Law of Property
LAPR WP NOTES
LEARNING UNIT 6
Name the features and values of the Constitution.
The Constitution of the Republic of South Africa of 1996 is pivotal in both public and private law,
particularly in property law. It establishes the principles governing state organization and functions,
bridging the gap between public and private spheres. This is evident from apartheid-era laws that
restricted private rights based on public policy. The Constitution seeks to redress past injustices and
promote equality and human rights in both domains. Key features include its status as the supreme
law, its entrenched nature, a bill of rights, and an independent judiciary. It acknowledges the validity
of common and customary law, protects property rights, and allows for horizontal application,
affecting private disputes. The Constitution embodies values such as national unity, reconciliation,
limited government, a just and open society based on dignity, freedom, and equality, political and
cultural pluralism, and constitutionalism. These values guide the interpretation and application of
all laws, aiming to transform South African society from inequality and conflict to justice and
democracy.
Discuss the horizontal application of the property clause.
The horizontal application of the property clause in the South African Constitution refers to its
impact on private disputes between individuals, not just between individuals and the state. Section
39 of the Constitution mandates that when interpreting the Bill of Rights, courts must promote the
values of human dignity, equality, and freedom, and consider international and foreign law where
relevant. This ensures that property laws are applied in a manner consistent with constitutional
values. Specifically, section 39(2) requires that all laws, including common law and customary law, be
interpreted in line with the Bill of Rights. This means that property rights must be balanced with the
need for equitable access and secure tenure, as illustrated in the case of Port Elizabeth Municipality v
Various Occupiers. Therefore, the Constitution influences both public and private legal spheres,
ensuring that private law, including property disputes, aligns with its overarching principles.
Discuss the protection of rights in property in terms of s 25 of the Constitution, including the
measures regarding the –
• deprivation of property in terms of s 25(1);
• expropriation of property in terms of s 25(2); and
• the requirements for expropriation in s 25(3) to be permitted.
Section 25 of the South African Constitution protects property rights while allowing for deprivation
and expropriation under specific conditions. Section 25(1) permits deprivation of property if it adheres
to a law of general application and is not arbitrary. Deprivation must serve a legitimate public
purpose and be procedurally fair, ensuring the law applies equally and is not imposed without sufficient
reason. For example, regulations on town planning and health might limit property use, but these
limitations do not require compensation as they benefit the public broadly and equitably.
Learning Unit 5- Limited real rights and other rights in property
Law of Property
LAPR WP NOTES
Section 25(2) deals with expropriation, which involves the state acquiring property for public purposes
or in the public interest, such as building infrastructure. Expropriation must follow a law of general
application and be accompanied by just and equitable compensation, as outlined in section 25(3).
Compensation is determined by considering factors such as the current use, acquisition history,
market value, state investment, and the purpose of the expropriation. The Constitutional Court has
clarified that expropriation requires state acquisition of property, differentiating it from deprivation,
which does not involve taking property away but regulating its use.
The distinction between deprivation and expropriation is significant because expropriation
necessitates compensation, reflecting the burden placed on the property owner for the public good.
Section 25(3) ensures compensation balances public interest with the affected individual's interests,
aiming for fairness in the acquisition process. The Constitution reconciles property rights with land
reform objectives, indicating that property protection and public policy goals, including land reform,
are complementary, not contradictory. This balance is vital for maintaining both private property
rights and achieving equitable land distribution.
Briefly discuss the nature and effect of the proposed Constitutional Amendment Bill which deals with
expropriation without compensation.
The Constitution Eighteenth Amendment Bill, published in 2019, aimed to amend section 25 of the
South African Constitution to allow for land expropriation without compensation. The Expropriation
Bill of 2020 sets out the specific mechanisms and circumstances for such expropriation, in line with
the Constitution. The Amendment Bill sought to clarify section 25(2)(b), enabling nil compensation
in certain cases, while the Expropriation Bill provides detailed conditions for this. Despite significant
public participation and numerous submissions, these bills have raised concerns about potential
constitutional challenges and economic impacts. The Amendment Bill introduces section 3A,
specifying when courts may determine nil compensation, echoed in section 12(3) of the Expropriation
Bill. Although the public participation process for the Amendment Bill concluded, the Expropriation
Bill continues to gather input, with the outcomes likely influencing both bills' final versions. Major
concerns include the non-exhaustive list of circumstances for nil compensation and the broader
economic implications. Ultimately, these legislative efforts aim to address the historical land
ownership imbalances in South Africa, though their success and impact remain subject to ongoing
debate and legal scrutiny.
Learning Unit 5- Limited real rights and other rights in property
