The interaction between property rights and land reform in the new constitutional order in South Africa

Abstract

The introduction of the first democratic Constitution and the land reform programme in South ' Africa provided the impetus for the development of a new perception of property. In terms of the traditional private law perception property rights are reduced to abstract, scientific concepts which form part of a hierarchical system of rationally and logically related concepts and definitions, the relationships between which remain largely unaffected by social and political realities. In this view the constitutional property clause is interpreted as a guarantee of existing individual property rights against unwarranted state interference. Proponents of the traditional private law view argue that this perception of property need not be replaced by a new constitutional perception of property, because the traditional private law perception is legitimated by the fact that it developed in an uninterrupted, linear line from Roman law. It is regarded as flexible enough to adapt to new and different social and political circumstances. However, the truth is that the development of property rights was disrupted by a number of discontinuities or fundamental breaks in different periods of its development. It is argued in this thesis that the introduction of the new constitutional order in South Africa can be regarded as another of these discontinuities, and that the strict adherence to the private law perception of property may be abandoned in favour of a new debate on property where the social and political function of property is emphasised more strongly. Land reform promotes the public interest in that it ensures the equitable use, distribution and exploitation of property. In most cases the implementation of land reform necessitates the limitation of property rights. A conservative judiciary's adherence to the traditional private law perception of property may lead to a constitutional conflict between the judiciary (that aims to afford existing property rights strong constitutional protection) and the legislature (that aims to promote the public interest by implementing land reform). Such a constitutional conflict can be avoided if the South African courts adopt an approach in terms of which the social and political role and function of property in society is recognised.