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By Peter Rogers

FORFEITURE OF IMMOVABLE PROPERTY -- CONSTITUTIONAL ISSUES --. By Peter Rogers. 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? .

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By Peter Rogers

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  1. FORFEITURE OF IMMOVABLE PROPERTY -- CONSTITUTIONAL ISSUES -- By Peter Rogers

  2. 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?

  3. 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

  4. THE BYLAW • “problem building” includes any building or land that shows elements of the • following: • (a) appears to have been abandoned by the owner… • (b) is derelict in appearance, overcrowded or is showing signs of becoming • unhealthy, 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 deposited • on such building; or • (f) any building partially completed, abandoned or structurally unsound and • posing any risk contemplated in paragraphs (a) to (e).

  5. S 5 (2) The City may…clean, repair, renovate, repaint, alter, close, demolish or • secure 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 is • in 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 upon • conviction liable to a fine of R20 000.00 or imprisonment for a period not exceeding two years or to both.

  6. The Three Constitutional Issues • Is the forfeiture arbitrary? • Does the forfeiture amount to an expropriation? • Procedural – does the bylaw amount to an eviction?

  7. S 25 (1) & (2)

  8. FNB CASE: THE CC APPROACH 8

  9. !!?? !!?? PROBLEMS • Uncertainty • Inconsistency – an unlawful deprivation might nonetheless be a lawful expropriation.

  10. !!?? !!?? 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.

  11. Michelman • Rejects De Waal argument • A law that is arbitrary can be reasonable and justifiable

  12. The starting point is always ‘deprivations’ • Therefore every case begins with arbitrariness 12 12

  13. 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

  14. The Next Step • The POCA cases suggest that forfeiture of immovable property requires proportionality [iehighly reviewable] • Therefore the bylaw could be arbitrary • But can it be saved by s 36?

  15. Bibliography • Cases • First 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) • Statutes • Constitution of the Republic of South Africa, 1996 • City of Cape Town Problem Building Bylaw (draft) 2009 • Other • Ian Currie & Johan de Waal The Bill of Rights Handbook 5ed 2005 • Frank 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

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