Compensation for What? An Analysis of the Outcome in Arun Property Development (PTY) LTD v Cape Town City

Authors

DOI:

https://doi.org/10.17159/1727-3781/2016/v19i0a1156

Keywords:

Expropriation, compensation, development contributions, statutory expropriation, constructive expropriation.

Abstract

In Arun Property Development (Pty) Ltd v Cape Town City the Constitutional Court awarded compensation for land that vested in the City of Cape Town in terms of a regulatory framework. The regulatory framework, sections 25 and 28 of the Cape Land Use Planning Ordinance of 1985 (LUPO), provides that land needed for public streets and places and indicated as such on a subdivision plan should vest in the local authority concerned, but without compensation if that land is based on the normal need of providing the particular development with such public streets and places. The appellant argued that since land in excess of the normal need also vested in the City, it had a right to be compensated for the excess land that vested in the City.

The Court, overturning two Supreme Court of Appeal decisions, awarded compensation. The Court hinted that the compensation was for the expropriation of the appellant's land that was excess to the normal need. In the absence of a formal expropriation procedure, this case note investigates whether the compensation could have been awarded for statutory expropriation or constructive expropriation.

Therefore, the question that is posed is whether the alleged expropriation for which the Court awarded compensation can be classified as either statutory expropriation or constructive expropriation. It is pointed out that the Court accepted that section 28 of the LUPO constitutes a development contribution for the land based on the normal need. In terms of the notion of development contributions, a developer has to donate land to the local authority concerned if that land is required to provide the particular development with public streets and places. A development contribution, as part of the administrative process of approving developments, is regulatory in nature and its validity is judged in terms of the requirements for a valid deprivation of property.

It is argued that since the Court interpreted section 28 of the LUPO to provide for development contributions, the alleged expropriation cannot be classified as statutory expropriation. Statutory expropriation occurs when legislation expropriates property directly through mere promulgation. In this case, the excess land vested in the City only after an administrative action was taken to approve a subdivision plan. It is also argued that statutory expropriation cannot be recognised in South African law, due to the constitutional requirements for a valid expropriation in section 25(2) of the Constitution

 

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References

Bibliography

Literature

Badenhorst, Pienaar and Mostert Silberberg and Schoeman's Law of

Property

Badenhorst PJ, Pienaar JM and Mostert H Silberberg and Schoeman's

The Law of Property 5th ed (LexisNexis Butterworths Durban 2006)

Bezuidenhout Compensation for Excessive but Otherwise Lawful

Regulatory State Action

Bezuidenhout K Compensation for Excessive but Otherwise Lawful

Regulatory State Action (LLD-thesis University of Stellenbosch 2015)

Gildenhuys Onteieningsreg

Gildenhuys A Onteieningsreg 2nd ed (Butterworths Durban 2001)

Gildenhuys and Grobler "Expropriation"

Gildenhuys A and Grobler GL "Expropriation" in Joubert WA and Faris JA

(eds) The Law of South Africa 2nd ed (Butterworths Durban 2012) Volume

(3)

Mostert 2003 SAJHR

Mostert H "The Distinction between Deprivation and Expropriation and the

Future of the 'Doctrine' of Constructive Expropriation in South Africa" 2003

SAJHR 567-592

Singer Introduction to Property

Singer J Introduction to Property 2nd ed (Aspen New York 2005)

Slade "Less Invasive Means"

Slade BV "Less Invasive Means: The Relationship between Sections 25

and 36 of the Constitution of the Republic of South Africa, 1996" in Hoöps

B et al (eds) Rethinking Public Interest in Expropriation Law I (Boom

Eleven The Hague 2015) 331-347

Van der Walt Constitutional Property Clauses

Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis

(Juta Cape Town 1999)

Van der Walt 2004 Stell LR

Van der Walt AJ "The Property Clause in the New Federal Constitution of

the Swiss Confederation 1999" 2004 Stell LR 326-332

Van der Walt Constitutional Property Law

Van der Walt AJ Constitutional Property Law 3rd ed (Juta Cape Town

Case law

Germany

B VerfGE 58, 3001981 (Naßauskiesung)

South Africa

Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC)

Arun Property Development (Pty) Ltd v Cape Town City 2015 2 SA 584

(CC)

Arun Property Development (Pty) Ltd v City of Cape Town 2012 ZAWCHC

City of Cape Town v Arun Property Developments (Pty) Ltd 2014 JDR

(SCA)

City of Cape Town v Helderberg Park Development (Pty) Ltd 2008 6 SA

(SCA)

Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 2

SA 535 (C)

Du Toit v Minister of Transport2006 1 SA 297 (CC)

Erf 16 Bryntirion (Pty) Ltd v Minister of Public Works 2011 ZASCA 246

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African

Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of

Finance 2002 4 SA 768 (CC)

Haffejee v Ethekwini Municipality 2011 6 SA 134 (CC)

Minister of Minerals and Energy v Agri South Africa 2012 5 SA 1 (SCA)

National Director of Public Prosecutions v Prophet 2003 6 SA 154 (C)

Reflect-All 1025 CC v MEC for Public Transport, Roads and Works,

Gauteng Provincial Government 2009 6 SA 391 (CC)

South Peninsula Municipality v Malherbe1999 2 SA 966 (C)

Steinberg v South Peninsula Municipality 2001 4 SA 1243 (SCA)

United States Dolan v City of Tigard 512 US 374 (1992)

Nollan v California Coastal Commission 483 US 825 (1987)

Legislation

South Africa

Expropriation Act 63 of 1975

Land Use Planning Ordinance (Cape)15 of 1985

Promotion of Access to Administrative Justice Act 3 of 2002

South African National Roads Agency Limited and National Roads Act 7 of

Spatial Planning and Land Use Management Act 16 of 2013

Western Cape Land Use Planning Act3 of 2014

Published

17-05-2017

Issue

Section

Case Notes

How to Cite

Slade, B. (2017). Compensation for What? An Analysis of the Outcome in Arun Property Development (PTY) LTD v Cape Town City. Potchefstroom Electronic Law Journal, 19, 1-25. https://doi.org/10.17159/1727-3781/2016/v19i0a1156

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