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AGRI SA v MINISTER FOR MINERALS AND ENERGY 2013 (4) SA 1 (CC)MINISTER OF MINERALS AND ENERGY v AGRI SOUTH AFRICA 2012 (5) SA 1 (SCA) AGRI SOUTH AFRICA v MINISTER OF MINERALS AND ENERGY 2012 (1) SA 171 (GNP)AGRI SOUTH AFRICA v MINISTER OF MINERALS AND ENERGY; VAN ROOYEN v MINISTER OF MINERALS AND ENERGY 2010 (1) SA 104 (GNP) Importance The Agri SA matter was consciously pursued as a test case to obtain legal clarity on whether the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) constituted an expropriation of property. The test case was intended to be broad: Whilst the particular right to compensation Agri SA held was in respect of a right that the MPRDA classified as an “unused old order right”, in the SCA case heard and decided in 2012 counsel for Agri SA emphasized that it did not seek to distinguish the rights it held from any other mineral rights that previously existed or any other holder of such rights. If the MPRDA had indeed expropriated property, it has expropriated used and unused rights, rights to all manner of mineral commodities, and the rights of giant mining houses as well as the rights of rural farmers (and, the court might have added, indigenous rural communities). The gamble of the test case was therefore high: Just as much as the precedent could open up claims for compensation irrespective of the type of rights or rights holder, a precedent going against Agri SA could similarly shut down such claims. The Agri SA matter was finally heard in the High Court, Supreme Court of Appeal and Constitutional Court. Whilst Agri SA’s prospects initially looked good in the High Court, they lost on all substantive points in both the SCA and Constitutional Court. The Constitutional Court decision is a precedent for the proposition that while the MPRDA deprived private mineral rights holders of their rights, it did not expropriate them. It was therefore unnecessary for the State to pay out compensation. The major legal point on which the judgment turned, in both the SCA and Constitutional Court, was whether the State had acquired the rights previously held by private mineral rights holders. There were differing opinions on this but the majority view was that the custodianship exercised by the State did not amount to an acquisition of the rights, although none of the judgments attempts to define what custodianship means, beyond the state being a “facilitator” or a “conduit” for others to access South Africa’s mineral wealth. Both the SCA and Constitutional Court took pains to emphasize that the door remained open for more narrowly argued cases of expropriation to be laid before the court. Parties The principal parties in this series of cases were Agri South Africa, a federal association representing the interests of commercial farmers, and the Minister of Minerals and Energy. The Centre for Applied Legal Studies was an amicus in the case from 2011 onwards. For the final Constitutional Court case, Afriforum, Afrisake, and Floris Johannes Pool were also joined as friends of the court. Facts The first judgment in this matter was decided on 3 June 2009 in the Gauteng North High Court (henceforth referred to as Agri SA GNP(1)); the second was decided on 28 April 2011 in the Gauteng North High Court (henceforth referred to as Agri SA GNP(2)); the third hearing was in the Supreme Court of Appeal, decided on 31 May 2012 (henceforth referred to as Agri SA SCA; whilst the final Constitutional Court judgment was decided on 18 April 2013 (henceforth referred to as Agri SA CC). The facts common to these cases were as follows: In November 2001 the coal rights to a number of unnamed farms were bought by a company, Sebenza, for a sum of R1 048 000. Sebenza never obtained a prospecting or mining permit under the Minerals Act 50 of 1991, nor did it ever conduct prospecting or mining operations on the farms. On 29 April 2004, the eve upon which the MPRDA came into effect (1 May 2004), the members of Sebenza resolved to place the company under voluntary liquidation. The resolution was registered with the Registrar of Companies later in May 2004. By September 2004 provisional liquidators had been appointed and Sebenza’s coal rights were advertised for sale. Metsu Trading (Pty) Ltd purchased the coal rights for R700 000. After the purchase price had been paid the liquidators and Metsu received legal advice that the purported sale was void, as mineral rights as such had ceased to exist since the coming into effect of the MPRDA. In terms of item 8, Schedule of the MPRDA, unused old order rights continued to exist for one year after the date of commencement of the MPRDA during which time existing rights holders had an exclusive right to apply for conversion of the right. After this date the rights elapsed. As Sebenza had not applied, and not been in a position to apply for conversion, the liquidators repaid the purchase price to Metsu. In March 2006, the liquidators lodged a claim for compensation with the DMR, contending that Sebenza’s rights had been expropriated. At this point, Agri SA’s lawyers identified the Sebenza issue as an appropriate test case for purposes of clarifying whether the MPRDA had expropriated property, and the right to compensation was accordingly ceded to Agri SA. The DMR rejected the claim for compensation, establishing the basis for the institution of legal proceedings. The outcome of each of the cases in the series is as follows:Agri SA GNP (1) dealt with the exceptions the Minister of Mineral Resources had raised against Agri SA’s claims; i.e. that the claims were vague and embarrassing and were not sufficient to ground a cause of action. Agri SA won this case, after Hartzenberg J found that if was possible for the plaintiffs to prove that their rights had indeed been expropriated (this case is not further considered for purposes of this fact sheet). In Agri SA GNP(2) Agri SA again won on all substantive points. Du Plessis J found that the MPRDA had deprived Sebenza of its coal rights, that the deprivation had constituted an expropriation, and that Sebenza was entitled to compensation in the amount of R700 000. In Agri SA SCA Agri SA’s gains were reversed. Wallis JA (writing for the majority of the court) found that it was undesirable to determine a categorical approach to whether the rights deprived of and acquired under an expropriation needed to be the same, and a case-by-case approach had to be followed. Following an in-depth historical account of the history of mineral rights in South Africa, the court concluded that mineral rights were of little value without the power to determine the right to mine, which the State had over the years always allocated to itself. As such, the value of mineral rights ebbed and flowed with changes to the statutory regime governing the State’s power over the right to mine. The MPRDA was simply the latest in a string of statutory enactments conferring the right to mine. As such, there was no property and hence no deprivation or expropriation of property had taken place. Nugent JA and Mhlantla JA found that while previously existing mineral rights might have had some value, this value did not constitute property and hence they agreed with the outcome. In Agri SA CC the Minister of Mineral Resources won all substantive points. The majority opinion (penned by Mogoeng CJ) differed from the SCA in finding that a deprivation of rights had taken place, but not an expropriation. A critical element of this finding was that the State had not acquired the property previously held by Sebenza. As custodian the State was merely a conduit or facilitator, enabling a broader range of players to access the mining industry. The contextual interpretation of s 25, and the importance of balancing transformation imperatives with the protection of individual property rights also featured significantly in the court’s reasoning. The courts asked similar, but slightly differently-framed questions in the various cases, as detailed in the presentation of the legal issues and judgments of each case below. Relief Sought A judicial order determining whether the MPRDA had expropriated old order mineral rights, whether compensation was payable, and the amount of compensation payable in the particular case. Legal Issues & Judgment in Agri SA GNP(2) Issue 1: Did the MPRDA deprive Sebenza of its coal rights? Judgment: Du Plessis J approached this question by asking: What mineral rights did Sebenza enjoy before the commencement of the MPRDA? And what mineral rights did it enjoy thereafter? After noting the common law principle that the owner of the land owned the minerals on the surface and beneath the land (also known as the cuius est solum principle), and the possibility of severance of the mineral rights from the land (which emerged early on in South Africa’s history), the judge summarized what the holder of mineral rights could do with such rights prior to the commencement of the MPRDA. He could grant the right to prospect for or mine the relevant minerals to a third party, and receive payments and royalties in exchange (para 28). Apart from the commercial value of the coal rights, there was thus also commercial value in the power to grant the rights to prospect or mine them (para 36). The real nature of the rights also enabled the holder to go upon land to search for minerals and, if found, to sever them and carry them away. Once severed from the land the minerals became the holder’s property. These rights could in turn be transferred, sold or otherwise alienated, used as security, and in general be dealt with in a way that benefited the holder (para 29). The holder was also under no obligation to exploit the right (see the obiter dictum on this point below) (para 29). Du Plessis J noted that under the Minerals Act 1991, the exercise of the rights to prospect or mine were subject to the authorization of the State (paras 33–36). After trawling through relevant provisions of the MPRDA, Du Plessis J concluded that common law mineral rights had “disappeared” after the commencement of the MPRDA: “In sum the holders of mineral rights have, since the enactment of the MPRDA, not one of the competencies that the law conferred upon them …” (para 50). All that the law had given the previous holders of mineral rights was the exclusive entitlement to apply for a prospecting or mining right within a relatively short period of time (as per item 8 of Schedule II in the case of unused old order rights) (para 56). In the circumstances of this particular case, it would have been impossible for Sebenza to apply for and receive a prospecting or mining right (given the type of regulatory studies that needed to be completed), as the company was in liquidation (para 74). Hence it was not difficult for the judge to conclude that the MRPDA had legislated Sebenza’s coal rights “out of existence” (para 57). Issue 2: Did the deprivation of Sebenza’s coal rights amount to an expropriation? Judgment: Having established that there was a clear difference in the nature of Sebenza’s coal rights before and after the commencement of the MPRDA, Du Plessis J proceeded to determine (a) whether the MPRDA had resulted in a “deprivation” of property; and, if so (b) whether the deprivation was also an “expropriation”? The language of deprivation and expropriation is derived from s 25(1) and (2) of the Constitution. Deprivations are regarded as a broader class of state interference in property and they must be done in terms of a law of general application and not be “arbitrary” (s 25(1), Constitution). Expropriations are a narrower subset of deprivations that may only occur in terms of a law of general application that is in the public interest, and are subject to the payment of compensation (s 25(2)). Du Plessis J began his deliberation on this issue by noting that it was not at issue that Sebenza’s coal rights constituted “property” within the meaning of s 25 of the Constitution (para 62), and that a legislative act (such as the enactment of the MPRDA) could in itself constitute an act of expropriation (para 63). At para 65 the judge summarized the extant jurisprudence on deprivations. Noteworthy here is that a physical taking of the property need not have occurred, it suffices if any of the entitlements to property have been interfered with. However, there were also some limitations on property rights that were either so trivial or so widely accepted in an open and democratic society that they could not be regarded as “deprivations” for the purposes of s 25(1) (para 65). This led him to consider the defendant’s argument that the MPRDA had not deprived Sebenza of its coal rights but sought merely to regulate them (para 66). The judge noted very quickly however, that he could not agree with this (para 67). In the case of old order rights, the MPRDA did not introduce the “use it or lose it” principle, as the defendant’s counsel had argued. It was apparent from Schedule II that the MPRDA introduced the principle of “you have lost it” (para 70). The judge also rejected the argument that Sebenza had lost its coal rights by virtue of its failure to act. On this point Du Plessis remarked that deprivation was a “legal fact” which cannot be undone by offering the deprived party something in the stead of the deprived property. He thus agreed with Hartzenberg J that item 8 of Schedule II provided the deprived party with an opportunity to mitigate their damages (para 72). The date of deprivation was thus the date upon which the MPRDA commenced, and not a year later when the transitional right under item 8 of Schedule II lapsed. Du Plessis J thus concluded that the MPRDA, by its very enactment, had deprived Sebenza of its coal rights (para 77). Did the deprivation amount to an expropriation? A rather intractable aspect of this question is what kind of right it is necessary for the expropriator to acquire for an act to be regarded as an expropriation. Is it necessary that the expropriator acquires exactly the same kind of rights, or does it suffice if the expropriator acquires only the substance of the rights? This was an extremely important point to determine, as the expropriator in this instance (the Minister of Mineral Resources), according to the terms of the MPRDA, did not acquire ownership of minerals but rather custodianship. Du Plessis pointed out that because expropriation is an original rather than a derivative form of ownership there was no question of a transfer of rights. It therefore does not matter what the right is called in the hands of the expropriator, and the essential enquiry is whether the expropriator has acquired the substance of the rights (para 80). Because the MPRDA empowered the Minister to grant a real right with substantially the same content holders of common law mineral rights had previously enjoyed, it followed that by the enactment of the MPRDA the State acquired the substance of these property rights. It did not matter that the State’s competencies were termed “custodianship” (paras 81–82). Du Plessis also rejected the contention that an expropriation did not occur because the State the not acquire the right not to use the property (para 84). As it was not in issue that the MPRDA was a law of general application, or that the property had been expropriated for a public purpose or in the public interest, the judge concluded that Sebenza’s coal rights had been expropriated (para 88). Issue 3: If the coal rights had been expropriated what amount of compensation was payable? Judgment: Du Plessis J commenced his deliberation on this point by noting all the relevant framing laws: Section 25(3) of the Constitution, which establishes the standard that the compensation must be “just and equitable”; item 12(3) of Schedule II; and regulation 82A(7), which in turn incorporates the provisions of the Expropriation Act 63 of 1975, which establishes that it is for the court to determine what compensation would be just and equitable. The judge agreed with the plaintiff that the starting point for determining just and equitable compensation must be the market value of the property concerned, but this was only one of the circumstances that had to be taken into account (para 93). Du Plessis J rejected that argument that the amount of compensation could be “0” (para 94), as well as the proposition that compensation could not be payable because it would be unaffordable for the State (para 95). Considering facts pertinent to the value of the Sebenza’s coal rights, the court found that an amount of R750 000 would be just and equitable compensation (para 99). Obiter dicta: On the right not to exploit minerals: Du Plessis J recognized the linkage between the power not to exploit mineral rights, and environmental interests. At para 31 he stated the following: “[T]here is also a social imperative to balance the agricultural value of the surface against the need to exploit minerals under the surface. That is of particular importance in the case of open cast mining operations. Environmental considerations also play a role (my emphasis). In short the right not to exploit minerals is not necessarily negative or contrary to the public interest.” On the legal nature of the “custodianship” held by the State over minerals in terms of s 3, MPRDA: The court noted that there had been some debate as to the legal nature of the custodianship created by s 3 of the MPRDA, but said that for purposes of the judgment it was not necessary to express an opinion thereon (para 49). Legal Issues & Judgment in Agri SA SCAWhile addressing substantively the same issues as the court a quo, the SCA addressed the issues in a different order. The fact sheet follows the issues as they were raised in the case.Issue 1: What constitutes an expropriation in terms of s 25(2) of the Constitution? Judgment: The majority of the judges took a different approach to the one followed in the Gauteng North High court, and did not first determine whether there had been a deprivation of rights (para 14). After noting Agri SA’s arguments regarding the nature of the expropriation (which drew substantively upon the decision of Du Plessis in the court a quo; i.e. that expropriation was an original not derivative form of ownership which did not require the State to acquire the rights that existed under the previous dispensation) (para 17), the court proceeded to identify the defining features of an expropriation. It firstly rejected Professor van der Walt’s suggestion that expropriation is distinguished by the payment of compensation, (rightly) noting that this would amount to putting the cart before the horse (because compensation flows from the fact of expropriation, rather than being a defining feature of it) (para 18). It then proceeded to consider arguments for and against Agri SA’s proposition that the rights acquired need not be the same as those expropriated, referencing foreign case-law (paras 19 – 23). This led it to conclude that it was undesirable to adopt a “categorical” to understanding what constitutes acquisition for the purposes of expropriation (para 24). Rather, it was preferable to determine this question on a case-by-case basis having regard to the form of expropriation, the nature of the property alleged to have been acquired, and the content of the rights acquired (para 24). To determine the questions of both deprivation and acquisition, therefore, it was necessary to consider the historical nature of the mineral rights in South Africa. Issue 2: What was the nature of the rights enjoyed by holders of mineral rights prior to the MPRDA coming into operation? Judgment: The court provided a lengthy historical account of the right to mine and mineral rights in South Africa, traversing developments in Roman law, pre-Union legislation, the Mining Rights Act 20 of 1967 and the Minerals Act 50 of 1991 (see paras 28–67). Throughout the analysis, the court wished to stress that while in the main ownership of minerals vested in the holders of mineral rights (which was not necessarily the landowner), from an early stage of South African mining development the right to mine was a right that the state asserted for itself and controlled (para 48). The very idea of “common law mineral rights” was erroneous because these rights did not in fact have their origin in the common law, but originated largely from legislation governing the right to mine and legislation that permitted the registration of mineral rights independently of the right to land (para 68). As such, it concluded that the right to mine “is under the suzerainty of the State”, and its allocation from time to time is within the State’s discretion. The right to minerals, without a concomitant right to mine, was of little value – at most it conferred on the owner the power to exclude others from exploiting them (para 69). Because the value of mineral rights depended on the right to mine, and because the State had allocated the right to mine to itself, the value of mineral rights would have ebbed and flowed over time with every adaptation of the statutory scheme for the allocation of the right to mine (para 72). Agri SA’s argument implied that each of the changes to the right to mine in SA’s history would have involved an expropriation of mineral rights, which if the constitutional protections had been available, would have involved the payment of compensation. But this came close to saying that any action that detrimentally affects a right is an expropriation, which was certainly not correct (para 72). The minority judgment (written by Nugent JA in which Mhlantla JA concurred) differed from this analysis in emphasizing the following points. Firstly, the minority opinion noted that the policy of affording the mineral rights holder some benefit was a consistent feature of pre-MPRDA legislation (para 107). Secondly, the judges differed in the effect they ascribed to the Minerals Act, 1991. The effect of this Act, the judges noted, was to almost without exception place the ability to exploit the mineral wealth of South Africa under the exclusive control of the holders of mineral rights (para 109). Contrary to the many remedies against sterilization and hoarding of minerals (as exemplified in the 1967 Act for instance), the only remedy the MPRDA afforded was for such rights to be expropriated (para 109). At face value the MPRDA had extinguished common law rights (this much was plain from the language used in item 8(4) of Schedule II read with the definition of “unused old order rights” (para 112). Nevertheless, such common law rights did not include rights of exploitation (para 113). These had always been statutory rights granted in the “gift” of the State (para 113). In these circumstances the MPRDA’s abolition of common law rights seemed immaterial (para 114). Issue 3: Where mineral rights expropriated in terms of the provisions of the MPRDA? Judgment: Proceeding from the finding that in pre-MPRDA legislation the right to mine had been vested in the State, and that the State either exercised or allocated that right (para 84), the court concluded that the MPRDA was merely the latest in a long line of statutory instruments affirming the principle that the right to mine is controlled by the State, and allocated to those who wish to exercise it (para 85). As far as the right to mine is concerned, therefore, Agri SA had failed to establish the first requirement for an expropriation, namely the deprivation of property (para 85). The notion of state custodianship of mineral resources merely encapsulated in non-technical language the idea that the right to mine vested in the State (para 86). This finding was largely supported by the transitional measures set out in Schedule II (paras 87–90). Dealing with the argument that the MPRDA effected only a narrower expropriation of unused old order rights, court rejected the views of Du Plessis and Hartzenberg, who had regarded the transitional measures as a means for a rights holder to mitigate their damages. Instead, the court held, the compulsion to exercise the right was merely a more stringent approach on the part of the State to compel holders of mining rights to exploit them, compared to that which had been adopted in previous legislation (para 97). As the SCA decided that the MPRDA had not effected a broadscale expropriation of mineral rights, nor an expropriation of unused older order rights, it was not necessary to further consider the issue of compensation (para 100). Legal Issues & Judgment in Agri SA CCIssue 1: What was the nature of the rights enjoyed by holders of mineral rights prior to the MPRDA coming into operation? Did they constitute property?Judgment: Writing for the majority of the Constitutional Court, the (at the time) newly appointed Mogoeng CJ disagreed with the approach taken by the SCA; i.e. that mineral rights under the Minerals Act, 1991 did not constitute property (para 33). The Constitutional Court chose to characterize the property claimed by Sebenza in a fundamentally different way. The majority held, firstly, that beyond the power to itself acquire substantive ownership of mineral resources and the power to regulate the exploitation of those who owned them, the State had no residual competence to exploit or own minerals (para 35). Instead, if one had regard to the laws of the major mining regions, and then the consolidating legislation of 1967 and 1991, what emerged was an inextricable link between ownership of mineral rights and the right to exploit the minerals concerned (para 37). The use of the concepts “right to mine” and “mineral rights” was potentially misleading Mogoeng CJ said, because the right to mine minerals formed part of mineral rights (para 38). In order to achieve greater clarity it was preferable to speak about “exploitation rights” and “ownership of minerals” respectively (para 39). Prior to the commencement of the MPRDA the State had the power to regulate the exploitation of minerals by mineral owners, but always recognized the proprietary aspect or value of mineral ownership (paras 40–41).Secondly, it was conceptually inaccurate to conflate the notions of value and content of a right (the lack of value of mineral rights being a cornerstone of the SCA judgment). The argument that a lack of value, or indeterminate value, destroyed the existence of the right to mineral ownership before the advent of the MPRDA was therefore unfounded (para 42). Both the majority and minority judgments of the SCA failed to accord sufficient weight to the entitlement not to mine, the ability not to exploit minerals, as one of the essential components of mineral ownership. Under the Minerals Act, the holder’s ability to sterilize or hoard minerals could only be extinguished by expropriation and payment of compensation (para 43). That in itself appeared to be determinative of whether mineral rights constituted “property” or not. The right not to exploit minerals was not dependent on the State’s conferment of the right to mine, but stemmed from mineral ownership, and was undoubtedly of economic value (para 44). Issue 2: Had Sebenza been deprived of their coal rights? Judgment: Repeating the standard wisdom associated with deprivation and expropriation, Mogoeng CJ emphasized that deprivation relates to “sacrifices” holders of private property rights may have to make without compensation, whereas expropriation always entailed state acquisition of that property in the public interest against payment of compensation. The line demarcating a deprivation from an expropriation, however, was not bold (para 48).The MPRDA, which was a law of general application, had the effect of depriving Sebenza of a pre-existing right which had included the following entitlements: The right not to exploit the minerals, the exclusive right to sell or lease the right, and the rights to prospect or mine for the minerals (which were permanently lost after one year if, like Sebenza, the holder could not comply with the transitional provisions) (para 53). It was common cause that the deprivation was not arbitrary (para 54). Issue 3: Had the MPRDA expropriated Sebenza’s coal rights? Judgment: On the question whether the rights acquired by the expropriator have to be identical or substantially the same as the rights expropriated, Mogoeng CJ leaned in principle toward the argument put forward by Agri SA; i.e. that the State need acquire new rights equivalent but not necessarily identical to those lost by Sebenza (para 56). To prove expropriation a claimant must establish that the state has acquired the substance or core content of what it was deprived. There would however have to be “sufficient congruence” or “substantial similarity” between what was lost and what was acquired (para 56). Moreover, stated categorically, there could be no expropriation where deprivation did not result in property being acquired by the state (para 59).In determining the proper scope to be given to the concept of acquisition, the court emphasized that the interpretation of the constitutional property clause must proceed from an understanding of the special role the MPRDA plays in facilitating nation-building, reconciliation, and the opening up of economic opportunities to all South Africans (para 60). The tension “sat at the heart” of the cleavage between the interests of the wealthy and the previously disadvantaged (para 60). Section 25 therefore had to be interpreted with due regard to the gross inequality in relation to wealth and land distribution (para 61). Specifically, it imposed an obligation not to over-emphasize private property rights at the expense of the state’s social responsibilities (para 62). Further the linkages between inequality, land distribution and access to mineral wealth, on the one hand; and the assumption that access to mineral wealth would unlock job creation and economic growth was a consistent theme in the court’s reasoning (see, for instance para 65). Like the SCA (see above, para 24), the Constitutional Court shied away from a “one-size-fits-all” determination of acquisition, preferring a case-by-case consideration of whether acquisition had taken place (para 64). In the case of mineral rights, the court held that the State’s custodianship of minerals did not amount to the acquisition necessary for expropriation (para 68). The reason that appeared to sway the court’s opinion was that the state had not acquired mineral rights to exploit them itself; it was merely “a facilitator or a conduit” through which broader and equitable access to mineral resources could be realized (para 68); and further, that but for taking away the right to sterilization, the core right remained intact by way of the transitional measures specified in Schedule II (para 71). Closing his argument, Mogoeng noted that it would be inappropriate to decide definitively that expropriation under the MPRDA could never be established. The avenue for a properly argued case establishing expropriation nevertheless remained open (para 75). Froneman J penned a concurring minority opinion (in which Van der Westhuizen J concurred) in which he differed markedly from the approach adopted in any of the earlier courts and the Constitutional Court itself, essentially finding that the Agri SA’s appeal should be dismissed as the unused old order rights created by the MPRDA constituted “just and equitable” compensation for the rights that had been lost. He disagreed that state acquisition was an essential requirement of expropriation, and that in the present case no acquisition had taken place (para 79). Froneman based his argument in this regard on the fact that the State had acquired the right, previously held by private mineral rights holders, to allocate and dispose of exploitation rights (para 81). At the same time, it had sought to provide “compensation in kind” to previous rights holders (para 88). Cameron J’s short opinion was supportive of Froneman J’s opinion on the point of whether acquisition is a necessary feature of expropriation under s 25 of the Constitution (para 77). Cameron J considered that expropriation contemplated by s 25 demanded a case-by-case, contextual enquiry and that it was inadvisable to extrapolate an inflexible rule of state acquisition as a requirement for all cases (para 78). Outcome Agri SA’s appeal was dismissed by the Constitutional Court. ................
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