Case Number 520/99
Reportable
IN THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA
In the matter of
GC STEINBERG                                                               Appellant
AND
SOUTH PENINSULA MUNICIPALITY                      Respondent
Composition of the Court:
HEFER ACJ; HARMS,
MPATI JJA; CLOETE
AND BRAND AJJA
Date of hearing:
20 August 2001
Date of delivery:
19 September 2001
SUMMARY
Deprivation/expropriation of rights in property – s 25 of the Constitution – ‘constructive’
expropriation – approval of road scheme not yet implemented does not amount to a
taking.
JUDGMENT

CLOETE AJA
INTRODUCTION
[1] The appellant seeks an order directing the respondent to take all steps
necessary ‘to complete the expropriation process implemented in respect of’,
or alternatively, to expropriate, certain immovable property of which she is
the owner.  Reliance for this relief was placed on the doctrine recognised in
some foreign jurisdictions and variously termed ‘constructive’ or
‘regulatory’ expropriation or ‘inverse condemnation’.  The application was
dismissed by Traverso J in the Cape of Good Hope Provincial Division and
the appellant appeals with the leave of this Court.
[2] The relevant facts can be stated briefly.  The property is situated in
Wynberg in the area of jurisdiction of the respondent, which is a local
authority.  The property falls within the area affected by a road scheme.  The
road scheme (having first been proclaimed by a Provincial Notice published
in the Provincial Gazette of 26 March 1969), was approved by the
Administrator in Provincial Notice 3/1974 dated 16 January 1974 published
in Provincial Gazette 3761 on 25 January 1974.  If and when the road
scheme is implemented as proclaimed, a road will cut across the property.
The appellant purchased the property in 1994 and took transfer in 1997.  (It

may be said, in passing, that before the appellant purchased the property, she
was aware of the road scheme.)
THE LAW
[3] Section 25 of the Constitution provides, to the extent relevant for
present purposes, as follows:
‘(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
(2)
Property may be expropriated only in terms of law of general application –
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner
of payment of which have either been agreed to by those affected or
decided or approved by a court.’
[4] A fundamental distinction  is drawn in section 25 between two kinds
of taking: a deprivation and an expropriation.1  It is only in the case of an
expropriation that there is a constitutional requirement for compensation to
be paid.  The purpose of the distinction is to enable the State to regulate the
use of property for the public good, without the fear of incurring liability to
owners of rights affected in the course of such regulation.  The essence of
the distinction and the fact that it is well established in our law, appears from

1 Chaskalson and Lewis, in the chapter on property in Constitutional Law of South Africa, para 31.6; van
der Walt The Constitutional Property Clause: A Comparative Analysis of Section 25 of the South African
Constitution of 1996 (1997) 120 and Constitutional Property Clauses (1999) 333; Kleyn ‘The
constitutional protection of property: a comparison between the German and the South African approach’
(1996) 11 SAPL 402 427; Southwood, The Compulsory Acquisition of Rights (2000) 14-15.

the following passage in Harksen v Lane NO and Others 1998 (1) SA 300
(CC) at 315G – 316C:
‘[33]
The distinction between expropriation (or compulsory acquisition as it is
called in some other foreign jurisdictions) which involves acquisition of rights in
property by a public authority for a public purpose and the deprivation of rights in
property which fall short of compulsory acquisition has long been recognised in
our law.  In Beckenstrater v Sand River Irrigation Board, Trollip J said:
“(T)he ordinary meaning of ‘expropriate’ is ‘to dispossess of ownership,
to deprive of property’ (see eg Minister of Defence v Commercial Properties Ltd
and Others 1955 (3) SA 324 (N) at 327G); but in statutory provisions, like secs 60
and 94 of the Water Act, it is generally used in a wider sense as meaning not only
dispossession or deprivation but also appropriation by the expropriator of the
particular right, and abatement of extinction, as the case may be, of any other
existing right held by another which is inconsistent with the appropriated right.
That is the effect of cases like Stellenbosch Divisional Council v Shapiro 1953 (3)
SA 418 (C) at 422-3, 424; SAR & H v Registrar of Deeds 1919 NPD 66; Kent NO
v SAR  & H 1946 AD 398 at 405-6; and Minister van Waterwese v Mostert and
Others 1964 (2) SA 656 (A) at 666-7.”’
[5] A similar distinction is made in other countries, for example,
Zimbabwe 2 and Malaysia 3 although the Supreme Court of India has held4
that there was no difference between the meaning of ‘deprived’ in Art 31(1)
and ‘acquisition’ or  ‘taking possession of’ in Art 31(2) of the Indian
Constitution.
[6] The principle of constructive expropriation creates a middle ground,
and blurs the distinction, between deprivation and expropriation.  According

2 Hewlett v Minister of Finance and Another 1982 (1) SA 490 (ZS) especially at 502 F-H where it is
pointed out that the distinction is contained in almost all the post-colonial constitutions granted by Britain
in Africa.
3 Government of Malaysia and Another v Selangor Pilot Association (a Firm) [1978] AC 337 (PC)
347G-348A.
4 The State of West Bengal v Subodh Gopal Bose and Others [1954] SCR 587; Dwarkadas Shrinivas of
Bombay v The Sholapur Spinning and Weaving Co Ltd and Others[1954] SCR 674; Saghir Ahmad v The
State of Uttar Pradesh and Others [1955] 1SCR 707.

to that principle a deprivation will in certain circumstances attract an
obligation to pay compensation even although no right vests in the body
effecting the deprivation.  It is the determination of those circumstances
which can give rise to problems.5  The Appellant’s counsel urged this Court
to have regard to the position in the United States of America.
[7] It is extremely difficult to distil any single principle from the body of
case law built up by the Supreme Court of the United States of America
around the Fifth Amendment and the Fourteenth Amendment to the
Constitution (usually referred to as the ‘Due Process Clause’ and the
‘Takings Clause’ respectively).    In Pennsylvania Coal Co v Mahon 260 US
393, 415 (1922), Holmes J writing for the Court said:
‘The general rule at least is, that while property may be regulated to a certain
extent, if regulation goes too far it will be recognised as a taking.’
The problem is to determine when the exercise of a regulatory power ‘goes
too far’ so as to become a regulatory taking which requires compensation.6
The Supreme Court has itself said in Penn Central Transportation Co et al v
New York City et al 438 US 104, 123-4 (1978):

5 For example, the relatively straightforward position in Switzerland (as to which see van der Walt
Constitutional Property Clauses 359 ff) may be contrasted with the complicated and uncertain position in
Germany (as to which see Kleyn, op. cit. note 1, supra).
6 Some of the numerous contributions made by academic authors on the point have been collected by van
der Walt, ‘The Constitutional Property Clause’ 121 footnote 21.

‘While this Court has recognised that the “Fifth Amendment’s guarantee ...[is]
designed to bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole,” Armstrong v United States, 364 U.S. 40, 49 (1960), this Court, quite
simply, has been unable to develop any “set formula” for determining when
“justice and fairness” require that economic injuries caused by public action be
compensated by the government, rather than remain disproportionately
concentrated on a few persons.’
This statement has been repeated by the same Court: Kaiser Aetna v United
States 444 US 164, 174-5 (1979); Hodel v Irving 481 US 704, 713-4 (1987);
Lucas v South Carolina Costal Council 505 US 1003, 1015 (1992).
[8] Despite the clear distinction made in section 25 of the Constitution
between deprivation and expropriation, there may be room for the
development of a doctrine akin to constructive  expropriation in South
Africa – particularly where a public body utilises a regulatory power in a
manner which, taken in isolation, can be categorised as a deprivation of
property rights and not an expropriation, but which has the effect, albeit
indirectly, of transferring those rights to the public body: see, for example,
the dissenting judgment of Lord Salmon in Government of Malaysia v
Selangor Pilot’s Association (supra, footnote 3) at 352G – 353H and 357D-
E and the majority judgment at 349H.7  However, development of a more
general doctrine of constructive expropriation, even if permissible in view of

7 Where it is said that Lord MacDermott’s decision in Ulster Transport Authority v James Brown & Sons
Ltd [1953] NI 79 ‘[H]ad regard to ... the fact that statutory prohibition was a colourable device to secure
property without compensation ...’

the express wording of s 25 of the Constitution, may be undesirable both for
the pragmatic reason that it could introduce confusion into the law, and the
theoretical reason that emphasis on compensation for the owner of a right
which is limited by executive action could for instance adversely affect the
constitutional imperative of land reform embodied in subsections (4), (6) and
(8) of section 25 itself.8
[9] It is, however, not necessary to decide whether, and if so, subject to
what limitations, a doctrine of constructive expropriation can or should be
developed in South Africa.  There is a more fundamental problem facing the
appellant in the present matter.
THE POSITION OF THE APPELLANT
[10] The appellant’s principal complaint is that she has been unable to sell
the property.  As an afterthought she has added the further complaint that
she is unable to erect a music studio on the property for the use of her

8 Those subsections provide:
‘(4)  For the purposes of this section-
(a)the public interest includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources; and
(b)property is not limited to land.
(6)  A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either
to tenure which is legally secure or to comparable redress.
(8)  No provision of this section may impede the state from taking legislative and other measures
to achieve land, water and related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions of this section is in accordance

husband, who is a musician.  She attributes both disabilities to the existence
of the road scheme.  The first allegation is not properly established on the
facts, but it is not necessary to rest the decision of the appeal on this narrow
ground alone.  The second allegation is wrong in law as there is nothing
precluding the appellant from erecting the studio, if it would not fall within
or five metres from the statutory width of the approved road; whereas if it
would fall within the area mentioned, it can be built with the approval of the
Administrator9 in which case compensation may not be payable were the
property to be expropriated.10  But it is by no means certain that the property
will be expropriated: approval of the road scheme does not oblige the
respondent to construct the road as envisaged in the scheme, or at all11 and

with the provisions of section 36(1).’
9  s. 17(1) of the Roads Ordinance no 19 of 1976 (C) provides:
‘Notwithstanding the provisions of any other law no person shall erect or install or cause or
permit to be erected or installed on land owned by him or under his management or control any structure
the whole or any portion of which falls within-
(a)  the statutory width, or
(b)  five metres from the boundary of the statutory width
of any public road except with the permission of and in accordance with plans, standards and specifications
approved by the road authority and, in the case of a road authority which is a council, of and by the
Administrator’.
‘Public road’ is defined in s. 2 as ‘a public road proclaimed as such in terms of section 3’.  The road which
will cut across the property if the road scheme is implemented, was proclaimed under s. 3(1).
10  s. 17 (4)(b) of the Ordinance provides:
‘Any permission or approval granted under this section shall –
(b) not be construed as derogating from the provisions of  section 34(2)’.
s. 34 deals with compensation.  Subs.(2) provides::
‘The provisions of this section shall not be construed so as to require or, except with the prior
approval of the Administrator, to authorise a road authority which is a council to pay compensation in
respect of improvements made within the statutory width of a public road or public path after such width
was fixed.’
11   s. 3(2) of the Ordinance provides:

the scheme is presently under review.  In all the circumstances, it is not
surprising that the appellant’s counsel found himself unable to say when the
property was ‘expropriated’, how the compensation for the ‘expropriation’
was to be quantified and when and to whom such compensation became, or
would become, payable.
[11] The fallacy in the argument advanced on behalf of the appellant is that
it postulates that advance notification by a public authority of a possible or
even probable intention to embark on a course of conduct which, if
ultimately persisted in, must necessarily result in a taking, is to be equated to
an expropriation.  If this were the law a public authority such as the
respondent would be obliged to acquire and compensate the owners of all
rights which might be affected by a proposed undertaking in the public
interest, in advance of a final decision as to the extent of the undertaking or
even whether it will be implemented at all.  The consequence would be that
forward planning and good government would become economically
impossible.
[12] The proper analysis of the position is that although the approval of the
road scheme might affect the value of the property, it was nothing more than

‘The Administrator may, either of his own accord or on the application of the road authority
concerned ... by proclamation in the Provincial Gazette withdraw any proclamation issued in terms of
subsection (1)’.

advance notification of a possible intention to construct a road which, if
implemented in the form approved, would result in a taking.   It was not in
itself a taking.  (Compare Davies and Others v Minister of Lands,
Agriculture and Water Development 1997 (1) SA 228 (ZSC) at 237 C-D.)
[13] The learned judge in the court a quo reasoned that the appellant at all
times knew about the road scheme and acquired the property subject thereto;
that the commercial realities facing the appellant were not brought about by
any intervening legislative or administrative action on the part of the
respondent; and that it could accordingly not be said that the appellant had
been deprived of her property, in as much as the limitations of her
proprietary rights existed at the time she acquired the property.  In view of
the conclusion reached above, it is not necessary to consider the correctness
of this approach; and in view of the relief sought by the appellant, it is
unnecessary to consider what rights, if any, the appellant may have to
challenge the approval of the road scheme or what rights she or her
successor in title may have if a decision is made to implement the scheme: cf
Palazzolo v Rhode Island et al, a decision of the United States Supreme
Court dated 28 June 200112.

CONCLUSION
[14] The appeal accordingly cannot succeed.  The only point which
remains for consideration is whether the respondent should be allowed the
costs of two counsel.  The arguments advanced on behalf of the appellant, if
upheld, would have had serious consequences for the respondent.
Furthermore, although leave to appeal was refused by the court below, it was
granted by this Court.  In the circumstances it was a wise and reasonable
precaution for the respondent to brief two counsel on appeal.
ORDER
[15] The appeal is dismissed with costs which shall include the costs of
two counsel.
......................
TD CLOETE
ACTING JUDGE OF APPEAL
CONCUR
HEFER  ACJ
HARMS   JA

12The decision is not yet reported but may be found at http://supct.law.cornell.edu/supct/html/99-
2047.ZS.html.

MPATI     JA
BRAND AJA