CASE NO: 110/10 In the matter between:
MOHAMMED YUSUF HAFFEJEE N.O. FIRST APPLICANT EBRAHIM YUSUF HAFFEJEE N.O. SECOND APPLICANT SARA HAFFEJEE N.O. THIRD APPLICANT and
ETHEKWINI MUNICIPALITY FIRST RESPONDENT MINISTER OF PUBLIC WORKS SECOND RESPONDENT PREMIER OF KWAZULU-NATAL THIRD RESPONDENT
APPLICANTS’ PRACTICE NOTE
HEARING DATE: 19 May 2011
COUNSEL FOR APPLICANTS: S Yacoob (083 3056173)
COUNSEL FOR RESPONDENTS: Unknown
NATURE OF PROCEEDINGS:
Application for leave to appeal, and to declare provisions of the Expropriation Act inconsistent with section 25(2)(b), 25(3) and 34 of the Constitution.
THE ISSUES THAT WILL BE ARGUED:
The applicant argues that:
1. It is in the interests of justice for leave to appeal to be granted.
2. The provisions of the Expropriation Act, 63 of 1975 which permit expropriation to take place by notice before just and equitable compensation has been agreed or determined by a court are inconsistent with section 25(2)(b) of the Constitution and invalid.
3. The provisions of the Expropriation Act which permit compensation to be determined without having regard to the requirements of section 25(3) of the Constitution are inconsistent with the Constitution and invalid.
4. The provisions of the Expropriation Act which permit deprivation of property by notice without a court order, and which require a property owner to shoulder the burden of obtaining a determination of compensation by a court are inconsistent with section 34 of the Constitution and invalid.
PARTS OF RECORD NECESSARY FOR THE DETERMINATION OF THE MATTER:
All the affidavits, and those annexures referred to in written argument.
ESTIMATED DURATION OF ARGUMENT:
Half a day.
SUMMARY OF THE ARGUMENT ON BEHALF OF THE APPLICANTS:
1. It is in the interests of justice that leave to appeal be granted to the applicants because
a. The application raises constitutional issues.
b. The application does not raise any non-constitutional issues.
c. The consistency of the Expropriation Act with the Constitution is of vital importance, not only to ensure that a proper balance is struck between public interest and private property, but also to ensure that practices of dispossession with their genesis in the apartheid State are not perpetuated in the constitutional democracy.
d. The right to access to court, and the requirement that the protection of the courts be accessible to all is fundamental to the enjoyment of all rights in the Bill of Rights.
e. The judgment of Theron J is a misapplication of this Court’s judgment in Du Toit v Minister of Transport 2006 (1) SA 297
(CC), which may have consequences for other property owners who are deprived of property.
f. This Court has already expressed the need for the Expropriation Act to be made consistent with the Constitution in Du Toit v Minister of Transport (above).
g. The applicant has good prospects of success.
2. The Expropriation Act creates a system of expropriation which permits expropriation to take place, by notice, in the absence of agreement of the amount, and time and manner of payment of, just and equitable compensation.
a. This is inconsistent with the plain language of section 25(2)(b).
b. The system undermines the balance sought to be created by section 25 of the Constitution.
c. The system is a relic of the pre-Constitutional era, when the right of the State to dispossess property owners was practically unfettered.
d. The system created by the Act, and therefore the provisions of the Expropriation Act underpinning that system, are
inconsistent with section 25(2)(b) of the Constitution and invalid.
3. The Expropriation Act does not require that compensation be just and equitable, and that it be determined in accordance with section 25(3).
Instead, it merely sets a maximum for possible compensation, based on market value and actual financial loss.
a. The failure to require that compensation be determined in accordance with section 25(3) does not ensure that just and equitable compensation will be arrived at.
b. The limit for possible compensation may result in inequitable compensation.
c. The failure to provide appropriately for just and equitable compensation undermines the balance that section 25(3) seeks to create between public and private interests.
4. The Expropriation Act permits deprivation of property by notice without a court order. The Act further places a burden on an aggrieved property owner to approach a court to determine compensation, and
provides that she bears the costs of litigation unless the court orders higher compensation than was offered.
a. The failure to provide a safeguard by requiring a court order before an owner is deprived of property is a violation of section 34.
b. The failure to require an expropriating power to approach a Court to determine compensation places an inequitable burden on a property owner, who may not have the resources to fund legal proceedings.
c. This results in a violation of section 34.
d. The violation of section 34, in which a property owner is denied the protection of the courts for her rights, results in a violation of those unprotected section 25 rights.
5. The Expropriation Act is, therefore, invalid to the extent of its inconsistency with the Constitution.
LIST OF AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE MADE DURING ORAL ARGUMENT
1. Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC)
2. Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC)
3. Du Toit v Minister of Transport 2006 (1) SA 297 (CC)
4. Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744
5. First National Bank of South Africa Limited t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of South Africa Limited t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC)
6. Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC)
7. Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC)
