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 University of Stellenbosch|
|Publication Date||Jan 2011|
|Pages||245 - 292|
In constitutional property law, questions about the validity of regulatory control over the use and exploitation of property are decided with reference to 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 adopted in this decision means that state regulation of the use and exploitation of property (such as land use planning, regulatory control over the development of or building on land, 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 is constitutionally unassailable, without compensation, even when it causes loss of value for the property holder, 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 (see the cases discussed in AJ van der Walt Constitutional Property Law 3 ed (2011) 213-18; more recent case law is discussed below).
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