By Peter Rogers

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FORFEITURE OF IMMOVABLE PROPERTY -- CONSTITUTIONAL ISSUES --

The Issue:

The constitutionality of forfeiture of immovable property. Particularly, to what extent does the Constitution allow for rights in immovable property to be abrogated by statute?

STRUCTURE OF MY THESIS

I: INTRODUCTION

II: CASE STUDY: CITY OF CAPE TOWN DRAFT PROBLEM BUILDING BYLAW 2009

III: PREVENTION OF ORGANISED CRIME ACT [POCA]

IV: CONSTITUTIONALITY

V: APPLICATION TO THE BYLAW

THE BYLAW

“problem building” includes any building or land that shows elements of thefollowing:(a) appears to have been abandoned by the owner…(b) is derelict in appearance, overcrowded or is showing signs of becomingunhealthy, unsanitary, unsightly or objectionable;(c) is the subject of numerous complaints from the public…(d) is illegally occupied;(e) refuse or waste material is accumulated, dumped, stored or depositedon such building; or(f) any building partially completed, abandoned or structurally unsound andposing any risk contemplated in paragraphs (a) to (e).

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S 5 (2) The City may…clean, repair, renovate, repaint, alter, close, demolish orsecure any problem building at the cost of the owner.

S 5(5) (a) order the owner of any problem building to remove…any person occupying or working [sic], or who for any other purpose is in such problem building…(b) order any person occupying or working, or who for any other purpose isin any problem building, to vacate such building.

S 8(2) A person who is guilty of an offence in terms of this By-law is uponconviction liable to a fine of R20 000.00 or imprisonment for a period not

exceeding two years or to both.

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The Three Constitutional Issues

1. Is the forfeiture arbitrary?

2. Does the forfeiture amount to an expropriation?

3. Procedural – does the bylaw amount to an eviction?

S 25 (1) & (2)

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DEPRIVATION

EXPROPRIATION

FNB CASE: THE CC APPROACH

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S 25(1)

•Unlawful deprivation?

•If yes

S 36

•Can it be saved under s 36?

•If yes

S 25(2)

•Unlawful expropriation?

•If yes

S 36

•Can it be saved under s 36?

PROBLEMS

• Uncertainty

• Inconsistency – an unlawful deprivation might nonetheless be a lawful expropriation.

!!??!!??

De Waal Argument:

• You can never use s 36 iro s 25• Suppose unlawful ito s25 (1) because not a

law of general application.• Says s 36 “the rights in the BoR may only be

limited ito a law of general application…”• Thus to justify must show that a law not of

general application is of general application.

!!??!!??

Michelman

• Rejects De Waal argument

• A law that is arbitrary can be reasonable and justifiable

• The starting point is always ‘deprivations’

• Therefore every case begins with arbitrariness

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FNB: Sufficient Reason

• Deprivation is arbitrary when the law does not provide sufficient reason for the deprivation or is procedurally unfair

• Sufficient reason is a flexible concept that spans from mere rationality to full proportionality

The Next Step

• The POCA cases suggest that forfeiture of immovable property requires proportionality [ie highly reviewable]

• Therefore the bylaw could be arbitrary

• But can it be saved by s 36?•

Bibliography

CasesFirst National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (4) SA 768 (CC)Mohunram and Another v National Director Public Prosecutions and Another (Law Review Project as Amicus Curiae)

2007 4 SA 222 (CC)Prophet v National Director Public Prosecutions [2006] JOL 18376 (CC)

StatutesConstitution of the Republic of South Africa, 1996City of Cape Town Problem Building Bylaw (draft) 2009

OtherIan Currie & Johan de Waal The Bill of Rights Handbook 5ed 2005Frank Michelman “Against regulatory taking: in defence of the two-stage inquiry: a reply to Theunis Roux” in Michael

Bishop & Stu Woolman (eds) Constitutional Conversations 2008