Arbitrary deprivation of property. A comparative analysis between German and South African law


Master's Thesis, 2014
55 Pages, Grade: 76 Prozent

Excerpt

Table of contents

Chapter 1 Introduction

Chapter 2 The South African approach to arbitrary deprivation of property
2 1 Introduction
2 2 Structure and purpose of section 25
2 3 Determining arbitrary deprivation of property
2 3 1 Introduction
2 3 2 Deprivation
2 3 3 Requirements of section 25(1)
2 3 4 Is the arbitrariness test as formulated in FNB still followed?
2 4 Conclusion

Chapter 3 The German approach to unlawful deprivation of property
3 1 Introduction
3 2 Structure and purpose of article 14 GG
3 3 Determination of excessive regulation

Chapter 4 Conclusion

Abbreviations

Bibliography

Chapter 1 Introduction

The protection of the right to property is a fundamental human right,1 one which for decades in the years during apartheid was denied to the majority of South African society and one which was seriously disregarded in Germany during the era of National-Socialism. At first glance, it is therefore surprising that the inclusion of a property clause in the South African Interim and Final Constitution was deliberated so controversially. Given the history of exclusion and the general undermining of property rights in South Africa, it seems as though the arguments of the opponents of inclusion of property rights made sense. The opponents feared that a constitutional right to property would hinder reforms, especially land reforms, by keeping in place the skewed distribution of property in favour of whites. In contrast, those in favour of a property clause argued that such a clause would be essential for ensuring economic freedom.2 However, the last twenty years of South African democracy have shown that the protection of property does not necessarily block reforms, but plays an important role for natural and juristic persons in the economic area. The South African property clause (encapsulated in section 25(1) of the Final Constitution)3 is an attempt to find a just and equitable balance between correcting historical injustices and protecting individual property interests.

In Germany after World War II, the fathers of the German Grundgesetz (Basic Law or GG) faced a complicated challenge as well. After a time when the Nationalsozialisten enacted severely discriminatory laws, abolished fundamental rights4 and perpetrated the worst human rights abuses, it was crucial for the fathers of the Basic Law to create a Rechtsstaat, a state governed by the rule of law, in order to prevent anything similar to national-socialism from happening again. This is why the Grundgesetz grants primary importance to fundamental rights and especially human dignity.5 Article 1 GG provides that: “Human dignity is inviolable. To respect and protect it is the duty of all state authority.” The aim in Germany was to create a Sozialstaat or social welfare state. This is made clear in article 20 GG: “The Federal Republic of Germany is a democratic and social federal state.”6 The rule of law, democracy, the social state principle, federalism and republicanism are considered the five foundations of the Grundgesetz.7 In this regard, property plays an important role for the economic freedom of the individual. The German property clause is the successor of the property clause in the Weimarer Reichsverfassung from 1919.8 Both property clauses derive from the philosophy of the enlightenment and those constitutions of the 19th century which see the right of property as a human right.9

It is this historical background which justifies the comparison between the South African and German property clause. German lawyers had a great influence on the drafting process of the Interim and Final Constitution of South Africa.10 This does not mean that the South African judiciary should import constitutional interpretations from Germany, but that a comparison with Germany might be helpful to see how the respective jurisdictions deal with the problem of arbitrary (or unlawful) deprivation of property. Therefore, the thesis will focus on the question of the extent to which South African and German law tolerate limitations imposed by legislation that may amount to arbitrary deprivation of property. It will be necessary to set out how the two jurisdictions determine when a deprivation of property through statutory regulation is so excessive that is causes arbitrary and therefore invalid deprivation. State interference by way of expropriation shall not be discussed as this would go beyond the scope of this thesis.

Chapter 2 The South African approach to arbitrary deprivation of property

2 1 Introduction

Since the inclusion of section 25 in the South African Constitution there has been uncertainty concerning the interpretation of this clause.11 The decision of the Constitutional Court in 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 Finance12 (hereafter “FNB”) was a landmark decision for the interpretation of section 25(1). A lot of the initial uncertainty concerning the interpretation was thought to be resolved with the FNB decision. However, the global problem with interpretation of property clauses is the question of how to determine and justify the parameters of permissible legislative interference with specific property rights. It is uncontested nowadays that property rights are not absolute; they are determined and afforded by law and can be limited to facilitate the achievement of important social purposes.13 The wording of section 25(1) shows that the protection of property is not absolute because the use, enjoyment and exploitation of property can be limited legitimately through uncompensated regulatory deprivation, provided that these regulations are not arbitrary.14 The idea is not to protect private property from all state interference but rather to safeguard it from illegitimate and unfair state interference.15 The question is how can the dichotomy of protection of the property rights and necessary interference for the public good be fairly solved? At which point is a deprivation considered arbitrary?

The following part of the chapter will set out the structure and purpose of section 25, give a short definition of what is conceived to be constitutional property in South Africa and explain briefly what is meant by deprivation for purposes of section 25(1). Subsequent to these introductory remarks, the FNB arbitrariness test will be presented. Finally, the main focus of this chapter will be to determine whether the courts have deviated from the FNB interpretation of arbitrary deprivation of property, especially in so far as the methodology helps to detect when a deprivation goes too far and is consequently considered to be arbitrary.

2 2 Structure and purpose of section 25

The South African property clause16 defines the extent to which the state can legitimately regulate private property and the circumstances under which a valid expropriation of property can take place.17 Sections 25(1)-(3) set out the parameters within which the state is able to regulate property.18 Subsections (5)-(9) set out the mandate to ensure that land reform takes place. Therefore, section 25 aims to protect property rights and ensure that land and other reforms take place.19 According to the Constitutional Court in FNB the overriding purpose of the South African property clause is to strike a proportionate balance between the protection of existing property rights and the promotion of the public interest.20

The Constitutional Court in FNB presented a methodology to interpret section 25. The facts in this case were that FNB owned several cars as security for a loan granted to the debtor for the purchase of these cars. The state established a statutory lien over the cars by applying section 114 of the Customs and Excise Act 91 of 196421 in order to enforce payment of tax debts of the debtor that had no relation to either the cars or FNB. In essence, there was conflict between the state’s statutory interest established to secure and enforce payment of outstanding tax debts and FNB’s ownership reserved to secure repayment of its loan.22 The central question was whether the lien amounted to an unconstitutional deprivation of FNB’s property. The Constitutional Court decided that the legislation has a legitimate purpose but the legislation cast the net too wide. The application of the legislation was therefore too extensive in this case.23 The Constitutional Court described the structure of the analysis of section 25 on the basis of seven questions,24 which are as follows:25

(a) Does that which is taken away from the property holder by the operation of the particular law in question amount to “property” for purpose of section 25?
(b) Has there been a deprivation of such property by the law or conduct ?
(c) If there has, is such deprivation consistent with the provisions of section 25(1)?
(d) If not, is such deprivation justified under section 36 of the Constitution?
(e) If it is, does it amount to expropriation for purposes of section 25(2)?
(f) If so, does the expropriation comply with the requirements of section 25(2)(a) and (b)?
(g) If not, is the expropriation justified under section 36?

For the current purpose the discussion is limited to the first three questions, especially point (c) and does not consider questions pertaining to the justification under section 36, expropriation or land and related reforms.

2 3 Determining arbitrary deprivation of property

2 3 1 Introduction

The first question a court has to determine is whether the interest at stake constitutes property for purposes of section 25. The definition of constitutional property is a broad topic and it is not the purpose of this thesis to provide a comprehensive definition.26 Whether a thing, right or interest is property for the purpose of section 25 will be determined objectively. In FNB it was held that the way in which a property owner uses his property or the value of the property does not matter for the categorisation of the object as constitutional property.27 The subjective interests may matter, however, in deciding whether a deprivation is arbitrary.28 Nonetheless, the Constitutional Court in FNB held that ownership of corporeal movables is clearly “at the heart of [the]constitutional concept of property”.29 In following cases the Constitutional Court accepted that ownership of both corporeal and incorporeal property30 as well as intellectual property31 is protected under section 25. For purposes of this thesis it is sufficient to state that the property concept of section 25 will evolve from case to case and it is generally accepted that the notion is wide enough to include a range of interests that are not necessarily limited to the private law notion of property.32 Most courts easily accept that the interest at stake is property and move on to the next question, which is whether the state interference constitutes deprivation that complies with section 25(1) of the South African Constitution.

2 3 2 Deprivation

If the interest in question classifies as property, the second aspect of the FNB analysis is whether there has been a deprivation of property. In FNB the Constitutional Court held that “any interference with the use, enjoyment or exploitation of private property involves some deprivation in respect of the person having title or right to or in the property concerned”.33 This wide definition was narrowed down in some cases that were decided after FNB,34 but it seems to be settled now that a deprivation is present whenever the interference with the use, enjoyment and exploitation of property was significant enough to have a legally relevant impact on the rights of the affected party.35 The de minimis principle will in any event ensure that really insignificant deprivations do not fall within the scope of interferences that trigger a section 25(1) analysis, while all other interferences will have to be constitutionally scrutinised.36

2 3 3 Requirements of section 25(1)

2 3 3 1 Law of general application

If one proves that the interest amounts to property and that there is a deprivation of such property, one needs to assess whether the deprivation complies with the requirements of section 25(1). Section 25(1) provides that deprivation of property is permissible, subject to the requirement that it must be authorised by a law of general application and that the deprivation may not be arbitrary. In many cases it may be necessary to limit the use, enjoyment and exploitation of property for a public purpose. Although the expression “public purpose” is not stated expressly in section 25(1), it can be assumed that this requirement is implicit and forms the justification for the deprivation in the particular case.37 Therefore, to satisfy the requirements of section 25(1), the deprivation in question must firstly be effected in terms of a law of general application. Secondly, this law may not permit the arbitrary deprivation of property. If the deprivation fails the section 25(1) test, there remains the possibility (in theory at least) to save it in terms of the limitation clause in section 36(1).38 If not, the law in issue is invalid.39

The requirement of law of general application40 ensures that the executive power does not deprive someone of property without having a clear authority to do so.41 In this regard, the law in question must be precise, specific and accessible to the citizens.42

2 3 3 2 Non-arbitrariness

Before FNB it was not clear how the non-arbitrariness requirement in section 25(1) should be interpreted. Most of the practitioners interpreted the requirement equivalent to rationality in terms of a thin, low-level scrutiny.43 Rationality requires “nothing more than the absence of bias or bad faith to satisfy such scrutiny.”44 There has to be a rational relationship between the means employed and the legislative goal they are intended to achieve. Any deprivation of property that was authorised by a law of general application and that was “not palpably corrupt or in bad faith would pass scrutiny”.45 A substantive inquiry does not take place. The proportionality of the means and ends and the effect of the deprivation on the affected owner are not taken into account in terms of the rationality test.46 This is illustrated by the Constitutional Court’s decision in S v Lawrence; S v Negal; S v Solberg.47 The fear of many was that a proportionality review of the arbitrariness requirement would frustrate the reformist government action after the apartheid era when the courts would be allowed to review legislative or executive actions too extensively. Thus, those in favour of a rationality review thought that courts should interfere as little as possible with policy decisions and just determine whether the legislation had a rational purpose in relation to the means it employed to reach the goal.48

The other view in relation to the non-arbitrariness requirement refers “to a wider concept and a broader controlling principle that is more demanding than [the]enquiry into mere rationality.”49 In this regard, arbitrariness should be interpreted in terms of a more proportionality-like review. This means that the deprivation must not “impose an unacceptably heavy burden upon or demand an exceptional sacrifice from one individual […]for the sake of the public at large.”50 In other words, the law authorising deprivation must be justified and proportionate, and not only linked to a legitimate public purpose.51 When a law places an excessive burden on an individual, and is consequently disproportionate, it is arbitrary even though it serves a rational public purpose. According to this view a deprivation is only legitimate if a “proportionate balance between the rational public purpose it serves and the private harm it causes” is established.52 Those in favour of a thick, proportionality-type review argued that a deprivation that was authorised by a rational law would never be subjected to a substantive judicial scrutiny. If mere rationality would suffice for non-arbitrariness, there would be no substantive scrutiny in terms of section 25(1); and if the deprivation is not arbitrary, the section 25(1) right is not limited and the question of justification under section 36 does not arise.53

The Constitutional Court in FNB interpreted the non-arbitrariness requirement exhaustively and also referred to foreign law in this regard.54 Following the formulation of the Constitutional Court in FNB55 a deprivation of property is arbitrary when the law does not provide sufficient reason for the particular regulatory deprivation in question, or when it is procedurally unfair. The question of procedural fairness shall not be discussed in this thesis.56 According to the Court the validity of a deprivation depends on “an appropriate relationship between means and ends, between the sacrifice the individual is asked to make and the public purpose this is intended to serve”.57 Therefore, the Court made it clear that the non-arbitrariness requirement “is not limited to an enquiry into mere rationality, but is less strict than a full and exacting proportionality examination”.58 Due to this new methodological approach the former opinion that a rational link between the means and ends of the deprivation would be enough to justify a deprivation of property has been changed.59 It now depends on the circumstances of the case whether a rationality test suffices or if a more proportionality-type test has to be conducted. It is worth quoting the full wording of the precise FNB arbitrariness test:

“Sufficient reason is to be established as follows:

(a) It is to be determined by evaluating the relationship between means employed, namely the deprivation in question, and ends sought to be achieved, namely the purpose of the law in question.
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the relationship between the purpose for the deprivation and the person whose property is affected.
(d) In addition, regard must be had to the relationship between the purpose of the deprivation and the nature of the property as well as the extent of the deprivation in respect of such property.
(e) Generally speaking, where the property in question is ownership of land or a corporeal moveable, a more compelling purpose will have to be established in order for the depriving law to constitute sufficient reason for the deprivation, than in the case when the property is something different, and the property right something less extensive. […]
(f) Generally speaking, when the deprivation in question embraces all the incidents of ownership, the purpose for the deprivation will have to be more compelling than when the deprivation embraces only some incidents of ownership and those incidents only partially.
(g) Depending on such interplay between variable means and ends, the nature of the property in question and the extent of its deprivation, there may be circumstances when sufficient reason is established by, in effect, no more than a mere rational relationship between means and ends; in others this might only be established by a proportionality evaluation closer to that required by section 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a matter to be decided on all the relevant facts of each particular case, always bearing in mind that the enquiry is concerned with ‘arbitrary’ in relation to the deprivation of property under section 25.”60

This formulation constitutes the so-called FNB arbitrariness test. The courts have to judge if there is sufficient reason for a deprivation from a complexity of contextual relationships. Brits summarises the arbitrariness test as follows: “[…][T]o determine whether or not a particular provision – as ‘law of general application’ – permits an arbitrary deprivation of property, one needs to consider the relationship between the means employed and the ends sought to be achieved by such a deprivation. The test not only requires a valid public purpose for the deprivation, but it also requires that there should be a sufficient nexus between such a purpose and the person whose property is affected. The nature of the property and the extent of the deprivation must also be considered.”61

The application of this arbitrariness test is contextual and variable. It requires ”interplay” between these contextual factors. The FNB test cannot be strictly placed into a thin rationality or thick proportionality-type review because the thickness of the test itself will vary with the context.62 The test is located “somewhere on a continuum between thin rationality review”63 and “something just short of a review for proportionality”.64

In FNB the question at hand was whether it is constitutionally permissible to seize a third party’s property for another person’s customs debt. The Court concluded that something more than mere rationality was required because the affected right was ownership, all the incidents of ownership were affected and neither the owner nor the property had any relationship to the purpose of the deprivation which was the enforcement of a tax debt owed by another person.65 The court reasoned that the enforcement of tax debts is a legitimate and important purpose, “essential for the financial well-being of the country and in the interest of all its inhabitants.”66 If a mere rationality test would have been applied, then this legitimate purpose would have been enough to pass the low-level, thin scrutiny because the means chosen (establishment of liens on property and selling of this property) to reach this end were reasonable. But as the Court followed a more proportionality-like approach, it judged that section 114 of the Customs and Excise Act has disproportionate effects because the Act allowed total deprivation of property even when there was no relationship between the purpose of the deprivation (enforcement of a tax debt), its effect on the owner (total deprivation) and the lack of a relationship between purpose, owner and property.67 This interpretation of the non-arbitrariness requirement introduced a variable proportionality-type test which changed the law in this regard.68

Roux criticises the new methodological approach regarding section 25(1).69 Firstly, he argues that the test leaves too much scope for judicial discretion. According to Roux, the test is context-sensitive and it is a judge who has to decide whether a mere rationality or a more proportionality-like approach will be applied. The test therefore lacks predictability or as Roux puts it: “No mere formulaic application of the test will be possible”.70 The only thing which is certain in Roux’s view is “that the level of scrutiny will vacillate between two fixed poles: rationality review at the lower end of the scale, and something just short of a review for proportionality at the other.”71 Van der Walt argues in the same direction. The level of scrutiny “will depend on the Court’s view of the effect of the deprivation on the owner – if that is slight, scrutiny will be light.”72 But in his opinion if the discretion is exercised rigorously with due regard for the factors enumerated in FNB, especially the relationship between the deprivation and the purpose of the regulatory measure, the property and its owner, then “a mere rationality review would only be a suitable level of scrutiny if the purpose of the regulatory measure was clearly and legitimately linked to protection of public health and safety.”73

The second criticism that Roux has against the test for arbitrariness in FNB is that it has the effect of “telescoping” or “sucking” all property issues into what he calls the “arbitrariness vortex”.74 All the questions of section 25(1), for instance whether the interest in question is property, or whether there is a deprivation, or whether the deprivation satisfies the requirements of section 25(1), are all “sucked into” the question whether there was sufficient reason for the deprivation involved.75 Given this criticism, it will be interesting in the next section of this chapter to consider whether the arbitrariness test as established in FNB is still being applied by South African courts.

2 3 4 Is the arbitrariness test as formulated in FNB still followed?

This section tries to determine if the arbitrariness test set out in FNB76 is still being followed by the courts. The question is whether the courts exercise the wide discretion predicted by Roux with a level of scrutiny varying between mere rationality and almost proportionality or whether the courts apply that discretion rigorously and with commitment to substantive analysis with a rationality review only applying in the areas of public health and safety.

The first Constitutional Court case that had the chance to apply the aforementioned FNB arbitrariness test for deprivation of property was Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others.77 The question in Mkontwana was whether section 118(1) of the Local Government Municipal Systems Act 32 of 200078 amounts to an arbitrary deprivation of the landowner’s property.79 Section 118(1) of the Act limits the owner’s right to transfer immovable property until all outstanding consumption charges for water and electricity accumulated during the previous two years have been settled in full. In this decision the tenants and unlawful occupiers, and not the owner himself, accumulated the consumption charges.

The Court had no problem to determine that the interference with the property right amounted to deprivation of property because the owners were deprived of their right of alienation of property, an important incident of ownership of property.80 The question was whether this deprivation was arbitrary. The Court referred to FNB and said that it is necessary to evaluate the relationship between the purpose of the law and the deprivation effected by that law. The Court relied on FNB to hold that if the purpose of the law bears no relationship to the property and its owner, the provision is arbitrary without further going into an inquiry.81 Coming from the other point of view, if the law has a relationship to the property and its owner then the enquiry can vary between rationality and something close to proportionality depending on the nature of the property and the extent of the deprivation.82

According to the Court the purpose of section 118(1) of the Act is to furnish a form of security to municipalities for consumption charges and to place the risk of non-payment of these charges on the owner. The Court reiterated that the purpose is important and compelling.83 Therefore, the Court held that the purpose was laudable in principle.84 Thereafter, it looked at the relationship between the consumption charge and the property. The High Court had decided that there was no relationship between the charges accrued by unlawful occupiers and the property or the owner and thus declared the deprivation arbitrary.85 The Constitutional Court held that there was a close enough relationship between the property and the consumption charges because water and electricity is supplied to the property, which increases its value and belongs to its owner.86 There is therefore a relationship between the owner and the consumption charges. Moreover, ownership entails rights and duties and the duty of the owner is to ensure that the land is not occupied unlawfully and to pay the consumption charges in relation to the property.87 Then the Court tried to determine the level of scrutiny by looking at the nature of the property concerned and the extent of the deprivation. It held that one incident of ownership, namely the right of alienation is affected. It seems that the Court did not find the extent of the deprivation too serious as it held that “the owner can continue to occupy the property, let it or do anything else that ownership allows. The deprivation is moreover temporary.”88 Yet the Court held that the deprivation is not insubstantial because the provision requires the owner of the property to bear the risk of non-payment of consumption charges by occupiers. In the end, the level of scrutiny the Court followed was that the government purpose has to be both legitimate and compelling and that it is not unreasonable to expect the owner to bear the risk of non-payment.89 Then it held that the owner has to take reasonable steps to ensure that his property is not unlawfully occupied. It is worth quoting the reasoning of the Court.

“It is nevertheless the duty of the owner to safeguard the property, to take reasonable steps to ensure that it is not unlawfully occupied and, if it is, to take reasonable steps to ensure the eviction of the occupier. If the owner performs these duties diligently, unlawful occupiers will not, in the ordinary course, remain on the property for a long period building up consumption charges in respect of the property. It is ordinarily not the municipality but the owner who has the power to take steps to resolve a problem arising out of the unlawful occupation of her property. It is accordingly not unreasonable to expect the owner to bear the risk.”90

The question is whether this decision can be seen as a confirmation of, or a deviation from, the arbitrariness test set out in FNB. The Court in Mkontwana seemed to follow the FNB decision when it analysed whether there is sufficient reason for the deprivation by taking into account the relationship between the purpose of the limitation and the deprivation. However, Van der Walt observes that Mkontwana presents some deviations from the earlier FNB arbitrariness test. First, he argues that the Court streamlined the arbitrariness test by downplaying the contextual factors and emphasising the extent of the deprivation.91 The Court stated that a mere rational connection between means and ends could be sufficient reason for a minimal deprivation. However, the greater the extent of the deprivation the more compelling the purpose and the closer the relationship between means and ends, the nature of the property and the extent of the deprivation must be.92 With this formulation the focus is only on the extent of the deprivation and not on the interplay between different contextual factors as envisaged by the FNB-court.

Another point that Van der Walt criticizes is that the complex test of the interplay between various factors is brought down to two questions in Mkontwana: “whether the purpose of the deprivation is legitimate and compelling, and whether it would be unreasonable in the circumstances to place the burden where the relevant provision does.”93 Van der Walt fears that this streamlined version of the FNB test leads to a mere rationality test which only tests for a legitimate purpose served by a not (too) unreasonable end.94 This is exactly what happened in Mkontwana. Although citing FNB, the Court did not venture into a deep contextual analysis based on the factors provided in FNB, but rather conducted a “light-touch application” of the contextual factors.95 The Court just reasoned that the purpose was to encourage regular payments of consumption charges,96 but never weighed the purpose up against the burden that the legislation may impose on the owners of such property. Consequently, the Court only looked at a reasonable connection between the purpose of the provision (efficient debt collection) and the means (placing the burden on the owner).97 The Court decided that it is not unreasonable to place the burden on the owner.98 While stating this, the Court did not treat the relationships between purpose and property, and purpose and owner, as substantively as it could (and should) have.99 For example the Court did not see that the strongest enforcement instrument of the owner, eviction, is subjected to severe restrictions and that therefore the burden on the owner could be too harsh when his land is unlawfully occupied. Considering that eviction may be hard to achieve in specific circumstances, unlawful occupiers may create service charges and the financial consequences for the owner can thus be very serious. There were no thoughts on alternative mechanisms to achieve the purpose of the law. The Court simply decided that there is a relationship between the owner, the land and the service charges because the owner has to prevent his property from being unlawfully occupied and that the service charges are supplied to his premises.100 However, this link does not seem as easy to make, which may have justified more of a proportionality-type analysis rather than rationality test.

In summary, Van der Walt argues that “the test applied by the Court looks more like a rationality enquiry than a substantive weighing of means and ends: the Court made sure that the deprivation was for a legitimate purpose and that there was some relationship between means and ends, but no more; in particular, the Court did not want to review the wisdom or suitability of the legislative choice of means. That amounts to rationality review.”101 A possible explanation for this rationality-type review is that the Court chose the level of scrutiny on the rationality side of the continuum rather than the proportionality side because it thought that the extent and the nature of the deprivation demanded this review.102 If one follows this explanation the criticism of Roux would have been correct that the courts have too wide a discretion and that the level of scrutiny therefore lacks predictability.

Another explanation is that the Court in Mkontwana did not apply the FNB arbitrariness test “as rigorously and with the same commitment to substantive analysis of means and ends as in FNB”103 and therefore applied a more rationality-like approach. If the court had applied its discretion more carefully, a mere rationality review would only have been suitable for purposes of public health and safety.104 In all other cases a more substantive, proportional-like review should apply. Following this explanation the Court did not consider every factor in a suitable way.

The third option is that the Court did not choose the lower level of scrutiny on the basis of the FNB decision, but created a new test which departs from the flexible FNB approach and moves closer to a mere rationality approach.105 Although the Court referred to FNB it nevertheless stressed the differences between the decisions, which it held to be “fundamental and decisive”.106 Therefore, this could indeed be an indication of a deviation from the FNB test. However, the Court did focus on the extent of the deprivation and held that only one incident of the property, namely the right of alienation, is affected and also only temporarily.107 In my opinion this is why the Court chose to conduct a more rationality-like test while underestimating the possible harsh consequences when placing the burden of non-payment only onto the owner. Therefore the level of scrutiny was that the government purpose has to be both legitimate and compelling and that it is not unreasonable to expect the owner to take the risk of non-payment.108 That the Court chose a more rationality-like approach confirmed Roux’s prediction that the wide discretion of the courts is a problem concerning the predictability and conformity of constitutional decisions.109 The Court did not consider all three factors set out in FNB as well. The nature of the property interest was not taken into consideration for example. To sum up, the first decision after FNB brought about uncertainty on how to apply the non-arbitrariness requirement.

The Constitutional Court in Reflect-All 1025 CC v Member of the Executive Council for Public Transport, Roads and Works, Gauteng Provincial Government110 referred extensively to the FNB arbitrariness test again.111 The issue at hand was whether legislation112 that provides for the protection of provincial roads causes arbitrary deprivation of property because of the negative impact that this legislation has on the use and exploitation of property affected by the proposed plans.113 The applicants alleged that the provisions in sections 10(1) and (3) of the Act114 amounted to arbitrary deprivation of property because the provisions interfered with their rights to exploit their properties.115 In terms of the question of arbitrary deprivation of property, the Court followed the methodology provided in FNB116 In this regard, the Court in Reflect-All cited the considerations concerning the substantive arbitrariness enquiry presented in FNB.117

The Court had no problem in recognising that the legislation authorised deprivation of property.118 Concerning the question of substantive arbitrariness, the main considerations were the relationship between the authorising statute, the ends it seeks to achieve and the extent of the restrictions it imposes.119 The Court reiterated that the question whether a thin rationality or a thick proportionality test should be applied depends on the facts and circumstances of the case.120 With reference to FNB, this means that in some instances a deprivation will escape arbitrariness if a rational connection between means adopted and ends sought to be achieved is present. In other instances, the means will have to be proportional to the ends to justify the deprivation.121 Therefore, the extent of the deprivation will influence whether it suffices that the deprivation is rationally connected to a legitimate purpose or if the deprivation has to be shown to be proportionate. In this case the Court considered the deprivation severe enough to warrant a proportionality analysis. The Court described the level of scrutiny that it wants to follow with the following questions: “does section 10(3) of the Act protect the hypothetical road network and if it does, is it proportional? In determining that, a court must have due regard to the purpose of the law in question, the nature of the property involved, the extent of the deprivation and the question whether there are less restrictive means available to achieve the purpose in question.”122

The Court stated that the purpose of the Act (protection of hypothetical road network) is legitimate and important “in order to prevent the socially undesirable consequence of consigning more than thirty years of road planning to the dustbin.”123 However, the means adopted to achieve this goal were not disproportionate. “The applicants are not deprived of the entirety of their properties. Only the portions of their land that fall within the road reserve are directly affected by the regulatory measures […]. There can be no doubt that section 10(3) has the effect of creating obstacles to the exploitation and alienation of the applicants’ land, which were not present in the law before the Infrastructure Act. [But]the obstacles are, in the circumstances of this case and on a proper construction of section 10(3), not insurmountable.”124 There were two points, which the Court found to be decisive in its conclusion that the obstacles were not insurmountable. Firstly, the owners “were not deprived of the entirety of their properties. Only the portions of their land that fall within the road reserve are directly affected by the regulatory measures.”125 Secondly, the Act foresees126 that the owners could “revisit the preliminary designs that affect portions of their properties within the road reserve.”127 Therefore, the means chosen were not disproportionate to the purpose of the Act.

It seems as though the Court thus did apply a proportionality-like approach to the non-arbitrariness requirement. It questioned whether the means adopted were proportionate to the ends sought to be achieved by section 10 of the Act. It concluded an analysis of the purpose of the provision, the nature and extent of the deprivation and weighed this against the owner’s property right. The fear expressed by Van der Walt that the Constitutional Court retreated from the FNB test after Mkontwana into a mere rationality test was proven wrong. However, Roux’s statement that the judicial discretion is wide and can range from mere rationality to something almost equalling a section 36 proportionality-type test was proven right. In Mkontwana the Court chose a rationality approach whereas in Reflect-All a thick proportionality approach seems to have been chosen. However, in Reflect-All the Court did not specify why it thought the deprivation to be sufficiently serious to require a proportionality analysis. It seems that in both cases the extent of the deprivation played an important role for the determination whether rationality or proportionality should be applied to analyse arbitrary deprivation. The difference between those two cases is that in Reflect-All the Court stuck to the interplay between variable means and ends, the nature of the property in question and the extent of its deprivation whereas in Mkontwana the Court tried to streamline this test. The Court in Reflect-All interpreted the non-arbitrariness requirement in the way FNB foresaw it. Reflect-All may provide authority for the fact that a rationality-test will apply if the deprivation is really marginal so as not to have an excessively burdensome effect on the affected owner. In all other instances, it seems as though a thicker, more proportionality-like test will apply.

This tendency was confirmed in the recent decision of National Credit Regulator v Opperman.128 The Western Cape High Court declared section 89(5)(c) of the National Credit Act (NCA)129 unconstitutional because the section permitted an arbitrary deprivation of property in contravention of the constitutional property clause.130 The majority of the Constitutional Court confirmed this finding. The facts of the case were that Mr Opperman, the first respondent before the Constitutional Court, had lent R7 million to a friend, Mr Boonzaaier, the second respondent. On the second respondent’s inability to repay the loan, Mr Opperman applied for a sequestration order. The problem was that Mr Opperman was not registered as a credit provider, which made the loan to the second respondent unlawful under section 89(5)(c) of the NCA.131 Mr Opperman’s right to claim restitution of performance was consequently void. The Constitutional Court followed the methodology to determine arbitrary deprivation of property as laid down in FNB.132 The Court held that Mr Opperman’s right to restitution qualified as property for purposes of section 25(1).133 The next step in the FNB methodology was whether the legislation authorised deprivation of property. The Court had no problem coming to the conclusion that a deprivation ensued because of the forfeiture of Mr Opperman’s restitution claim.134 The interesting question was whether the deprivation was arbitrary and the kind of test the Court applied to scrutinise this issue.

[...]


1 A right to property is recognised for example in Article 17 of the Universal Declaration of Human Rights and in Article 1 of Protocol No 1 of the European Convention on Human Rights.

2 I Currie & J de Waal “Property” in The Bill of Rights Handbook 6 ed (2013) 532.

3 Hereafter every reference to the South African Constitution refers to the Final Constitution of the Republic of South Africa, 1996 unless indicated otherwise.

4 The property guarantee was annulled in 1933 to protect the state of communist acts.

5 R Lubens “The Social Obligation of Property Ownership: a comparison of German and U.S. law” (2007) 24 Arizona Journal of International & Comparative Law 389 404.

6 Translation by http://www.iuscomp.org/gla/statutes/GG.htm#14 (accessed 1-9-2014).

7 J de Waal “A Comparative Analysis of the Provisions of German Origin in the Interim Bill of Rights” (1995) 11 SAJHR 1 4.

8 Article 153.1 Weimarer Reichsverfassung.

9 HJ Papier in Maunz/Dürig Grundgesetz-Kommentar 71 ed (2013) Art. 14 no. 18; P Axer in Epping/Hillgruber Beck’scher Online Kommentar GG 21 ed (2014) Art 14 no. 4.

10 See J Sarkin “The Effect of Constitutional Borrowings on the Drafting of South African’s Bill of Rights and Interpretation of Human Rights Provisions” (1998) 1 JCL 176-204; L du Plessis “Learned Staatsrecht from the Heartland of the Rechtsstaat” (2005) 8 PER/PELJ 77 106.

11 T Roux “Property” in S Woolman, T Roux, M Bishop (eds) Constitutional Law of South Africa 2 ed (RS 12 2003) 46-1.

12 2002 (4) SA 768 (CC).

13 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) para 50; AJ van der Walt Constitutional Property Law 3 ed (2011) 214; Axer in Epping/Hillgruber BeckOK GG Art 14 no. 82.

14 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) para 17.

15 Reflect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng Provincial Government 2009 (6) SA 391 (CC) para 33.

16 The text of the property clause can be found at http://www.gov.za/documents/constitution/1996/a108-96.pdf (accessed 1-9-2014).

17 H Mostert “Trends in the South African Constitutional Court’s Jurisprudence on Property Protection and Regulation” (2007) 27 Amicus Curiae 1 2.

18 Van der Walt Constitutional Property Law 16.

19 12; Currie & de Waal “Property” in The Bill of Rights Handbook 530.

20 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) para 50.

21 The relevant parts of section 114 of the Customs and Excise Act 91 of 1964 read: “(1)(a)(i) The correct amount of duty for which any person is liable in respect of any goods imported into or exported from the Republic or any goods manufactured in the Republic shall from the date on which liability for such duty commences; and (ii) any interest payable under this Act and any fine, penalty or forfeiture incurred under this Act shall, from the time when it should have been paid, constitute a debt to the State by the person concerned, and any goods in a customs and excise warehouse or in the custody of the Commissioner (including goods in a rebate store-room) and belonging to that person, and any goods afterwards imported or exported by the person by whom the debt is due, and any imported goods in the possession or under the control of such person or on any premises in the possession or under the control of such person, and any goods in respect of which an excise duty or fuel levy is prescribed (whether or not such duty or levy has been paid) and any materials for the manufacture of such goods in the possession or under the control of such person or on any premises in the possession or under the control of such person and any vehicles, machinery, plant or equipment in the possession or under the control of such person in which fuel in respect of which any duty or levy is prescribed (whether or not such duty or levy has been paid), is used, transported or stored, may be detained in accordance with the provisions of subsection (2) and shall be subject to a lien until such debt is paid.”

22 AJ van der Walt “Striving for the better interpretation – A critical reflection on the Constitutional Court’s Harksen and FNB decisions on the property clause” (2004) 121 SALJ 854 864.

23 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) para 106.

24 Para 46.

25 The clearest explanation of the seven questions is found in Roux “Property” in CLOSA 46-2 to 46-5 and 46-9 to 46-11.

26 In 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) para 51 the Constitutional Court refused to give a definition of property for purposes of section 25 because it held that a comprehensive definition would be practically impossible and judicially unwise. AJ van der Walt The Constitutional Property Clause: A comparative analysis of section 25 of the South African Constitution of 1996 (1997) 11 rejects a “static, typically private-law conceptualist view of the constitution.” This view was approved in 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) para 52 and in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 23.

27 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) para 54.

28 Para 53.

29 Para 51.

30 National Credit Regulator v Opperman 2013 (2) SA 1 (CC) para 61.

31 Laugh It Off Promotions CC v South African Breweries International (Finance) BV 2006 (1) SA 144 (CC); Phumela Gaming and Leisure Ltd v Gründling 2007 (6) SA 350 (CC) para 36-42.

32 Van der Walt Constitutional Property Law 181.

33 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) para 57.

34 In Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 32 the Constitutional Court stated that the question whether there has been a deprivation “depends on the extent of the interference with or limitation of use, enjoyment or exploitation [and]at the very least, substantial interference or limitation that goes beyond the normal restrictions on property use or enjoyment found in an open and democratic society.” It was therefore not clear how substantial the interference had to be in order to be seen as a deprivation and when a state interference exceeds what is “normal in an open and democratic society.” However, the Constitutional Court in National Credit Regulator v Opperman 2013 (2) SA 1 (CC) para 66, relied on the wider FNB definition of deprivation of property. It held that whether there is a deprivation depends on “the extent of interference with the use, enjoyment or exploitation of the constitutionally protected property”.34 On this basis, AJ van der Walt in “Constitutional Property Law” (2013) 1 JQR 2.1. argues that the uncertainty of the Mkontwana decision in respect of the definition of deprivation has been eliminated. Interestingly, EJ Marais “The Constitutionality of section 89(5)(c) of the National Credit Act under the Property Clause: National Creditor Regulator v Opperman and Others” (2014) 131 SALJ 21 223 argues that on a closer look the Court in Opperman relied on Mkontwana afterall.

35 National Credit Regulator v Opperman 2013 (2) SA 1 (CC) para 66 citing Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others 2011 (1) SA 293 (CC) paras 39 and 41 and 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) para 62.

36 Van der Walt Constitutional Property Law 209.

37 Van der Walt Constitutional Property Law 228.

38 Van der Walt Constitutional Property Law 285-287 is sceptical that it will be “analytically and logically […]possible to justify, in terms of the requirements set out in section 36(1), a deprivation that failed the section 25(1) test because it was arbitrary or procedurally unfair. Although the relationship between section 25 and 36 is uncertain, he suggests leaving “the door open and work on greater clarity than close the door on any possibility of further development”. Roux “Property” in CLOSA 46-26 agrees that “the application of s 36 to infringements of s 25(1) is beset by conceptual difficulties.” Currie & de Waal “Property” in The Bill of Rights Handbook 557 are of the opinion “that s 36 can have no meaningful application to s 25.”

39 Van der Walt Constitutional Property Law 270. When it is possible, however, to interpret the provision at question in a way that would not lead to arbitrary deprivation, then this interpretation should prevail in order to avoid an invalid provision. But interpreting the provision must not go too far. As a result of the doctrine of separation of powers, it is first and foremost the task of the legislator to formulate the content of a provision comprehensively and not the task of a court to venture into “patch-working legislation”, see National Credit Regulator v Opperman 2013 (2) SA 1 (CC) para 84.

40 Roux “Property” in CLOSA 46-20 points out that because of this requirement the property clause inquiry will be in principle deal with a law rather than any other type of state action. Administrative action which is not based on law of general application can be reviewed under section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Executive action that amounts to a deprivation without being authorised by a law of general application is reviewable under section 25(1) and the principle of legality. See also AJ van der Walt “Procedurally Arbitrary Deprivation of Property” (2013) 23 Stell LR 88-94. In contrast, it will become evident later that in German law not only the law, but also every state action based on the law, is an interference with the constitutional property clause that has to be justified.

41 Currie & de Waal “Property” in The Bill of Rights Handbook 540.

42 Woolman & Botha “Limitations” CLOSA 34-48.

43 See the references in Roux “Property” in CLOSA 46-21 n 8; Van der Walt (2004) SALJ 870 n 67.

44 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) para 62.

45 Van der Walt (2004) SALJ 869.

46 Van der Walt Constitutional Property Law 237; AJ van der Walt “An Overview of Developments in Constitutional Property Law since the Introduction of the Property Clause in 1993” (2004) 19 SAPR/PL 46 63.

47 1997 (4) SA 1176 (CC) paras 33, 41 and 44-45.

48 Van der Walt Constitutional Property Law 238.

49 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) para 65.

50 Van der Walt Constitutional Property Law 238.

51 238.

52 238.

53 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) para 70.

54 Paras 71-99.

55 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) para 57.

56 Although section 25(1) does not refer to a distinction between substantive and procedural reasons for arbitrariness, the Constitutional Court in FNB nevertheless presented this distinction without defining what procedural arbitrariness exactly means. The Constitutional Court in Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 65 held that like in other contexts procedural arbitrariness is a flexible concept and that the requirements that must be satisfied to render an action or a law procedurally fair depends on all circumstances. Before the Western Cape High Court, Binns-Ward J in Opperman v Boonzaaier 2012 ZAWCHC 27, 17 April 2014, available online at http://www.saflii.org/za/cases/ZAWCHC/2012/27.html (accessed 13-8-2014) para 38 held that a law is procedurally arbitrary because it does not provide for sufficient judicial oversight. However, it is not really clear if the notion of procedural fairness in the context of section 25(1) has any meaning at all. Van der Walt Constitutional Property Law 269 suggests that procedural arbitrariness should only be discussed when the deprivation was not caused by administrative action, but is directly brought about by the legislation. Therefore, when procedurally unfair administrative action results in deprivation of property, the individual should challenge this on the basis of PAJA and section 33, and not section 25(1). See also AJ van der Walt “Procedurally Arbitrary Deprivation of Property” (2013) 23 Stell LR 88-94.

57 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) para 98.

58 Para 98.

59 AJ van der Walt “Retreating from the FNB arbitrariness test already? Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng” (2005) 122 SALJ 75 77.

60 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) para 100.

61 R Brits “Arbitrary Deprivation of an Unregistered Credit Provider’s Right to claim Restitution of Performance Rendered: Opperman v Boonzaaier (24887/2010) 2012 ZAWCHC 27 (17 April 2012) and National Credit Regulator v Opperman 2013 2 SA 1 (CC)” (2013) 16 PER/PELJ 422 447.

62 Van der Walt (2004) SALJ 870.

63 Van der Walt Constitutional Property Law 243.

64 Roux “Property” in CLOSA 46-24.

65 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) para 108.

66 Para 108.

67 Van der Walt (2005) SALJ 82.

68 Van der Walt Constitutional Property Law 244.

69 Roux “Property” in CLOSA 46-23.

70 46-24.

71 46-24.

72 Van der Walt (2005) SALJ 82.

73 88.

74 46-20.

75 46-23.

76 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) para 100.

77 2005 (1) SA 530 (CC).

78 Section 118 reads: (1) A registrar of deeds may not register the transfer of property except on production to that registrar of deeds of a prescribed certificate- (a) issued by the municipality or municipalities in which that property is situated; and (b) which certifies that all amounts that became due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties during the two years preceding the date of application for the certificate have been fully paid. In one of the cases joined in this decision, section 50(1)(a) of the Gauteng Local Government Ordinance 17 of 1939 was challenged on a similar basis.

79 Sections 49 and 50(1)(a) of a Gauteng Local Government Ordinance were challenged as well but are omitted here because they have the same effect as section 118(1) of the Local Government Municipal Systems Act 32 of 2000.

80 Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) paras 32-33.

81 Para 34.

82 Para 35.

83 Para 52.

84 Para 38.

85 For a summary of the High Court’s argument, see para 36.

86 Para 40.

87 Para 41.

88 Para 45.

89 Para 51.

90 Para 59.

91 Van der Walt (2005) SALJ 83.

92 Para 35.

93 Van der Walt (2005) SALJ 83 referring to Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 51.

94 Van der Walt (2005) SALJ 83.

95 83.

96 Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 52.

97 Van der Walt (2005) SALJ 85.

98 Paras 53-64.

99 Van der Walt (2005) SALJ 85.

100 Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 51.

101 Van der Walt (2005) SALJ 87.

102 88.

103 88.

104 88.

105 Van der Walt Constitutional Property Law 256.

106 Mkontwana v Nelson Mandela Metropolitian Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v member of the Executive Council for Local Government and Housing, Gauteng and Others 2005 (1) SA 530 (CC) para 39.

107 Para 45.

108 Para 51.

109 Van der Walt (2005) SALJ 89.

110 2009 (6) SA 391 (CC).

111 Para 48.

112 The Gauteng Transport Infrastructure Act 8 of 2001. The High Court had declared section 10(3) of the Act unconstitutional in Reflect-All 1025 CC v Member of the Executive Council for Public Transport, Roads and Works, Gauteng Provincial Government (unreported, GSJ case no 14629/2004, 2 December 2008).

113 Van der Walt “Constitutional Property Law” (2009) 3 JQR 2.2.

114 Section 10 of the Gauteng Transport Infrastructure Act 8 of 2001 reads: “(1) Any route within the Province which has been accepted as such by— (a) the Administrator as defined in the Roads Ordinance, 1957(Ordinance No. 22 of 1957); (b) the Premier of the Province; or (c) the MEC, under that Ordinance before the date of commencement of this section shall be deemed to have been determined and published in terms of section 6(11) as soon as the MEC has published a notice in the Provincial Gazette to the effect that the centre line thereof has been determined, from which date the relevant provisions of sections 5 to 8 apply to such a route as though it has been published in terms of section 6(11). (3) Every preliminary design of a provincial road within the Province, including such design in the form of basic planning, which has been accepted by— (a) the Administrator as defined in the Roads Ordinance, 1957(Ordinance No. 22 of 1957); (b) the Premier of the Province; or (c) the MEC, under that Ordinance before the date of commencement of this section and which is mentioned in a notice published in the Provincial Gazette, shall as from the commencement of this section, be deemed to have been accepted by the MEC for implementation in terms of sections 8(6), (8) and (9) and section 9 shall as from the commencement of this section be applicable to such preliminary design, provided that for purposes of application of the said sections, section 8(7) shall be deemed to have been complied with at the date of commencement of this section.”

115 Van der Walt “Constitutional Property Law” (2009) 3 JQR 2.2.

116 Reflect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng Provincial Government 2009 (6) SA 391 (CC) para 26.

117 Para 48 citing 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) para 100.

118 Para 38.

119 Van der Walt Constitutional Property Law 259.

120 Para 49.

121 Reflect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng Provincial Government 2009 (6) SA 391 (CC) para 49.

122 Para 49.

123 Para 50.

124 Para 53.

125 Para 53.

126 Section 8(9) reads: “The power of the MEC contemplated in subsection (8), may also be exercised on written application by anyone who desires that such preliminary design be amended, accompanied by payment of a prescribed fee, and in that event the provisions of sections 38(2) to (6) apply to such application.” (Emphasis added.)”

127 Para 55.

128 National Credit Regulator v Opperman 2013 (2) SA 1 (CC).

129 Section 89(5)(c) reads: [A]ll the purported rights of the credit provider under that credit agreement to recover any money paid or goods delivered to, or on behalf of, the consumer in terms of that agreement are either- (i) cancelled, unless the court concludes that doing so in the circumstances would unjustly enrich the consumer; or (ii) forfeit to the State, if the court concludes that cancelling those rights in the circumstances would unjustly enrich the consumer.

130 Opperman v Boonzaaier 2012 ZAWCHC 27, 17 April 2014, available online at http://www.saflii.org/za/cases/ZAWCHC/2012/27.html (accessed 13-8-2014). For a discussion, see Van der Walt “Constitutional Property Law” (2012) 2 JQR 2.1.1.

131 Brits (2013) PER/PELJ 423.

132 442-457.

133 National Credit Regulator v Opperman 2013 (2) SA 1 (CC) para 63.

134 Para 67.

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Title
Arbitrary deprivation of property. A comparative analysis between German and South African law
College
Stellenbosch Universitiy
Grade
76 Prozent
Author
Year
2014
Pages
55
Catalog Number
V299764
ISBN (eBook)
9783656962243
ISBN (Book)
9783656962250
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909 KB
Language
English
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arbitrary, german, south, african
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Leonard von Rummel (Author), 2014, Arbitrary deprivation of property. A comparative analysis between German and South African law, Munich, GRIN Verlag, https://www.grin.com/document/299764

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