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Property Law Topic 10
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TOPIC 10: CONSTITUTIONAL PROPERTY LAW & LAND REFORM:PART 1: PROPERTY CLAUSE – SECTION 25 OF THE CONSTITUTION:
Constitutional limitations in terms of the property clause – section 25 of the Constitution.
The property clause consists out of two parts.
Two parts:
o Part 1, consisting of sections 25(1)-(3), embodies the provisions that protect existing
property rights and interests against unconstitutional interferences
o Part 2, comprising sections 25(4)-(9), provides for a set of provisions that allows State action
that promotes land reform and other related reforms.
SECTION 25 (1) – (3) OF THE CONSTITUTION:
The following sections protect existing property rights against unlawful interference.
Framed as a negative property guarantee, the first part of section 25 provides protection against
interference with existing property rights and interests that is not in accordance with the
constitutional parameters set out in section 25(1) – (3).
we have ordinary law which includes legislation and rules of the common law which permit the state
to interfere with existing property rights for a variety of reasons such as to protect the health and
safety of citizens and to provide the necessary infrastructure such as dams, and the national road
network for the benefit of society.
However, interference with property rights as mandated by the ordinary law must comply with the
constitutional requirements set out in section 25(1) – (3).
These sections does not impose a limitation on property rights as such – it regulates the constitutional
validity of interferences authorised by law.
In other words, the property clause sets out the conditions under which interference will be
considered valid in terms of the constitution.
To test whether an interference or deprivation is constitutionally compliant/constitutional – use the
FNB methodology.
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. (deprivation)
2. Property may be expropriated only in terms of law of general application ¬ a). for a public purpose
or in the 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. (expropriation)
3. The amount of the compensation and the time and manner of payment must be just and equitable,
reflecting an equitable balance between the 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). the purpose of the expropriation. (compensation)
o Property is not limited to land.
o Payment of compensation for expropriation
SECTIONS 25(4) – (9) OF THE CONSTITUTION:
Unlike traditional property clauses – the South African property clause also provides the
constitutional mandate for land reform.
Given South Africa’s colonial and apartheid history which resulted in skewed land ownership patterns
and insecure tenure – section 25(4) – (9) provides constitutional authority to effect land and other
related reforms.
4. For the purposes of this section the public interest includes the nation's commitment to land
reform, and to reforms to bring about equitable access to all South Africa's natural resources; and
property is not limited to land. (interpretation)
o Provides for a specific interpretation of some of the unique concepts in section 25.
5. The state must take reasonable legislative and other measures, within its available resources, to
foster conditions which enable citizens to gain access to land on an equitable basis. (redistribution)
o Access to land.
6. A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to
tenure which is legally secure or to comparable redress. (legally secure tenure)
7. A person or community dispossessed of property after 19 June 1913 as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to
restitution of that property or to equitable redress.(restitution)
8. No provision of this section may impede the state from taking legislative and other measures to
achieve land, water and related reform, in order to redress the results of past racial discrimination,
provided that any departure from the provisions of this section is in accordance with the provisions of
section 36(1).(general enabling provision)
9. Parliament must enact the legislation referred to in subsection (6). (general enabling provision)
PURPOSE OF SECTION 25:
FNB case set out what the purpose of section 25 was.
Protective + Reformist
o Section 25 serves a protective and reformist purpose.
o It has been argued that the two parts of section 25 should not be seen as contradictory and
therefore unworkable.
o Instead, through purposive interpretation regard must be had to the creative intention that
exist between the protective and reformist purposes so as to achieve the proper balance
between them.
o The outcome of any decision involving section 25 – thus, depends on the existing context.
However, purposive interpretation goes further than simply having regard to the creative
tension in section 25 and the specific context.
o Also consider the historical and constitutional context within which section 25 operates.
For instance – section 25(1) which protects holders of property rights against
arbitrary deprivation of property, must be understood under the context of the
, apartheid laws. Under apartheid laws arbitrary interference with property along
racial lines was the order of the day.
o It said that section 25 had to be seen as both:
1. Protecting existing private property rights
2. Serving the public interest mainly in the sphere of land reform.
Section 25 (1) – (3) vs Section 25 (4) – (9)? NO! PURPOSIVE INTERPRETATION
“The purpose of section 25 has to be seen both as protecting existing private property rights as well as
serving the public interest, mainly in the sphere of land reform but not limited thereto, and also as
striking a proportionate balance between these two functions.”- (my emphasis) FNB para 50 (NOT 49
as previously indicated); referred to in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217
(CC) para 16.
Therefore: S 25 both protects and prescribes the limits within which property or ownership may be
limited.
o All limitations on property or ownership must be constitutionally complaint.
o Section 25 must also be understood in the broader constitutional context of transforming
South African society into an egalitarian society based on the foundational values of human
dignity and equality.
o Section 25 must be read with the reformist purpose in mind.
EXPROPRIATION INTRODUCTION:
Expropriation is a mode of original acquisition of ownership to the extent that at a particular point in
the process, by operation of law, ownership is acquired by the state.
Property is acquired by the state: Agri South Africa v Minister for Minerals and Energy.
Expropriation takes place when an owner’s title in the whole or part of his property, usually land, is
termination against compensation.
o And then acquired by the state.
How does expropriation differ from other original acquisition of ownership?
o Unlike other modes of original acquisition of ownership – the owner is included in the
process to some extent.
o The owner is included in the process to some extent.
For example, they may make representations regarding the factors to be considered
in the determination of compensation as provided for in the Expropriation Act and
the new Expropriation Bill.
Property clause is the point of departure: it provides for the requirements for a valid expropriation.
o Section 25(2) Property may be expropriated only in terms of law of general application—
(a) for a public purpose or in the 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.
FORMAL REQUIREMENTS:
There must be a Law of general application
It must be for a public purpose or public interest
Against Compensation
LAW OF GENERAL APPLICATION:
Expropriation always takes place in terms of legislation
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