ITEM VIEW

At the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgment

dc.contributor.authorMarais, E. J.en_ZA
dc.contributor.authorMaree, P. J. H.en_ZA
dc.contributor.otherPublic Lawen_ZA
dc.date.accessioned2017-09-08T11:11:57Z
dc.date.available2017-09-08T11:11:57Z
dc.date.issued2016-08
dc.identifier.citationMarais, E. J. & Maree, P. J. H. 2016. At the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgment. Potchefstroom Electronic Law Journal, 19, doi:10.17159/1727-3781/2016/v19n0a578.en_ZA
dc.identifier.issn1727-3781 (online)
dc.identifier.otherdoi:10.17159/1727-3781/2016/v19n0a578
dc.identifier.urihttp://hdl.handle.net/10019.1/102209
dc.descriptionCITATION: Marais, E. J. & Maree, P. J. H. 2016. At the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgment. Potchefstroom Electronic Law Journal, 19, doi:10.17159/1727-3781/2016/v19n0a578.
dc.descriptionThe original publication is available at http://journals.assaf.org.za/per
dc.description.abstractAbstract of article; "In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law. In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle. From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses – instead of prevents – administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome. The rationale behind these time-periods is integral to securing administrative justice, since time-periods are not merely formalistic technicalities. Thirdly, the authors argue that a green-light approach to internal remedies could have resulted in the broadening of the interpretative context and recognition of the legitimate role of the public administration in the state. Finally, deference as understood by Dyzenhaus also exemplifies why administrative law should not be ignored in cases which concern the exercise of public power. According to Dyzenhaus, deference requires courts to actively participate in the justification of administrative decisions by asking whether the administration's "reasoning did in fact and also could in principle justify the conclusion reached".en_ZA
dc.format.extent54 pagesen_ZA
dc.publisherFaculty of Law, North-West University
dc.subjectRight of propertyen_ZA
dc.subjectAdministrative law -- South Africaen_ZA
dc.subjectConstitutional law -- South Africa -- Casesen_ZA
dc.subjectConstitutional law -- South Africa -- Section 33en_ZA
dc.subjectConstitutional law -- South Africa -- Section 25en_ZA
dc.subjectArun Property Development -- Constitutional caseen_ZA
dc.subjectCriminal justice, Administration of -- South Africaen_ZA
dc.titleAt the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgmenten_ZA
dc.typeArticleen_ZA
dc.description.versionPublished versionen_ZA
dc.rights.holderAuthors retain copyright


Files in this item

Thumbnail
Thumbnail

This item appears in the following Collection(s)

ITEM VIEW