n Stellenbosch Law Review = Stellenbosch Regstydskrif - Expropriation, eviction, and the gravity of the common law




The Constitution of the Republic of South Africa, 1996 ("the Constitution") calls upon courts for a continuing audit of the common law to bring and keep it in harmony with the socially transformative aims of the Constitution. It seems that the common law can sometimes exert in return its own conservative impulse - its own "gravity" - inducing a reluctance of lawyers and judges to detect major deviations from constitutional aims and values in established common-law doctrines.

The common law's gravity may take the "magnet" form of a presumed propensity in the common law to point toward just and fit solutions to various kinds of social conflicts. It may also take the "system" form of caution against meddling with isolated working parts of a complex, integrated mechanism that is believed, as a whole and on the whole, to have served society reasonably well. Somewhat less familiarly, the gravity of the common law may also take a "baseline" form, in which common-rules and regimes are taken to provide a basis of expectation against which to measure the fairness of governmental action. An example is provided by a recent judgment of the Supreme Court of Appeal, denying a claim of unconstitutional expropriation by a statutory revision of the law governing mineral rights.
It is right to be on guard lest the gravities of the common law exert a force in judicial decision-making that is out of keeping with the Constitution's transformative purposes. Still, a recent decision of the Constitutional Court, declining an invitation to develop the common law in a direction favourable to the security of the tenures of residential lessees (while also finding a statutory ground for a decision in the tenant's favour) shows why it can be difficult for observers to say whether common-law gravity has been an influential factor in a given case.


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