Arun Property Development (Pty) Ltd v City of Cape Town (CCT78/14) [2014] ZACC 37; 2015 (3) BCLR 243 (CC); 2015 (2) SA 584 (CC) (15 December 2014)

Arun Property Development (Pty) Ltd v City of Cape Town (CCT78/14) [2014] ZACC 37; 2015 (3) BCLR 243 (CC); 2015 (2) SA 584 (CC) (15 December 2014)

Section 28 of LUPO vests ownership of all public streets and public places in the local authority upon confirmation of a subdivision, but only land required for the normal needs of the development vests without compensation. Excess land, beyond normal needs, vests in the local authority but attracts a statutory right to compensation. The structure plan is not a 'policy' for purposes of section 28 and does not exclude compensation. Vesting of excess land constitutes expropriation, not mere deprivation, and must be compensated in accordance with section 25(2) of the Constitution and the Expropriation Act. Arun was not required to exhaust appeal or review remedies before claiming...

Citation
[2014] ZACC 37
Parties
Appellant: Arun Property Development (Pty) Ltd; Respondent: City of Cape Town
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
15 December 2014
Case Number
CCT 78/14
Procedural Posture
Civil Appeal / Appeal From Supreme Court of Appeal, After Trial and Appeal in Western Cape High Court
Outcome
Appeal upheld; Supreme Court of Appeal order set aside; High Court order reinstated in amended form.
Judges
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J, Zondo J
Legal Topics
Expropriation, Compensation for Excess Land, Structure Plan Policy, Arbitrary Deprivation, Interpretation of Legislation, Exhaustion of Remedies
Land and Property Constitutional Law Civil Procedure Expropriation Compensation for Excess Land Structure Plan Policy Arbitrary Deprivation Interpretation of Legislation +1 more

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Parties

Arun Property Development (Pty) Ltd

Appellant

City of Cape Town

Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court of Appeal, After Trial and Appeal in Western Cape High Court

Legal Issues

  1. 1 Does section 28 of the Land Use Planning Ordinance (LUPO) require compensation for excess land vested in a local authority beyond the normal needs of a subdivision.
  2. 2 Is a structure plan a 'policy' for purposes of section 28 of LUPO, excluding compensation.
  3. 3 Does vesting of land under section 28 amount to expropriation requiring compensation under section 25 of the Constitution.

Ratio Decidendi

Section 28 of LUPO vests ownership of all public streets and public places in the local authority upon confirmation of a subdivision, but only land required for the normal needs of the development vests without compensation. Excess land, beyond normal needs, vests in the local authority but attracts a statutory right to compensation. The structure plan is not a 'policy' for purposes of section 28 and does not exclude compensation. Vesting of excess land constitutes expropriation, not mere deprivation, and must be compensated in accordance with section 25(2) of the Constitution and the Expropriation Act. Arun was not required to exhaust appeal or review remedies before claiming...

Court Disposition

Appeal upheld; Supreme Court of Appeal order set aside; High Court order reinstated in amended form.

Orders

  • The appeal succeeds.
  • The order of the Supreme Court of Appeal is set aside.