Property rights in court

Section 25 of the South African Constitution – the ‘property clause’ – has recently attracted much popular criticism for being an obstacle to socio-economic transformation efforts. Undoubtedly, the issue of property rights was one of the most disputed topics during the historic negotiations in the run-up to the 1994 political transition in South Africa, and it remains a highly contested subject. Attempting to balance the interests of existing (largely white) property owners, on the one hand, with the interests of (overwhelmingly black) dispossessed individuals and communities, along with the state’s public interest, on the other hand, s 25 oversees two potentially transformative processes that pit private property ownership rights against the right of the state to take away property for a public purpose or in the public interest. First, s 25 provides the scaffolding for the project of land restitution. Second, s 25 outlines the post-1994 parameters for expropriation. Engaging in a doctrinal analysis of the extent to which the courts have pursued a transformative interpretation, we examine judicial attempts – especially at the Constitutional Court level and particularly regarding the judgments of Moseneke DCJ – to adjudicate both land restitution and expropriation cases. We conclude that notwithstanding some progressive legal interpretation, the courts have yet to develop a comprehensively coherent approach to realise s 25’s transformative potential in respect of land restitution and expropriation

Constitution · Expropriation · Judicial interpretation · Law and economics · Political science · Property rights · Restitution · Sociology · Corporate Law and Human Rights · Law · Legal Issues in South Africa · Legal principles and applications