The Notion of Constitutional Property in South Africa: An Analysis of the Constitutional Court’s Approach in Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape 2015 6 SA 125 (CC)

• Jurisdiction: South Africa
• Pages: 26-46
• Citation: (2017) 28 Stell LR 26
• Published date: 27 May 2019
• Date: 27 May 2019
• Author: P J Badenhorst

26

THE NOTION OF CONSTITUTIONAL

PROPERTY IN SOUTH AFRICA: AN ANALYSIS

OF THE CONSTITUTIONAL COURT’S

APPROACH IN SHOPRITE CHECKERS (PTY)

LTD V MEC FOR ECONOMIC DEVELOPMENT,

EASTERN CAPE 2015 6 SA 125 (CC)*

PJ Badenhorst

BLC LLB (Pretoria) LLM (Wits) LLM (Yale) LLD (Pretoria)

Associate Professor of Law, Deakin University, Australia; Visiting Professor of Law,

Nelson Mandela Metropolitan University, South Africa

C Young

LLB PhD (UCT)

Postdoctoral Research Fellow, University of Cape Town, Member of Mineral Law in

Africa Chair (University of Cape Town)

1 Introduction: The protection of property under a constitutional

order

In South Africa, the right to “proper ty” is a constitutionally guaranteed or

fundament al right in ter ms of section 25 (“the proper ty clause”) of the Const itution

of the Republic of South Africa, 1996 (“Constitution”).1 The propert y cl ause in

the Constitution is a t wo-pronged mechanism: it is designed to protect proper ty

against unconstitutional interference, and it guides the constitutionally-

mandated redist ribution and reform process w ith the transformational goal of

addressing cent uries of racial and economic discrimi nation.2

In terms of section 25(1) of the Constitution, property is protected against

arbitrary de privations by law of general application. Expropriation of

property, as subspecies of a depr ivation,3 can only take place in terms of a

law of general application, for a public purpose or in the public interest, and

subject to the payment of compensation.4 Compensation must be “just and

equitable” reecting an equitable balance between the public interest and the

* The authors gratef ully acknowledge th e suggestions and i nsights obtained f rom the anonymou s referees.

Any errors o r omissions remai n our own.

1 Reflect-All 1025 CC v MEC for Public Transp ort, Roads and Works, Gaute ng Provincial Governmen t

2009 6 SA 391 (CC) para 33. See P Baden horst “Expropriation of ‘old order’ m ineral rights in South

Africa: T he Constitutional C ourt has its say (twice)” (2014) 4 Prop L Rev 53; P Baden horst & N Olivier

“The Agri So uth Africa Cons titutional Cou rt decision” (2014) 230 ARELJ 233-234.

2 PJ Badenhorst, JM Piena ar, & H Mostert Silberbe rg and Schoeman’s The Law of Prop erty 5 ed (2006)

521-522.

3 First National Bank of SA Ltd t /a Wesbank v Commiss ioner, South Afr ican Revenu e Service; Fir st

National Bank o f SA Ltd t/a Wesbank v Minister of F inance 2002 4 SA 768 (CC) para 57.

4 S 25(2)-(3) of the Constitution.

(2017) 28 Stell LR 26

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interests of the expropriated owner.5 In determi ning whether depr ivation or

expropriation has ta ken place, it is important to determi ne whether the subject

of the deprivation or expropr iation qualies as constitutional prop erty, and is

thus worthy of constitutiona l protection.

Property that is deemed worthy of constitutional protection is not

necessarily li mited to the characterisation of proper ty in terms of private law.

The Constitutional Cou rt has provided a number of factors to assist in the

determinat ion of what should be constitutionally protected in ter ms of section

25. However, until the decision in Shoprite Checkers (Pt y) Ltd v MEC for

Economic Development , Eastern Cape (“Shoprite decision”),6 the cou rts had,

for the most part, not yet fully engaged with the meaning of constitutional

property that went beyond the private-law understa nding of property.7 In

this case, the cour t was called upon to adjudicate a query as to whether a

commercial trad ing licence, which permitted the selling of wi ne in a grocery

store, fell within the ambit of the mean ing of “property” in the Constitution.

This case by no means provides an expansive and complete denition of what

constitutes const itutional property, but, it widens the ambit of constitutional

propert y considerably.

The notion of constitutional property and its features, and the cour t’s

approach to the deter mination of what constitutes constit utional property, will

be examined in th is article in respect of the three judgments handed down in

the Shoprite decision.8 This article sets out the norm ative approach adopted by

Froneman J, as compared to the pr ivate-law approach adopted by Madlanga J.

It also canvasses the approach adopted by Moseneke DCJ, who argued that

whether licences constit uted constitutional property need not be examined,

and instead put forwa rd that a rationality enquiry should be unde rtaken.

This article argues that the focus of the investigation should be on the

rights that are lost when dete rmining whether a right should be treated

as constitutional property. The various approaches adopted by the three

judgments referred to ab ove, are evaluated in this light. Thereaft er, this article

attempts to distil the key features used by the court that may be usef ul for

the determination of whether a right falls within the notion of constitutional

pr oper ty.

2 Evolution of the concept of “constitutional proper ty” in South

African jurisprudence

Section 25(1) seeks to protect private property r ights against govern mental

interference.9 Consequently, it embodies a negative protection of property.10

5 S 25(3). See further section 25(3) as to t he factors that need t o be taken into accou nt in the balancing of

the respective interests.

6 2015 6 SA 125 (CC).

7 Para 40.

8 A discussion on the prote ction of property ag ainst deprivation s or expropriations f alls beyond the scope

of this discussion.

9 Phoebus Apollo Aviation CC v Mi nister of Safety a nd Security 20 03 2 SA 34 (CC) para 4.

10 First Nation al Bank of SA Ltd t/a Wesban k v Commissione r, South Afric an Revenue Se rvice; First

National Bank o f SA Ltd t/a Wesbank v Minister of F inance 2002 4 SA 768 (CC) para 48.

THE NOTION OF CONSTITUTIONAL PROPERTY IN SA 27

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