Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence
Authors Max du Plessis, Toni Palmer
Affiliations: Member of the Durban Bar Research Associate, University of KwaZulu-Natal; Member of the Durban Bar
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 73 – 89
The article considers the 2015 Constitutional Court decision of Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism, Eastern Cape ("Shoprite"). While formally the case concerns a liquor licence, the authors contend that what is really of concern (and what is on display in the judgment) is an approach to section 25(1) of the Constitution that gives very little in the way of guidance, principles, or rules for the determination of property disputes. This context-sensitive review standard, which does not provide much in the way of principles delineating how competing values are to be reconciled, but rather doing so — and reaching outcomes — on an ad hoc basis began with First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v Minister of Finance and has continued since. The authors propose that this may have been a deliberate move by the Constitutional Court to carve out an almost unfettered discretion to decide property cases as it deems fit. This allows the Constitutional Court to reach outcomes in politically awkward cases which actively avoid confrontation with the political branches, whilst still adhering to legal principles and enforcing the Constitution, to the extent possible. Shoprite brings into sharp focus why such an approach is less than satisfying — not least of all since it results in three judges of the Constitutional Court, all applying what is ostensibly the same legal standard (section 25, and FNB), while being unable to agree on a single aspect of the section 25(1) analysis. The authors contend that an approach to constitutional adjudication that makes it difficult for lower court judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied, and to know, with some degree of certainty, that the basic law is going to be applied equally, constitutes a paradigmatic violation of the rule of law.