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[33] Chapter Four The constitutional property clause Property in the interim constitution ntroduction The interim constitution that became operational in April 1994 officially introduced democratic governance, a bill of rights and other guarantees. Section 28 of this constitution was novel in so far as it made reference to rights in property, thereby heralding a new land regime in the country. However, this new land normative structure could, when seen from an African perspective only produce a truncated land right model since the multiparty negotiation process (MPNP) which led to it was characterised by a great deal of horse-trading. The compromises made during the negotiations raised in the opinion of (Basson 1994: xxii) concerns about the legitimacy of the constitution itself.123 The minority government and the parties supporting it, for instance, insisted that the MPNP should enact the constitution instead of it being promulgated by a democratically elected constituent assembly. Overall, the property clause which emerged in s 28 of the interim constitution creating ‘rights in property,’ can be better understood when seen in the context of the above manoeuvres124. This analysis of the property clause under s 28 focuses on the impact of the protection it offered to the dispossessed. The manner in which s 28 is formulated prompted (Kroeze 1994: 326)125 to conclude that it was adopted to avoid the pitfalls of the known property clauses. According to the author, s 28 had the effect of displacing ownership from its traditional place of primacy in South Africa. In spite of the author’s adoption of this view, he nonetheless expressed the opinion that s 28(1) could be interpreted so widely as to result in an extremely wide entrenchment of existing rights in property that was not contemplated by the negotiating parties. Although (Kroeze 1994: 327) saw the possibility that a reactionary judiciary intent on frustrating the reconstruction of society to redress the land related injustices of the past could easily exploit such a formulation, he failed to recognise that some of the negotiating parties had clearly foreseen both possibilities during the negotiations. Naturally, those who benefited from the inequality of the property distribution of the past would consider such a result a worthwhile negotiating aim. During the negotiating process, two viewpoints emerged with regard to the property issue, namely, the libertarian and the liberationist view of fundamental rights. The former who were white liberals (supported by I [34] government and the Inkatha Freedom Party) believed that there should be a comprehensive bill of rights in the interim constitution.126 In point of substance, they stressed the question of the dignity of the human being and argued for the protection of land in the constitution in very clear terms. The liberationists, on the other hand, were the African National Congress (ANC) delegates who believed that the interim constitution should contain only minimal rights. They argued that the protection of property in the constitution would fossilize the existing land distribution in the country. Although ordinarily liberationists would advocate for a fuller bill of rights in a constitution, (Lourens du Plessis 2003: 3) notes that the ANC took this unusual course in order to counteract the constitutionalisation of property in such a manner as to act as a stumbling block to the envisaged land redistribution. Section 28 of the 1993 constitution Section 28(1) which asserts that ‘Every person shall have the right to acquire and hold rights in property and to the extent that the nature of the right permits to dispose of such right’ positively identifies or creates a right in property. This provision was, according to (Carpenter 1995: 273) made up of two separate rights viz: the protection of existing rights in property and access to such rights127. It is apparent from this author’s view that in the context of the current land distribution in South Africa, this provision meant the entrenchment of the existing property privileges. This conclusion is evident from the author’s further argument that the provision does not expressly constitutionalise any claim on the part of those who wish to acquire a right in property. The view that existing rights and access to them are protected by s 28 is compelling in the light of subsections 28(2) and (3) of s 28 which refer to existing rights that are individual in character. In the absence of a provision similar to that of s 25(4) of the 1996 Constitution, the conclusion that s 28 did not contemplate any substantial...

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