The Notion of Constitutional Property in South Africa

Abstract

The notion of constitutional property and its features, and the court’s approach to the determination of what constitutes constitutional property, will be examined in this article in respect of the three judgments handed down in the Shoprite decision.8 This article sets out the normative approach adopted by Froneman J, as compared to the private-law approach adopted by Madlanga J. It also canvasses the approach adopted by Moseneke DCJ, who argued that whether licences constituted constitutional property need not be examined, and instead put forward that a rationality enquiry should be undertaken.

This article argues that the focus of the investigation should be on the rights that are lost when determining whether a right should be treated as constitutional property. The various approaches adopted by the three judgments referred to above, are evaluated in this light. Thereafter, this article attempts to distil the key features used by the court that may be useful for the determination of whether a right falls within the notion of constitutional property.