Procedurally arbitrary deprivation of property
Date
2012-01
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Juta
Abstract
ENGLISH ABSTRACT : Section 25(1) of the Constitution of the Republic of South Africa, 1996 provides that no one may be
deprived of property except in terms of law of general application and that no law may permit arbitrary
deprivation. In 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), the
Constitutional Court explained that a deprivation of property will fall foul of section 25(1) either
when there is insufficient reason for the deprivation (as further explained in that decision) or if the
deprivation is procedurally unfair. Nothing further is said in that decision about procedurally unfair
deprivation. In subsequent case law the Constitutional Court picked up on the distinction between
substantively and procedurally arbitrary deprivation, without making it clear when a deprivation will
be procedurally unfair or how procedural unfairness in terms of section 25(1) should be distinguished
from procedural unfairness in terms of section 33 or PAJA. The author argues that the notion of
procedurally unfair deprivation of property in terms of section 25(1) only makes sense to the extent
that it refers to deprivation of property that does not result from administrative action. Consequently,
deprivation of property brought about by administrative action should in the first place be adjudicated
in terms of PAJA and not in terms of section 25(1) and only deprivation of property that occurs outside
of the sphere of PAJA should be adjudicated in terms of section 25(1). However, as the author argues,
the test for section 25(1) procedural unfairness will in any event probably resemble the PAJA test.
Description
CITATION: Van der Walt, A.J. 2012. Procedurally arbitrary deprivation of property. Stellenbosch Law Review = Stellenbosch Regstydskrif (1):88-94.
The original publication is available at https://journals.co.za/content/journal/jlc_slr
The original publication is available at https://journals.co.za/content/journal/jlc_slr
Keywords
Constitutional courts -- South Africa, South Africa -- Constitution of the Republic of South Africa, 1996, Deprivation of property, Administrative law -- South Africa
Citation
Van der Walt, A.J. 2012. Procedurally arbitrary deprivation of property. Stellenbosch Law Review = Stellenbosch Regstydskrif (1):88-94.