Substantive Adjudication of the Decision to Expropriate Property

• Jurisdiction: South Africa
• Author: Sue-Mari Viljoen
• Published date: 27 May 2019
• Date: 27 May 2019
• Citation: (2017) 28 Stell LR 444
• Pages: 444-465

SUBSTANTIVE ADJUDICATION OF THE

DECISION TO EXPROPRIATE PROPERTY

Sue-Mari Viljoen

BComm (Law) LLB LLD

Associate Professor, University of South Africa*

1 Introduction

The con stitutional provision that specically deals with expropriations is

contained in sect ion 25(2)-(4) of the Const itution of the Republic of South

Africa, 1996 (“Constitution”). I n terms of these se ctions, all expropriations

must be aut horised i n term s of law of general application, serve a public

purpose or be in the public interest and be accompanied by the payment of just

and equitable compensation. On the face of it, these sections provide a number

of requireme nts that the state must fu ll in order to expropriate pr operty in

a lawful, constitutionally compliant man ner and any owner would be able to

challenge an expropriation if it is not in adherence with these requirement s. If

an owner wishes to challenge the administrator’s decision to expropriate his

or her property on the basis of it having an unreason ably harsh impact, the

courts have recently decided that these sections do not require proportionalit y

between the decision t o expropriate and the impact thereof, nor can such a

requirement be read i nto these sections.1 The approach adopted by the courts

has been simply to defer to t he administrator’s decision t o expropriate if the

expropriation is clearly for a public purpose or in the public intere st. The

courts therefore require a rational connection bet ween the pur pose and its

effect, whereas the impact of the de cision forms part of a proportionality

enquiry, which the cour ts are generally unwilling to consider.2

The purpose of this article is rstly to analyse this high ly deferent ial

approach of the courts to determine whether it is in l ine with both t he more

general con stitutional development towards substantive adjudication as well

as the development in the admini strative law framework where cour ts are

in some insta nces allowed to consider the merits of a case during judicial

review. Second ly, this article considers whether it would be more pr udent

for a n owner to base his case on section 33(1) of the Const itution and the

Promotion of Administ rative Justice Act 3 of 2000 (“PAJA”) to argue t hat

the administrator’s decision to expropr iate is unreasonable, rather than to

* This piece w as prese nted at the South African Propert y Law Teachers’ Colloquium in Oc tober 2016

(held by the Universit y of Johannesbu rg) and I a m ver y grat eful for the lively discussion we ha d in

relation to th is topic and t he field more generally – than k you to all the participant s. I would li ke to

thank the ano nymous rev iewers for their i nsightful comments, remaining errors are my own. I would

also like to than k the Unisa College of Law and specifi cally the Depart ment of Public, Constitut ional and

Internat ional Law for assista nce in allowing me th e time to write th is piece.

1 See the text to pa rt 4 below.

2 See the text to pa rt 4 below.

444

(2017) 28 Stell LR 444

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rely on section 25(2) of the Constitution. I argue that a challenge agai nst the

administ rator’s decision to expropriate should be more successful if the owner

relies on PAJA since the reasonableness requi rement for pur poses of PAJA

and section 33(1) of the Constitution allows some element of proportionality.

The alter native constitutional avenue that I investigate to determine how an

owner can effect ively challenge t he decision to expropriate, is that of sect ion

25(1) of the Constitut ion. Arguably, the non-arbitrariness requi rement, which

is gua ranteed in t his section, allows a court to conduct an in- depth analysis

between means and ends. I a rgue that this section has been inter preted by the

courts to r equire a proportionate balance bet ween the decision to expropriate

and its effect.

A nal consideration is that of methodology when selecting a litigation path

since expropriat ions involve both the proper ty clause and t he administrative

justice clause. In consideration of the single-system-of-law pr inciple as well

as the rst subsidiarit y principle, I argue that a challenge against the state’s

decision to expropriate, bas ed on the fact that it has a n unreasonably harsh

impact, mu st be founded on PAJA and t he principles that have developed to

give effect to a reasonable admi nistrative decision. Thi s does not mean that

section 25(1) would be irrelevant since the normat ive framework must be

inuenced by the fact t hat a person is being expropriated of his propert y.

2 Substantive adjudi cation in administrative law matter s

A number of authors have argued that t he Constitution calls for substantive

adjudication due to its transformative imperat ive. Mureini k explai ns this

characterist ic of the Constitution as a newly introduced culture of justication

in terms of which all exercises of state power must be justied.3 Co ckrell

explains that the intro duction of constitutional values as part of legal reasoning

calls for a movement away from a “formal vision of law” towards a “substantive

vision of law”.4 The formal v ision of law is one in which the source of a r ule

overpowers its substance during the adjud icative process. In contrast, the

Constitution requires judges to engage with “substantive reasons”, which can

relate to p olitical as well as moral values.5 Related to Cockrell’s explanation

of the values that must for m part of the adjudicative process is t he underlying

legal culture, which Kla re denes as the judicial mind-set of a specic

legal setting, which comprise s of its “i ntellectual reexes”, “characteristic

3 E Mureinik “A Bridge t o where? Introduci ng the Interim Bil l of Rights” (1994) 10 SAJHR 31 32.

4 A Cockrell “R ainbow Jurispr udence” (1996) 12 SAJHR 1 3.

5 3. Judges are therefore req uired to take into acc ount values that fall outside “ formal reasons”, which was

character istic of the pre-1994 era. S ee specific ally also PS Atiyah & RS Summers Form and S ubstance

in Anglo-Ameri can Law: A Comparative S tudy of Legal Reason ing, Legal Theory a nd Legal Instituti ons

(1987). Langa CJ (as he then was) in P Langa “Transform ative Constitut ionalism” (2006) 17 Stell LR 351

357 mentions that “for mal reason ing prevents an inqu iry into the tr ue motivatio n for cer tain decis ions

and presents the law as neut ral and objective when in reality it expre sses a particular pol itics and enforces

a singular con ception of society … [t]he Constit ution, like any othe r law, can be interprete d formally and

thus allow judge s to avoid engagement with su bstance and evad e the search for justic e”.

SUBSTANTIVE ADJUDICATION TO EXPROPRIATE PROPERTY 445

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