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By unknown | Aug 28, 2009 | COMMENTS [ 0 ]

THE Constitutional Court yesterday rejected a bid by a group of property owners to challenge road plans that affected their properties..

THE Constitutional Court yesterday rejected a bid by a group of property owners to challenge road plans that affected their properties..

The owners of more than 20 properties in Gauteng had argued about the validity of Section 10(1) and (3) of the Infrastructure Act 2001 and, corresponding notices on the planning of provincial roads.

The provisions allow Gauteng authorities to subject route determinations and preliminary designs of provincial roads, which had been approved under a previous regulatory scheme, to the regulatory measures under the act.

The act prohibits the granting of applications for establishment of townships, subdivision of land and any change of land use as well as provision of services such as telephone lines within the land that falls within determined routes and designs, unless an application to that effect is submitted by a concerned property owner.

According to the judgment, the properties included land intended for a shopping centre and 600 luxury cluster houses.

The roads would either have denied access to the properties, or prevented development of portions of the land.

One applicant had the intended R3,5million sale of a property cancelled when the road plans emerged because a potential developer would not be able to get the land rezoned.

She alleged that the property was unlikely to be sold for more than R800000. Another applicant, who wanted to develop a township, said a proposed road network would have limited the number of stands, resulting in a loss of R7million in profit.

The landowners applied to the South Gauteng high court in Johannesburg, complaining that the provisions arbitrarily deprived them of their land in violation of section 25(1) of the Constitution; amounted to expropriation without just and equitable compensation; failed to facilitate cooperative governance; and that the conduct of the MEC constituted unjust administrative action.

The applicants were Reflect-All, Sixbar Trading, Biccard Realty, Roy Mountjoy, Patricia Naoumoff, Township Realtors, Stella Worsley and Mnandi Property Developers.

The Gauteng MEC for public transport, roads and works and the Gauteng premier opposed this, contending that the provisions were constitutionally valid.

The high court declared section 10(3) of the Infrastructure Act invalid, finding that the restrictions did arbitrarily deprive property owners of their properties.

But the court refused to declare section 10(1) invalid, because though it deprived them of their property, the deprivation was not arbitrary.

The declaration of invalidity was then referred to the Constitutional Court for confirmation and the landowners also applied for leave to appeal against the court's refusal to declare section 10(1) unconstitutional.

A majority judgment, written by Judge Bess Nkabinde, stressed that although the protection of the right to property was a fundamental human right, property rights in the new constitutional democracy were notabsolute.

They were determined and afforded by law and could be limited in light of a greater public interest. The long-term planning of a strategic road network was for the benefit of the public.

An inadequate transport system could stifle economic growth and lead to expensive re-routing, especially if planning was done piecemeal and in build-up areas.

A mass review of the designs at the instance of the state would, in Nkabinde's view, both cripple the state financially and be extremely burdensome to implement.

She held that while both provisions did deprive the landowners of portions of their land that fell within the road reserve, neither deprivation was arbitrary.

In rejecting the contention that section 10(3) amounted to expropriation without just and equitable compensation, Nkabinde held that the provincial government had not acquired any rights in the affected land.

The majority declined to confirm the order of constitutional invalidity made in favour of the landowners by the court, and dismissed the application for leave to appeal. They upheld the government's cross-appeal, set aside the court's costs order and replaced it with one that each party should pay its own costs. - Sapa


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