Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government and Another (CCT 110/08) [2009] ZACC 24; 2009 (6) SA 391 (CC) ; 2010 (1) BCLR 61 (CC) (27 August 2009)

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Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government and Another (CCT 110/08) [2009] ZACC 24; 2009 (6) SA 391 (CC) ; 2010 (1) BCLR 61 (CC) (27 August 2009)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 110/08
[2009] ZACC 24
REFLECT-ALL 1025 CC
First Applicant
SIXBAR TRADING 667 (PTY) LTD
Second Applicant
BICCARD REALTY CC
Third Applicant
ROY MOUNTJOY
Fourth Applicant
PATRICIA ROSAMUND NAOUMOFF
Fifth Applicant
TOWNSHIP REALTORS (SA) (PTY) LTD
Sixth Applicant
STELLA VERNA WORSLEY
Seventh Applicant
MNANDI PROPERTY DEVELOPMENT (PTY)
LTD
Eighth Applicant
versus
MEMBER OF THE EXECUTIVE COUNCIL FOR
PUBLIC TRANSPORT, ROADS AND WORKS, GAUTENG PROVINCIAL GOVERNMENT
First Respondent
PREMIER
OF THE PROVINCE OF GAUTENG
Second
Respondent
Heard on : 5 May 2009
Decided on : 27 August 2009
JUDGMENT
NKABINDE J:
Introduction
This
case concerns the constitutionality of legislation pertaining to
the planning of provincial roads. The primary issue is
whether the
impugned provisions arbitrarily deprive owners of their property
contrary to section 25(1) of the Constitution.
The Court is also
called upon to determine whether, contrary to the Constitution, the
impugned legislative provisions amount
to expropriation without
just and equitable compensation; whether they fail to facilitate
co-operative governance; and whether
conduct in terms of the
impugned provisions constitutes unjust administrative action.
These
proceedings involve three applications. First is an application
for confirmation of a declaration of constitutional invalidity
1
of section 10(3) of the Gauteng Transport Infrastructure Act 8 of
2001 (the Infrastructure Act) by Hutton AJ in the South Gauteng

High Court, Johannesburg (High Court).
2
Second is an application for leave to appeal against the High
Court decision not to declare section 10(1) of the Infrastructure

Act unconstitutional and invalid, and set aside Provincial Notice
2625. The application is accompanied by a request for condonation

for the late filing of their application for leave to appeal. The
applicants also seek an order directing the respondents
to pay the
costs of their appeal and the confirmation proceedings. Third is
an application by the respondents for leave to
cross-appeal the
costs order against them made by the High Court.
Essentially,
sections 10(1) and 10(3)
3
are challenged on the basis that they impose restrictions on the
use, enjoyment and exploitation of privately owned property
in a
manner that amounts to arbitrary deprivation of property contrary
to section 25 of the Constitution.
4
The case also concerns, although to a lesser degree, the
constitutional obligations each sphere of government has to act in

a manner that is in accordance with the principles of co-operative
governance as contained in the Constitution.
5
As
appears from what follows, I conclude that the impugned provisions
are not inconsistent with section 25 of the Constitution
or any of
the provisions of the Constitution dealing with the co-operative
governance obligations of the Gauteng Province.
The publication of
the notices in question under sections 10(1) and 10(3) of the
Infrastructure Act, respectively, do not
constitute administrative
action and should not be set aside.
Parties
The
applicants are registered owners of land in Gauteng
6
and are affected by sections 10(1) and 10(3). The first respondent
is the Member of the Executive Council for Public Transport,
Roads
and Works, Gauteng Provincial Government (the MEC) and the second
respondent is the Premier of the Province of Gauteng
(the Premier).
The respondents have filed joint submissions, as well as a joint
cross-appeal on the issue of costs.
Facts
There
are over twenty properties in question in this matter. All but one
of these properties was purchased before the Infrastructure
Act
came into force. The only applicant to have bought one of the
affected properties after the commencement of this Act is
the
second applicant, which purchased one of its two properties on 25
August 2003.
7
Some applicants, for example the seventh applicant, have owned
their land since 1968, while others, for example the fourth

applicant, have only owned their land since 2002. Regardless, each
of the applicants is affected by the new regulatory scheme
in the
Infrastructure Act because a route determination or preliminary
design for a provincial road or highway affects their
land. Each
of these applicants has either taken steps or would like to take
steps to change the land use rights applicable
to their respective
properties.
Litigation
history
The
applicants challenged the constitutional validity of sections 10(1)
and 10(3) in the High Court on the following grounds:
That
the said provisions deprive them of their property in a manner that
is procedurally and substantively arbitrary and inconsistent
with
section 25(1) of the Constitution;
That
the provisions are inconsistent with sections 25(2) and 25(3) of
the Constitution in that their properties are expropriated
without
just and equitable compensation; and
That
section 10(3) is inconsistent with the province’s co-operative
governance obligations under sections 41(1), 151(4) and
154 of the
Constitution.
The applicants also challenged
the validity of Provincial Notices 2625 and 2626 published pursuant
to sections 10(1) and 10(3),
respectively.
The
High Court declared section 10(3) to be inconsistent with the
Constitution and invalid, and set aside its corresponding
Notice
2626.
8
The Court declined to declare section 10(1) invalid, or to set
aside its corresponding Notice 2625. It reasoned that while
both
provisions deprived the applicants of their properties by imposing
legal restrictions on their land, only the deprivations
in respect
of section 10(3) were arbitrary. In holding that section 10(1) was
consistent with section 25(1) of the Constitution,
the High Court
found that landowners had been adequately consulted in terms of the
consultative processes which were in place
under the previous
regulatory legislation, the Transvaal Roads Ordinance (the
Ordinance).
9
In so deciding the Court considered whether the historic
consultation processes should be ignored and whether the applicants

should be treated in the same way as landowners who would be
subject to future route determinations. That, the court remarked,

would be unrealistic and not in the public interest as it would
stultify the building of roads in respect of which the preliminary

work had already been completed. The court held that the
consultative processes were reasonably fair. Thus, it held that

section 10(1) did not deprive the applicants of their property in a
manner that was procedurally arbitrary and was therefore
not
invalid.
The
High Court found that the respondents made out a compelling case
for the protection of the preliminary designs of roads
that were
historically approved.
10
However, it found the means adopted by the provincial legislature,
in respect of the designs in terms of section 10(3), to
be
unreasonably “disproportionate to the end sought to be
achieved”.
11
The High Court remarked that the respondents had not demonstrated
why the MEC required “an absolute prohibition on the grant
of
town planning applications in respect of land within the road
reserve”
12
in order to protect his interests in the designs. It found that
they had also not demonstrated why less intrusive means such
as
those under section 7 of the Infrastructure Act could not be
utilised. It concluded that section 10(3) amounted to arbitrary

deprivation. The High Court did not address the applicants’
arguments on expropriation or co-operative governance.
In
this Court
The
applicants challenged the constitutional validity of sections 10(1)
and 10(3) on the same grounds as those raised in the
High Court.
They also raised the question whether the promulgation of Notices
2625 and 2626 constituted administrative action
under the Promotion
of Administrative Justice Act
13
(PAJA). They contended that the impugned provisions empower the
MEC to give legal force retrospectively to the hypothetical
road
network in a manner that undermines the property rights of owners
whose land would be traversed by this road network.
The applicants
argued that the provisions interfere with their rights to exploit
their properties
14
and that the respondents have proffered insufficient reasons for
the deprivations.
The
applicants contended that the deprivations in section 10(1) are
procedurally arbitrary because the MEC may proclaim the
route
determinations without affording landowners any process by which
their interests can be considered. They argued that
the alleged
consultations were unsatisfactory because: the original designs
were made when there were no obligations to consult;
the
consultations did not necessarily comply with the requirements of
procedural fairness under PAJA; the consultations took
place more
than thirty years ago, did not necessarily involve the current
property owners and did not consider the current
circumstances of
the land in question; and the original determinations had no legal
effect.
With
regard to section 10(3), the applicants argued that the provision
ought to be interpreted in a manner that gives the MEC
discretion
to consider individually each preliminary design before deciding
whether to publish a notice. On this interpretation,
it was
contended that the procedural fairness requirements in section 3 of
PAJA
15
apply. They contended that if this interpretation is rejected
section 10(3) is procedurally and substantively arbitrary.
Further,
the applicants argued that section 10(3) amounts to expropriation
without just and equitable compensation, contrary
to sections 25(2)
and 25(3) of the Constitution. They argued that they are thus
forced to shoulder the financial burden of
constructing public
roads. It was contended further that section 10(3) violates the
provincial government’s co-operative
governance obligations under
sections 41(1), 151(4)
16
and 154(1)
17
of the Constitution. From their perspective, municipalities are
vested with original executive authority over town planning
and
must undertake this process with the needs of their community in
mind.
18
Provincial governments, they contended, are obliged to support
local governments in these endeavours and cannot impede the

performances of such duties in the manner in which section 10(3)
does.
19
We
are urged to confirm the declaration of invalidity of section 10(3)
and uphold the appeal in respect of section 10(1), as
well as set
aside the corresponding Provincial Notice to the latter section.
The applicants contended that even if this Court
were to find
neither provision unconstitutional, Notices 2625 and 2626 should
nevertheless be set aside for two reasons. First,
the MEC engaged
in no public consultation before publishing either notice, which is
not in accordance with his obligation to
take decisions that are
procedurally fair. Second, the MEC incorrectly understood himself
to be obliged to publish all preliminary
designs accepted by his
predecessors in Notice 2626 and did not exercise any discretionary
power in this regard. He thereby
misdirected himself and was
materially influenced by an error of law, namely that he was
obliged to publish all the designs.
The
respondents took issue with all the applicants’ constitutional
attacks. They contended that the applicants have not been
deprived
of any property or rights in property. It was argued that even if
this Court were to find that the provisions in
question deprived
the applicants of some aspects of their property rights, the
deprivations were not procedurally or substantively
arbitrary.
They argued that the regulatory measures under section 9 of the
Infrastructure Act do not amount to an absolute
limitation of the
applicants’ property rights. They maintained that section 10(3)
did not amount to expropriation. Regarding
the co-operative
governance challenge, the respondents contended that provincial
roads are within the exclusive sphere of the
provincial government.
They submitted that neither Notice 2625 nor Notice 2626 can be set
aside on administrative law grounds
because neither provision gives
any discretion to the MEC. The action of the MEC in publishing the
list of routes and designs,
they argued, does not constitute
administrative action, and is therefore not subject to PAJA.
Before
identifying the issues, it is important to contextualise the
applicants’ complaints by giving a brief overview of how
the
Infrastructure Act regulates provincial road planning.
Legislative
scheme
Prior
to the enactment of the Infrastructure Act, the provincial
authorities had the power to plan and construct roads pursuant
to
the Ordinance.
20
Under the Ordinance, route determinations and preliminary designs
for future provincial roads were published in the Provincial

Gazette with some, though not obligatory, consultation with
affected landowners and without legislative compulsion to consider

their environmental impact. There were no legal restrictions on
the use of land within the routes determined or preliminarily

designed.
21
While
the provincial authorities have constructed certain roads within
this road network, most roads have not been built.
22
Some of the routes and designs implemented under the Ordinance are
over three decades old and, since road construction is
driven by
need, it is unclear when, if ever, such roads will be built. What
is clear is that a significant amount of public
money has gone into
the development of these route determinations and preliminary
designs.
23
The
Infrastructure Act repealed and replaced the planning regime
established in terms of the Ordinance.
24
Its purpose is to provide for the planning, design, development,
and construction, amongst other things, of transport and

infrastructure within the Gauteng Province.
25
The process of road planning has multiple stages, including those
which establish route determinations and preliminary designs.
Of
particular interest for our purposes is that the Infrastructure Act
has changed the procedures for the establishment of
route
determinations and preliminary designs as well as the legal
restrictions imposed on land which overlaps such routes and

designs. Sections 10(1) and 10(3) impose legal restrictions upon
land affected by route determinations and preliminary designs

accepted under the Ordinance. Upon publication of a notice, the
consultation and other procedures that would otherwise be

compulsory are deemed to have taken place.
26
Route
determinations in terms of section 10(1) are now regulated by
sections 6 and 7 of the Infrastructure Act. Section 6 outlines
the
procedures before a route may be published. The MEC must cause an
environmental investigation to be completed. He or
she must
consult with the municipality as well as the affected and
interested persons before the final determination of a route.

Section 6(11) then requires the MEC to publish a notice in the
Provincial Gazette containing, amongst other things, a notification

that the regulatory measures in section 7 take effect from the date
of publication.
Section
7 includes the restriction that applications for certain changes to
affected land, such as the establishment of a township,
must be
accompanied by a civil engineering report.
27
This report must be forwarded to the MEC with the corresponding
application. The MEC then has the right to comment, and his
or her
comments must be considered by the municipality, and the right to
appeal any decision with regard to such an application.
Further,
no service provider may lay services over or below the route,
except with the written permission of the MEC or in
terms of an
existing registered servitude.
Preliminary
designs in terms of section 10(3) are regulated by sections 8 and 9
of the Infrastructure Act. Section 8 prescribes
the procedure for
the establishment of such designs in relation to routes published
under section 6(11). It requires the MEC
to draft a report on the
design and undertake additional environmental investigations.
Before accepting a design for implementation,
the MEC must inform
interested parties of key issues relating to the design
28
and consider their views and the environmental impact report.
Section 8(7) requires the MEC to publish a notification in the

Provincial Gazette that the regulatory measures in section 7 cease
to have effect while those in section 9 take effect from
the date
of publication. More importantly for our purposes, section 8(8)
and (9) gives the MEC the power to amend preliminary
designs at the
instance of anyone who desires that such amendment be effected.
The
legal restrictions in section 9 on land affected by a preliminary
design appear sweeping. The restrictions in section 9
apply only
to areas within road or rail reserve boundaries
29
of the preliminary design, with the exception of the restrictions
in section 9(1)(c), which only apply to a road reserve boundary
of
a preliminary design. The restrictions in section 9 prohibit the
granting of applications for the establishment of townships,
the
subdivision of land, any change of land use in terms of any law or
town planning scheme, or any authorisation contemplated
in the
Environmental Conservation Act 73 of 1989 or the
National
Environmental Management Act 107 of 1998
.
30
Additionally, as under
section 7
, no service provider may lay,
construct, alter or add certain services over or below the affected
area, except with the written
permission of the MEC or in terms of
an existing registered servitude.
31
Effectively, the area within the road or rail reserve is frozen.
It can only be used for its designated purpose at the time
the MEC
chooses to publish notification of a preliminary design. As I have
indicated above,
section 8(9)
makes provision for an application,
accompanied by payment of a prescribed fee, for the amendment of a
preliminary design.
Sections
10(1)
and
10
(3) thereby impose a series of legal restrictions on
affected land when the MEC publishes notice of the previously
accepted
route determinations and preliminary designs respectively.
I
now turn to identify the issues.
Issues
These
proceedings raise the following questions:
Do
sections 10(1)
and
10
(3) deprive the applicants of their properties
in terms of section 25(1) of the Constitution? If so:
Is the deprivation
procedurally arbitrary in respect of both sections 10(1) and
10(3)?
Is the deprivation
substantively arbitrary in respect of section 10(3)?
Does
section 10(3) amount to expropriation without just and equitable
compensation contrary to sections 25(2) and 25(3) of the

Constitution?
Does
section 10(3) offend the principles of co-operative governance in
terms of sections 41(1) of the Constitution?
Does
the promulgation of Provincial Notices 2625 and 2626 constitute
administrative action under PAJA?
What
is the appropriate relief, if any?
What
is the appropriate costs order?
Before
addressing these issues, it is important not to lose sight of the
appropriate approach when determining these kinds of
constitutional
challenges.
Section
39(2) of the Constitution
32
enjoins every court, tribunal or forum to promote the spirit,
purport and objects of the Bill of Rights when interpreting any

legislation. In determining the issues before us the impugned
provisions must be construed in a manner that will avoid their

unconstitutionality if they are capable of being construed in that
way.
33
I
now turn to the determination of the issues raised.
Do
sections 10(1) and 10(3) deprive the applicants of property in
terms of section 25(1) of the Constitution?
The
relevant provisions of section 10 read as follows:
“
(1) Any route within the
Province which has been accepted as such by—
(a) the Administrator as
defined in the Roads Ordinance, 1957 (Ordinance No. 22 of 1957);
(b) the Premier of the
Province; or
(c) the MEC,
under that Ordinance before the
date of commencement of this section shall be deemed to have been
determined and published in
terms of section 6(11) as soon as the
MEC has published a notice in the
Provincial Gazette
to the
effect that the centre line thereof has been determined, from which
date the relevant provisions of sections 5 to 8 apply
to such a
route as though it has been published in terms of section 6(11).
. . .
(3) Every preliminary design of
a provincial road within the Province, including such design in the
form of basic planning, which
has been accepted by—
(a) the Administrator as
defined in the Roads Ordinance, 1957 (Ordinance No. 22 of 1957);
(b) the Premier of the
Province; or
(c) the MEC,
under that Ordinance before the
date of commencement of this section and which is mentioned in a
notice published in the
Provincial Gazette
, shall as from the
commencement of this section, be deemed to have been accepted by the
MEC for implementation in terms of sections
8(6), (8) and (9) and
section 9 shall as from the commencement of this section be
applicable to such preliminary design, provided
that for purposes of
application of the said sections, section 8(7) shall be deemed to
have been complied with at the date of
commencement of this
section.”
Section
25(1) of the Constitution provides:
“
No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.”
In
determining whether sections 10(1) and 10(3) amount to deprivation
of property it is important to understand the constitutional

conception of property and its jurisprudential framework.
Our
Constitution, like many democratic constitutions,
34
contains a property clause,
35
which guarantees the protection of private property and creates a
constitutional framework within which it is possible to limit

regulatory exercises of state power and to justify payment of
compensation for regulatory measures that amount to expropriation.
36
The conception of property rights under our constitutional
dispensation cannot be properly understood outside its historical

context, formulation and social framework.
The
protection of the right to property is a fundamental human right,
one which for decades was denied to the majority of our
society.
However, property rights in our new constitutional democracy are
far from absolute; they are determined and afforded
by law and can
be limited to facilitate the achievement of important social
purposes.
37
Whilst the exploitation of property remains an important incident
of landownership,
38
the state may regulate the use of private property in order to
protect public welfare, e.g. planning and zoning regulation
39
but such regulation must not amount to arbitrary deprivation. The
idea is not to protect private property from all state interference

but to safeguard it from illegitimate and unfair state
interference.
The
historical context within which the strategic forward planning of
roads in the Gauteng Province has developed is noteworthy.
Rapid
urbanisation in the late 1960s and 1970s in the area formerly known
as Pretoria–Witwatersrand–Vereeniging (the PWV
complex), and
the danger of an inadequate transport system, necessitated a
holistic planning policy framework for an orderly
long term spatial
development pattern. The layout of the major transport routes for
long term planning had to be determined
to avoid their subsequent
expensive routing through built-up areas. The need for providing
such transportation infrastructure
would also prevent piecemeal
decisions and optimise investment benefits. Also, the density of
development and the complex
patterns of traffic movements in the
region made it unproductive to plan single routes in isolation.
The planning of a transport
system was therefore based on
fundamentally sound planning policy principles.
In
determining whether sections 10(1) or 10(3) amount to deprivations
of property, regard must be had to what this Court said
in
First
National Bank
,
40
the leading judgment regarding the property clause in the
Constitution. This Court, per Ackermann J, held that “[i]n a
certain sense any interference with the use, enjoyment or
exploitation of private property involves some deprivation”.
41
In
Mkontwana
,
42
this Court expanded the notion of deprivation of property for
the purposes of section 25. This Court, per Yacoob J remarked:
“
Whether there has been a
deprivation depends on the extent of the interference with or
limitation of use, enjoyment or exploitation.
. . . [S]ubstantial
interference or limitation that goes beyond the normal restrictions
on property use or enjoyment found in
an open and democratic society
would amount to deprivation.
43
And
in her concurring judgment, O’Regan J remarked:
“
[S]ome deprivations of
property rights, although not depriving an owner of the property in
its entirety, or depriving the holder
of a real right of that real
right, could nevertheless constitute a significant impairment in the
interest that the owner or
real right holder has in the property.
The value of the property in material and non-material terms to the
owner may be significantly
harmed by a limitation of the rights of
use or enjoyment of the property.
If one of the purposes of s
25(1) is to recognise both material and the non-material value of
property to owners, it would defeat
that purpose were, ‘deprivation’
to be read narrowly.
”
44
(Emphasis added.)
Section
10(1) invokes the legal restrictions under section 7. The affected
land cannot have services laid over or below the
route (on the road
reserve) except with the written permission of the MEC or in terms
of a registered servitude. The owners
can only apply for certain
changes to affected land if the application is accompanied by a
report by a civil engineer. The
legal restrictions invoked by
section 10(3) in section 9 which, among other things, prohibit the
granting of applications for
the establishment of townships and/or
any change of land use in terms of any law or town planning,
adversely affect the applicants.
45
Accordingly,
I agree with the conclusion by the High Court that sections 10(1)
and 10(3) of the Infrastructure Act deprive the
applicants in some
respects of the use, enjoyment and exploitation of their
properties. To hold otherwise would unduly narrow
the concept of
deprivation of property.
Deprivation
in itself is not sufficient for interference to fall foul of
section 25(1) of the Constitution. It must also be
arbitrary.
Ackermann J in
First National Bank
concluded that a
deprivation will be arbitrary if—
“
the ‘law’ referred to in
section 25(1) does not provide sufficient reason for the particular
deprivation in question or is
procedurally unfair.”
46
It
thus follows that for the applicants to ground a successful
challenge to sections 10(1) and 10(3), they will have to show that

the impugned provisions are either procedurally unfair, or that
insufficient reason is proffered for the deprivation in question;
in
other words it is substantively arbitrary.
Is
section 10(1) procedurally arbitrary?
Procedural
fairness in the context of section 25(1) of the Constitution was
described in
Mkontwana
as “a flexible concept and that the
requirements that must be satisfied to render an action or a law
procedurally fair depends
on all the circumstances.”
47
Essentially,
when a route which has been previously accepted under the Ordinance
by the appropriate authority is published in
the Provincial Gazette
pursuant to section 10(1), the legal restrictions in section 7
apply and the consultation procedures
and environmental impact
assessments under section 6 are deemed to have taken place. Here,
there is no process for affording
consultation before the land is
restrained by section 7.
Pursuant
to section 10(1) of the Act, the MEC published a list of routes for
which centre lines had been determined in Notice
2625; these routes
would from then on be subject to sections 5 to 8 of the
Infrastructure Act. The applicants argued that
although section 6
of the Infrastructure Act requires detailed public engagement to
precede any route determination, section
10(1) obliges the MEC to
proclaim the route determination without affording landowners any
process whatsoever by which their
interests can be considered.
Some of the applicants had in the past seemingly been consulted and
given comments which, according
to the respondents, are on record.
The
applicants contended that the historical consultative processes
would not necessarily now comply with the requirements of

procedural fairness under PAJA. It is correct, as the applicants
contended, that the consultations took place many decades
ago. But
as correctly pointed out by the High Court, it would be unrealistic
and not in the public interest to simply disregard
these processes.
As the High Court correctly found, that would stultify the
building of roads for which preliminary work had
already been
completed. Furthermore sight should not be lost of the fact that
section 7 of the Infrastructure Act makes provision
for
applications for land use change, thus allowing aggrieved property
owners to have their concerns adequately addressed.
48
The procedural attack on the validity of section 10(1) must
therefore fail.
Is
section 10(3) procedurally arbitrary?
As
outlined above, the applicants contended that section 10(3) ought
to be interpreted in a manner that requires the MEC to
individually
consider each preliminary design before deciding whether or not to
publish it. On this interpretation, they argued,
the procedural
fairness protections of section 3 of PAJA
49
would apply and section 10(3) would not violate the procedural
guarantee of section 25(1) of the Constitution. Otherwise,
so it
was contended, section 10(3) is procedurally arbitrary in the same
manner as section 10(1).
The
consultative processes undertaken when the routes and designs were
initially determined must, as this Court said in
Masetlha v
President of the Republic of South Africa and Another
,
50
be considered in light of “the exigencies and practicalities of
the circumstances.”
51
In
this case, more than 841 preliminary designs were accepted over the
years in terms of the Ordinance and stretched over 2
593
kilometres. It would be unrealistic, impractical and not in the
public interest to revisit such a considerable number
of designs
now published under section 10(3) because numerous owners must have
been affected by the road network.
52
Consulting each and every property owner likely to have been
affected prior to enactment of the Infrastructure Act would not

only have involved exponential costs but would also have been
practically impossible. It was therefore sensible to conform

maximally to the exigencies and practicalities of the circumstances
at the time. Section 8(9) is a reasonable measure to address

individual concerns.
Accordingly,
I conclude that section 10(3) is not procedurally arbitrary. The
question then remains whether section 10(3) is
substantively
arbitrary.
Is
section 10(3) substantively arbitrary?
Considerations relevant to the
determination whether the deprivations constitute arbitrariness for
the purpose of section 25(1)
are set out in
First National Bank
53
as follows:
“
[I]t is concluded that a
deprivation of property is “arbitrary” as meant by section 25
when the “law” referred to in
section 25(1) does not provide
sufficient reason for the particular deprivation in question . . . .
Sufficient reason is to be
established as follows:
It is to be determined by
evaluating the relationship between means employed, namely the
deprivation in question and
ends sought to be achieved, namely
the purpose of the law in question.
A complexity of
relationships has to be considered.
In evaluating the
deprivation in question, regard must be had to the relationship
between the purpose for the deprivation
and the person whose
property is affected.
In addition, regard must
be had to the relationship between the purpose of the
deprivation and the nature of the property
as well as the
extent of the deprivation in respect of such property.
Generally speaking, where
the property in question is ownership of land or a corporeal
moveable, a more compelling purpose
will have to be established
in order for the depriving law to constitute sufficient reason
for the deprivation than
in the case when the property is
something different and the property right something less
extensive. This judgment
is not concerned at all with
incorporeal property.
Generally speaking, when
the deprivation in question embraces all the incidents of
ownership, the purpose for the deprivation
will have to be more
compelling than when the deprivation embraces only some
incidents of ownership and those incidents
only partially.
Depending on such
interplay between variable means and ends, the nature of the
property in question and the extent of
the deprivation, there
may be circumstances when sufficient reason is established by,
in effect, no more than a mere
rational relationship between
means and ends; in others this might only be established by a
proportionality evaluation
closer to that required by section
36(1) of the Constitution.
Where there is sufficient
reason to warrant the deprivation is a matter to be decided on
all the facts of each particular
case, always bearing in mind
that the enquiry is concerned with ‘arbitrary’ in relation
to the deprivation of property
under section 25.”
54
The
applicability of these considerations depends on the facts and
circumstances of each case. Central to the arbitrariness
enquiry
is the relationship between the law in question, the ends it seeks
to achieve and the impact restrictions have on the
use and
enjoyment of property. In some instances a deprivation will escape
arbitrariness if a rational connection between
the means adopted
and the ends sought to be achieved is present. In other instances,
however, the means adopted will have
to be proportional to the ends
in order to justify the deprivation in question.
55
Marginal deprivations of property will ordinarily not be arbitrary
if they are rationally connected to a legitimate purpose.
More
severe deprivations will ordinarily have to be shown to be
proportionate. In this case, the deprivations are sufficiently

serious to require a proportionality analysis. For present
purposes, therefore, the following questions arise: does section

10(3) protect the hypothetical road network and if it does, is it
proportional? In determining that, a court must have due
regard to
the purpose of the law in question,
56
the nature of the property involved,
57
the extent of the deprivation and the question whether there are
less restrictive means available to achieve the purpose in

question.
58
I
have already referred to the importance of the historical context
of the strategic forward planning scheme.
59
That need not be repeated. It suffices to say that there is no
evidence to suggest that the Gauteng road network was based
on
unsound road planning policy. It cannot be gainsaid that the
regulation of the use of property in this case is for the
public
good. As I have indicated earlier inadequate transport systems
that could stifle economic growth, extensive routing
through
built-up areas and the density of developments and the complex
pattern of traffic movements are some of the factors
that
necessitated the enactment of the Infrastructure Act. I therefore
agree with the finding of the High Court that:
“
[T]he respondents made out a
compelling case for the protection of the preliminary designs of
roads that were historically approved.
It cannot be doubted that
some adequate measure of protection is required in order to prevent
the socially undesirable consequence
of consigning more than thirty
years of road planning to the dustbin.”
60
The
High Court, however, went on to hold that the means adopted
entailed the effective prohibition of any future exploitation
of
the affected land and that such means were unreasonably
disproportionate to the end sought to be achieved. The Court went

on to say that:
“
A careful consideration of
the reasons proffered . . . does not demonstrate that the MEC
requires an
absolute prohibition on the grant of town planning
applications
in respect of land falling within the provincial
road reserve of the designed routes in order to protect his
legitimate interests.”
61
(Emphasis added.)
I
agree with the reasoning of the High Court to the extent that the
facts of this case require more than the presence of a rational

connection between the law in question and the ends sought to be
achieved. In terms of the considerations identified in
First
National Bank,
the present case deals with land upon which
section 10(3) imposes extensive restrictions. Compelling reasons
will therefore
have to be advanced to save the provision from
unconstitutionality. However, I do not agree with the High Court’s
conclusion
that the means adopted are disproportionate to the ends
sought to be achieved by section 10(3).
The
applicants are not deprived of the entirety of their properties.
Only the portions of their land that fall within the road
reserve
are directly affected by the regulatory measures in section 9.
There can be no doubt that section 10(3) has the effect
of creating
obstacles to the exploitation and alienation of the applicants’
land, which were not present in the law before
the Infrastructure
Act. As I will demonstrate, the obstacles are, in the
circumstances of this case and on a proper construction
of section
10(3), not insurmountable.
Section
10(3) should not be read in isolation but must be read in
conjunction with other provisions in the Infrastructure Act.
62
Section 10(3), which reads:
“
(3) Every preliminary design
of a provincial road within the Province, including such design in
the form of basic planning, which
has been accepted by—
(a) the Administrator as
defined in the Roads Ordinance, 1957 (Ordinance No. 22 of 1957);
(b) the Premier of the
Province; or
(c) the MEC,
under that Ordinance before the
date of commencement of this section and which is mentioned in a
notice published in the
Provincial Gazette
,
shall as from
the commencement of this section, be deemed to have been accepted by
the MEC for implementation in terms of sections
8(6), (8) and (9)
and section 9 shall as from the commencement of this section be
applicable to such preliminary design,
provided that for
purposes of application of the said sections, section 8(7) shall be
deemed to have been complied with at the
date of commencement of
this section.” (Emphasis added.)
Section
8(9) provides:
“
The power of the MEC
contemplated in subsection (8), may also be
exercised on written
application by anyone who desires that such preliminary design be
amended
, accompanied by payment of a prescribed fee, and in that
event the provisions of sections 38(2) to (6) apply to such
application.”
(Emphasis added.)
From
the reading of the above provisions, it cannot be said that section
10(3) absolutely prohibits the applicants from exploiting
their
land. As correctly stated by the respondents, the designs under
Notice 2626 have not obtained the status of a blueprint
for
development which admits of no deviation. Any of the applicants
may, if they desire, invoke section 8(9) of the Infrastructure
Act
and ask the MEC to revisit the preliminary designs that affect
portions of their properties within the road reserve.
63
If they do so, the MEC must properly apply his or her mind whether
to accede to the request.
It
was correctly conceded on behalf of the applicants during oral
argument that the designs could indeed be revisited through
the
amendment procedures in section 8(9). It was argued, however, that
the payment of the prescribed fee required to accompany
any such
amendment application places a burden on the property owner. It is
noteworthy that, in terms of the regulations under
the
Infrastructure Act, the said prescribed fee is R1000.
64
Even though the applicants did not explain in what manner the
payment of the fee is onerous, it was not suggested that R1000
is
exorbitant. Assuming that their concern relates to the amount
itself, it is doubtful that the cost can be said to be excessive

relative to the expense incurred in relation to the completed
designs.
The
record shows that applications for amendment
of
a preliminary design were granted at the instance of landowners:
the design of Road K54 between Rietvlei Nature Reserve and
the
Albertina Sisulu Highway (R21) at the request of the developer M&T
Development (Pty) Ltd and the City of Tshwane Metropolitan

Municipality; the design of Road K145, the former district road
known as Simon Vermooten Road in Pretoria, at the request of
the
City of Tshwane Metropolitan Municipality; and
the design of
Road K73 between Road K56 and Road K54, at the request of Sage
Properties (Pty) Ltd. As is evident from the record,
none
of the applicants have applied to amend the preliminary designs
that affect their properties. Moreover, no cogent suggestion
of
the inadequacies, if any, of the mechanisms in section 8(9) was
advanced.
In
making provision for property owners to apply for amendments to
route designs accepted under section 10(3), the Infrastructure
Act
strikes a balance between the Province’s legitimate interest in
protecting the hypothetical road network on the one hand,
whilst
ensuring that individual property rights are protected, on the
other. Section 10(3) is therefore not unreasonably
disproportionate to the end sought to be achieved.
Moreover,
sight should not be lost of the fact that, in addition to applying
for an amendment of a preliminary design, a property
owner affected
by section 10(3) is not, as contended by the applicants, completely
barred from applying for a land use change
in the land adjoining
the road reserve. Section 9(1)(c) is instructive in this regard,
it provides:
“
[N]o application for a
change in land use in respect of a portion of land adjacent to the
road reserve boundary of a preliminary
design in an urban area may
be granted without the written comments of the MEC first having
being obtained and considered in
accordance with the applicable
planning procedure by the authority empowered to grant changes in
land use, which must duly consider
such comments, and section 7(6),
(7) and (8) applies in such a case, with the necessary changes.”
This
section allows for applications for the change of land use of the
land adjacent to the road reserve to be submitted to
the relevant
authority, the approval of which will be granted if the specified
requirements are met.
Furthermore,
these mechanisms safeguard the applicants’ property interests
because any decision made in terms of section 8(9)
and section
9(1)(c) must be procedurally fair. Accordingly, I conclude that
section 10(3) of the Infrastructure Act does not
amount to an
arbitrary deprivation of property under section 25(1) of the
Constitution.
Next,
I determine whether section 10(3) amounts to expropriation without
compensation.
Does
section 10(3) amount to expropriation of the applicants’ property
without just and equitable compensation?
Section
25(2) and 25(3) of the Constitution provide as follows:
“
(2) Property may be
expropriated only in terms of law of general application—
(a) for a public purpose or in
the public interest; and
(b) subject to compensation,
the amount of which and the time and manner of payment of which have
either been agreed to by those
affected or decided or approved by a
court.
(3)
The amount of the
compensation and the time and manner of payment must be just and
equitable, reflecting an equitable balance
between the public
interest and the interests of those affected, having regard to all
relevant circumstances, including—
(a) the current use of the
property;
(b) the history of the
acquisition and use of the property;
(c) the market value of the
property;
(d) the extent of direct state
investment and subsidy in the acquisition and beneficial capital
improvement of the property; and
(e) the purpose of the
expropriation.”
This
Court in
Harksen v Lane NO and Others
65
commented on the meaning of “expropriation” in section 28
of the interim Constitution, the predecessor to section 25 of the

Constitution. It remarked that:
“
The distinction between
expropriation (or compulsory acquisition as it is called in some
other foreign jurisdictions) which involves
acquisition of rights in
property by a public authority for a public purpose and the
deprivation of rights in property which
fall short of compulsory
acquisition has long been recognised in our law.”
66
The
purpose of the distinction between expropriation and deprivation by
regulatory measures is to enable the state to regulate
the use of
property for public good without the fear of incurring liability to
owners of property affected in the course of
such regulation.
67
The
applicants argued that section 10(3) is inconsistent with the
constitutional guarantee against uncompensated expropriation
of
property. I do not agree. Although it is trite that the
Constitution and its attended reform legislation must be
interpreted
purposively, courts should be cautious not to extend
the meaning of expropriation to situations where the deprivation
does
not have the effect of the property being acquired by the
state. It must be emphasised that section 10(3) does not transfer
rights to the state. What it does is this: it deprives the land
owner of rights to exploit the affected part of the land within
the
road reserve and thus protects part of the planning process which
has economic value and is in the long run in the public
interest.
68
Remarkably, while the applicants accepted the distinction drawn by
this Court in
Harksen
,
69
they nevertheless contended that section 10(3), read with sections
8 and 9 of the Infrastructure Act, enables the state to
“acquire”
land for the construction of public roads. As I have said, the
state has not acquired the applicants’ land
as envisaged in
sections 25(2) and 25(3) of the Constitution. For that reason, no
compensation need be paid.
I
emphasise that the effect of either section 10(1) or section 10(3)
does not, in my view, amount to expropriation. The Supreme
Court
of Appeal correctly stated in
Steinberg
,
70
a case I find instructive, that a determination of claims under
sections 25(2) and 25(3) does give rise to complex and difficult

problems. Cloete AJA considered the possibility that there may be
room to develop a narrow doctrine of constructive expropriation
for
the South African context, especially in cases where a public body
utilises its power to regulate private property so excessively
that
it may be characterised as expropriation; in other words, when the
regulation in a particular case goes too far. I am
not sure
whether this would be appropriate in our constitutional order.
This in any event is not such a case. If regulation
in cases such
as the present were to be characterised as amounting to
expropriation, government would be crippled in discharging
its
obligations in regulating the use of private property for public
good.
The
applicant argued that there is a “value benefit” which falls to
the state whereby land becomes cheaply available for
road
construction in the interest of the public. Relying on
Malan
and Another v Ardonnel Investments (Pty) Ltd
71
and
Cape Explosives Works (Ltd) and Another v Denel (Pty)
Ltd and Others
,
72
the applicants contended that section 10(3) expropriates a
“servitude akin to a restrictive condition to title.”
73
These arguments effectively raise claims under the doctrine of
“constructive expropriation,”
74
which give rise to debatable questions in the context of South
Africa and our law of property. In the view I take of the matter,

these questions need not be resolved or debated here given the
circumstances of this case. They should be left for another
day.
It
is sufficient to mention that the respondents have pointed out that
it is impossible to predict when or even whether the
designed roads
will ultimately be proclaimed along the determined routes. It is
manifest from the record that although the
road scheme has been
approved, it has not yet been implemented in respect of the
designed roads that affect the applicants’
properties. There is
no principle under South African law that obliges the state to
implement a road scheme merely because
its planning has been
approved. In
Steinberg,
the Supreme Court of Appeal held
that even if the approval of the road scheme did affect the value
of the appellant’s property,
it was nothing more than advance
notification of a possible intention to construct a road, which, if
implemented, would result
in a “taking”. It was not in itself
a “taking”.
75
I could not agree more. Forward planning and good governance, as
the Supreme Court of Appeal correctly stated, would become

impossible if the state had to pay compensation every time it
proposed a project in the public interest, irrespective of whether

the project would be implemented or not.
76
It
is clear
that far more planning entailing
enormous expense has been completed in respect of the preliminary
designs of the roads affected
by section 10(3), as compared to
route determination. Both the expense and the fact that less land
is ordinarily affected
than in route determination renders
tolerable a greater limitation on property rights. I am thus
satisfied that the limitation
is proportionate.
There
is another matter: it relates to the indefinite aspect of the
deprivation. While we should not underestimate the economic
value
of planning and its public interest as well as the fact that
significant expense has gone into the road network, especially
in
the preliminary designs, the indefinite extent of the deprivation
in respect of section 10(3) is a matter of concern. Many
of the
preliminary designs were determined over two decades ago and, on
the respondent’s own admission, it is impossible
to predict when
or even whether the designed roads will ultimately be proclaimed
along the determined routes. This has the
effect of indefinitely
freezing the land use of the portions of the applicants’ land
that fall within the road reserve.
The
question then arises whether the indefinite aspect of section 10(3)
would by itself, in the circumstances, warrant the striking
down of
section 10(3) to enable the legislature to create some process
whereby the preliminary designs can be subjected to
periodic
review. I do not think so, particularly given the fact that
section 10(3) is not absolute and rigid as suggested
by the
applicants.
77
An obligation to review all completed designs periodically might
well cripple the government and frustrate the very object
of the
Infrastructure Act, in light of the enormous public funds that have
already been expended on those designs. In any
event, I think that
the mechanisms created by section 8(8) and 8(9) do cater for review
as and when applications for amendment
by affected landowners are
submitted to the MEC for his consideration.
78
When
all is said and done, I conclude that section 10(3) does not
violate sections 25(2) and 25(3) of the Constitution.
The
next question for determination is whether section 10(3) offends
the co-operative governance provisions of the Constitution.
Does
section 10(3) of the Infrastructure Act offend the principles of
co-operative governance contained in section 41 of the

Constitution?
The
applicants complained that the Infrastructure Act constituted an
impermissible invasion of municipal authority. This must
be
understood in light of the provisions of the Constitution
regulating municipal and provincial powers as well as co-operative

governance. Section 41(1) of the Constitution must be read with
sections 151,
79
154(1),
80
156(1)(a),
81
156(4) and (5)
82
and 155(7)
83
of the Constitution. Under the Constitution, the local sphere of
government vests in municipalities to be established for
the whole
territory.
84
A municipality has the right to govern, on its own initiative, the
local government affairs of its community subject to national
and
provincial legislation as provided for in section 156(1) of the
Constitution.
85
In terms of section 155(7) the national and provincial governments
have legislative and executive authority to see to the effective

performance by municipalities of their functions in respect of
matters listed in Schedules 4 and 5. Section 41(1) provides:
“
All spheres of government
and all organs of state within each sphere must—
(a) preserve the peace,
national unity and the indivisibility of the Republic;
(b) secure the well-being of
the people of the Republic;
(c) provide effective,
transparent, accountable and coherent government for the Republic as
a whole;
(d) be loyal to the
Constitution, the Republic and its people;
(e) respect the constitutional
status, institutions, powers and functions of government in the
other spheres;
(f)
not assume any power or
function except those conferred on them in terms of the
Constitution;
(g) exercise their powers and
perform their functions in a manner that does not encroach on the
geographical, functional or institutional
integrity of government in
another sphere; and
(h) co-operate with one another
in mutual trust and good faith by—
(i) fostering friendly
relations;
(ii) assisting and
supporting one another;
(iii) informing one another of,
and consulting one another on, matters of common interest;
(iv) co-ordinating their
actions and legislation with one another;
adhering to agreed procedures;
and
avoiding legal proceedings
against one another.”(Emphasis added.)
The
powers of municipalities must be read and understood subject to
their competence. Municipalities amend town-planning schemes
and
approve the establishment of townships not by virtue of their own
by-laws, but by virtue of the Town-Planning and Townships

Ordinance
86
which is provincial legislation. They have no executive competence
with respect to provincial roads. The road network that
forms the
subject of this litigation comprises of provincial roads. The
Constitution vests authority with regard to municipal
planning in
the local government.
87
The
applicants lost sight of the fact that provincial roads are, in
terms of Part A of Schedule 5 to the Constitution, an exclusive

provincial sphere of activity in respect of which it has
legislative competence. These functional areas (provincial roads

and traffic), as they have been included in the Constitution by its
drafters, remain under the exclusive provincial sphere
until they
are assigned to municipalities. There is no indication in the
record to suggest that those functional areas have
been assigned to
the relevant municipalities. In any event, the Infrastructure Act
requires the MEC to consult with municipalities
whose areas will be
affected by route determinations and preliminary designs.
88
Having analysed the relevant
constitutional provisions, I conclude that sections 7 and 9 of the
Infrastructure Act do not therefore
interfere with the performance
by local governments of their constitutionally ordained functions.
The applicants’ challenge
must therefore fail.
I
turn now to determine whether the promulgation of Notices 2625 and
2626 constitutes executive or administrative action.
Does
the promulgation of Provincial Notices 2625 and 2626 constitute
administrative action?
The
question whether the promulgation of these notices amounts to
administrative action turns on the proper interpretation of

sections 10(1) and 10(3). The applicants argued that properly
construed section 10(1) gives the MEC a discretion as to when
to
publish the notice, though no discretion as to which route
determinations should be published. They argued that, in contrast

section 10(3) gives the MEC the discretion to decide which
preliminary designs are to be published as well as a discretion
as
to when. They argued that because the MEC had a discretion in each
case, the decision to publish constitutes administrative
action and
attracts the obligation to act procedurally fairly as contemplated
in PAJA, which would require offering affected
landowners an
opportunity to be heard, at least by way of a public notice and
comment procedure.
During
argument, counsel for the applicants accepted that the argument was
stronger in relation to section 10(3) if their proffered

interpretation of the discretion conferred by that section is
correct. The respondents dispute that section 10(3) confers
a
discretion on the MEC to choose which basic designs to gazette and
they note that the MEC simply gazetted all route determinations
and
all basic designs.
In
considering the applicants’ argument, it is necessary first to
place sections 10(1) and 10(3) in their proper context.
They are
transitional provisions, as the respondents argue, directed at
bringing route determinations and basic designs, adopted
before the
Infrastructure Act came into force, within its legislative scheme.
The provisions contemplate that, upon publication,
the route
determinations and preliminary designs will be deemed to have been
adopted after the procedures provided in the Infrastructure
Act
have been followed. The very purpose of sections 10(1) and 10(3)
is thus to expedite the recognition of previously determined
routes
and basic designs without the full consultation process provided
for in the Infrastructure Act for routes and designs
determined
after it came into operation.
The
text of section 10(3) is indeed different to that of section 10(1)
and thus may be read to confer a discretion upon the
MEC as to
which basic designs should be gazetted. However, to do so would
place a conflict at the heart of the section: for
the applicants
must be correct that if the MEC did have a discretion as to which
basic designs should be gazetted, that decision
would in all
probability constitute administrative action and attract an
obligation to act fairly. But that would defeat the
purpose of the
section. As I have said, the section seeks to provide a
transitional measure whereby existing route determinations
and
basic designs can be deemed to have been adopted in terms of the
Infrastructure Act without following the process provided
for in
that Act.
The
interpretation of section 10(3) proposed by the respondents avoids
this self-defeating result. It must therefore be preferred.
The
decision to gazette the basic designs thus permits a discretion
only as to the date of publication, entailing that all
existing
designs are included. The effect of section 10(3) therefore
mirrors that of section 10(1) in relation to routes.
It is
therefore a narrow discretion to determine the date only.
The
narrow scope of the discretion thus conferred by both section 10(1)
and section 10(3) is analogous to the discretion conferred
upon
members of the executive branch of government to determine the date
on which legislation will come into force. This Court
has held
that the power conferred by legislation upon a member of the
executive to determine the date upon which legislation
shall come
into force is not administrative action because bringing a law into
force is neither making it (thus the power is
not legislative) nor
is it administering the law. The power lies somewhere between the
legislative and administrative functions.
89
Properly construed, the discretionary powers conferred by section
10(1) and section 10(3) are similar to the power to bring

legislation into force in that their exercise merely brings
transitional provisions into force. It does not involve any

administration of those provisions. The exercise of those
discretionary powers, therefore, does not constitute administrative

action.
Accordingly
I am of the view that the publication of Notices 2625 and 2626 in
terms of sections 10(1) and 10(3), properly construed,
did not
constitute administrative action. The applicants’ contention that
the decision made by the MEC to gazette existing
routes and basic
designs constituted administration action therefore fails.
Conclusion
The
applicants applied for condonation of the late filing of their
appeal against the High Court’s refusal to declare section
10(1)
of the Infrastructure Act invalid. The application is unopposed. I
am of the view that condonation should be granted.
Having
concluded that section 10(3) of the Infrastructure Act does not
amount to an arbitrary deprivation of property under
section 25(1)
or expropriation under sections 25(2) and 25(3) of the
Constitution, the application for confirmation of the
declaration
of constitutional invalidity of section 10(3) must be refused. It
follows, therefore, that the order of the High
Court with respect
to Provincial Notice 2626 should be set aside. I have not
overlooked the applicants’ contention that
the province failed to
lodge a separate appeal against the decision declaring this Notice
to be invalid. But that order was
clearly and solely premised on
the associated declaration of statutory invalidity, and must fall
with it.
90
Similarly,
having found that section 10(1) of the Infrastructure Act does not
amount to an arbitrary deprivation of property
under section 25(1)
of the Constitution, the appeal in respect of section 10(1) and its
corresponding Notice 2625 must fail.
The order of the High Court
must therefore stand.
What
is the appropriate costs order?
There
are two issues relating to costs before this Court. The first
relates to a cross-appeal filed by the respondents in relation
to
the costs order made by the High Court. The second relates to the
costs in this Court. In relation to the former, the
respondents
were ordered to pay the applicants’ costs including the costs
occasioned by the employment of two counsel. The
respondents have
asked for that costs order to be set aside and replaced with an
order that each party pay its own costs
a quo
. Despite the
fact that the parties had agreed that any party achieving
substantial success in the High Court would be entitled
to costs,
91
the applicants have, in the view I take of the matter, not been
successful. However, given the fact that the respondents do
not
seek costs against them and that the applicants did not litigate
frivolously and vexatiously in vindicating their constitutional

rights, I am inclined to agree with the respondents that each party
should pay its own costs in the High Court
.
Regarding
the costs incurred in this Court the respondents prayed also that
each party should pay its own costs of all the proceedings
in this
Court. For the reasons advanced above, I agree. Accordingly, I
would uphold the cross-appeal and order that each
party pay its own
costs in the High Court and in this Court.
Order
The following order is made:
1. The order of
constitutional invalidity in respect of section 10(3) of the
Gauteng Transport Infrastructure Act 8 of 2001
made by the South
Gauteng High Court, Johannesburg is not confirmed.
2. The application for
condonation of the late filing of the application for leave to
appeal by the applicants is granted.
3. The appeal by the
applicants against the order of the South Gauteng High Court,
Johannesburg in respect of section 10(1)
of the Gauteng Transport
Infrastructure Act 8 of 2001 and Provincial Notice 2625 is
dismissed.
4. The cross-appeal by the
respondents against the costs order made by the South Gauteng High
Court, Johannesburg is upheld.
5. The order made by the
South Gauteng High Court, Johannesburg is set aside and paragraph
5 is replaced with the following
order:
“Each party is to pay its
own costs.”
6. Each
party is ordered to pay its own costs in this Court.
Moseneke
DCJ, Mokgoro J, Ngcobo J and Skweyiya J concur in the judgment of
Nkabinde J.
O’REGAN J:
I
have had the pleasure of reading the careful and comprehensive
judgment written in this matter by my colleague, Nkabinde J.
I
agree with her identification of the issues at paragraph 26 of her
judgment; as well as her reasoning and conclusion in
respect of
section 10(1) of the Gauteng Transport Infrastructure Act 8 of 2001
(the Infrastructure Act). I also agree with
her reasoning and
conclusions in respect of the applicants’ arguments concerning
the powers of provinces and municipalities
and the question of
whether the promulgation of Provincial Notices 2625 and 2626
constituted administrative action. I only
have one point of
disagreement with her and that relates to whether section 10(3) of
the Infrastructure Act conflicts with
the applicants’ property
rights. In my view it does, though only in a narrow respect as
this judgment elucidates.
Section
10(3), like section 10(1), is a transitional provision in the new
legislation to bring existing planning in Gauteng
within the
framework for transport infrastructure now provided by the
Infrastructure Act. Although the Infrastructure Act
deals with
both road and rail transport, the focus in this case has been its
regulation of roads and I shall, for ease, refer
only to road
planning in this judgment.
Before
the enactment of the Infrastructure Act, the provincial authorities
had over many years developed a set of plans for
roads in the
province. Some of the roads were approved only as route
determinations, in terms of which a line indicating the
route of
the road across land was approved. Some had proceeded to approved
preliminary designs, at which stage the extent
of road reserve has
been identified, and the basic planning for the road, including
intersections, culverts and the like has
been completed.
In
essence, section 10(3) provides that preliminary designs for roads
that have been approved in terms of the Roads Ordinance
1
will be deemed to have been accepted by the MEC in terms of section
8(6), (8) and (9) of the Infrastructure Act and section
9 of the
Act shall be applicable to those designs.
2
Section 8(6) provides for a notice and comment procedure and an
environmental report prior to the approval of basic designs.
3
Section 9(1) provides that
once a preliminary design has been published, no application for
the establishment of a township,
for the subdivision of land or for
any change in land use may be granted in respect of land falling
within the road reserve
boundary as identified in the preliminary
design.
4
There is a narrow let-out allowing the MEC to relax the
prohibition in respect of access roads on such basis as the MEC

considers fit. Section 9(2) provides in turn that once the
preliminary design has been published no service provider may lay

any pipeline or cable across land falling within the road reserve
boundaries as shown on the preliminary design or erect any

structure on the land without the permission of the MEC.
5
The
applicants raise two issues. First, they complain that by
exempting existing preliminary designs from the processes provided

for in section 8 of the Infrastructure Act, the Act sanctions
limitations on property owners’ rights without affording them

procedural fairness. Second, they complain that the impairment of
the right to enjoy property created by the bar on development
in
section 9 is substantively disproportionate and thus arbitrary and,
therefore, in conflict with section 25(1) of the Constitution
which
provides that:
“
No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.”
Nkabinde
J accepts that the effect of section 10(3) is to deprive landowners
whose land falls within a road reserve in a preliminary
design of
their rights to use and enjoy their property within the meaning of
“deprivation” in section 25(1). For the reasons
she gives, I
agree. Nkabinde J then considers whether that deprivation is
arbitrary within the meaning of section 25(1) of
the Constitution.
She considers first whether it is arbitrary for its want of
procedural fairness and concludes that it is
not. I agree. She
then considers whether it is arbitrary because the purpose for
which the deprivation is imposed is disproportionate
to the extent
of the deprivation and concludes that it is not. Here lies the nub
of our disagreement.
The
limitation of landowners’ rights occasioned by section 10(3) is
quite weighty. Like Nkabinde J, on the approach established
by
this Court in
First National Bank
,
6
I consider the deprivation in question to be sufficiently weighty
to require that it be proportionate to the purpose giving
rise to
the deprivation and not merely rationally connected to the purpose
of the deprivation. The real question then is whether
that
deprivation is proportionate to the purpose for which the
deprivation is claimed.
To
determine whether the deprivation is proportionate, it is necessary
to consider carefully the precise reach of the deprivation.
Having
done that, it is necessary to look closely at the purpose of the
deprivation and the extent to which section 10(3)
is closely
tailored to that purpose and then to consider whether the purpose
of the deprivation and the manner in which it
is achieved is
proportionate to the limitation of rights it occasions.
This
approach is comparable to the approach that has been adopted by the
European Court of Human Rights in its jurisprudence
on article 1 of
the First Protocol to the European Convention for the Protection of
Human Rights and Fundamental Freedoms which
protects the enjoyment
of property.
7
The European Court of Human Rights has said that a “fair
balance” needs to be struck between the demands of the general

interests of the community and the protection of an individual’s
fundamental rights.
8
I
turn first to consider the extent of the deprivation occasioned by
section 10(3) read with section 9. As stated above, the
effect of
the publication of Notice 2626 is that owners of land falling
within the road reserves identified in the preliminary
designs are,
in terms of section 9(1)(a), prevented from seeking planning
permission to establish a township on the affected
land, to
subdivide it or to change the permitted land use. This prohibition
is restrictive particularly in the context of
the rapid social and
economic development in Gauteng, which is a province that has seen
and continues to see rapid rates of
urban development and
densification. Section 9(1)(a)(i) and (ii) relax the stringency of
the restriction marginally by granting
the MEC the power to vary
the design in relation to access roads.
A
second restriction imposed by the publication of Notice 2626 arises
from section 9(2) which provides that from the date of
its
publication, no service provider may lay any pipeline or cable over
or under the land falling within the road reserve;
nor may any
service provider construct any structure on the land without the
written permission of the MEC or in terms of an
existing servitude.
The scope of this restriction, although logistically burdensome,
must be assessed on the basis that when
the MEC determines a
request in terms of section 9(2), the MEC must do so procedurally
fairly and reasonably within the meaning
of section 33 of the
Constitution
9
and the
Promotion of Administrative Justice Act 3 of 2000
.
One
further restriction arises from
section 9(1)(c)
which prevents an
owner whose land is adjacent to the road reserve boundary from
applying for any change in land use without
obtaining the written
comments of the MEC. Again, this restriction (though logistically
a burden) is far less severe than
the restriction contained in
section 9(1)(a).
A
further relevant consideration in assessing the extent of the
deprivation caused by
section 10(3)
is the question of the
possibility of obtaining an amendment of the preliminary design.
This is a matter provided for in
section 8(8)
and section 8(9) of
the Infrastructure Act.
10
These sections provide that the MEC may, on application, amend the
preliminary design and the procedures for the redrawing
of the
preliminary design will be those provided for the drawing of the
design in the first place as set out in sections 8(1)
to (7) of the
Infrastructure Act which would include a notice and comment
procedure. Section 8(8) also provides that if the
new design
deviates from the original design to the extent that the new road
reserve falls entirely outside the original road
reserve, it will
require a new route determination process in terms of section 6 of
the Infrastructure Act.
Nkabinde
J considers that section 8(8) read with section 8(9) reduces the
extent of the deprivation occasioned by section 9(1)(a)
quite
significantly. I am not so sure. The preliminary design of a road
involves first the determination of a route, and
then after
thorough survey and drafting, the drawing of the road itself in
such a manner as to ensure the road is a coherent
and continuous
route. The room for piecemeal variation of the design of that road
on application by individual landowners
seems to me to be scant.
The MEC will surely (and rightly) be reluctant to amend a
preliminary design on the application of
one landowner when it may
have the consequence of threatening the viability of the road
design in its entirety or of imposing
burdens on other landowners.
Road design is something, by and large, which requires
comprehensive determination in one process
at one time. Piecemeal
amendment thereof in a manner that significantly reduces the
burdens on landowners affected by the
proposed road is likely to be
rare.
In
assessing the deprivation caused, I also accept that landowners do
not have the right to develop their land as they choose.
The
ownership of land is not an absolute right. In our constitutional
order, we recognise the social value of land to the
community as a
whole and accept that by affording people the right to own land,
their rights are necessarily limited by the
rights of the broader
community.
The
deprivation occasioned by section 10(3) is therefore significant in
that it deprives a landowner of the right to seek permission
to
develop the land, to subdivide it or to change its land use. In a
rapidly urbanising environment, this is particularly
weighty. That
weight is further increased by the fact that there is no temporal
limit on the deprivation as the Infrastructure
Act makes no
provision for the future review of preliminary designs. Finally,
the deprivation affects many hundreds of landowners.
The record
before us establishes that there are at present 2 593 km for which
there are approved preliminary road designs
where the roads have
not yet been built. This number should be viewed against the 1 220
km of provincial roads that currently
exist. It seems probable
that given the sharp budgetary constraints emphasised by the
respondents, many of the roads that
have reached preliminary design
may never be built.
Turning
now to the purpose sought to be achieved by the deprivation, which
must be to protect the integrity of the planning
system. The
legitimacy of this purpose is indisputable.
11
Once expensive planning has been undertaken (and there can be no
doubt that the preparation of preliminary designs is an expensive

exercise, requiring land surveys, town planning reports and a range
of other expert contributions), it makes eminent sense
to prevent
landowners from changing the use of their land in a manner which
would render the implementation of the planning
economically or
otherwise impossible. Moreover, planning by its very nature must
take place far in advance and may often take
years, if not decades,
to be brought to fruition. And finally I should add that property
owners as a class benefit from the
information that good planning
affords them, as indeed does our broader society. Accordingly, it
is clear that the purpose
sought to be achieved by advance planning
for road infrastructure is of indisputable public value and
importance.
The
purpose in designing an infrastructural plan is self-evident, but
in considering whether the legislation has been crafted
in a manner
to achieve that purpose without undue invasion of landowners’
rights, one nagging concern presents itself. The
legislation fails
to provide for any review of the preliminary designs. Many of
these road designs date back to the 1970s
and 1980s and in many
cases it is not clear if the proposed roads will be built at all.
All the while, landowners are prevented
from developing their land
in the light of changing circumstances. This limitation on
landowners is proportionate while it
is clear that there is a
reasonable possibility that the proposed road will indeed be built,
but as soon as it becomes clear
that a particular road will not be
built, the public purpose in restricting the use of land
disappears. In that circumstance,
the deprivation will be
disproportionate and accordingly arbitrary. Yet there is no
process in the legislation at all that
provides for the abandonment
of proposed roads that have become unnecessary or undesirable.
Given
the thousands of kilometres of roads that have reached the
preliminary design level over the last thirty years, the rapidly

changing urban patterns of the province and the acute budget
pressures provincial government faces, it seems to me probable
that
it may already be clear to the province that some of the planned
roads will never eventuate. And yet landowners are prevented
from
developing their land at all. This disproportionate effect can
best be eschewed by providing a framework for the periodic
and
public review of the infrastructure network, perhaps every twenty
years. That review would not require individualised
hearings for
every affected landowner, but could be conducted by way of a notice
and comment procedure. Such a process would
permit landowners and
all interested members of the public to comment on the network as
planned. It would afford a public
opportunity for the province to
provide clarity on its plans with regard to the designed
infrastructure network and an opportunity
to announce that events
have overtaken certain preliminary designs in such a manner that
requires them to be abandoned, or
materially altered.
In
my view, the harshness of the deprivation imposed by the current
legislation would significantly be ameliorated by a periodic
public
review of the proposed infrastructure network. Such a review would
restore proportionality between the purpose of the
legislation and
the extent of the deprivation of the rights of landowners. This
reasoning echoes, in some respects, the concerns
expressed by
Hutton AJ in the judgment in the High Court. In my view however
the disproportionally could be cured in a less
invasive way than
that proposed by the High Court.
For
this reason, then, unlike Nkabinde J, I would make an order of
constitutional invalidity in respect of section 10(3) of
the
Infrastructure Act to the extent that it does not provide for a
periodic public review of the infrastructure network.
I would
suspend that order and propose that the Gauteng legislature be
given eighteen months to enact legislation amending
the
Infrastructure Act to cure this defect in the current legislation.
Given that the order of invalidity I propose would
be suspended,
all action taken in terms of section 10(3) would remain valid
during the period of the suspension which would
include Notice
2626.
Cameron
J and Van der Westhuizen J concur in the judgment of O’Regan J
For the Applicants:
Advocate
D Unterhalter SC and Advocate M Chaskalson instructed by Coetsee
van Rensburg.
For
the Respondents:
Advocate
GL Grobler SC and Advocate NJ Louw instructed by the State
Attorney.
1
Section
172(2)(a) of the Constitution provides
that:
“
The
Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act
of Parliament, a provincial Act or any conduct of the President, but
an order of constitutional invalidity has no force
unless it is
confirmed by the Constitutional Court.”
2
Reflect-All 1025 CC and Others v Member of the
Executive Council for Public Transport, Roads and Works, Gauteng
Provincial Government
and Another
Case
No 14629/2004, South Gauteng High Court, Johannesburg, 2 December
2008, as yet unreported.
3
These sections are discussed fully at [19] –
[24] below.
4
Section 25, in so far as herein relevant,
provides:
“
(1) No one may be deprived of property except in
terms of law of general application, and no law may permit arbitrary
deprivation
of property.
(2) Property
may be expropriated only in terms of law of general application—
for a public purpose or in the public interest; and
subject to compensation, the amount of which and the
time and manner of payment of which have either been agreed to by
those
affected or decided or approved by a court.
The
amount of the compensation and the time and manner of payment must
be just and equitable, reflecting an equitable balance
between the
public interest and the interests of those affected, having regard
to all relevant circumstances, including—
the
current use of the property;
the
history of the acquisition and use of the property;
the
market value of the property;
the
extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
the
purpose of the expropriation.
”
5
These sections are discussed fully at [73] – [76] below.
6
The first applicant is a registered owner of several residential
properties in Gauteng
.
The
proposed roads which overlap its properties will allegedly deny
access to the properties on which it plans to construct
a shopping
centre. The second applicant wishes to develop its two properties
and has submitted a township application. If
the application is
approved it hopes to construct 600 luxury cluster houses. Its land
is affected by two proposed roads which
will prevent it from
developing a significant part of its land. The third applicant has
applied to the relevant municipality
to establish a township on its
property. The property is flanked by a proposed provincial road,
which if constructed will
allegedly constitute 60% of its property.
The fourth applicant applied to the relevant authority to
establish a township.
His property is flanked by a proposed road
that if constructed will allegedly take approximately 50% of his
land. The fifth
applicant was in the process of selling her
property which is flanked by a proposed provincial road. The sale
of the property
for R3.5 million has fallen through because the
impugned provisions and the proposed road network means that a
potential developer
will be unable to have the property rezoned.
She alleges that the property is unlikely to be sold for more than
R800 000.
The sixth applicant owns three properties which are
overlapped by the proposed provincial roads. It wished to develop
a township,
however, the number of stands on which it wished to
develop a township has been reduced considerably due to the
proposed road
network. This will allegedly result in it losing
more than R7 million in profits. The seventh applicant wishes to
sell her
land to a developer who wants to build a township.
However, because the property is overlapped by a proposed
provincial road,
the rezoning of the portion of the property within
the road reserve is prohibited. The eighth applicant’s property
is affected
by a proposed road that will allegedly limit the number
of stands available for development.
7
This property was registered in the name of the second applicant on
22 April 2004.
The second applicant also claims
that another of its properties is affected by the Infrastructure
Act. This property was purchased
before the Act came into force on
16 September 2002 and was registered in its name on 23 October 2003.
8
The relevant portions of the High Court order read as
follows:
“
1.
It
is declared that subsection (3) of section 10 of the Gauteng
Transport Infrastructure Act 8 of 2001 is inconsistent with
the
Constitution of the Republic of South Africa, Act 108 of 1996.
The
order in paragraph 1 is referred to the Constitutional Court for
confirmation in terms of section 172(2)(a) of the Constitution.
Notice
No 2626 of 2003 published in Provincial Gazette Extraordinary No
331 on 20 August 2003 is set aside.
In
terms of section 172(1)(b) of the Constitution:
the
said section referred to in paragraph 1 hereof and the notice
referred to in paragraph 3 shall remain in force pending
the
correction of the defects or the expiry of the period specified in
(ii) below;
the
government of Gauteng Province is required to correct the defects
specified above not later than twelve months from the
date of
confirmation of this order by the Constitutional Court.
The
respondents are ordered to pay the applicants’ costs including
the costs occasioned by the employment of two counsel.”
9
22 of 1957 (Transvaal).
10
Above n 2 at para 44.
11
Id at para 45.
12
Id.
13
3 of 2000.
14
See n 6 above.
15
Section
3 of PAJA provides for procedurally fair
administrative action affecting any person. It is set out fully at
n 49 below.
16
Section 151 is quoted in full later in this judgment in n 79 below.
17
Section 154(1) is quoted in full later in this judgment in n 80
below.
18
The applicants based this argument on section 156(1)(a) of the
Constitution, read with Part B of Schedule 4 and Schedule 5 as
well
as section 153(1) of the Constitution.
19
The applicants claimed that section 10(3) was introduced in a
deliberate attempt to interfere with town planning because the

provincial authorities believed that the local authorities did not
give the road network the importance it required and were
approving
planning, thereby compromising it.
20
See section 20 of the Ordinance. See also
Administrator, Transvaal, and Another v
J van Streepen (Kempton Park) (Pty) Ltd
[1990] ZASCA 78
;
1990 (4) SA 644
(A) at 649H, 655D and 657A-F.
21
See for example above n 2 at para 15.
22
Of the 4 650 km of route determinations made in
respect of K routes, only 850 km have actually been constructed or
proclaimed
in the last three decades; similarly, of the 2 180 km of
route determinations made in respect of provincial freeways, only
800
km have actually been constructed or proclaimed in the last
three decades.
23
While there is no precise figure suggested by
either the applicants or the respondents, there can be no doubt that
“[h]undreds
of millions of Rands of public money”, as the High
Court found, has gone into the development of these route
determinations
and preliminary designs. See above n 2 at para
14.10.
24
The Infrastructure Act came into force on 31 January 2003.
25
The long title of the Infrastructure Act reads as
follows:
“
To
consolidate the laws relating to roads and other types of transport
infrastructure in Gauteng; and to provide for the planning,
design,
development, construction, financing, management, control,
maintenance, protection and rehabilitation of provincial roads,

railway lines and other transport infrastructure in Gauteng and to
provide for matters connected therewith.”
26
Section 10 of the Infrastructure Act only
authorises this procedure to apply to route determinations and
preliminary designs properly
accepted under the previous
legislation, the
Ordinance.
27
Section 8(1) indicates the areas which are
restrained by section 7. It provides:
“
After
publication of the route by notice contemplated in section 6(11),
the MEC may cause the preliminary design of the future
provincial
road or railway line to be carried out in the areas falling within—
(a) a distance of 200 metres measured from either side
of the centre line of the route;
(b) a distance of 500 metres from the intersection of
the centre line of the route with the centre line of—
(i) any other route published in terms of section 6(11)
or deemed to have been published in terms of section 10(1);
(ii) a preliminary design, the acceptance of which has
been published in terms of section 8(7) or deemed to have been
published
in terms of section 10(3); or
(iii) any other road or railway line.”
28
Pursuant to section 8(5), these key issues
include
the
content of the preliminary
design, the environmental report, the MEC’s intentions regarding
the design, and the regulatory measures
which will come into effect
under section 9 of the Act.
29
Section 1 of the Infrastructure Act defines “road reserve” as
“the full width of a road made and intended or used for traffic
or
reasonably usable by traffic in general”. “Rail reserve” is
defined as “the full width of a railway line, including
stations
and signalling and marshalling facilities, and other related
facilities.”
30
Section 9(1)(a) of the Infrastructure Act.
31
Section 9(2) of the Infrastructure Act. These
services include pipelines, electricity lines, cables and telephone
lines or cables.
32
Section 39 provides:
“
(1) When
interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must
promote the spirit, purport and objects of the Bill of
Rights.”
33
See
Mkontwana v Nelson Mandela
Metropolitan Municipality and Another; Bissett and Others v Buffalo
City Municipality and Others; Transfer
Rights Action Campaign and
Others v MEC for Local Government and Housing, Gauteng and Others
(KwaZulu-Natal Law Society and Msunduzi
Municipality as Amici
Curiae)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at para 27;
De
Beer NO v North-Central Local Council and South-Central Local
Council and Others (Umhlatuzana Civic Association Intervening)
[
2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC)
at
para 24;
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC)
at
paras 22-6
.
34
For example, Australia (section 51(xxxi)); Japan
(article 29); Mauritius (section 3(c) and section 8); Malaysia
(section 13) and
India (article 31).
35
Above n 4.
36
Regulatory measures that amount to expropriation are described in
some jurisdictions as “regulatory takings”. See in this
regard
Van der Walt “Compensation for excessive or
unfair regulation: A comparative overview of constitutional practice
relating to
regulatory takings
(1999)
14
SAPR/PL
272 at 278.
37
See
Mkontwana
above
n 33
at para 82.
38
See
First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service and Another;
First National Bank of SA
Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC).
39
Van der Walt
Constitutional
Property Clauses: A comparative analysis
(Juta,
Cape Town 1999) at 333-5.
40
Above n 38.
41
Id at para 57.
42
Above
n 33.
43
Id at para 32.
44
Id at para 89.
45
See [23] above.
46
Above n 38 at para 100.
47
Mkontwana
above n 33 at para 65.
48
See [21] above.
49
Section 3 of PAJA provides:
“
(1) Administrative action which materially and
adversely affects the rights or legitimate expectations of any
person must be procedurally
fair.
(2) (a) A
fair administrative procedure depends on the circumstances of each
case.
(b) In order to give effect to the right of
procedurally fair administrative action, an administrator, subject
to subsection
(4), must give a person referred to in subsection (1)—
(i) adequate notice of the nature
and purpose of the proposed administrative action;
(ii) a reasonable opportunity to
make representations;
(iii) a clear statement of the
administrative action;
(iv) adequate notice of any right of
review or internal, appeal where applicable; and
(v) adequate notice of the right to
request reasons in terms of section 5.
.
. .
(4) (a) If it is reasonable and justifiable in the
circumstances, an administrator may
depart from any of the requirements referred to in
subsection (2).
(b) In determining whether a departure as contemplated
in paragraph (a) is reasonable and justifiable, an administrator
must
take into account all relevant factors, including—
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need to take,
the administrative action;
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or
the urgency of the matter; and
(v) the need to promote an efficient administration and
good governance.”
50
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC).
51
Id at para 190. See also
Mkontwana
above n 33 at para 65.
52
Items accepted under the Ordinance in respect of route
determinations stretched over a distance of 5 180 km.
53
Above n 38 at para 100.
54
Id.
55
See in this regard
First National Bank
above n 38 at para 66
where the Court the remarked:
“
It
is important in every case in which section 25(1) is in issue to
have regard to the legislative context
to which
the
prohibition against ‘arbitrary’ deprivation has to be applied;
and also to the nature and extent of the deprivation.
In certain
circumstances the legislative deprivation may be such that no more
than a rational connection between means and ends
would be required,
while in others the ends would have to be more compelling to prevent
the deprivation from being arbitrary.”
56
For example whether the ‘purpose’ is aimed at the achievement
of a public good.
57
Above n 38 at para 100. The Court remarked that where the property
in question is land or immovable a compelling purpose or reason
will
have to be established for the law in question to constitute
sufficient reason for the deprivation.
58
Id. The court remarked further that where the deprivation in
question embraces all the incidents of ownership compelling reasons

will have to be proffered.
59
See [34] above.
60
Above n 2 at para 44.
61
Id at para 45.
62
See section 8(6), (7) and (8) of the
Infrastructure Act which provides:
“
(6) The
MEC must thereafter consider the draft preliminary design with due
regard to—
the
environmental report contemplated in subsection (4)(b) or section
6(3)(a), as the case may be; and
such comments of
interested and affected parties as may have been submitted in
consequence of the notice contemplated in
subsection (5);
and
may then accept the preliminary design with such amendments as the
MEC may deem necessary.
(7) The MEC must thereafter publish
for general information, his or her acceptance of the preliminary
design for implementation
by notice in the
Provincial
Gazette
containing—
an address where
the preliminary design is available for inspection;
such information,
whether by way of sketch plan or reference to a plan available for
inspection at a given address, as the
MEC may deem sufficient to
indicate the direction and alignment of the provincial road or
railway line according to the preliminary
design;
a notification
that the regulatory measures provided for in section 7 in respect
of the route cease to apply from the date
of the notice to the
extent of the route along or over which the preliminary design was
accepted by the MEC in terms of subsection
(6);
a notification
that the regulatory measures in section 9 apply from the date of
the notice with relation to the preliminary
design; and
a notification
that the reasons for the acceptance may be requested by interested
and affected parties within the prescribed
period after the date
of publication of the notice.
(8) A preliminary design in respect of which a notice
in terms of subsection (7) has been published, or sections thereof,
may
be amended by the MEC and in that event the provisions of
subsections (1) to (7) apply, with the necessary changes, provided

that where such amendment deviates from the said preliminary design
to the extent that both road or rail reserve boundaries of
the
amendment fall outside the road or rail reserve boundaries of the
said preliminary design, a route determination in terms
of sections
6(1) to (11) must first be done to the extent that such road or rail
reserve boundaries of the amended design so
fall outside.”
63
Section 8(9) read with section 8(8) of the
Infrastructure Act above n 62.
64
Schedule 1 to the Gauteng Transport Infrastructure Regulations,
2002, GN R219, GG 29, 29 January 2003.
65
[
1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC).
66
Id at para 33.
67
See
Steinberg v
South Peninsula Municipality
2001 (4)
SA 1243
(SCA) at para 4. See also Van der Walt
Constitutional
Property Law
1ed (Juta, Cape Town
2005) 123-5.
68
See
Harksen
above
n 65
at
para 32.
69
Between expropriation on the one hand, which involves acquisition of
rights in property by a public authority for public purpose,
and the
deprivation of rights in property on the other, which falls short of
“compulsory acquisition”.
70
Steinberg
above n 67 at
paras 6-8. In
that case, the effect of the regulatory measures was the permanent
immobilisation of economic activity involving
a certain piece of
land. The Supreme Court of Appeal had to decide whether to order a
municipality to complete the process of
expropriation foreseen for
property belonging to the appellant. The appellant was aware, upon
purchasing the land, that the
property would be affected by a
proposed road scheme that was approved but not yet implemented by
the municipality. If the road
scheme were to be implemented,
expropriation of the specific land would become necessary for the
purpose of constructing the
proposed road. The appellant
essentially argued that uncertainty surrounding the implementation
of the road scheme renders it
impossible to develop or improve the
property and that it immobilises any alienation of the land, thereby
depriving her of the
economic value of her land. The Court
considered the possibility of treating severe imposition on property
that was not intended
to be expropriation as “constructive
expropriation”, but did not answer the question because of the
concern that it would
introduce confusion into the law and adversely
affect the constitutional imperative of land reform.
71
1988 (2) SA 12
(A).
72
2001 (3) SA 569
(SCA).
73
See Van der Walt above n 67 at 69-70. The author refers to this as
“conceptual severance” (a theoretical practice by which
claimants construct constitutional compensation claims for state

interferences that take away an aspect of their property holdings
which in effect is nothing more than a regulatory deprivation).
The
concern, however, is that this practice could be used to frustrate
reform efforts by subjecting all interference to compensation

claims. He warns that the arguments for this “conceptual
severance” have to lead to the acceptance of constructive
expropriation
in South African law for it to have any effect.
74
Although the Supreme Court of Appeal in
Steinberg
above n 67
at para 8 suggested that there may be a room for the development of
a doctrine that is similar to constructive expropriation,
the Court
cautioned that the doctrine creates a middle ground and blurs the
distinction between deprivation and expropriation.
75
Steinberg
above n 67 at para 12.
76
Id at para 11.
77
See
Sporrong and Lönnroth v Sweden
Series A No 52
[1982] EHRR 35
at
61-2 in the joint dissenting opinion of Zekia J and others.
The European Court of Human Rights was narrowly divided
on a similar question. The Court had to determine whether
restrictions
in terms of Swedish legislation which remained in force
for two decades were contrary to the property clause in the
Convention for the Protection
of Human Rights and Fundamental Freedoms.
The minority judgment is instructive in this regard:
“
We
do not find that their duration exceeded the periods which could
reasonably be deemed by the authorities of the State to be
in the
general interest.
Modern town planning requires, especially in
big urban areas, most difficult considerations and evaluations, and
its implementation
often needs considerable time
. . . . It is
also relevant to take into account the legal and factual position of
the owners during the period of the restrictions.
They remained
in ownership and retained the use of the properties in their
existing state. They had the right to dispose of their
properties
”
.
(Emphasis added.)
78
See for example the practical and salutary effect
of the flexible mechanism created by section 8(8) and 8(9) as
illustrated by
the examples referred to in [57] above.
79
Section 151 deals with the status of
municipalities. It provides:
“
(1) The local sphere of government consists of
municipalities, which must be established for the whole of the
territory of the
Republic.
(2) The executive and legislative authority of a
municipality is vested in its Municipal Council.
(3) A municipality has the right to govern, on its own
initiative, the local government affairs of its community, subject
to national
and provincial legislation, as provided for in the
Constitution.
(4) The national or provincial government may not
compromise or impede a municipality’s ability or right to exercise
its powers
or perform its functions.”
80
Section 154(1) provides:
“
The
national government and provincial governments, by legislative and
other measures, must support and strengthen the capacity
of
municipalities to manage their own affairs, to exercise their powers
and to perform their functions.”
81
Section 156(1)(a) of the Constitution provides:
“
(1)
A municipality has executive
authority in respect of, and has the right to administer—
(a)
the
local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5”.
This provision vests executive authority, in
respect of local government matters listed in Part B of Schedule 4
and Part B of
Schedule 5, in municipalities. However, the authority
of municipalities in respect of matters listed in these parts is not
exclusive.
The executive authority held by other spheres of
government, in respect thereof will remain. Municipalities
therefore have
the right to administer their affairs subject to
national and provincial legislation.
82
Section 156(4) and (5) provides:
“
(4) The national government and provincial
governments must assign to a municipality, by agreement and subject
to any conditions,
the administration of a matter listed in Part A
of Schedule 4 or Part A of Schedule 5 which necessarily relates to
local government,
if—
(a) that matter would most effectively be administered
locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power
concerning a matter reasonably necessary for, or incidental to, the
effective
performance of its function.”
All the municipalities can do is
to insist that functions mentioned in the Schedules referred to in
section 156(4) be assigned
to them under that section. This section
clearly illustrates that the Constitution did not seek to confer
unlimited plenary
powers on municipalities in respect of all matters
relating to government affairs. See in this regard
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
[2008] ZAGPHC 30
;
2008
(4) SA 572
(W) at para 49.
83
Section 155(7) provides:
“
The
national government, subject to section 44, and the provincial
governments have the legislative and executive authority to
see to
the effective performance by municipalities of their functions in
respect of matters listed in Schedules 4 and 5, by
regulating
the exercise by municipalities of their executive authority referred
to in section 156(1).” (Emphasis added.)
84
See above n 79.
85
See above n 81.
86
Ordinance 15 of 1986. It applies to local
authorities by virtue of item 2 of Schedule 6 of the Constitution,
dealing with continuation
of existing legislation.
87
Above n 81.
88
See in this regard section 6(4) of the
Infrastructure Act which states the following with regard to route
determinations:
“
The
MEC must also
consult
with all municipalities in whose areas the route will be situated
and request them . . . to submit written comments on the preliminary

route report and environmental report with specific reference also
to the effect which the proposed route may have on any spatial

framework or other strategic municipal development planning of the
municipality concerned.” (Emphasis added.)
89
See
Pharmaceutical Manufacturers Association of South Africa and
Another: In Re: Ex Parte Application of the President of the
Republic
of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 79.
90
East
Zulu Motors (Proprietary) Limited v Empangeni/Ngwelezane
Transitional Local Council and Others
[1997] ZACC 19; 1998 (2)
SA 61
(CC)
[1997] ZACC 19
; ;
1998
(1) BCLR 1
(CC)
at para 32.
91
See above n 2 at para 58.
1
22 of 1957 (Transvaal).
2
Section 10(3) provides:
“
Every
preliminary design of a provincial road within the Province,
including such design in the form of basic planning, which
has been
accepted by—
(
a) the Administrator
defined in the Roads Ordinance, 1957 (Ordinance 22 of 1957);
(b) the Premier of the Province; or
(c) the MEC,
under
that Ordinance before the date of commencement of this section and
which is mentioned in a notice published in the
Provincial
Gazette
, shall as from the
commencement of this section, be deemed to have been accepted by the
MEC for implementation in terms of sections
8(6), (8) and (9) and
section 9 shall as from the commencement of this section be
applicable to such preliminary design, provided
that for purposes of
application of the said sections, section 8(7) shall be deemed to
have been complied with at the date of
commencement of this
section.”
3
Section 8(6) provides:
“
The
MEC must thereafter consider the draft preliminary design with due
regard to—
(a)
the environmental report
contemplated in subsection (4)
(
b
)
or section 6(3)(
a
),
as the case may be; and
(b) such comments of interested and
affected parties as may have been submitted in consequence of the
notice contemplated in
subsection (5);
and
may then accept the preliminary design for implementation with such
amendments as the MEC may deem necessary.”
4
Section 9(1) provides:
“
As
from the publication of the notice in respect of the acceptance of a
preliminary design as contemplated in section 8(7), and
despite the
provisions of any law to the contrary—
(a)
no application for the establishment of a
township, for subdivision of land, for any change of land use in
terms of any law or
town planning scheme or for any authorisation
contemplated in the ECA or NEMA may be granted—
(i)
in respect of an
area within the road or rail reserve boundaries of the preliminary
design, provided that the MEC may on written
application by the
applicant relax the provisions of this subsection in respect of an
access road on such conditions as the MEC
may deem fit, including—
(aa)
a
condition that the access road be substituted by another road or
street serving the same function as the access road; and
(bb)
a
condition for amending the preliminary design requiring the
applicant to pay all or any of the costs incurred by the MEC in
the
process, in which case section 38 applies;
(ii) on the basis of future access to the
provincial road to which the said preliminary design relates, except
on the basis
of access provided for in the said preliminary design,
or amendment thereof on application in terms of section 8(9) or
otherwise;
(b) sections 46, 48 and 49 apply, with the
necessary changes, to a building restriction area which exists in
respect of the road
and rail reserve boundaries, as shown in the
preliminary design, inasmuch as these sections are applicable to
building restriction
areas, but sections 46(4), (5), and (9) and
sections 48(7) and (8), do not apply; and
(c) no application for a change in land use in
respect of a portion of land adjacent to the road reserve boundary
of a preliminary
design in an urban area may be granted without the
written comments of the MEC first having been obtained and
considered in accordance
with the applicable planning procedure by
the authority empowered to grant changes in land use, which must
duly consider such
comments, and section 7(6), (7) and (8) applies
in such a case, with the necessary changes.”
5
Section 9(2) provides:
“
After
the publication of the notice contemplated in section 8(7) and
despite any law to the contrary, no service provider may
after
commencement of this section, lay, construct, alter or add to any
pipeline, electricity line or cable, telephone line or
cable, or any
other structure on, over or under the area within the road or rail
reserve boundaries as shown in the preliminary
design or may
construct, alter or add to any structure of any nature whatsoever
on, over or under such area, except—
(a) if the written position of the
MEC has been obtained
and in terms of such
conditions as the MEC may determine; or
(b) in terms of an existing registered servitude.”
6
First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service and Another; First
National Bank of SA
Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC).
7
Article 1 provides:
“
Every
natural person or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall be deprived of his
possessions
except in the public interest and subject to the conditions provided
for by law and by the general principles of
international law.
The
preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary
to control the
use of property in accordance with the general interest or to secure
the payment of taxes or other contributions
or penalties.”
I should add that the use of the verb “deprive”
here might give cause for confusion. In European jurisprudence, the
second
sentence of this Protocol has been taken to refer to
deprivation of ownership in its entirety, not merely of one or more
of the
incidents of ownership. In our jurisprudence consistently
with most common law jurisdictions, however, this Court has held
that
“deprive” in section 25(1) does not refer to loss of
ownership but to a loss of one or more of the incidents of
ownership,
whether legal or factual. The loss of aspects of
ownership less than ownership itself is generally considered under
the first
sentence of article 1 of the Protocol, the right to
peaceful enjoyment of possessions in the third sentence. See
Handyside v The United Kingdom
Series
A No 24
[1976] ECHR 5
;
[1976] 1 EHRR 737
at para 62. See also
the useful discussion in Allen
Property
Rights and the Human Rights Act
(Hart,
Oxford 2005) at 112.
8
See
Sporrong and
Lönnroth v Sweden
Series
A No 52
[1983] EHRR 35
at 69.
9
Section 33 of the Constitution reads:
“(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been
adversely affected by administrative action has the right to be
given written reasons.
(3) National legislation must be
enacted give effect to these rights, and must—
(a) provide for the review
administrative action by a court or, where appropriate, an
independent and impartial tribunal;
(b) impose a duty on the state to
give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.”
10
Section 8(8) of the Infrastructure Act reads as
follows:
“
A
preliminary design in respect of which a notice in terms of
subsection (7) has been published, or sections thereof, may be
amended by the MEC and in that event the provisions of subsections
(1) to (7) apply, with the necessary changes, provided that
where
such amendment deviates from the said preliminary design to the
extent that both road or rail reserve boundaries of the
amendment
fall outside the road or rail reserve boundaries of the said
preliminary design, a route determination in terms of
sections 6(1)
to (11) must first be done to the extent that such road or rail
reserve boundaries of the amended design so fall
outside.”
Section 8(9) reads:
“
The power of the MEC contemplated in subsection (8),
may also be exercised on written application by anyone who desires
that such
preliminary design be amended, accompanied by payment of a
prescribed fee, and in that event the provisions of sections 38(2)
to (6) apply to such application.”
11
See
the partly dissenting opinion of Judge Walsh in
Sporrong
,
above n 8 at 68-9, which emphatically recognises the legitimacy of
the planning process.