n South African Law Journal - Compliance with Section 25(2)() of the Constitution : when should compensation for expropriation be determined? : notes




In the recent case of 2011 (6) SA 134 (CC) (), the Constitutional Court held that the determination of compensation need not precede an expropriation; compensation can in principle be determined after expropriation. The applicants (hereafter referred to as 'the Trust') in were the trustees of the YGM Haffejee Family Trust, which owned property situated on the banks of the Umgeni River in Durban. This property was earmarked to be expropriated by the eThekwini Municipality for purposes of a canalisation programme to ensure that the effects of flooding of the river were minimised. In 2004, the Municipality resolved to expropriate the Trust's property and on 23 May 2005 a notice was sent to the Trust indicating the intention of the Municipality to expropriate the property. Another notice was sent on 30 June 2005, fixing the date of expropriation as 31 July 2005. Neither of these notices contained any offer of compensation. Therefore, it is clear that compensation had not been fixed at the time that the expropriation had taken place. In July 2006, the Municipality offered compensation at an amount of eighty per cent of the market value of the property. The applicants rejected the amount, because they questioned the validity of the expropriation in terms of s 25(2)() of the Constitution. Consequently, the Municipality instituted eviction proceedings and tendered payment of the full market value of the property as compensation, which was also rejected by the Trust.


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