Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and Another

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Skweyiya J and Van der Westhuizen J
• Judgment Date: 27 August 2009
• Citation: 2009 (6) SA 391 (CC)
• Hearing Date: 05 May 2009
• Docket Number: CCT 110/08
• Counsel: D Unterhalter SC (with M Chaskalson) for the applicants. GL Grobler SC (with NJ Louw) for the respondents.

Nkabinde J: A

Introduction

[1] This case concerns the constitutionality of legislation pertaining to the planning of provincial roads. The primary issue is whether the impugned provisions arbitrarily deprive owners of their property B contrary to s 25(1) of the Constitution. The court is also called upon to determine whether, contrary to the Constitution, the impugned legislative provisions amount to expropriation without just and equitable compensation; whether they fail to facilitate co-operative governance; and whether conduct in terms of the impugned provisions constitutes unjust administrative action. C

[2] These proceedings involve three applications. First is an application for confirmation of a declaration of constitutional invalidity [1] of s 10(3) of the Gauteng Transport Infrastructure Act 8 of 2001 (the Infrastructure Act) by Hutton AJ in the South Gauteng High Court, Johannesburg D (High Court). [2] Second is an application for leave to appeal against the High Court decision not to declare s 10(1) of the Infrastructure Act unconstitutional and invalid, and set aside Provincial Notice 2625. The application is accompanied by a request for condonation for the late filing of their application for leave to appeal. The applicants also seek an order directing the respondents to pay the costs of their appeal and the E confirmation proceedings. Third is an application by the respondents for leave to cross-appeal the costs order against them made by the High Court.

[3] Essentially ss 10(1) and 10(3) [3] are challenged on the basis that they F impose restrictions on the use, enjoyment and exploitation of privately owned property in a manner that amounts to arbitrary deprivation of property contrary to s 25 of the Constitution. [4] The case also concerns, although to a lesser degree, the constitutional obligations each sphere of

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A government has to act in a manner that is in accordance with the principles of co-operative governance as contained in the Constitution. [5]

[4] As appears from what follows, I conclude that the impugned provisions are not inconsistent with s 25 of the Constitution or any of the B provisions of the Constitution dealing with the co-operative governance obligations of the Gauteng Province. The publication of the notices in question under ss 10(1) and 10(3) of the Infrastructure Act, respectively, does not constitute administrative action and should not be set aside.

Parties C

[5] The applicants are registered owners of land in Gauteng [6] and are affected by ss 10(1) and 10(3). The first respondent is the Member of the

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Executive Council for Public Transport, Roads and Works, Gauteng A Provincial Government (the MEC), and the second respondent is the Premier of the Province of Gauteng (the Premier). The respondents have filed joint submissions, as well as a joint cross-appeal on the issue of costs.

Facts B

[6] There are over 20 properties in question in this matter. All but one of these properties were purchased before the Infrastructure Act came into force. The only applicant to have bought one of the affected properties after the commencement of this Act is the second applicant, which purchased one of its two properties on 25 August 2003. [7] Some applicants, C for example, the seventh applicant, have owned their land since 1968, while others, for example, the fourth applicant, have only owned their land since 2002. Regardless, each of the applicants is affected by the new regulatory scheme in the Infrastructure Act because a route determination or preliminary design for a provincial road or highway D affects their land. Each of these applicants has either taken steps or would like to take steps to change the land-use rights applicable to their respective properties

Litigation history E

[7] The applicants challenged the constitutional validity of ss 10(1) and 10(3) in the High Court on the following grounds:

(1)

That the said provisions deprive them of their property in a manner that is procedurally and substantively arbitrary and inconsistent with s 25(1) of the Constitution. F

(2)

That the provisions are inconsistent with s 25(2) and 25(3) of the Constitution in that their properties are expropriated without just and equitable compensation.

(3)

That s 10(3) is inconsistent with the province's co-operative governance obligations under ss 41(1), 151(4) and 154 of the Constitution. G

The applicants also challenged the validity of Provincial Notices 2625 and 2626 published pursuant to ss 10(1) and 10(3), respectively.

[8] The High Court declared s 10(3) to be inconsistent with the Constitution and invalid, and set aside its corresponding Notice 2626. [8] The court declined to declare s 10(1) invalid, or to set aside its H

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A corresponding notice 2625. It reasoned that while both provisions deprived the applicants of their properties by imposing legal restrictions on their land, only the deprivations in respect of s 10(3) were arbitrary. In holding that s 10(1) was consistent with s 25(1) of the Constitution, the High Court found that landowners had been adequately consulted in B terms of the consultative processes which were in place under the previous regulatory legislation, the Transvaal Roads Ordinance (the Ordinance). [9] In so deciding the court considered whether the historic consultation processes should be ignored and whether the applicants should be treated in the same way as landowners who would be subject C to future route determinations. That, the court remarked, would be unrealistic and not in the public interest as it would stultify the building of roads in respect of which the preliminary work had already been completed. The court held that the consultative processes were reasonably fair. Thus, it held that s 10(1) did not deprive the applicants of their property in a manner that was procedurally arbitrary and was therefore D not invalid.

[9] The High Court found that the respondents made out a compelling case for the protection of the preliminary design of roads that were historically approved. [10] However, it found the means adopted by the E provincial legislature, in respect of the designs in terms of s 10(3), to be unreasonably 'disproportionate to the end sought to be achieved'. [11] The High Court remarked that the respondents had not demonstrated why the MEC required 'an absolute prohibition on the grant of town planning applications in respect of land within the road reserve' [12] in order to protect his interests in the designs. It found that they had also not F demonstrated why less intrusive means such as those under s 7 of the

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Infrastructure Act could not be utilised. It concluded that s 10(3) A amounted to arbitrary deprivation. The High Court did not address the applicants' arguments on expropriation or co-operative governance.

In this court

[10] The applicants challenged the constitutional validity of ss 10(1) and B 10(3) on the same grounds as those raised in the High Court. They also raised the question whether the promulgation of Notices 2625 and 2626 constituted administrative action under the Promotion of Administrative Justice Act [13] (PAJA). They contended that the impugned provisions empower the MEC to give legal force retrospectively to the C hypothetical road network in a manner that undermines the property rights of owners whose land would be traversed by this road network. The applicants argued that the provisions interfere with their rights to exploit their properties [14] and that the respondents have proffered insufficient reasons for the deprivations. D

[11] The applicants contended that the deprivations in s 10(1) are procedurally arbitrary because the MEC may proclaim the route determinations without affording landowners any process by which their interests can be considered. They argued that the alleged consultations were unsatisfactory because: the original designs were made when there were E no obligations to consult; the consultations did not necessarily comply with the requirements of procedural fairness under PAJA; the consultations took place more than 30 years ago, did not necessarily involve the current property owners and did not consider the current circumstances of the land in question; and the original determinations had no legal effect. F

[12] With regard to s 10(3), the applicants argued that the provision ought to be interpreted in a manner that gives the MEC discretion to consider individually each preliminary design before deciding whether to publish a notice. On this interpretation, it was contended that the G procedural fairness requirements in s 3 of PAJA [15] apply. They contended that if this interpretation is rejected s 10(3) is procedurally and substantively arbitrary.

[13] Further, the applicants argued that s 10(3) amounts to expropriation H without just and equitable compensation, contrary to ss 25(2) and 25(3) of the Constitution. They argued that they are thus forced to shoulder the financial burden of constructing public roads. It was contended further that s 10(3) violates the provincial government's co-operative governance obligations under ss 41(1), 151(4) [16] and 154(1) [17] I

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A of the Constitution. From their perspective, municipalities are vested with original executive authority over town-planning and must undertake this process with the needs of their community in mind. [18] Provincial governments, they contended, are obliged to support local governments in these endeavours and cannot impede the performances B of such duties in the manner in which s 10(3) does. [19]

[14] We are urged to confirm the declaration of invalidity of s 10(3) and uphold the appeal in respect of s 10(1), as well as set aside the corresponding Provincial Notice to the latter...