decided what constitutes property for constitutional purposes. After an examination of the FNB decision and post-FNB case law, as well as analysing academic criticism, I suggest guidelines that the Court may follow to decide what constitutes property for section 25(1) purposes in future cases.

This article analyses the Constitutional Court’s treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court’s dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state’s legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention.

The National Credit Act 34 of 2005 prohibits the granting of reckless credit and also provides for certain remedies that courts can grant to consumers who have fallen victim to reckless lending practices. Depending on the circumstances, these remedies are the partial or full setting aside of the consumer's rights and obligations under the agreement; the temporary suspension of the effect of the agreement; and the restructuring of the consumer's obligations. This article investigates these remedies with a focus on the effect that they would have on a credit provider under a mortgage agreement. The argument is made that the contractual and security rights of credit providers amount to "property" for the purposes of section 25(1) of the Constitution of the Republic of |South Africa, 1996 (the property clause) and that, to some degree or another, each of these remedies involves a "deprivation" (limitation or modification) of the creditor provider's rights (property). The consequence is that, when one of these remedies is granted to a consumer, the court must tailor the remedy in such a way that the effect on the credit provider is not "arbitrary" as meant in the property clause. Therefore, the proposal is that there must be a sufficient relationship between the purpose of the remedy (to discourage reckless lending and to rectify the damage caused) and the effects thereof on the credit provider. In general, the remedy should not go further than is necessary to rectify the prejudice suffered by the consumer due to the credit provider's conduct. The formulation of the remedy should accommodate considerations such as whether and to what extent either or both parties have already performed under the agreement, and it should accordingly ensure that the consumer will not be unjustifiably enriched. The remedy should also account for the effect that it would have if the consumer is permitted to keep the property that was subject to the reckless credit agreement. The article furthermore raises doubts regarding the recent high court judgment in ABSA v De Beer 2016 3 SA 432 (GP), where all the consumer's rights and obligations under a mortgage agreement were set aside due to the credit provider's reckless conduct. Remedies like this have serious consequences and therefore it is imperative that courts carefully investigate all the effects that the order would have, so that a just and reasonable outcome is achieved. This article accordingly aims to provide some guidance with reference to the principles of constitutional property law.Keywords: National Credit Act; reckless credit; remedies; mortgage; constitutional property law

Traditionally, there is a distinction between private law property law and constitutional property law. Private-law property law concerns itself with the relations between two private parties in respect to an object or thing. This area of law has, depending on the type of legal tradition, been in development since Roman times (civil law) or since the battle of Hastings in 1066 (common law). Its principles and doctrine are aimed at facilitating trade between private individuals, the recognition of a limited set of rights with property (third party) effect, and rules on the creation, transfer and destruction of those rights. Constitutional law adds a dimension to property law that is mostly neglected by private-law property lawyers. Textbooks of property law, especially in European countries do not deal or only make mention of the existence of a constitutional dimension. Constitutional law and its influence on the law of property deserves a central place in any comparative study on the law of property. However, private-law property scholars, of course with the exception of some, often do not take knowledge of the constitutional dimension. This contribution is a descriptive contribution and seeks to show some of the basic aspects of constitutional property law.Keywords: Constitutional Property Law; Takings, Expropriation, 5th Amendment, A1P1, EU Constitutional Property Law.

In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law.In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle.From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses – instead of prevents – administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome. The rationale behind these time-periods is integral to securing administrative justice, since time-periods are not merely formalistic technicalities. Thirdly, the authors argue that a green-light approach to internal remedies could have resulted in the broadening of the interpretative context and recognition of the legitimate role of the public administration in the state. Finally, deference as understood by Dyzenhaus also exemplifies why administrative law should not be ignored in cases which concern the exercise of public power. According to Dyzenhaus, deference requires courts to actively participate in the justification of administrative decisions by asking whether the administration's "reasoning did in fact and also could in principle justify the conclusion reached".Keywords: Section 33; administrative law; lawfulness; legality principle; subsidiarity principles; expropriation; deprivation; section 25; property clause; constitutional property law; Arun case

In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law. In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle. From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses - instead of prevents - administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome. The rationale behind these time-periods is integral to securing administrative justice, since time-periods are not merely formalistic technicalities. Thirdly, the authors argue that a green-light approach to internal remedies could have resulted in the broadening of the interpretative context and recognition of the legitimate role of the public administration in the state. Finally, deference as understood by Dyzenhaus also exemplifies why administrative law should not be ignored in cases which concern the exercise of public power. According to Dyzenhaus, deference requires courts to actively participate in the justification of administrative decisions by asking whether the administration's "reasoning did in fact and also could in principle justify the conclusion reached".

Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social, historical and constitutional value and meaning of housing rights.We first consider theoretical arguments concerning the relationship between property, land rights and social welfare. In view of the theoretical analysis we proceed to consider the constitutional nature and status of property, land rights and housing rights in the South African context. We argue that both land rights (in the form of land redistribution and improved tenure security) and housing rights (in the form of the right of access to adequate housing) should be seen as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either. Instead, the Constitution requires a new, typically constitutional methodology that gives full recognition and effect to all three sets of rights, each in its proper place. Seen in this perspective, property is neither the guardian nor the enemy of social welfare. Nevertheless, the purpose of the property clause in general cannot be isolated from social welfare concerns that relate to improved access to land and housing rights, nor from the constitutional imperative to provide stronger land and housing rights. Important connections exist between these divergent constitutional imperatives that should be acknowledged to ensure the efficient realisation of social welfare concerns.KEYWORDS: property law; constitutional property law; land law; land reform; restorative justice; housing law; constitutional interpretation.

Section 25 of the Constitution provides two ways in which the state may interfere with property rights, namely deprivation (section 25(1)) and expropriation (section 25(2)). As only the latter requires compensation, there is an incentive for property holders to label any infringement upon their property as expropriation in the hope of being compensated for their losses. It is therefore essential to have a principled distinction between these two forms of state interference, especially given the danger that uncertainty in this regard can hold for legitimate land reform initiatives, which often entail severe limitations on property. In the Agri SA case the Constitutional Court recently revisited this distinction and held that the distinguishing feature of expropriation is that it entails state acquisition of property. Two aspects of this judgment are worthy of consideration. Firstly, the centrality of acquisition makes it necessary to clarify its meaning and role in our law. Secondly, the Court's effect-centred test to establish whether acquisition took place appears incapable of coherently categorising property infringements that fall within the grey area between deprivation and expropriation. To address these two questions this article is divided into two parts. Part I investigates the meaning and role of state acquisition in South African law. Pre-constitutional expropriation law reveals that expropriation is an original method of acquisition of ownership and that the objects of expropriation include ownership, limited real rights, and certain personal rights, which correspond to the meaning attributed to this requirement in Agri SA. However, post-constitutional judgments diverge from preconstitutional law regarding the role of state acquisition, where it was merely regarded as a general hallmark of expropriation. After Agri SA state acquisition is (now) the "key feature" that distinguishes expropriation from deprivation. A brief analysis of Australian constitutional property law shows that the meaning attached to "acquisition" in that jurisdiction is broadly similar to the construction placed upon the term in South African law, which explains why the expropriation of limited real rights (as well as the extinguishment of claims in certain cases) amounts to acquisition of property. The jurisprudence of the Australian High Court also sheds light on one of the factors laid down in Agri SA for determining whether or not acquisition took place, namely the source of the affected right. It also confirms another aspect of pre-constitutional South African expropriation law, namely that whether a property interference results in expropriation or not does not depend only on whether or not acquisition occurred. In dealing with these considerations Part II of this article expands on the shortcomings of confining the expropriation question to whether or not acquisition took place. It then suggests an alternative approach to state acquisition, one which focuses on the purpose of the impugned statute, as opposed to its effect, as was done by the Constitutional Court in Harksen. KEYWORDS: expropriation; deprivation; section 25; property clause; state acquisition; constitutional property law; Agri SA case.

Domestic Violence is a pervasive social evil which must be combated with every means possible. To this end, the legislator enacted the Domestic Violence Act, 116 of 1998 (hereafter referred to as the DVA) to provide for a fast and accessible process by which the victims of domestic abuse can obtain an interdict to protect themselves against further acts of violence. Section 7(1)(c) of the DVA allows for a court, when considering an application made for a protection order in terms of the Act, to make an order prohibiting the Respondent from entering the shared residence of the Applicant and Respondent. Section 7(1)(d) allows for a court, when considering an application as mentioned, to make an order prohibiting the Respondent from entering any specific part of the shared residence. It is argued that the orders provided for in sections 7(1)(c) and (d) amounts, de facto, to an order that evicts the Respondent from the shared residence. Evictions are a traumatic procedure for the person(s) concerned, and endangers a large variety of human rights. It should therefore be approached with extreme caution to ensure that no person’s fundamental rights are infringed. Section 26(3) of the Constitution of the Republic of South Africa, 1996 (hereafter referred to as the Constitution) determines that no person(s) may be evicted from their home without a valid order of court, which order should be granted only after taking into consideration all the relevant circumstances. Specific pieces of legislation have been enacted to regulate the eviction process, prescribing specific procedures and setting requirements for a legal eviction. When an order is given in terms of section 7(1)(c) of the DVA, these procedures are not followed and the requirements are not met, resulting in illegal evictions. These orders may further infringe upon certain fundamental rights of the Respondent, such as the constitutional property rights set out in section 25, and the right of access to the courts. The concerned sections of the DVA can be justified under section 36 of the Constitution. However, it is argued that the DVA is in practice frequently misused by applicants, to such an extent that it becomes a tool of abuse, defying the whole purpose of the Act and extreme caution should be used by presiding officers when considering applications for orders in terms of sections 7(1)(c) and (d) of the DVA. LLM, North-West University, Potchefstroom Campus, 2015