Property and Constitution , livre ebook
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2012
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218
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English
Ebook
2012
YouScribe est heureux de vous offrir cette publication
Publié par
Date de parution
01 janvier 2012
Nombre de lectures
1
EAN13
9781920538125
Langue
English
Poids de l'ouvrage
1 Mo
Property and Constitution embodies an effort to work out how to give practical effect to the constitutional obligation to interpret legislation and develop the common law so as ‘to promote the spirit, purport and objects of the Constitution’, particularly in the area of Property Law. The author distinguishes between situations where the constitutionally inspired interpretation of legislation should prevail and others where suitable development of the common law may be required, distinguishing both from cases where direct reliance on the constitutional provision is permissible. He also considers the importance of obligations inherent in diverse constitutional provisions relating to for example arbitrariness, restitution and homelessness for the further development of Property Law. The book should appeal to academics, practitioners, policy makers and postgraduate research students with an interest in the constitutionally inspired development of Property Law.About the editor:AJ van der Walt is Professor of Law and South African Research Chair in Property Law, Stellenbosch University.
Voir
Publié par
Date de parution
01 janvier 2012
Nombre de lectures
1
EAN13
9781920538125
Langue
English
Poids de l'ouvrage
1 Mo
Property and
Constitution
AJ van der Walt B Iur et Art Honns (BA) LLB LLD (Potchefstroom) LLM (Witwatersrand) Professor of Law and South African Research Chair in Property Law, Stellenbosch University
2012
Property and Constitution
Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.
For more information on PULP, see www.pulp.up.ac.za
Printed and bound by: BusinessPrint Pretoria
To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 pulp@up.ac.za www.pulp.up.ac.za
Cover: Yolanda Booyzen, Centre for Human Rights
ISBN: 978-1-920538-12-5
© 2012
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TABLE OF CONTENTS
PREFACE
Introduction
Sources of law 1 A single system of law 2 A constitutional vision of sources 3 Subsidiarity principles 3.1 Introduction 3.2 The notion of legislation enacted to give effect to a right 3.3 Non-property legislation enacted to give effect to a right 3.4 Partial property legislation enacted to give effect to a right 3.5 Partial, technical legislation not enacted to give effect to a right 3.5.1 Overview 3.5.2 Partial and technical legislation that protects a right indirectly 3.5.3 Pre-1994 partial or technical legislation 3.5.4 Purely technical, partial legislation 3.6 No applicable legislation 3.7 Conclusion 4 Criticism and response 4.1 Introduction 4.2 A more restricted view of the impact of the Constitution 4.3 Criticism against the notion of subsidiarity 5 Conclusions
Visions of property 1 Traditional notions of property 2 Transforming property law 3 A constitutional vision of property 3.1 Introduction 3.2 From objects to objectives 3.3 From property to propriety 3.4 From syllogistic to transformative logic 4 Concluding remarks
Conclusions: A transformation-oriented property system 4.1 Premises 4.2 Conclusions 4.3 Property, Constitution and poverty
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67 71 81 91 91 91 92
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113 113 122 131 131 139 147 153 168
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BIBLIOGRAPHY CASES LEGISLATION WEBSITES INDEX
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PREFACE
This book started out as two unrelated papers that I had to write for two conferences in 2010, namely the South African Property Law Teachers 25th annual meeting, presented as an International Property Law Conference by the University of South Africa on 27-29 October 2010, and the International Conference on Development, Pluralism and Access to Resources, presented by the University of Cape Town on 24-26 November 2010. Since I was working on these papers during a research visit to Germany from July to September 2010, reading sources on constitutional property, I decided to link up the two papers and focus on common themes from the sources I had been reading, with a view to publishing them together as one journal article. The examples I refer to often relate to neighbour law because at the time I was also finalising the manuscript of a book on neighbour law (since published as part of Juta’sProperty Law Library, AJ van der WaltThe law of neighboursThe combined (2010)). article became much longer than I anticipated and, after discussions with Danie Brand, who kindly read and commented on a much earlier version of the manuscript, ended up as this monograph. Eventually, the Unisa paper became the core of chapter 2 and the UCT paper the core of chapter 3.
Given the topics I discuss here, it should be clear that at least some of the themes derive from long-standing, fruitful and insightful discussions with colleagues and friends like Frank Michelman, Theunis Roux, Karl Klare, Dennis Davis, Johan van der Walt, Lourens du Plessis, Henk Botha, Karin van Marle, Danie Brand and others. I am grateful to them for those exchanges, which over many years have enriched my own understanding and thinking. During a visit to Harvard Law School in February 2012 I also had the extraordinary privilege of discussing some of these themes with High Court judge Dennis Davis, former South African Chief Justices Arthur Chaskalson and Sandile Ngcobo and former German Federal Constitutional Court Justice Dieter Grimm. I benefited enormously from those discussions.
Apart from those already mentioned, I wish to thank colleagues and friends who either read and commented on an earlier version of the manuscript or discussed the issues with me, sometimes repeatedly, over the past two years. They include, above all, Kevin Gray, Danie Brand, Henk Botha, Hans Lindahl and Johan van der Walt. I appreciate their painstaking comments and the extended and repeated discussions we had and hope that the end result will in some way justify their time and effort.
A number of postgraduate and final year undergraduate students from the South African Research Chair in Property Law group at Stellenbosch University contributed to the project, mostly by helping me find sources, tracking references and citations, and checking the manuscript. During our discussions and seminars we also discussed some of the issues; I hope that the process was as rewarding and productive for them as it was for me. Those who made particularly big inputs in time and effort include Mikhalien Kellerman (now du Bois), Sue-Mari Maass, Ernst Marais, and Reghard Brits. Two 2012 final year undergraduates, Lizette Grobler and
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Johanna Joubert, made a big effort towards the end to help complete the references. Reghard Brits read the final manuscript and checked the references. I thank them all for their assistance.
Thanks must also go to the organisers of the 2010 Unisa conference (Jeannie van Wyk, Susan Scott, and Ina Knobel) and the 2010 UCT conference (Hanri Mostert and Tom Bennett), who kindly agreed to my request not to include my papers in the publication of their respective conference proceedings so that I can publish them in a different format afterwards. I am also grateful for financial support from the Alexander von Humboldt-Stiftung that made my 2010 research visit to Cologne possible, and to Michael Sachs, who hosted me at the Institut für Staatsrecht und Verwaltungsrecht, Universität zu Köln, during that visit. Apart from the support of the Alexander von Humboldt-Stiftung in 2010, I also enjoy the privilege of continuous financial and infrastructure support of my faculty at Stellenbosch University and of the South African Research Chair in Property Law, which is sponsored by the Department of Science and Technology, administered by the National Research Foundation and hosted by Stellenbosch University.
Danie Brand of the University of Pretoria Law Faculty and Pretoria University Law Press was very supportive throughout this project. Apart from commenting on an earlier version of the manuscript, he encouraged me to go ahead with this publication and suggested that I should submit it to PULP for publication. During the production phase he and his staff at PULP were extremely professional and supportive.
Of course the views expressed in this book should not be ascribed to any of the institutions or persons mentioned above, but I am nevertheless grateful for their assistance and support. I assume full responsibility for remaining errors and shortcomings.
The references reflect the law and literature as it stood at the end of May 2012.
André van der Walt Stellenbosch October 2012
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1 HAPTER C
INTRODUCTION
When the first signs surfaced during the late 1980s that a political settlement might be possible in South Africa and that it would involve large-scale political and social reforms, there was a flurry of new legal research on constitutional issues. Some of the new research focused generally on the introduction of a democratic constitution that includes a bill of rights, but some of it focused especially on the effect that constitutionalism and constitutional review might have on private law. Constitutional law thus became a much more interesting and lively field of research than it was during the apartheid years. Even private law specialists, who previously tended to draw a clear separation between their field of specialisation and public law, became interested in constitutional law. For the most part, private law specialists turned to constitutional law in an attempt to determine how the existing law (and existing rights) would be affected by the emergence of a post-apartheid constitutional democracy featuring a bill of rights, a system of judicial review and a constitutionally sanctioned drive to implement significant social and legal reforms.
Given the central role that apartheid land-use and housing policies played in the institutionalisation of race-based inequality, property law specialists and policy makers recognised that the large-scale political and social changes that inevitably had to accompany democratisation would have to include significant reforms of land use policy and of property law 1 in general. The question that initially interested property lawyers most was whether (and how far) established property rights could (and should)
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For early publications on this topic see eg T Marcus ‘Land reform – Considering national, class and gender issues’ (1990) 6South African Journal on Human Rights178 -194; Z Skweyiya ‘Towards a solution to the land question in post-apartheid South Africa: Problems and models’ (1990) 6South African Journal on Human Rights195 - 214; A Sachs ‘Rights to the land: A fresh look at the property question’ in A SachsProtecting human rights in a new South Africa(1990) 104 - 138; A Sachs ‘Towards a Bill of Rights in a democratic South Africa’ (1990) 6South African Journal on Human Rights1 - 24; AJ van der Walt ‘Towards the development of post-apartheid land law: An exploratory survey’ (1990) 23De Jure1 - 45; AJ van der Walt (ed)Land reform and the future of land-ownership in South Africa (1991); AJ van der Walt ‘Comparative notes on the constitutional
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be insulated against political changes. Initially, this debate assumed the form of controversy about the inclusion of a property guarantee in the Bill of Rights, some commentators, especially those in the liberal tradition, being concerned that existing property rights might be under threat in the reform-oriented constitutional context and therefore pleading for a strong property guarantee, while those (mostly from a reformist tradition) who pointed out that existing property rights might be insulated too strongly against necessary reforms argued against the inclusion of a property clause 2 in the Bill of Rights. Later on, once the Interim Constitution 1993 had been adopted and there was broad consensus that the apartheid legacy of inequitable distribution of and access to land and wealth had to be reformed within a constitutional framework that included a property clause, analysts and policy makers by and large abandoned the
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protection of property rights’ (1993) 19Recht & Kritiek263 - 297; AJ van der Walt ‘The impact of the Bill of Rights on property law’ (1993) 8SA Publiekreg/Public Law298 -319; J Murphy ‘Property rights in the new Constitution: An analytical framework for constitutional review’ (1993) 26Comparative and International Law Journal of South Africa 211 - 233; M Chaskalson ‘The property clause: Section 28 of the Constitution’ (1994) 10 South African Journal on Human Rights131 - 139; J Murphy ‘Property rights and judicial restraint: A reply to Chaskalson’ (1994) 10South African Journal on Human Rights386 -398; AJ van der Walt ‘Property rights, land rights and environmental rights’ in DH van Wyket al(eds)Rights and constitutionalism: The new South African legal order(1994) 455 -501; AJ van der Walt ‘Notes on the interpretation of the property clause in the new Constitution’ (1994) 57Tydskrif vir Hedendaagse Romeins-Hollandse Reg- 203; M 181 Chaskalson ‘Stumbling towards section 28: Negotiations over the protection of property rights in the interim Constitution’ (1995) 11South African Journal on Human Rights222 - 240; AJ van der Walt ‘Tradition on trial: A critical analysis of the civil-law tradition in South African property law’ (1995) 11South African Journal on Human Rights 169 - 206; J Murphy ‘Interpreting the property clause in the Constitution Act of 1993’ (1995) 10SA Publiekreg/Public Law 107 - 130; AJ van der Walt ‘Towards a theory of rights in property: Exploratory observations on the paradigm of post-apartheid property law’ (1995) 10SA Publiekreg/Public Law 298 - 345; DG Kleyn ‘The constitutional protection of property rights: A comparison between the German and South African approach’ (1996) 11SA Publiekreg/Public Law402 - 445. For an overview of the literature see AJ van der WaltConstitutional property law(3rd ed 2011) 31 - 34. For arguments against constitutionalisation see J Nedelsky ‘Should property be constitutionalised? A relational and comparative approach’ in GE van Maanen & AJ van der Walt (eds)Property on the threshold of the 21st century(1996) 417 -432 419; Van der Walt (1990)De Jure(n 1 above) 42 - 45; M Chaskalson ‘The problem with property: Thoughts on the constitutional protection of property in the United States and in the Commonwealth’ (1993) 9South African Journal on Human Rights388 -411 402; J de Waalet alBill of Rights handbook(4th ed 2001) 422 426 - 428 (currently I Currie & J de WaalThe Bill of Rights handbook(5th ed 2005)); M Chaskalson & C Lewis ‘Property’ in M Chaskalsonet al (eds)Constitutional law ofSouth Africa(1st ed 1998) para 31.5(b)(ii)(bb) (currently T Roux ‘Property’ in S Woolmanet al(eds)Constitutional law of South Africa vol 3 (2nd ed OS 2003) chap 46); G Budlender ‘The constitutional protection of property rights: Overview and commentary’ in G Budlenderet al (eds) Juta’s new land lawchap 1 25 - 26, 34 - 36. For arguments in favour of (1998) constitutional protection, see CH Lewis ‘The right to private property in a new political dispensation in South Africa’ (1992) 8South African Journal on Human Rights389 - 430; Murphy (1993) (n 1 above) 217; AJ van der Walt ‘The constitutional property clause: Striking a balance between guarantee and limitation’ in J McLean (ed)Property and the constitution(1999) 109 - 146; Van der Walt in Van Wyket al(eds) (n 1 above) 455 - 462; AJ van der Walt ‘Rights and reforms in property theory: A review of property theories and debates in recent literature: Part III’ 1995Tydskrif vir Suid-Afrikaanse Reg493 - 526. T Roux ‘Property’ in MH Cheadle, DM Davis & NRL HaysomSouth African constitutional law: The Bill of Rights (2002) 429 - 472 432 n 8 provides an interesting insight into the differences between strong initial anti-constitutionalisation sentiments
Introduction 3
constitutionalisation debate, although they still disagreed about the nature and extent of the required reforms and the effect that they would and 3 should have on property law and on extant property holdings. Property lobbies and libertarians insisted that guarantees of continued and reliable protection for vested property interests were important for social and economic growth and for personal security and therefore argued that the required land reforms should be regulated so as not to have a significant 4 negative impact on established rights. Reform activists reasoned that property, and especially land law, once was a cornerstone of the apartheid system and therefore had to be a central locus of significant and effective reforms to address the legacy of poverty and marginalisation caused by 5 apartheid. Although state land holdings could be utilised to bring about 6 some land reforms, the large-scale reforms that were necessary to provide more equitable access to land and natural resources could, logically speaking, hardly be effective without having some impact on established private land rights. This was particularly clear once it was realised that the constitutional transformation of property law was not just about the physical redistribution of land, important as that aspect of the land reform programme might be. To be really effective, reforms had to include some systemic and institutional reforms that had nothing to do with the actual transfer of land and, inevitably, systemic and institutional reforms must clearly have some effect on existing land holdings. The early constitutional debate was thus characterised by conflicting opinions about the extent to which existing property holdings would and could be affected by reforms and the extent to which those property holdings would and could be insulated against that effect. Both sides relied on the moral legitimacy and the democratic authority of the new constitutional order to support their respective views for and against the constitutionalisation of property and
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and the later, less sceptical approach in terms of which the constitutionalisation of property is regarded as a political compromise. See further in general FI Michelman ‘Socio-political functions of constitutional protection for private property holdings (in liberal political thought)’ in Van Maanen & Van der Walt (eds) (above) 433 - 450; CM Rose ‘Property as the keystone right?’ (1996) 71Notre Dame Law Review329 - 365. As the literature cited above shows, my own position shifted from anti-property clause to pro-property clause, particularly once I was convinced that the property clause could serve (rather than obstruct) constitutional reform goals. See eg L du Plessis & H CorderUnderstanding South Africa’s transitional Bill of Rights (1994) 182 - 184. The conflict of interests about the constitutional entrenchment of property was so problematic that the property clause was one of the last to be finalised; see Chaskalson (1995) (n 1 above). For references to literature see Du Plessis & Corder (n 3 above) 182 - 184; Van der Walt in Van Wyket al(eds) (n 1 above)455 - 463. See especially Marcus (n 1 above); Skweyiya (n 1 above); Sachs ‘Rights’ (n 1 above); Sachs ‘Towards’ (n 1 above); Chaskalson (1994) (n 1 above); G Budlender ‘Towards a right to housing’ in AJ van der Walt (ed)Land reform(1991) (n 1 above) 45 - 52. As it turned out, a significant part of land reform involves no redistribution of land at all. Tenure security reform, now sanctioned by s 25(6) read with s 25(9), of the Constitution of the Republic of South Africa 1996 consists of legal reforms that would render the weak and fragile interests of black land holders more secure, without physically redistributing extant landholdings. See in this regard AJ van der Walt Constitutional property law(2nd ed 2005) 308 - 310, 311 - 326, 338, 339 - 353 (the relevant sections were left out of the 3rd ed 2011).
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the limited or extensive effect that the Constitution should in their view have on vested rights.
From one perspective, this debate created the impression that post-apartheid reform of property law might result in a tug of war between the champions of vested property rights on the one hand and the promoters of constitutionally mandated reforms, including land reform and related measures, on the other. This tug of war could also be seen as a tussle between the forces of stability and change; legal certainty and trans-formation; vested rights and redress; common law and legislation; the old and the new legal order; the courts and the legislature; or existing law and the Constitution. In so far as it concerns more or less ‘normal’ processes of legal change and development, the tension between existing law and legal reform is neither novel nor necessarily disconcerting, but to the extent that it might assume the form of an institutional struggle between the courts and parliament it might be a cause for concern. Nobody wanted to see a repetition of the Indian constitutional struggle about the protection of property rights against constitutionally mandated and morally legitimate 7 land reform initiatives. The question therefore was, could the tension between stability and change in section 25 be interpreted in a way that would avoid a zero sum game in which the courts attempt to insulate existing property rights against reforms by upholding the common law and strictly interpreting legislation, while the legislature attempts to force through reforms, at the cost of existing property holdings, through increasingly strict reformist legislation?
As it turned out, the South African Constitutional Court formulated a Constitution-driven approach that could avoid a tug of war between the protection of extant land holdings and the promotion of land reform, at least in so far as this tug of war might involve an institutional battle between the legislature and the courts. The core of this judicial solution for managing the tension was the notion that a just and equitable balance had to be found between upholding extant property interests and promoting equitable access to housing, land, wealth and natural resources for those who had been excluded from it or were otherwise marginalised by apartheid land law. This balancing approach finds support in the structure of section 25 of the Constitution of the Republic of South Africa 1996, which both guarantees some form of protection of extant rights and (together with section 26) authorises and requires a range of land reform
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After a long and sometimes bitter struggle (1950 - 1978) between the Indian parliament and the judiciary, the property clause (aa 19(1)(f) and 31) was finally removed from the fundamental rights in Part III of the Indian Constitution 1950 and reduced to what became a 300A, in Part XII of the Constitution, which guarantees merely that deprivation of property shall not be effected by administrative decree. For a short history of the struggle see J Murphy ‘Insulating land reform from constitutional impugnment: An Indian case study’ (1992) 8South African Journal on Human Rights362 - 388; AJ van der WaltConstitutional property clauses: A comparative analysis(1999) 193 -204; Van der Walt in McLean (ed) (n 2 above)117 - 123.
Introduction 5
8 measures. The Constitutional Court set out its perspective on the balancing of property (section 25) and housing (section 26) interests most 9 clearly inPort Elizabeth Municipality v Various Occupiersthat, explaining ‘the judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved’ but ‘to balance out and reconcile the opposed claims in as just a manner as possible.’ The court’s explanation of this balance is a variation of the general constitutional notion that no right is absolute, even when it is guaranteed in the Bill of Rights. The protection enjoyed by a particular individual right is determined in a specific context, along a continuum that reflects variations in the respective weight of two considerations, namely how important upholding the established right is for the individual holder and how important regulating and limiting that right is for the public 10 interest in exercising some legitimate state function, such as land reform (section 25(4)(a)). In the context of the continuum of variations that appear from balancing these two considerations, the reform issue loses some of its binary all-or-nothing threat and assumes a more nuanced, contextual character.
Most private law specialists nowadays accept that private ownership is justifiably and inevitably limited by public-interest regulation and therefore would not regard the balancing of private property interests against the public interest as an unjustified or illegitimate infringement on existing property rights, depending on the factors that are taken into account and the way in which the balancing plays out in practice. The test that was set out inPort Elizabeth Municipalitytherefore had the potential to find wide general agreement, which could avert a power struggle between the courts and the legislature.
However, despite its obvious attractions this Constitution-driven solution has not been applied uniformly by the courts; in fact, it has arguably not yet been worked out in enough detail to allow courts to
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The property clause in s 25 of the Constitution strives for just such a balance; see Van der WaltConstitutional property(n 2 above) 15 - 22. Sec 25(1)-(3) provides protection for existing property rights and s 25(5)-(9) simultaneously requires and authorises legislation that would bring about wide-ranging land reforms. 2005 1 SA 217 (CC) para 23; see the text below. A similar balancing informs the German notion ofAbstufung der Sozialpflichtichkeit; for references see further Van der WaltConstitutional property clauses(n 7 above) 124 - 125; H MostertThe constitutional protection and regulation of property and its influence on the reform of private law and land-ownership in South Africa and Germany292 - 296; (2000) GS AlexanderThe global debate over constitutional property: Lessons for American takings jurisprudence (2006) 139. A similar kind of balancing also features in Margaret Jane Radin’s distinction between personal and fungible interests in property, in the sense that state regulation in the public interest is more readily justified with reference to fungible interests; see MJ Radin ‘Property and personhood’ (1982) 34Stanford Law Review 957 - 1015; MJ Radin ‘Market-inalienability’ (1987) 100Harvard Law Review 1849 - 1937. On a doctrinal level, this balancing principle is not unknown to private law specialists – a similar process features in property remedies. In neighbour law it is for instance echoed in various embodiments of the reasonableness principle; compare AJ van der WaltThe law of neighbours(2010) 182.
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