n Annual Survey of South African Law - Constitutional property law




In constitutional property law, questions about the validity of regulatory control over the use and development of immovable property (and the consequent impossibility of claiming compensation for loss of value caused by regulatory control) are decided on the basis of the deprivation provision in section 25(1) of the Constitution of the Republic of South Africa, 1996, as interpreted in ( 2002 (4) SA 768 (CC)). The general policing power or regulatory principle as set out in this decision has been adopted in South African law, which means that state regulation of land use planning, development, building and conservation of the environment is regarded as a legitimate exercise of state regulatory power that does not require compensation. Accordingly, regulatory deprivation of property without compensation is normally constitutionally unassailable even when it causes loss of value, provided the regulatory action was properly authorized, administrative justice principles were adhered to and the effects of the regulatory action are not arbitrary, excessive or disproportionately unfair ( 1998 (2) BCLR 148 (T); 1999 (2) SA 966 (C); 2002 (6) SA 573 (C); 2004 (6) SA 222 (SCA); 2004 (3) SA 223 (N)). As a rule, unauthorized, procedurally unfair or excessive (arbitrary) regulatory controls are invalid in terms of section 25(1).


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