n South African Journal on Human Rights - The distinction between deprivations and expropriations and the future of the 'doctrine' of constructive expropriation in South Africa

Volume 19, Issue 4
  • ISSN : 0258-7203



'Constructive expropriation' refers to the protection of individual property holders against detrimental consequences of state regulation of private property in two distinct ways, by either affording compensation to the aggrieved right holder, or by striking down the imposition. Two aspects of the relevant constitutional provisions are considered in this contribution: (i) the impact of conjunctive and disjunctive readings of ss 25(1) and (2) on the issue of constructive expropriation; and (ii) the interpretative relevance of the relationship between s 25 and s 36 for constructive expropriation scenarios. Although <I>Harksen v Lane and Steinberg v South Peninsula Municipality&lt;/I&gt; rely on different underlying assumptions about deprivations and expropriations, neither canpr ovide a viable basis from which to consider the idea of constructive expropriation and its relevance for the South African context. <I>First National Bank of SA t/a Wesbank v Commissioner for the South African Revenue Service&lt;/I&gt; suggests that the basis for reliance on an 'argument' of constructive expropriation in South Africa must be sought in the criterion of excessiveness, deduced from the court's treatment of the non-arbitrariness requirement of s 25(1). It is concluded that constructive expropriation refers merely to the phenomenon of striking down a particular measure on the basis of its excessiveness. In the jurisprudence as it stands, payment of compensation for cases of regulation that 'go too far' cannot be envisaged.

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