n Annual Survey of South African Law - Constitutional property law

Volume 2007, Issue 1
  • ISSN : 0376-4605



In constitutional property law, state regulation of land use planning, development, building and the conservation of the environment is generally regarded as a legitimate exercise of state regulatory power (sometimes referred to as the police power). Consequently, regulatory deprivation of property is constitutionally unassailable, provided that the action is properly authorized, due process principles are adhered to, and the effects of the regulatory action are not arbitrary, excessive, or disproportionately unfair. As far as South African law is concerned, constitutional control over state regulation of land use is restricted to the requirements in section 25(1) of the Constitution of the Republic of South Africa, 1996 : the deprivation of property must be authorized by law of general application, and no law may permit arbitrary deprivation (see, generally, AJ van der Walt (2005) ch 4). According to general principles, regulation of land use can cause (even substantial) loss of property, but as long as the regulatory action is legitimate and fair, compensation is not payable for the deprivation. The exception is where a right to claim compensation for excessive regulatory deprivation is granted either by the constitution itself (Switzerland) or in judicial practice (the United States of America). If such a right to claim compensation for constructive expropriation (Switzerland) or regulatory takings (the United States) is not recognized, excessive regulatory deprivation is usually invalid for being unconstitutional. For the time being it seems unlikely that the doctrine of constructive expropriation will be adopted in South African law (Van der Walt op cit at 209-37). On the basis of case law and academic writing the situation in South African law is summarized by the Constitutional Court in 2002 (4) SA 768 (CC) (idem at 145-55): the deprivation of property resulting from state regulation of land use will be legitimate as long as it is properly authorized by legislation, complies with due process requirements, and is not arbitrary. In FNB, the court held that state regulatory action will be deemed non-arbitrary if there is sufficient reason for it.

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