CONSTITUTIONAL COURT OF SOUTH AFRICA
Mohammed Yusuf Haffejee N.O. and Others v eThekwini Municipality and Others
Case No: CCT 110/10
Hearing date: 19 May 2011
MEDIA SUMMARY
The following media summary is provided to assist in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday 19 May 2011 the Constitutional Court will hear an application for leave to appeal against a decision of the KwaZulu-Natal High Court that upheld the constitutional validity of certain sections of the Expropriation Act. The applicants contend that sections of the Expropriation Act are constitutionally invalid in so far as they permit expropriation without a prior agreement by parties or a decision by a court as to compensation.
In 2004 the eThekwini Municipality (municipality) resolved to expropriate properties owned by the applicants as part of a project to canalise the Umgeni River. It sent a notice of expropriation to the applicants informing them that the properties were to be expropriated and provided information regarding the owner’s rights. The applicants did not object formally to the expropriation, but indicated in a reply form to the expropriation notice that they were willing to vacate the property and that they wished to enter into a private treaty. The date of expropriation was subsequently set by the municipality for 31 July 2005. At that time no agreement as to compensation had been reached.
The municipality tendered payment of its calculated value of the properties, excluding improvements, as compensation. The applicants rejected the tender. They disputed the validity of the expropriation on the basis that the expropriation would not comply with the Constitution if compensation was not agreed upon in advance. The municipality took the view that there was no merit in this objection, as compensation is separate from expropriation and a disagreement on the former does not invalidate the latter.
In the Constitutional Court the applicants argue that expropriation cannot occur until the amount of compensation has been determined. The respondents – the municipality, the Minister for Public Works and the Premier of KwaZulu-Natal – dispute this and contend that
the Constitution only provides that the amount of compensation be just and equitable and the applicants could have taken the matter to court for such a determination after the property had been expropriated. The respondents also contend that it is not in the interests of justice for the Constitutional Court to hear the matter, as the constitutional point now raised was abandoned in the Supreme Court of Appeal.
