Minister of Transport v Du Toit

The respondent, Mr PJ du Toit, owned a farm (Hooi Kraal) in the Swellendam district on which a hill known as Moordenaarskop was situated. Acting under s 8(1)(c) of the National Roads Act 54 of 1971 read with s 12(1)(b) of the Expropriation Act 63 of 1975, the South African Roads Board (represented by the Minister of Transport) expropriated a temporary right to use a portion of Du Toit’s land for 18 months as a borrow pit and access road for the upgrading of national roads. During this period, approximately 80 198 cubic metres of gravel were excavated and permanently removed. Du Toit claimed compensation based on the market value of the gravel removed, alternatively invoking the constitutional right to just and equitable compensation. The Minister contended that only actual financial loss resulting from the temporary right of use was compensable and tendered a much smaller amount reflecting the value of the land taken plus a solatium.

The appeal succeeded. The order of the trial court was set aside and replaced with an order directing the Minister to pay compensation of R6 060 plus a solatium of R606, together with interest, and ordering the plaintiff to pay the costs of the action.

The case clarifies the distinction in South African expropriation law between the expropriation of property and the taking of a temporary right to use property, and confirms that compensation for the latter is limited to proven actual financial loss. It emphasises that compensation is assessed from the owner’s loss, not the expropriator’s gain, and that market value cannot automatically substitute for proof of loss. The judgment also aligns the Expropriation Act with s 25 of the Constitution by confirming that the statutory scheme does not permit arbitrary deprivation of property.