Expropriation without compensation: A yawning gap in the justification of expropriation

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Expropriation without compensation: A yawning gap in the justification of expropriation

Author Björn Hoops

ISSN: 1996-2177
Affiliations: Assistant Professor, Department of Private Law and Notarial Law, University of Groningen
Source: South African Law Journal, Volume 136 Issue 2, p. 261-302

Abstract

The Joint Constitutional Review Committee has recommended amendments to the South African Constitution that will confirm that expropriations for land-reform purposes without compensation are constitutional. The draft 2019 Expropriation Bill, published in December 2018, sets out the conditions under which those expropriations will be permissible, in the view of the Ministry of Public Works. This article examines the impact of zero compensation on the justification of expropriation and the constitutional protection of property from expropriation. In terms of s 25(2) of the Constitution, land-reform and other redistribution-related purposes are purposes in the public interest. The absence of compensation will remove a fiscal brake on the state’s power to expropriate property and, in connection with a broad authorisation to expropriate property, create strong incentives to expropriate property for redistribution where this is politically expedient, even though the more severe impact of expropriation without compensation on the expropriatee should lead to more stringent requirements for expropriation. Therefore, the constitutional amendment or new expropriation legislation should specify in detail the conditions for expropriation without compensation. Zero compensation creates a similar incentive with respect to including additional assets in a redistribution-related project. Judicial scrutiny of the necessity of the expropriation is likely to be undermined by the absence of compensation. The requirement of reasonableness, by contrast, will set boundaries to expropriation without compensation. Only expropriations for redistribution-related purposes of underutilised assets owned by direct or indirect beneficiaries of subsidies from the apartheid regime should pass judicial scrutiny. In addition, the state should respect other fundamental rights of the expropriatee.

Conflict resolution between holders of prospecting or mining rights and owners (or occupiers) of land or traditional communities: What is not good for the goose is good for the gander

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Conflict resolution between holders of prospecting or mining rights and owners (or occupiers) of land or traditional communities: What is not good for the goose is good for the gander

Authors P J Badenhorst, C N van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor, Nelson Mandela University; Advocate of the High Court of South Africa; Member of the National Bar Council of South Africa
Source: South African Law Journal, Volume 136 Issue 2, p. 303-327

Abstract

This article deals with conflict resolution in disputes between: (a) holders of prospecting or mining rights; and (b)(i) common-law owners or occupiers of land; or (ii) traditional communities holding informal customary rights to land. The different legal rules for consent to and/or consultation about prospecting and mining with owners of land and holders of informal customary rights are examined and discussed. An owner or occupier of land is entitled to be notified about an application for prospecting or mining rights, comment about it and raise objections against it, take part in a consultation process and be notified before operations take place. In the case of land that is subject to the Interim Protection of Informal Land Rights Act 31 of 1996 (‘IPILRA’), the consent of the majority of the community is also required before a prospecting or mining right is granted. In terms of the common law, the exercise of the respective rights of the parties must take place in a reasonable manner. Compulsory conflict resolution in terms of the administrative procedures of s 54 of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’), and the common-law remedies that may have been ousted by s 54, are discussed.

Rationalising judicial review: Towards refining the ‘rational basis’ review test(s)

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Rationalising judicial review: Towards refining the ‘rational basis’ review test(s)

Author Michael Tsele

ISSN: 1996-2177
Affiliations: Member of the Cape Bar; Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 136 Issue 2, p. 328-360

Abstract

Public-law review principles, in particular the rational-basis review test, have been subject to controversy for lack of clarity or consistency in application. This article revisits some of the issues that currently captivate and confuse our courts. It either calls for answers, or offers suggestions as to what the answers should be. The first part is dedicated to analysing the nuances of certain principles, their growth in recent years, and the resultant problems. It then proffers views on those issues which appear to remain unclear in our law. The second part of the article critically examines two recent decisions of the Supreme Court of Appeal and Constitutional Court, aiming to unpack the reasoning employed by the respective courts with a view to making sense of some of the disagreements between judges of these courts. It is argued that the divergence of views between the justices of the Constitutional Court shows that we are yet to have a clear concept of the rational-basis review principle. I nonetheless argue that the main judgment, authored by the Chief Justice, brings us closer to clarity on a number of issues.

Taxpayer insolvent estates: Constitutional juristic persons?

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Taxpayer insolvent estates: Constitutional juristic persons?

Author Fareed Moosa

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue2, p. 361-383

Abstract

Section 8(4) of the Bill of Rights confers on juristic persons an entitlement to constitutional rights. In this context, ‘juristic person’ has an imprecise meaning. No hard and fast rules can be laid down in advance as to which entities will qualify for the benefits of s 8(4). Each claim to an entitlement must be adjudicated on its merits. This article argues that, for purposes of s 8(4), recognition as a person in the eyes of either the common law, customary law, legislation or the Bill of Rights ought to lie at the heart of our constitutional conception of ‘person’. Having regard to the transformative potential of s 8(4), and applying grammatical, contextualist, purposive and teleological techniques of interpretation, this article advocates that the notion of ‘person’ under s 8(4) is not confined to the traditional common-law notion applied in private law. Rather, constitutional persons include entities recognised in legislation as persons with legal personality. Accordingly, this article concludes that taxpayer insolvent estates, designated as persons under the fiscal laws of South Africa, qualify in this capacity as beneficiaries of s 8(4) so that, during tax administration by the South African Revenue Service and its officials, they may seek refuge in relevant entrenched rights.