Post on 23-Feb-2016
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transcript
By Peter Rogers
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FORFEITURE OF IMMOVABLE PROPERTY -- CONSTITUTIONAL ISSUES --
The Issue: The constitutionality of forfeiture of
immovable property. Particularly, to what extent does the Constitution allow for rights in immovable property to be abrogated by statute?
STRUCTURE OF MY THESIS
I: INTRODUCTION
II: CASE STUDY: CITY OF CAPE TOWN DRAFT PROBLEM BUILDING BYLAW 2009
III: PREVENTION OF ORGANISED CRIME ACT [POCA]
IV: CONSTITUTIONALITY
V: APPLICATION TO THE BYLAW
THE BYLAW
“problem building” includes any building or land that shows elements of thefollowing:(a) appears to have been abandoned by the owner…(b) is derelict in appearance, overcrowded or is showing signs of becomingunhealthy, unsanitary, unsightly or objectionable;(c) is the subject of numerous complaints from the public…(d) is illegally occupied;(e) refuse or waste material is accumulated, dumped, stored or depositedon such building; or(f) any building partially completed, abandoned or structurally unsound andposing any risk contemplated in paragraphs (a) to (e).
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S 5 (2) The City may…clean, repair, renovate, repaint, alter, close, demolish orsecure any problem building at the cost of the owner.
S 5(5) (a) order the owner of any problem building to remove…any person occupying or working [sic], or who for any other purpose is in such problem building…(b) order any person occupying or working, or who for any other purpose isin any problem building, to vacate such building.
S 8(2) A person who is guilty of an offence in terms of this By-law is uponconviction liable to a fine of R20 000.00 or imprisonment for a period not
exceeding two years or to both.
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The Three Constitutional Issues
1. Is the forfeiture arbitrary?
2. Does the forfeiture amount to an expropriation?
3. Procedural – does the bylaw amount to an eviction?
S 25 (1) & (2)
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DEPRIVATION
EXPROPRIATION
FNB CASE: THE CC APPROACH
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S 25(1) •Unlawful deprivation?•If yes
S 36 •Can it be saved under s 36?•If yes
S 25(2) •Unlawful expropriation?•If yes
S 36 •Can it be saved under s 36?
PROBLEMS
• Uncertainty
• Inconsistency – an unlawful deprivation might nonetheless be a lawful expropriation.
!!??!!??
De Waal Argument:
• You can never use s 36 iro s 25• Suppose unlawful ito s25 (1) because not a
law of general application.• Says s 36 “the rights in the BoR may only be
limited ito a law of general application…”• Thus to justify must show that a law not of
general application is of general application.
!!??!!??
Michelman
• Rejects De Waal argument
• A law that is arbitrary can be reasonable and justifiable
• The starting point is always ‘deprivations’
• Therefore every case begins with arbitrariness
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FNB: Sufficient Reason• Deprivation is arbitrary when the law
does not provide sufficient reason for the deprivation or is procedurally unfair
• Sufficient reason is a flexible concept that spans from mere rationality to full proportionality
The Next Step
• The POCA cases suggest that forfeiture of immovable property requires proportionality [ie highly reviewable]
• Therefore the bylaw could be arbitrary
• But can it be saved by s 36?•
Bibliography
CasesFirst National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (4) SA 768 (CC)Mohunram and Another v National Director Public Prosecutions and Another (Law Review Project as Amicus Curiae)
2007 4 SA 222 (CC)Prophet v National Director Public Prosecutions [2006] JOL 18376 (CC)
StatutesConstitution of the Republic of South Africa, 1996City of Cape Town Problem Building Bylaw (draft) 2009
OtherIan Currie & Johan de Waal The Bill of Rights Handbook 5ed 2005Frank Michelman “Against regulatory taking: in defence of the two-stage inquiry: a reply to Theunis Roux” in Michael
Bishop & Stu Woolman (eds) Constitutional Conversations 2008