Constitutional & Human Rights Litigation

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Deconstructing section 25(3) of the Constitution: have the courts adopted a progressive approach in interpreting section 25(3): a critical study of Uys NO and another v Msiza and others?
(2020) Luthuli, Rodell Mandla.; Freedman, David Warren.
Section 25(2) of the Constitution provides that property may expropriated only in terms of law of general application for a public purpose or in the public interest, subject to compensation. Section 25(3) provides further that the amount of compensation, and the manner and time of payment, must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regards to all relevant circumstances, including, inter alia, the purpose of the expropriation (s 25(3)(e)). Academic commentators such as Du Plessis have argued that these provisions implicitly provide for compensation below market value or nil compensation (so-called “compensation without expropriation”) where the purpose of an expropriation is a constitutionally special one, such as land reform. In light of this fact, they argue further, it is unnecessary to amend section 25 to explicitly provide for compensation below market value or nil compensation (see E du Plessis “The public purpose requirement in the calculation of just and equitable compensation” in B Hoops and E Marias (eds) Rethinking expropriation law I: Public interest in expropriation (2014) at 376). While this argument was adopted by the Land Claims Court in Msiza v Director-General Department of Rural Development and Land Reform 2016 (5) SA 513 (LCC), it appears to have been rejected, at least implicitly, by the Supreme Court of Appeal in Uys NO v Msiza 2018 (3) SA 440 (SCA). The judgment of the Supreme Court of Appeal thus appears to support the decision taken by the National Assembly to amend section 25 of the Constitution to authorise expropriation of land for land reform purposes in those circumstances identified in an Act of Parliament. The purpose of this dissertation is to critically analyse the manner in which the Supreme Court of Appeal interpreted and applied section 25(3) of the Constitution in Uys NO v Msiza.
Separation of powers in the South African context: Is there space for the political question doctrine?
(2019) Ndlovu, Nkosinathi Riddick.; Freedman, David Warren.
In a constitutional democracy the courts are usually given the power of judicial review. This power allows the courts to review legislative and executive conduct and test it against the constitution. If the conduct in question is found to be unconstitutional, then the courts can declare that conduct to be invalid. However, this power gives rise to some difficult questions and one of these is how can the courts exercises their powers without overreaching and thereby infringe the separation of powers principle. The courts have tried not to overreach their powers by adopting different approaches to judicial review. In the United States the courts have adopted a political question doctrine approach or the non-justiciable approach. In South Africa the courts have adopted the judicial self-restraint approach. Each of these will be discussed in this dissertation. The dissertation will also consider the advantages and disadvantages of each of these reviews. Furthermore, it will consider some of the criticism that have been levelled against the judicial self-restraint approach. This dissertation aims to critically examine the political question doctrine and determine whether it could contribute to the development of the South African separation of powers. However, this dissertation does not call for the political question doctrine to replace the judicial self-restraint approach adopted by the Constitutional Court.

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Browsing Constitutional & Human Rights Litigation by Author "Freedman, David Warren."