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 iii TABLE OF CONTENTS PREFACE v Introduction 1 Sources of law 19 1 A single system of law 19 2 A constitutional vision of sources 24 3 Subsidiarity principles 35 3.1 Introduction 3.2 The notion of legislation enacted to give effect to 40 a right 3.3 Non-property legislation enacted to give effect to 43 a right 3.4 Partial property legislation enacted to give effect 49 to a right 3.5 Partial, technical legislation not enacted to give 61 effect to a right 3.5.1 Overview 61 3.5.2 Partial and technical legislation that protects a right 63 indirectly 3.5.3 Pre-1994 partial or technical legislation 67 3.5.4 Purely technical, partial legislation 71 3.6 No applicable legislation 81 3.7 Conclusion 91 4 Criticism and response 91 4.1 Introduction 91 4.2 A more restricted view of the impact of the 92 Constitution 4.3 Criticism against the notion of subsidiarity 97 5 Conclusions 110 Visions of property 113 1 Traditional notions of property 113 2 Transforming property law 122 3 A constitutional vision of property 131 3.1 Introduction 131 3.2 From objects to objectives 139 3.3 From property to propriety 147 3.4 From syllogistic to transformative logic 153 4 Concluding remarks 168 Conclusions: A transformation-oriented property 173 system 4.1 Premises 173 4.2 Conclusions 174 4.3 Property, Constitution and poverty 179 1 2 3 4 iv BIBLIOGRAPHY 185 CASES 197 LEGISLATION 205 WEBSITES 207 INDEX 208 v 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’s Property Law Library , AJ van der Walt The law of neighbours (2010)). The combined 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 vi 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 1 1 CHAPTER I NTRODUCTION 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 in general. 1 The question that initially interested property lawyers most was whether (and how far) established property rights could (and should) For early publications on this topic see eg T Marcus ‘Land reform – Considering national, class and gender issues’ (1990) 6 South African Journal on Human Rights 178 - 194; Z Skweyiya ‘Towards a solution to the land question in post-apartheid South Africa: Problems and models’ (1990) 6 South African Journal on Human Rights 195 - 214; A Sachs ‘Rights to the land: A fresh look at the property question’ in A Sachs Protecting human rights in a new South Africa (1990) 104 - 138; A Sachs ‘Towards a Bill of Rights in a democratic South Africa’ (1990) 6 South African Journal on Human Rights 1 - 24; AJ van der Walt ‘Towards the development of post-apartheid land law: An exploratory survey’ (1990) 23 De Jure 1 - 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 1 2 Chapter 1 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 in the Bill of Rights. 2 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 1 protection of property rights’ (1993) 19 Recht & Kritiek 263 - 297; AJ van der Walt ‘The impact of the Bill of Rights on property law’ (1993) 8 SA Publiekreg/Public Law 298 - 319; J Murphy ‘Property rights in the new Constitution: An analytical framework for constitutional review’ (1993) 26 Comparative 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 Rights 131 - 139; J Murphy ‘Property rights and judicial restraint: A reply to Chaskalson’ (1994) 10 South African Journal on Human Rights 386 - 398; AJ van der Walt ‘Property rights, land rights and environmental rights’ in DH van Wyk et 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) 57 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 181 - 203; M Chaskalson ‘Stumbling towards section 28: Negotiations over the protection of property rights in the interim Constitution’ (1995) 11 South African Journal on Human Rights 222 - 240; AJ van der Walt ‘Tradition on trial: A critical analysis of the civil-law tradition in South African property law’ (1995) 11 South African Journal on Human Rights 169 - 206; J Murphy ‘Interpreting the property clause in the Constitution Act of 1993’ (1995) 10 SA 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) 10 SA Publiekreg/Public Law 298 - 345; DG Kleyn ‘The constitutional protection of property rights: A comparison between the German and South African approach’ (1996) 11 SA Publiekreg/Public Law 402 - 445. For an overview of the literature see AJ van der Walt Constitutional 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) 9 South African Journal on Human Rights 388 - 411 402; J de Waal et al Bill of Rights handbook (4th ed 2001) 422 426 - 428 (currently I Currie & J de Waal The Bill of Rights handbook (5th ed 2005)); M Chaskalson & C Lewis ‘Property’ in M Chaskalson et al (eds) Constitutional law of South Africa (1st ed 1998) para 31.5(b)(ii)(bb) (currently T Roux ‘Property’ in S Woolman et 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 Budlender et al (eds) Juta’s new land law (1998) chap 1 25 - 26, 34 - 36. For arguments in favour of constitutional protection, see CH Lewis ‘The right to private property in a new political dispensation in South Africa’ (1992) 8 South African Journal on Human Rights 389 - 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 Wyk et 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’ 1995 Tydskrif vir Suid-Afrikaanse Reg 493 - 526. T Roux ‘Property’ in MH Cheadle, DM Davis & NRL Haysom South 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 2 Introduction 3 constitutionalisation debate, although they still disagreed about the nature and extent of the required reforms and the effect that they would and should have on property law and on extant property holdings. 3 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 negative impact on established rights. 4 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 apartheid. 5 Although state land holdings could be utilised to bring about some land reforms, 6 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 2 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) 71 Notre Dame Law Review 329 - 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. 3 See eg L du Plessis & H Corder Understanding 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). 4 For references to literature see Du Plessis & Corder (n 3 above) 182 - 184; Van der Walt in Van Wyk et al (eds) (n 1 above) 455 - 463. 5 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. 6 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). 4 Chapter 1 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 land reform initiatives. 7 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 7 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) 8 South African Journal on Human Rights 362 - 388; AJ van der Walt Constitutional property clauses: A comparative analysis (1999) 193 - 204; Van der Walt in McLean (ed) (n 2 above) 117 - 123. Introduction 5 measures. 8 The Constitutional Court set out its perspective on the balancing of property (section 25) and housing (section 26) interests most clearly in Port Elizabeth Municipality v Various Occupiers , 9 explaining that ‘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 interest in exercising some legitimate state function, 10 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 in Port Elizabeth Municipality therefore 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 8 The property clause in s 25 of the Constitution strives for just such a balance; see Van der Walt Constitutional 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. 9 2005 1 SA 217 (CC) para 23; see the text below. 10 A similar balancing informs the German notion of Abstufung der Sozialpflichtichkeit ; for references see further Van der Walt Constitutional property clauses (n 7 above) 124 - 125; H Mostert The constitutional protection and regulation of property and its influence on the reform of private law and land-ownership in South Africa and Germany (2000) 292 - 296; GS Alexander The 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) 34 Stanford Law Review 957 - 1015; MJ Radin ‘Market-inalienability’ (1987) 100 Harvard 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 Walt The law of neighbours (2010) 182. 6 Chapter 1 subscribe to it consistently. Consequently, the constitutional thinking that informs the apparently sensible solution described in Port Elizabeth Municipality has not been adopted universally and at least some courts continue relying on traditional lines of private law argument about judicially restricting statutory interference with the common law. In fact, one could not blame an observer for getting the impression, at least from a handful of high court decisions, 11 that the Constitution in fact did unleash an institutional power struggle between the courts, representing the protection of property rights through upholding the common law 12 and parliament, promoting the constitutional goal of ensuring more equitable 11 Examples are Brisley v Drotsky 2002 4 SA 1 (SCA); Ellis v Viljoen 2001 4 SA 795 (C); Joubert and Others v Van Rensburg and Others 2001 1 SA 753 (W) (overturned in Mkangeli and Others v Joubert and Others 2001 2 SA 1191 (CC)) on the effect of the anti-eviction provision in s 26(3). Compare, more generally, the decision of Willis J in Emfuleni Local Municipality v Builders Advancement Services CC and Others 2010 4 SA 133 (GSJ). See further Serole and Another v Pienaar 2000 1 SA 328 (LCC); Bührmann v Nkosi and Another 2000 1 SA 1145 (T) (confirmed in Nkosi and Another v Bührmann 2002 1 SA 372 (SCA)); Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC) on s 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the right of farm labourers to establish a grave site on agricultural land. See further ABSA Bank Ltd v Amod [1999] 2 All SA 423 (W); Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter 2000 2 SA 1074 (SEC); FHP Management (Pty) Ltd v Theron NO and Another 2004 3 SA 392 (C); Ndlovu v Ngcobo; Bekker and Another v Jika 2003 1 SA 113 (SCA); Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC); ABSA Bank Ltd v Murray and Another 2004 2 SA 15 (C); Davids and Others v Van Straaten and Others 2005 4 SA 468 (C) on the application of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 18 of 1998 (PIE) to tenants holding over. On the legislature’s reaction to case law in which it was held that the act does apply to tenants holding over, see the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill B 8-2008. See in general Van der Walt Constitutional property (2nd ed) (n 6 above) 326 - 334 (the relevant section was left out of the 3rd ed 2011). 12 The role of the courts is not quite as simple as I depict it here for the sake of argument. The civil courts (especially the Supreme Court of Appeal) sometimes seem to position themselves as defenders of the legal tradition, while the Constitutional Court promotes constitutional goals, sometimes seemingly in direct opposition to this tradition. Compare the case law in n 11 above and 15 below for examples. Decisions such as Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) (see text accompanying n 9 above) and Ex Parte President of the Republic of South Africa: In re Pharmaceutical Manufacturers Association of South Africa 2000 2 SA 674 (CC) para 44 (discussed in chap 2 below) should be seen as conscious efforts by the Constitutional Court to overcome this split. Since the introduction of the Human Rights Act 1998, which made the European Convention on Human Rights 1950 applicable in English law, English courts have struggled with the same problem, eg in Harrow London Borough Council v Qazi [2004] 1 AC 983 (HL); Kay and Others v Lambeth LBC; Leeds City Council v Price and Others [2006] 2 AC 456 (HL); Doherty (FC) and Others v Birmingham City Council [2008] UKHL 57 (HL); compare with decisions of the European Court of Human Rights in Connors v United Kingdom (2004) 40 ECHR 189; McCann v United Kingdom [2008] ECHR 385. In more recent decisions, the UK Supreme Court (formerly the House of Lords) adopted a more accommodating approach that comes closer to the ECHR decisions: Manchester City Council v Pinnock [2010] UKSC 45; London Borough of Hounslow v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby [2011] UKSC 8. English courts do not have extensive powers of judicial review under the Human Rights Act 1998, but the European Court of Human Rights in Strasbourg does have a fairly wide power of judicial review with regard to the European Convention, and as a result the dynamics between English domestic courts (especially the former House of Lords, now the Supreme Court) and the European court often bears a striking resemblance to the interchanges between South African high courts (especially the Supreme Court of Appeal) and the Constitutional Court. See AJ van der Walt Property in the margins (2009) 41 - 46, 50 - 52. Introduction 7 access to property through reform-oriented legislation respectively. 13 In the power struggle between these two forces, it appears as though parliament might rely on the brute muscle of its legislative powers, backed by the Constitution, 14 to force through reforms while the courts might fall back on judicial technique, honed in a long tradition of defending the common law against what may be perceived as unwarranted legislative (or even political) interference. 15 Recent public debates about ANC policy documents in which it is foreseen that the work of the Constitutional Court and the Supreme Court of Appeal may be assessed to determine their 13 I do not want to suggest that these signs of conflict indicate that we are heading for the apocalyptic kind of outcome that terminated the much more antagonistic conflict between the Indian parliament and courts in the 1960s and 1970s, ending with the removal of the property clause from the Indian Bill of Rights in 1978. On this Indian history see Murphy (n 7 above); Van der Walt Constitutional property clauses (n 7 above) 192 - 206; Van der Walt in McLean (ed) (n 2 above) 117 - 123. Examples of post-1994 South African cases where the courts, including the high courts and the Supreme Court of Appeal, promote constitutional goals and objects outnumber the ones where they might seem to resist them; compare n 11 above for examples where some errant high court decisions were rectified on appeal. My point is that the mere existence of examples where the courts resisted constitutional change for the sake of upholding the common law raises a serious issue about the relationship between property in private law and in the Constitution. Some further examples are rehearsed in the text and footnotes below. 14 Compare the reference to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill B 8-2008 in n 11 above. 15 I can obviously not cover this vast topic here. Of the instances mentioned in n 11 above, the clearest examples of apparent conflict between reformist legislation and conservative judicial responses are the cases concerning s 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the right of farm labourers to establish a grave site; and cases concerning application of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 18 of 1998 (PIE) to tenants holding over. In both instances, the legislature subsequently indicated that it was discontent with judicial interpretation (or avoidance) of the relevant reform laws; in response, the legislature either implemented or threatened to implement amendment legislation. This is not a completely new phenomenon; during the apartheid era some judges resisted the eviction regime authorised by the Prevention of Illegal Squatting Act 52 of 1951, either through restrictive interpretation of the act or through creative use of the common law remedy of the mandament van spolie , and the legislator responded with increasingly harsh amendments of the act, eventually aimed at completely ousting the power of the courts to adjudicate cases under this act. See Vena v George Municipality 1987 4 SA 29 (C); Port Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Municipality of Port Nolloth 1991 3 SA 98 (C); S v Lutu 1989 2 SA 279 (T); Fredericks and Another v Stellenbosch Divisional Council 1977 3 SA 113 (C); Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997 1 SA 526 (W); City of Cape Town v Rudolph and Others 2004 5 SA 39 (C). Compare further on these cases Van der Walt (1990) De Jure (n 1 above) 29 - 31; AJ van der Walt ‘Developments that may change the institution of private ownership so as to meet the needs of a non-racial society in South Africa’ (1990) 1 Stellenbosch Law Review 26 - 48 35 - 39. Ironically, the courts have found it difficult to overcome this tension even in post-1994 constitutional law, see Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 6 SA 511 (SCA); AJ van der Walt ‘Developing the law on unlawful squatting and spoliation’ (2008) 125 South African Law Journal 24 - 36. 8 Chapter 1 contribution to the transformation project, 16 and in which the amendment or removal of allegedly transformation-resistant provisions in the Constitution – such as section 25 – has been mooted, 17 tend to confirm the impression that the courts and parliament are locked in or moving towards such a power struggle. The message seems to be that if and insofar as transformation is failing, the situation may have to be addressed by changing the Constitution and amending the powers of the courts, in both instances apparently to remove shackles that are perceived to prevent the government from reaching its transformation goals. Consequently, a certain line of high court jurisprudence and a particular policy debate in the public media might create the impression that the threat of a destructive power struggle between the courts and the legislature has not been avoided by the seemingly sensible direction indicated by decisions such as Port Elizabeth Municipality . The relationship between the common law, the constitutional property clause and new reform-oriented legislation therefore remains unclear and contested. Academic criticism of (mostly judicial) failures to bring about or promote transformation through suitable development of the common law must be understood against this background. Following the direction- giving lead of Karl Klare, 18 this line of criticism mostly adopts the two- pronged argument that judicial failure to give effect to transformation- friendly development of the common law is a major threat against the success of the constitutional project and that failure to develop the common law is the result of a regressive legal culture that informs 16 For the media release in which the government indicated that it wants to assess the impact of the decisions of both the Constitutional Court and the Supreme Court of Appeal on South African law and jurisprudence see http://www.info.gov.za/speech/ DynamicAction?pageid=461&sid=26232&tid=62350 (accessed 6 April 2012). For an extra-curial response to some of those recent debates see D Moseneke ‘Striking a balance between the will of the people and the supremacy of the Constitution’ (2012) 129 South African Law Journal 9 - 22, arguing that the commitment to constitutionalism should not be negotiable for short-term political gain, that the courts have made a reasonable effort in striking the appropriate balance between democracy and constitutionalism, and that the relationship between the Constitutional Court and other branches of government is oppositional because even the occasional counter- majoritarian decision of the court is eventually in support of democracy. 17 For a media report referring to the ANC policy changes to be debated at the party’s Mangaung conference in June 2012, see http://www.sowetanlive.co.za/news/2012/ 03/06/anc-somersaults-on-media (accessed 6 April 2012). The most important policy document is entitled ‘The second transition: Building a national democratic society and the balance of forces in 2012’. The 2012 policy documents are available at http:// www.anc.org.za/list.php?t=Discussion%20Documents (accessed 6 April 2012). 18 K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 146 - 188. For an updated and extended criticism along the same lines see DM Davis & K Klare ‘Transformative constitutionalism and the common and customary law’ (2010) 26 South African Journal on Human Rights 403 - 509. Introduction 9 restrictive judicial interpretation strategies. 19 According to the critics, the long-term success of the constitutional project of legal transformation is largely premised upon the question whether the regressive traditional legal culture can be replaced by a progressive, transformation-friendly legal culture. Furthermore, the success of this change in legal culture is to be assessed with reference to the extent to which the courts are willing to develop the common law in a transformative direction. As will appear from my analysis and arguments below, I share some of the sentiments that inform these criticisms of recent legal developments, but I prefer to place less emphasis upon common law adjudication. In my view, over- emphasising the success of transforming the common law through judicial development not only fails to move the debate away from the oversimplified binary opposition between legislation and adjudication but also misrepresents the processes of legal reform. Important as development of the common law is, the success of the whole transformative constitutional project cannot be made dependent on progress in that one area. Instead, I prefer to place more emphasis on the role of policy and legislation in the process of transformation. Of course, the courts also have to interpret legislation that was enacted to give effect to rights in the Bill of Rights and in that sense the success of transformative constitutionalism can be te