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I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.
 
Please visit our website at www.prop-law.co.za for more details.
 
I am an elected Committee Member of the Property Committee of the Association of Pretoria Attorneys and through my involvement, I like to ensure that I am constantly at the "sharp-end" of Conveyancing Practice.

I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.
 
Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.

29 August 2011

ConCourt dismisses bid on compensation

ConCourt dismisses bid on compensation

The Constitutional Court did not agree with a KwaZulu-Natal family trust that the amount and time of compensation must be settled before their land was expropriated, in a judgment handed down in Johannesburg on Thursday.

The matter related to properties along the Umgeni River which flows through parts of Durban.

When notice of expropriation in order to canalise the river was received in 2004, Mohammed Yusuf Haffajee and others did not formally object.

They were willing to vacate the property but wanted to enter into a private treaty.

The expropriation date was set by the municipality for July 31 2005 without an agreement on compensation having been reached.

The eThekwini municipality had tendered a compensation amount but it was rejected.

The city believed that compensation and expropriation were separate, and that a disagreement on compensation did not invalidate expropriation.

The applicants insisted that expropriation could not take place until the amount of compensation had been determined.

An eviction order against them was granted by the High Court in Durban and the land owners appealed this on the grounds that expropriation before settling the compensation issue was unconstitutional.

They believed that under the property clause in Section 25 of the Constitution, determining the amount and time of the compensation was a prerequisite.

Leave to appeal was refused in the High Court and the Supreme Court of Appeal.

They then applied for leave to appeal at the Constitutional Court, but the court found that although there would be times where it would be unjust to evict people before determining compensation, like cases where people could lose their livelihood or homes, there were also cases where this would not be possible.

Urgent evacuation ahead of natural disasters would be an example.

An inflexible requirement for compensation before expropriation would therefore be against Section 25(3) of the Constitution that the amount and time of compensation must be a balance between the public interest and the interests of those affected by expropriation.

Therefore, Section 25(2) of the Constitution did not require that the amount and time of compensation and payment must always be determined before expropriation.

The court said this determination would generally be just and equitable, but where it had to be done after expropriation, it should be done as soon as was reasonably possible.

Eviction following expropriation cannot take place without agreement between the parties, the judges continued, and if there is no agreement, then this must be done under court supervision.

In disputed cases of eviction, the courts must ensure a just and equitable outcome in line with Section 26, which protects the right of access to housing.

The court allowed the application for leave to appeal, but the appeal itself was dismissed with each party ordered to pay their own costs.

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