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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The distinction between deprivations and expropriations and the future of the 'doctrine' of constructive expropriation in South Africa
Author:Mostert, HanriISNI
Periodical:South African Journal on Human Rights
Geographic term:South Africa
social and economic rights
External link:https://doi.org/10.1080/19962126.2003.11865154
Abstract:'Constructive expropriation' refers to the protection of individual property holders against detrimental consequences of State regulation of private property in two distinct ways, by either affording compensation to the aggrieved right holder, or by striking down the imposition. Two aspects of the relevant provisions in the South African Constitution are considered: the impact of conjunctive and disjunctive readings of ss25(1) and (2) on the issue of constructive expropriation; and the interpretative relevance of the relationship between s25 and s36 for constructive expropriation scenarios. Although Harksen v Lane and Steinberg v South Peninsula Municipality rely on different underlying assumptions about deprivations and expropriations, neither can provide a viable basis from which to consider the idea of constructive expropriation and its relevance for the South African context. First National Bank of SA t/a Wesbank v Commissioner for the South African Revenue Service indicates that the basis for reliance on an 'argument' of constructive expropriation in South Africa must be sought in the criterion of excessiveness, deduced from the court's treatment of the non-arbitrariness requirement of s25(1). The paper concludes that constructive expropriation refers merely to the phenomenon of striking down a particular measure on the basis of its excessiveness. In the jurisprudence as it stands, payment of compensation for cases of regulation that 'go too far' cannot be envisaged. Notes, ref., sum. [Journal abstract]