Addressing the Issue in Harvey v Umhlatuze Municipality in Legislation

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Date: 16 August 2019
• Citation: (2014) 25 Stell LR 116
• Author: BV Slade
• Pages: 116-125

116

addressing the issue in HarveY v

uMHlatuZe MunicipalitY in legislation

BV Slade

BComm LLB LLM LLD

Senior Lecturer, Faculty of Law, University of Stellenbosch*

1 Introduction

In Harvey v Umhlatuze Mu nicipality1 (“Harve y”) the High Cour t had

to decide whether it was competent to order t he re-transfer of expropr iated

property to t he previous owner when the pur pose for which the property was

expropriated could not be realis ed. In this decision the applica nt’s property

was expropriated for pur poses of creating a recre ational open space and

conservation area for gener al use by the public, but when that pur pose could

not be realised the municipal ity decided to change the use of the proper ty.

The new purpose i nvolved the sale of the land on tende r to a private developer

for the erection of residential houses. The ap plicant argued that the rst

respondent had an obligation to award h im restitution of his forme r property

– against payment of the m arket value – since the rst respondent abandoned

its plan to use the proper ty for the original purpose.2

Since there is no legislative authority for th is proposition in South Afr ican

law the applicant relied on a particu lar interpret ation of the public purpose

requirement in section 25(2) of the Constitution of the Republic of South

Africa, 1996 (“the Const itution”), based on authority in G erman law. The

applicant argued that when t he public purpose falls away, becomes impossible,

or is changed, the expropriat ion is no longer “legally and constitutionally

sustainable in the fac e of a claim to the property by t he original owner”.3

To substantiate this claim, the applicant relied on a n argument made by Van

de r Wa lt. 4 Relying on Ger man law,5 Van der Walt states that if property was

“expropriated for a public purpose t hat was never realised (or for a purpose

that ceased to exist)”,6 the property should be ret urned to the previous owner,

* This note is ba sed in part on BV Slade The Just ification of Expropr iation for Economic Deve lopment

LLD disser tation Stellen bosch (2012) ch 6 Thank you to Prof AJ van der Walt, as well as Dr Emma

Waring and Ms Kar en Bezuidenhout , for their helpful comm ents and suggestion s R emaining erro rs are

my own

1 2011 1 SA 601 (KZP)

2 Pa ra 80

3 Pa ra 80

4 A J van der Walt Constitutional Property Law (2005) 256 In AJ van der Walt Constitutional Property

Law 3 ed (2011) 493-499, this argument wa s retained and e xpanded with refe rence to Harve y v Umhlatuze

Municipality 2011 1 SA 601 (K ZP) and t he Malay sian de cision of Uni ted Developmen t Company Sdn Bhd

v The State Gove rnment of Sabah [2011] MLJ 209

5 B Verf GE 38, 175 [1974], BVerf GE 56, 249 [1981] (Dürkheimer Gondelbahn); BVer fGE 97, 89 [1997]

6 Van de r Walt Constitutional Property Law (2005) 256; Van der Walt Constitutional Property Law (2011)

494

(2014) 25 Stell LR 116

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