UNIT 10 – CONSTITUTIONAL PROPERTY
LAW
PRIVATE LAW 272 – LAW OF PROPERTY
INTRODUCTION
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Constitution provides for property rights in S25.
Originally, the Interim Constitution did not specifically provide for land reform – did provide for some
forms of reform, but only in terms of restitution which was embedded in S28 of the Interim
Constitution
Now, we have S25 embedded in the Final Constitution:
o There are no direct rights, and it is NEGATIVELY formulated (may not be deprived)
o This formulation was validated and confirmed in the First Certification judgement
SECTION 25
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Section 25 consists of two parts:
o S25(1) – (3): embodies provisions aimed at protecting existing property rights and interests
against unconstitutional interferences
o S25(4) – (9): provides for allowing state action that promotes land reform and other related
reforms
S25(1) – DEPRIVATION CLAUSE
CLAUSE
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25(1): No one may be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property.
EXPLAINED
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Ability of state to regulate use of private property by restricting owners’ entitlements use &
enjoyment)
o Does not take property away
o No compensation
Negative formulation- property or property rights may not be restricted unless certain requirements
are satisfied.
o Permits the state to interfere
o BUT must conform with proper legal procedures
o Confirmed in First Certification
Law of General application: Common Law or legislation
o All interferences must be in accordance with law
o Not only applicable to a specific group or persons, but the public in general
o Apply equally to everybody involved - not discriminatory
Not Arbitrary [FNB]
o Must be for a sufficient reason - serve a legitimate purpose
o Must be procedurally fair
Reasonable and justifiable in an open and democratic society based on Human Dignity,
equality and freedom (S36)
Thus: You can be deprived of property if certain conditions are met
o
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S25(2): EXPROPRIATION CLAUSE
S25(2)
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S25(2):
o Property may be expropriated only in terms of law of general application Expropriation: Taking property away from the owner, without his consent, for public use or in
public interest
Must also be in terms of a law of general application and be non-arbitrary
Also subject to the limitation clause
S25(2)(A)
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S25(2)(a):
o for a public purpose or in the public interest; and
Public purposes:
o for e.g., Building a school or a hospital, transportation lines, electricity lines etc.
Public Interest:
o Wider than Public Purpose
o New addition in the final constitution - specifically inserted after Interim Constitution
o E.g., land reform
S25(2)(B)
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S25(3)
S25(2)(b):
o subject to compensation, the amount of which and the time and manner of payment of
which have either been agreed to by those affected or decided or approved by a court.
Note the distinction between deprivation and expropriation
o Deprivation – no compensation required
o Expropriation – only in 2 instances
S28 Interim Constitution Property Clause only provided for public purpose
S2(b) has been under scrutiny and thus a review committee was established for nil compensation. Did
not pass 2/3 majority vote in parliament, and thus the property clause as it is remains valid
EXPLAINED
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Thus, not only the amount must be just and equitable, but also the TIMING and the MANNER,
o for example: before the current constitutional dispensation, it would be acceptable to pay in
forms other than cash/money.
Note, these factors do not mention the future use of property, thus, what it would be used for if
expropriated. Lecturer finds this interesting.
In practice, you determine the market value first, and if you then have the market value, it can be
adjusted upwards and downwards depending on all other factors – e.g. if you got your land through
racially discriminating practice, the market value can be adjusted downwards and you get less
compensation. Same if state invested/subsidized a lot, market value adjusted downwards.
o Thus, the formula, as in practice, is actually to START with (c), the market value, and adjust it
with the other factors
Market value – you do not necessary pay market value (can be less) – it is simply a factor
Either by agreement and approval by court or by a court
Must consider all relevant circumstances of that particular case
Court has a wide discretion
S25(4) – (9)
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(4) For the purposes of this section—
o (a) the public interest includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources; and
o (b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to
foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to
tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to
restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to
achieve land, water and related reform, in order to redress the results
(9) Parliament must enact legislation in terms of SS(6)
ARBITRATY DEPRIVATION DETERMINATION PROCESS – GUIDELINE EXPLAINED
First National Bank of South Africa Limited t/a Wesbank v Commissioner for the South African Revenue
Services
STEP BY STEP
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1. Does that which is taken away from the property holder by the operation of the particular law in
question amount to “property” for purpose of section 25?
o Usually not a problematic factor
2. Has there been a deprivation of such property by the law or conduct?
o Usually unproblematic
o Interference with use, enjoyment or exploitation = deprivation
o Must be substantial/significant nature - SA Diamond Producers Organisation v Minister of
Minerals and Energy
3. If there has, is such deprivation consistent with the provisions of section 25(1)?
Deprivation itself is not unconstitutional, only where it amounts to an unauthorised / arbitrary
deprivation will property rights be infringed
Law of general application = legislation = ensures that deprivations are legitimately authorised by the
common law, customary law or legislation
Arbitrariness = deprivation arbitrary if law does not provide sufficient reason for deprivation in
question or is procedurally unfair
Flexible test for non-arbitrariness - rationality & proportionality depending on facts
o low level scrutiny / thin test: were criteria and procedural safeguards for infringement
met?
o rationality: ends/means test where rational link between deprivation, means chosen and
purpose
o strict level scrutiny / thick test: was the infringement justifiable for striking a proportionate
balance between the purpose of the infringement and the manner in which it is imposed?
SUBSTANTIVE FACTORS OF ARBITRARINESS
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a) It is to be determined by evaluating the relationship between means employed, namely the
deprivation in question and ends sought to be achieved, namely the purpose of the law in question.
b) A complexity of relationships has to be considered.
c) In evaluating the deprivation in question, regard must be had to the relationship between the
purpose for the deprivation and the person whose property is affected.
d) In addition, regard must be had to the relationship between the purpose of the deprivation and the
nature of the property as well the extent of the deprivation in respect of such property.
e) Generally speaking, where the property in question is ownership of land or a corporeal movable, a
more compelling purpose will have to be established in order for the depriving law to constitute
sufficient reason for the deprivation than in the case when the property is something different and
the property right is something less extensive. This judgment is not concerned at all with incorporeal
property.
f) Generally speaking, when the deprivation in question embraces all the incidents of ownership, the
purpose for the deprivation will have to be more compelling than when the deprivation embraces
only some incidents of ownership and those incidents only partially.
g) Depending on such interplay between variable means and ends, the nature of the property in
question and the extent of the deprivation, there may be circumstances when sufficient reason is
established by, in effect, no more than a mere rational relationship between means and ends; in
others this might only be established by a proportionality evaluation closer to that required by s 36(1)
of the Constitution.
h )Whether there is sufficient reason to warrant the deprivation is a matter to be decided on all the
facts of each particular case, always bearing in mind that the enquiry is concerned with arbitrary in
relation to deprivation of property under s 25.
SUMMARIZED: SUBSTANTIVE FACTORS OF ARBITRARINESS
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relationship between the deprivation and purpose
complexity of relationships
relationship between purpose and person whose property is being affected
relationship between purpose and nature of property & extent of deprivation
if property in q is land/corporeal movable = req more compelling purpose than other lesser extents
if deprivation embraces all incidents of ownership = req more compelling purpose than other lesser
incidents
depending on the above factors, there may be circumstances when sufficient reason is established by
a rational relationship between the deprivation and the purpose (proportionality)
consider facts of case
STEP BY STEP CONTINUED
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4. If not, is such deprivation justified in terms of s36 of the Constitution?
o Is this step even necessary? if something is arbitrary, how can it still be justified?
o If it is found that the deprivation did not take place in terms of law of general application or
the law authorising the deprivation is arbitrary, then section 25(1) is infringed
o However, theoretically, and in accordance with the FNB-methodology, the State could seek
to justify such an infringement under the general limitation clause, section 36 of the
Constitution
o The Court in FNB therefore foresaw that section 36 could possibly have a role to play in
constitutional property disputes in terms of section 25(1), but the Court did not expressly
decide on the matter
5. If it is justified, does it amount to expropriation for purposes of section 25(2)?
o Are we dealing with expropriation as opposed to deprivation, which is determined by
considering requirements of expropriation - essentially the state must acquire the property,
in terms of a law of general application, for a public purpose or for a public interest, against
compensation
6. If so, does the expropriation comply with the requirements of section 25(2)(a) and (b)?
FORMAL REQUIREMENTS FOR EXPROPRIATION
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1. Law of General Application
o expropriation always in terms of legislation setting out procedure - Expropriation Act
o Decision to expropriate = administrative action governed by s33 & PAJA
o Expropriation Bill will influence
2. Public purpose or public interest
o Only permissible for public purpose/interest
o If to individual? S25(4): nation’s commitment to land reform and to reforms to bring about
equitable access to all SA’s natural resources
3. Compensation
o s25(3) provides framework for compensation duty, manner, time, amount determination
o Compensation must be just and equitable reflecting equitable balance between public
interest and interests of those affected
o S25(3):
 a) the current use of the property;
 b) the history of the acquisition and the use of the property
 c) the market value of the property
 d) the extent of direct State investment and subsidy in the acquisition and beneficial
capital improvement of the expropriation
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e) the purpose of the expropriation
STEP BY STEP CONTINUED
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7. If not, is the expropriation justified under section 36?
o Roux states that this stage will only be reached in exceptional circumstances, if ever
o e.g., a law providing for expropriation of property that is not aimed at achieving a public
purpose or public interest will in all likelihood fail the arbitrariness test in section 25(1) and
section 36 during the deprivation analysis
Distinguish between:
o decision to expropriate (administrative) - taken in accordance with procedure set out in Act
and this decision may not be tested by courts
o compensation - amount may be challenged in court if parties cannot come to an agreement
PURPOSE OF S25
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Protecting existing private property rights
Serving the public interest, mainly in the sphere of land reform but not limited thereto
Striking a proportionate balance between these two functions
FIRST NATIONAL BANK OF SOUTH AFRICA V COMMISSIONER FOR SARS 2002 (4) SA 769
(CC)
Outset of facts and ratio decidendi – together with the guideline as discussed earlier
FACTS
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Company bought many vehicles - on this hire purchase/instalment = in effect: leased from FNB
FNB remains owner, until last payment is made
S114 of Customs and Excise Act - SARS was entitled to claim all assets in the possession of tax, fees
and levies debtors
o Attach all property in control of the debtor
o Can then sell it - without a court order
o To provide for the tax, fees and levies
In this case the company was arrears in taxes and SARS detained and intended to sell certain vehicles
that were in the possession of the company
Problem: Vehicles that do not belong to the company, but FNB
QUESTION:
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Could the act legitimately allow the state (SARS) to deprive a property owner (FNB) of its property in
this manner, if the debt is held by another party
COURT A QUO
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Initially unsuccessful in HC:
Comparison: customs v lessor hypothec (common law)
BUT: Difference in this case:
o Attach and sell for debt of the tenant - not a third-party debt
o S114: not interested in who is the debtor - ensure that the debt is paid
 Get property sell it
 Does not matter where the debt lies
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Appealed to CC
o Is the section constitutional or not
o Claimed that this amounted to expropriation - for which they were not compensated and
therefore the section was “unconstitutional
S25 OF THE CONSTITUTION – THE FNB METHODOLOGY – APPLIED BY CC
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1. Is FNB the “owner” and entitled to property rights under s25
o Yes - company can be an owner as it is a juristic person
o According to S8(4) a juristic person is entitled to rights in the BoR (depending on the nature
of the right and the nature of the juristic person)
o The holders of shares in companies are natural persons - they have a financial interest in the
company
o Natural persons are increasingly forming companies and purchasing shares - for legitimate
purposes as earning a livelihood, pension, investment, etc.
o They are an indispensable part of business
o Denying them the right to property - lead to grave disruptions and would undermine our
society
o Disastrous impact on business world, creditors and shareholders
o Property rights of natural persons can only be fully and properly recognised if such rights are
also afforded to companies
2. Vehicle (interest) = property in terms of s25?
o Yes, S25 includes corporeal movables
o It is irrelevant that the vehicle is not in FNB’s possession and that they are not using it
o Legal right v commercial interest:
o FNB is owner, should not focus on the “reservation of ownership” - effect of a contractual
term in an agreement
o The fact that the agreement contemplates a stage when FNB might cease to be owner
cannot affect the characterisation of its right of ownership as long as it remains owner
o The right is not characterised by the subjective interest of the owner in the property or the
economic value of the ownership
3. Has derivation occurred?
o [Difference between deprivation and expropriation]
o Derivation = any interference with the use, enjoyment or exploitation of private property
o S25(1) deals with all property and all deprivations (including expropriations).
o If the deprivation infringes S25(1) requirements and cannot be justified - end of the matter
and the provision is unconstitutional
o If the deprivation passes the scrutiny under S25(1) then the question arises as to whether
expropriation has occurred - if so it must pass the scrutiny of S25(2) and if it does not must
be tested against S36.
o Depriving an owner of all rights, use and benefit to and of corporeal movable goods =
deprivation.
4. If so, is it in conflict with s25(1)?
o (a) Law of general application?
 Yes - Legislation adopted by Parliament
 National standards are set in S114
o (b) Arbitrary?
 Without legal grounds or reason
 Must be a process of thinking
• (1) Must be a sufficient reason for the deprivation
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• (2) Must be procedurally fair
 The law causing the deprivation should demonstrate a rational connection
between a legitimate governmental purpose and the manner in which it should be
achieved
In order to determine if there was sufficient reason for the infringement must consider the
complexity of various relationships
 Must consider all relevant facts of a particular case
 Requires: “Means/end test”
• END: What is the aim of the provision?
o Extinguish the debt for tax
o Good aim - imperative/essential for wellbeing of country and in
the interest of all inhabitants
o Legitimate and important legislative purpose
• MEANS: What is the mechanism to achieve that aim?
o Attachment and sale to extinguish the debt
o Can attach property and sell it - No court is involved in the process
o What is the relationship between the means employed
(deprivation) and the end to be achieved.
 Relationship between the purpose for deprivation and the person whose property is
effected
 Relationship between the purpose of the deprivation and the nature of the property
• Need a compelling purpose in order for the depriving law to constitute
sufficient reason for the deprivation (especially land and corporeal
movables)
 Relationship between the purpose of the deprivation and the extent of the
deprivation in respect of such property
• If the deprivation embraces all the incidents of ownership - the purpose
will have to be more compelling than if it only embraces some of the
incidents of ownership
• FNB lost ownership of 3 vehicles
• Has the deprivation taken away all elements of ownership?
o What remains after the deprivation has occurred?
o Nothing remained of FNB ownership elements
o NB: depends on the facts
o Must be a “compelling reason”
Must be a rational relationship between the means and the ends
 Problem:
• S114 sanctions the complete deprivation of a person property where:
• Such person has no connection with the transaction giving rise to the debts
• Such property has no connection with the debt
• Such person has not transacted with or placed the customs debtor in
possession of the property under circumstances that have induced the
commissioner to act to his detriment in relation to the incurring of the
customs debt
 No nexus between ends and means in relation to the property of third parties.
• FNB was not the debtor, but the company
• FNB’s ownership was deprived
• No link between FNB and debt - no legal ground
• No link between FNB’s property and the taxes due
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• Therefore = no sufficient reason = arbitrary
o Therefore a limitation of such person’s rights
 Unacceptable to allow the tax authorities to detain and sell property belonging to
someone who was not the tax debtor and who had no link to the debt
5. Is the deprivation justificable in terms of S36 - rights are not unlimited
o Infringements that do not meet the requirements of S25 can still be validated in terms of the
limitation clause if they are necessary, appropriate and moderate - Court must in this case
make value judgements
o Can it be qualified/justified in terms of S36?
 Kind of limitation, kind of limitation, extent of limitation on right
 NB: Proportionality - Must be a proportionate balance between the purpose of the
deprivation and the extent of the infringement
o No justification
 FNB ownership is ultimately completely extinguished by S114 - for someone else’s
debt
 BUT no connection between FNB or the vehicles and the debt
 Cannot deprive people of ownership if they have nothing to do with the debt
 Too broad
 Disproportional
 Not mean you can simply attach anybody’s property, not matter how much you
need tax money or how much the tax money would be Not reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom
6. If so, does it amount to expropriation in terms of S25(2)?
o are we dealing with expropriation as opposed to deprivation, which is determined by
considering requirements of expropriation?
o Essentially the state must acquire the property, in terms of a law of general application, for a
public purpose or for a public interest, against compensation
o With expropriation:
 Compensation required
 Expropriation amounts to the withdrawal of owner’s entitlements either completely
or partially
 The state becomes owner of the property
o Thus, No
7 and 8 N/A – SEE GUIDELINE FROM EARLIER
Conclusion:
o Was arbitrary deprivation
o Not justifiable
o Unconstitutional and invalid
NOTE
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Apply the FNB Methodology to, for e.g.,
o Via necessitates
o Servitude in Linvestment case
o If MVS is successful, one can then say this is a deprivation and contrary to S25(1)
 E.g. Muhanelwa case where it was argued that successful MVS evicts an owner
DEPRIVATION VS EXPROPRIATION
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Expropriation is a subset of deprivation.
Expropriation
o compensation required
o amounts to the withdrawal of owner’s entitlements either completely or partially
o State becomes the owner of the property
Deprivation
o if regulation only ⇒ no compensation required
o no complete or partial withdrawal of owner’s entitlements
o State does not become owner
INTRODUCTION TO LAND REFORM
HISTORICAL BACKGROUND
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"while it was necessary to safeguard what is conceived to be the interests of the Europeans in this
country, in doing so the door should not entirely be closed to deserving and progressive individuals
among the Natives acquiring land, but this concession of a matter of principle was subject to the rider
that purchase by Natives should in future be limited to certain areas to be defined by legislative
enactment"
o Report of Native Affairs Commission 1905
BLACK LAND ACT 27 OF 1913
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Apartheid era - racial segregation was established by laws enforcing the separation of race groups
in different areas
o Property relationships were disturbed and skewed fundamentally during the apartheid era
Traditionally black land was identified and reserved for exclusive use and occupation by black groups,
while all the other land in the country was reserved for exclusive white use and occupation
“Black spots” - where black people could vest rights in land and not outside the spots
7% of the land
Scheduled list in the Act
SA DEVELOPMENT TRUST AND LAND ACT 18 OF 1936
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Added a few further portions to the black areas – called “release areas”
13.3% of the land allocated for more than 80% of the population
Never actually transferred the entire 13.3%
Rights rarely amounted to full ownership
Large scale poverty, overcrowding, overgrazing and lack of social opportunities
CONSTITUTIONAL FOUNDATIONS/BASIS
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Rectify the situation and to establish a measure of normality and fairness as far as property is
concerned will take time and in the meantime a measure of political interference is unavoidable
First phase land reform, early in 1990’s, not very in depth
o Involved abolition of all so-called racially based (apartheid) legislation
o Introduced the idea of land redistribution
1994: Interim Constitution
o S28 Short property clause (only 3 subsections)
 Fundamental right - constitutional protection for property
o S120-123 - Restitution
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Provided for the promulgation of a special land restitution Act - govern land
restitution in more detail
Law, Commission of Land Claims and Land Claims Court
Only those who had lost property would be effected - it did not adjust the statistics
Need broaden access to land - more access to 87%
SECTION 25(4) OF THE CONSTITUTION
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Land reform is considered as being in the public interest for the sake of expropriation
Not limited to land only
S25(5) OF THE CONSTITUTION
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Access to land
Redistribution of land
State should take legislative and other means to ensure equitable access to land
Places duty on state to take reasonable steps to broaden access to land for citizens
Citizens only because used to have a system where if one gained ownership as black person you lost
your South African citizenship
S25(6) OF THE CONSTITUTION
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Aimed to ensure more secure titles
Tenure reform programme
Persons whose tenure of land is legally insecure because of apartheid are entitled to secure tenure or
equitable redress as provided for by an Act of Parliament
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Restitution
Persons who have lost their land as a result of discriminatory land law on the past are entitled to
restitution or equitable redress as provided for by an Act of Parliament
LAND REFORM PROGRAMMES
1. REDISTRIBUTION
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Based on general need for land - Broaden access to land in an equitable manner to large number of
people who previously had no land or insufficient land
Reach particular people (women, vulnerable)
Supporting program (access to finance and access to credit)
Land Reform (Labour tenants) Act 3/1996
o Specific category of person - person who has for at least for two generations rendered
services in return for the right to reside on farm - some land to cultivate for crops and
pasture for animals (cropping and grazing right)
o Act prohibits unjust eviction
o If the requirements are met can apply to government to get parcel of land
o Land is redistributed
o They always had access - informal. Now land owners of the land
 Must be legal process
o Farmer lost ownership, even though he did not use it - must be compensated - S25(3)
2. LAND TENURE REFORM
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Improving/strengthening the security of tenure - steps and legislation to improve the quality and the
security of land rights, especially in cases where security of tenure was undermined or prevented by
apartheid policy
Main purpose: make existing land rights more secure by protecting the holders of those rights against
unfair eviction
o Evict as you like - tenure is not secure
Extension of Security of Tenure Act 62 of 1997 (ESTA)
o Applies to all persons who occupy land with the permission of the land owner (e.g. lease
agreement, but not labour tenants)
o Tenure more secure - regulate eviction strictly
o Must have good reasons for eviction and must be procedure
o “Independent rights” - secure rights to farm workers - agri-villages - not linked to farm
(partnership between landowners and government)
Communal Property Associations Act 28 of 1996
o Applicable to communities who want to own land in a co-ownership format
o Often encounter traditional communities living in communal areas where they construct a
CPA and then every member of the community has an entitled to the property
 Juristic form of co-ownership.
3. RESTITUTION
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Aimed at restitution of specific lands that were taken away from specific people in the apartheid era.
o Giving back land rights, e.g. ownership
Remedies provided: restitution of land of which the claimant was disposed, provision of alternative
land and compensation
Restitution of Land Rights Act 22 of 1994
o (1) Formal (Threshold) requirements:
 3 years to institute claim May 1995 - December 1998
• Promote legal certainty
• Foresees that all claim should be finalised by end of 2010
 If already received just and equitable compensation - cannot lodge a claim again
• Hardly ever received compensation
In 2014 - Restitution amendment act
• Commenced on 1 july 2014
• The land claims process was reopened. You could lodge your claim after
the act commenced up until 2018
• In 2016 the Amendment act was found unconditional on the basis of
insufficient public participation.
• This meant there was already 2 year in which claims were lodged - these
claims were interdicted. Government was then granted 2 years to draft a
new act and ensure the procedural requirements are met
 In 2019 - Speaker of the NA v Land Access Movement of SA
• Speaker approach the court for an extension because the restitution act
had not yet been rectified
• Application was unsuccessful
• We still don’t have an amended Restitution act
(2) Legal requirements:
 (1) Indicate you are an applicant for land redistribution = person or community
(who was dispossessed)
• Prove relationship to person or community
• Two prong test for community:
o Essence of community has remained - traditions or culture
o Shared rules regarding access to land
 (2) Dispossessed
• Facts are decisive - specific date or overtime
• Don’t have rights in land anymore
 (3) Dispossession must have been taken place after 19 June 1913
• (4) Lost a “right” in land
• Wide - includes any right
• Tenant, personal right ,permit
• Return the initial right you had
 (4) A result of a racially discriminatory law or practise
• Claim against the state rather than individuals or groups
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o
RECENT DEVELOPMENTS
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In October 2020 an expropriation bill was published for comment - has not yet been finalised
This bill is aligned with the constitution whereas the old expropriation act isn’t
o Brings in important and modern phrases
New clause section 12(3)
o Provides for 5 categories of land where exploration, if it takes place, can give rise to nil
compensation (not a closed list)
o There is a difference between expropriation with no compensation and with nil
compensation
 No compensation - there will never be expropriation
 Nil compensation - there still has to be a process to determine whether there might
be compensation
18 T H CONSTITUTIONAL AMENDMENT BILL, AUGUST 2021
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Process started in 2018
Main focus was to amend s25 - especially section that compensation must be just and equitable
Argued that expropriation is too expensive if compensation must be just and equitable and
argued that is unsustainable. Government can’t promote land reform if it has to pay just and
equitable compensation
o This may be true if you only look at market value but in s25 market value is only one of the
factors, and you have to look at all the factors
(2)(b) subject to compensation, the amount of which and the time and manner of payment of which
have either been agreed to by those affected or decided or approved by a court: Provided that where
land and any improvements thereon are expropriated for purposes of land reform as contemplated in
subsection (8), the amount of compensation may be nil.’’
(3)The amount of the compensation as contemplated in subsection (2)(b), and the time and manner
of any payment, must be just and equitable, reflecting an equitable balance between the public
interest and the interests of those affected, having regard to all relevant circumstances, including—’’;
(3A) For the furtherance of land reform, national legislation must, subject to subsections (2) and (3),
set out circumstances where the amount of compensation is nil.’’
(4A) The land is the common heritage of all citizens that the state must safeguard for future
generations.’’; and
(5) The state must take reasonable legislative and other measures, within its available resources, to
foster conditions which enable state custodianship of certain land in order for citizens to gain access
to land on an equitable basis.’’
Section 25(3) - these factors remain relevant. They indicate the amount of compensation and the time
and manner of payment. Which must be just and equitable
o In relation to expiration of property (which includes land) for land reform purposes only
there is the possibility that compensation may be nil.
o The new section 25(5) has remained constant in the emphasis on citizens. Now we only see
there is a further obligation on the state to ensure there are conditions to promise state
custodianship of certain land.
 What is the scope of certain land?
 What is the process of creating conditions to enable state custodianship of certain
land?
o
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CHARACTERISTICS OF SA LAND REFORM PROGRAMME
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Peaceful transition
o Before and after constitution
o There were negotiations between the different parties
o The property clause is aimed at protecting the existing rights - but the bulk of section 25 is
aimed at transforming and changing property rights
Embedded in Constitution
o Embedded specifically in the property clause and all the programmes are embedded in S25
o Specific implications in how we deal with land reform:
 How we approach legislative measures
• The legislative measures promulgated in terms of a specific subsection
• We must approach these legislative measures in particular way - purposive
interpretation and must keep in mind the other rights in BOR
 The state cannot shy away from its duty and obligations with land reform
Different forms of justice:
o Restorative justice - relevant in the restitution programme where its important to provide
redress and closure for communities
o Redistributive justice - relevant in redistributive programme
o
Specific forms of justice that don’t form part of land reform programme - No
retributive/punitive justice
RE-CONTEXTUALISATION OF PROPERTY
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Property law is ever changing and evolving
Impact of Constitution generally:
o impacts all areas of law
o e.g., S26 eviction consideration
Changing concept of ownership
o Daniels v Scribante
o respondents' arguments were based on absolutist notion of property, but this approach
frustrates achieving constitutional values such as dignity
o this way of thinking of ownership ultimately endorses a hierarchical approach to property
law, where ownership is seen as the pinnacle of all rights, and all other rights are subordinate
to ownership
o judicial function is not to establish a hierarchical arrangement between the different
interests involved, privileging in an abstract and mechanical way the rights of ownership over
the right not be dispossessed of a home or vice versa, rather it is to balance out and
reconcile the opposed claims in as just a manner as possible taking account of all the
interests involved and the specific factors relevant in each particular case
o ownership has a social dimension in that absolutism of property and hierarchy of rights in
effect perpetuates existing inequalities to the extent that it stands in the way of
transformation
DANIELS V SCRIBANTE
FACTS
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Ms Daniels occupier under ESTA. Mrs Daniels wanted to effect certain improvements to the dwelling
on the farm, including levelling the floors, paving part of the outside area and the installation of
various items and amenities such as an indoor water supply, a wash basin, a second window and a
ceiling. Respondents refused permission.
LEGAL QUESTION
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Does ESTA afford an occupier the right to make improvements to her or his dwelling?
If it does, is the consent of an owner required for an occupier to make the improvements?
If consent is not necessary, may an occupier effect improvements to the total disregard of an owner?
RIGHT TO MAKE IMPROVEMENTS
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section 25(6) tenure security + ESTA
S6 ⇒ an occupier has the right to reside on and use the land in issue
what does “reside” mean? concerns more than only a roof over one’s head ⇒ concerns occupation
that conduces to human dignity and other fundamental rights itemised in S5 of ESTA
NB living in deplorable conditions would not constitute as “residing” on the property ⇒ the right to
reside has to be understood in view of the fundamental rights, especially the right to human dignity ⇒
therefore, effecting improvements meant bringing the dwelling up to a standard suitable for human
habitation
RESPONDENT’S ARGUMENT
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as S13 provides for the payment of compensation in relation to improvements, the argument was
that the land owner would then finance the improvements, which constituted a positive duty on the
land owner to ensure that the occupier lived under conditions that afforded him or her human dignity
Being private parties, no such positive duty ought to be placed on land owners
POSITIVE OBLIGATION
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court found there were a number of factors to consider to determine whether private persons would
be bound by positive duties
just because there was a possibility that the land owner might have to pay compensation could not
automatically mean that the occupier ought to be satisfied with the state of her living conditions
ROLE OF LANDOWNER
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both parties had rights ⇒ which must be balanced
although consent of the landowner was not necessary, meaningful engagement of an owner or
person in charge was indeed still necessary
although various forms of engagement could take place with varied results, the point of departure
remained that the existence of the occupier's right was not dependent on the owner's consent
however, if the engagement resulted in a stalemate, the court had to address the matter ⇒ the
occupier cannot resort to self-help
JUDGEMENT
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D entitled to make improvements. Parties ordered to engage meaningfully.