Procedurally Arbitrary Deprivation of Property

• Jurisdiction: South Africa
• Citation: (2012) 23 Stell LR 88
• Pages: 88-94
• Author: AJ van der Walt
• Published date: 16 August 2019
• Date: 16 August 2019

PROcEDuRALLy ARbITRARy DEPRIvATION

Of PROPERTy

AJ van der Walt

B Jur et Art Honns (BA) LLB LLM LLD

Professor, Faculty of Law, and South African Research Chair in Property Law,

Stellenbosch University*

1 Introduction

Section 25(1) of the Constitution of the Republic of South A frica, 1996

(“the Constit ution”) provides that no one may be deprived of property except

in ter ms of law of gene ral application a nd that no law m ay permit ar bitrary

deprivation of property. The subsection does not d istinguish between

substant ive and proced ural re asons for a depriv ation bein g arbitr ary.

However, in Fi rst Nation al Bank of SA Ltd t/a Wesbank v Commi ssioner,

South Af rican Revenue Service; First National Bank o f SA Ltd t/a Wesbank

v Minister of Finance1 (“FNB”) the Constit utional Court concluded that

“a d eprivation of propert y is ‘arbit rary’ as meant in s 25 when t he ‘law’

referred to in s 25(1) does not provide sufcient reason for the partic ular

deprivation in question or is procedurally unfair”. The rest of the FNB

decision p roceeds to analyse how substan tive non-arbitra riness, in the

sense of sufcient reason fo r the de privation, is to be established, without

saying any thing about the meani ng of the ph rase “or is procedurally un fair”.

However, from the phra sing of the passage cited earlier it must be con clud ed

that a d eprivation c ould be arbit rary in te rms of sect ion 25(1) eit her because

it was substan tively arbitrary in th e sen se that there is insuf cient reason for

it, as set out in t he decision, or because it was pr ocedurally unf air. Although

procedural unfairness is not dened or even discussed further in FNB, it

therefore apparent ly constit utes a n indep endent g round for nding that a

deprivation of propert y is arbitrar y.

Although the court did not expand i n FNB on procedural u nfairness as an

independent ground for a nding that a deprivation is arbitrar y, this point was

picked up in later case law. In Mkontwana v Nelson Mandela Metropolitan

Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action

Campaign v Membe r of the Exec utive Council for Local Governm ent and

* This article was writ ten as a presentation at the Annu al Conference of the Sou th African Property L aw

Teachers, hosted by th e University of Namibia, Wind hoek, 27-28 Octobe r 2011 It is based mor e or less

directly on sections from A J van der Walt Constit utional Proper ty Law 3 ed (2011) ch 4 Thank s to Sue-

Mari Maa ss and Bradl ey Slade for assi stance with the research for the book a nd for valuable c omments

and to Geo Quinot , Janke St rydom and Carolien Koch for discussio ns and com ments Geo Quinot was

particu larly helpful i n unravelli ng the possible meanings of the notion of procedural arbitrari ness in its

relation to the P romotion of Admini strative Justice Act 3 of 2 000 (“PAJA”)

1 2002 4 SA 768 (CC) para 100 (emphasis added )

88 STELL LR 2012 1

(2012) 23 Stell LR 88

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