A hundred years of demolition orders : a constitutional analysis

[摘要] ENGLISH ABSTRACT: Ownership, and especially the ownership of land, consists of rights as well as duties.The social responsibilities of the owner depend on the prevailing needs of the public (asexpressed in legislation) and are subject to change. Section 25(1) of the Constitutionimpliedly recognises the social obligations of the property owner insofar as it confirmsthat ownership can be regulated by the state in the public interest. Section 25(1) alsosets requirements for the interference with property rights and, in so doing, recognisesthat the social obligations of the property owner are not without boundaries.In its landmark FNB decision the Constitutional Court gave content and structureto a section 25(1) challenge. The Constitutional Court held that deprivations will bearbitrary for purposes of section 25(1) if the law of general application does not providesufficient reason for the deprivation or is procedurally unfair. The Constitutional Courtelaborated that 'sufficient reason' had to be determined with reference to eightcontextual factors which reflect the complexity of the relationships involved in thedispute.With reference to section 25(1) and FNB this dissertation considers theconstitutional implications of two types of statutory interference with the owner's right touse, enjoy and exploit his property. Firstly, the dissertation considers the owner'sstatutory duty in terms of the National Building Regulations and Building Standards Act103 of 1977 to demolish unlawful and illegal building works in certain instances.Secondly, the dissertation considers the limitations imposed by the National HeritageResources Act of 25 of 1999 and the Prevention of Illegal Eviction from and UnlawfulOccupation of Land Act 19 of 1998 (PIE) on the owner's right to demolish historic orunlawfully occupied structures.This dissertation argues that building and development controls, historicpreservation laws and anti-eviction legislation are legitimate exercises of the state'spolice power. Generally, these statutory interferences with ownership will not amount tounconstitutional deprivation of property. Nevertheless, there are instances whereregulatory laws cannot be applied inflexibly if doing so results in excessive interferenceswith property rights. The FNB substantive arbitrariness test indicates when the law imposes disproportionate burdens on land owners. Furthermore, the non-arbitrarinesstests shows when it might be necessary to mitigate disproportionate burdens, imposedin terms of otherwise legitimate regulatory laws, by way of German-style equalisationmeasures, which are comparable to the constitutional damages granted by SouthAfrican courts.This dissertation concludes that in the past century the South African legal systemhas progressed from the apartheid regime, which protected the rights and interests ofthe white minority, to a constitutional regime which safeguards the rights of all SouthAfricans. There are two legal developments that may lead to positive change in the nextcentury, namely active pursuance of the notion that ownership consists of rights andduties and the development of equalisation-style measures, incorporated intolegislation, to alleviate excessive burdens imposed on property owners in the publicinterest.

[发布机构] Stellenbosch University