n Annual Survey of South African Law - Constitutional property law
|Article Title||Constitutional property law|
|© Publisher:||Juta Law Publishing|
|Journal||Annual Survey of South African Law|
|Affiliations||1 Stellenbosch University|
|Publication Date||Jan 2010|
|Pages||251 - 294|
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 FNB (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)). 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 (Nyangane v Stadsraad van Potchefstroom 1998 (2) BCLR 148 (T); South Peninsula Municipality v Malherbe 1999 (2) SA 966 (C); Oudekraal Estates (Pty) Ltd v City of Cape Town 2002 (6) SA 573 (C); Oudekraal Estates v City of Cape Town 2004 (6) SA 222 (SCA); African Billboard Advertising (Pty) Ltd v North and South Central Local Councils, Durban 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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