Related Papers
Potchefstroom Electronic Law Journal
The Constitutional Mandate for Social Welfare – Systemic Differences and links between Property, Land Rights and Housing Rights
2016 •
Sue-Mari Viljoen
Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social...
RESTITUTION OF ExPROPRIATED PROPERTY UPON NON- REALISATION OF THE PUBLIC PURPOSE
Elmien Du plessis
Compensation for Expropriation under the Constitution
Elmien Du plessis
The South African Constitution protects property but at the same time provides for its expropriation on the condition, amongst others, that “just and equitable” compensation is paid. Market value, the foremost determinant of compensation in pre-constitutional expropriation law, has now become but one of several factors in determining “just and equitable” compensation. The acquisition, at market-value, of land for land reform is not always feasible and the candidate shows that the full transformative effects of the property clause in the Constitution and land reform measures, can therefore only be unleashed if the guidelines for just and equitable compensation are rethought and reformulated.
The public purpose requirement in the calculation of compensation
Elmien Du plessis
This is a chapter on a book on expropriation, and looks at how the courts confuse the requirement that expropriation must be for a public purpose, with the factor that the courts can take into account when determining compensation for expropriation in South Africa.
Intangible constitutional property : a comparative analysis
2017 •
Zsa-Zsa Boggenpoel
CITATION: Swanepoel, J-H & Boggenpoel, Z-Z. 2017. Intangible constitutional property : a comparative analysis. Stellenbosch Law Review = Stellenbosch Regstydskrif 28(3):624-637.
Reconsidering the relationship between property and regulation: a systemic constitutional approach
2015 •
Elsabe van der Sijde
manner and by treating limitations as something separate from or external to the framework in which the right exists. Thirdly, the discussion shows that the property theory proposed here is not a continuation or development of classic systems or complexity theory. The theoretical component of this study is not intended to serve as an overview of all potentially relevant property theory. Instead, I selected a few theorectical arguments because of their systemic elements, to consider where the systemic constitutional approach suggested in this dissertation fits into the existing property theory landscape.
SILENCE IS GOLDEN: THE LACK OF DIRECTION ON COMPENSATION FOR EXPROPRIATION IN THE 2011 GREEN PAPER ON LAND REFORM
Elmien Du plessis
The government set the target for redistribution of land to 30% by 2014. They have adopted the "willing-buyer-willing-seller" model that relies on a voluntary transaction between farmers and government to acquire such land. Frustrated at the slow pace of land reform, the ruling party is starting to indicate that the state will in future rely on its expropriation powers to acquire such land. Section 25 of the Constitution makes it clear that when the state expropriates property, compensation must be paid. The current act, the 1975 Expropriation Act, determines that such compensation must be market value, while the Constitution lists market value as only one of at least five factors that must be taken into account when determining compensation. There have been various attempts at drafting legislation that will bring compensation practices in line with the Constitution, with the latest Bill published in March 2013. This article focusses on the Green Paper that preceded the Bill, and argues that not much direction is given on how compensation for expropriation should be calculated.
European Property Law Journal
Expropriation and the Endurance of Public Purpose
2015 •
Hanri Mostert
EJ Marais Acquisitive prescription in view of the property clause (2011) unpublished doctoral thesis, Stellenbosch University
2011 •
Ernst J Marais
Author: WJ du Plessis VALUATION IN THE CONSTITUTIONAL ERA
Elmien Du plessis
SUMMARY The Constitution brought about a new compensation regime for expropriations. Compensation for expropriation must now be "just and equitable". Whereas before the Constitution came into force market value played a central role in compensation for expropriation, market value is now only one factor or aspect of compensation that the court needs to take into account. Yet we find that courts tend to focus on market value and to still employ the valuation methods used to calculate market value. This article argues that the methods used to calculate the market value, once thought to be objective, are not as objective as was believed. While it is impossible to give judges specific tools for the assessment of market value, this article provides guidelines on how the calculation of compensation should be approached. KEYWORDS: property clause; expropriation; compensation; valuation; market value.
