Download this publication - PULP

266 Chapter 16
Ackermann J’s judgment for a unanimous court was to assert that the
primary function of the clause is to strike ‘a proportionate balance’
between the public interest and individual property rights. 2 This is, of
course, the traditional function performed by constitutional property
clauses. The significance of the FNB decision, however, was that it
purported to decide precisely how this balance should be struck in
South Africa. Not only that, but the answer the Constitutional Court
gave was one that none of the academic commentators on FC section
25 had predicted.
2 Six points
If one disregards FNB for the moment, there are theoretically six
points in the South African constitutional property clause inquiry at
which the competing interests of the public in a just and socially
beneficial distribution of property rights, and the interests of
individuals in the protection of their acquired property rights, can be
resolved. The first point concerns the definition of constitutional
property. If the court decides that the interest that the claimant is
alleging ought to be protected is not the sort of interest that FC
section 25 was designed to protect, 3 then that interest receives no
protection, at least under the property clause, and the competition is
resolved in favour of the state. In foreign law, categorical exclusions
of this kind have played an important role in constitutional property
cases, particularly those relating to novel forms of property. 4 This
issue has also arisen in the American ‘conceptual severance’ debate.
Penn Central Transportation Co v City of New York 5 provides the best
example of the divergent outcomes that may follow from judicial
disagreement over whether or not to accept a particular interest as
constitutionally protected property. 6
2 FNB (n 1 above) para 50.
3 The phrase ‘designed to protect’ covers a number of different ways in which the
judicial determination of constitutional property may be undertaken, from a
search for the intention of the framers to a value-based inquiry into the purposes
underlying the constitutional protection of property. The latter method is more in
2
FNB keeping (n 1 with above) the para South 50. African approach to constitutional interpretation.
34
The phrase two most ‘designed oft-cited to Commonwealth protect’ covers a cases number in this of different regard are ways Government in which the of
Malaysia judicial determination v Selangor Pilot of Association constitutional [1978] property AC 337 (PC) may and be Societé undertaken, United from Docks a
v search Government for the intention of Mauritius of the (1985) framers LRC to (Const) a value-based 801 (PC). inquiry In Germany, into the the purposes extent
to underlying which a the property constitutional interest protection is regarded of property. as being The inherently latter method subject is to more social in
keeping control will with affect the South the likelihood African approach of its being to constitutional protected under interpretation.
the property clause,
4
The art 14 two of the most German oft-cited Basic Commonwealth Law. See BVerfGE cases 58 in 300 this (1981) regard (the are Nassauskiesung Government or of
Malaysia Groundwater v Selangor Case). Pilot Association [1978] AC 337 (PC) and Societé United Docks
5 v 438 Government US 104 (1978). of Mauritius (1985) LRC (Const) 801 (PC). In Germany, the extent
6 to The which term ‘conceptual a property interest severance’ is regarded was coined as by being MJ Radin inherently ‘The liberal subject conception to social
control of property: will affect Cross the currents likelihood in the of jurisprudence its being protected of takings’ under the (1988) property 88 Columbia clause,
art Law 14 Review of the 1667. German The Basic term Law. refers See to BVerfGE the possibility 58 300 (1981) that the (the court Nassauskiesung might isolate, or
Groundwater for purposes of Case). analysing the property interest at stake, just that stick in the
5 438 bundle, US 104 or topographical (1978). unit (in the case of land) or time period (in the case of