A Common-Law Presumption, Statutory Interpretation and Section 25(2) of the Constitution – A Tale of Three Fallacies. A Critical Analysis of the Constitutional Court’s Arun Judgment
Authors E J Marais
Affiliations: Senior Lecturer, University of Johannesburg
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 629 – 663
In Arun Property Development (Pty) Ltd v Cape Town City the Constitutional Court had to rule on the meaning of s 28 of the Land Use Planning Ordinance (‘LUPO’). Moseneke DCJ held that this provision results in a vesting in the local authority of excess land unrelated to the normal needs of a planned development. Such vesting, so it was held, requires compensation under s 25(2) of the Constitution if the provision is to survive constitutional scrutiny. This finding is unconvincing. First, in light of the presumption that enacted laws are not unjust, inequitable and unreasonable, the court misconstrued the presumption that the legislature does not intend to expropriate property without compensation in the absence of express words or plain implication. In this regard the court also failed to take cognisance of the distinction between deprivation and expropriation, the doctrine of exactions, and the requirements for expropriation in our law. These considerations reveal that provisions like s 28 are not aimed at vesting excess land in a local authority, which would have dispensed with the dispute at hand. For purposes of deciding constitutional property disputes, courts should adhere to the established principles of constitutional property law, which inform the mentioned presumption, when interpreting legislation to establish whether it takes away property. Care should be taken against over-emphasising whether it is possible to read an implicit obligation to pay compensation into a statute if the statute (apparently) results in a taking away of property, since compensation merely follows upon a valid expropriation and is not a justification for it.