In 1997 the South African Roads Board, whose functions were later assumed by the Minister of Transport, served a notice of expropriation on Mr Paul Johannes du Toit in terms of section 8(1)(c) of the National Roads Act 54 of 1971. The Board temporarily used approximately 3.03 hectares of Mr du Toit’s farm to establish a borrow pit and extracted about 80 000 cubic metres of gravel over an 18‑month period for the construction of a national road. The dispute concerned whether what was expropriated was the land or gravel itself, or merely a temporary right to use the land, and consequently whether compensation had to be calculated under section 12(1)(a) of the Expropriation Act 63 of 1975 (market value of property) or section 12(1)(b) (actual financial loss for the taking of a right). Mr du Toit claimed compensation based on the market value of the gravel, while the Minister contended that only actual financial loss was payable.
Leave to appeal was granted, but the appeal was dismissed. The order of the Supreme Court of Appeal was upheld, confirming compensation of R6 060.00 plus a statutory solatium and interest in terms of the Expropriation Act.
This case is a leading Constitutional Court authority on the interpretation of the Expropriation Act in conformity with section 25 of the Constitution. It clarifies that compensation for the expropriation of rights, as opposed to property itself, may properly be assessed on the basis of actual financial loss, and that just and equitable compensation does not equate automatically to market value. The judgment affirms that pre‑constitutional expropriation legislation must be read through a constitutional lens, without necessarily being invalidated.