n SA Publiekreg = SA Public Law - An overview of developments in constitutional property law since the introduction of the property clause in 1993

Volume 19, Issue 1
  • ISSN : 0258-6568


The introduction of a property clause in the South African Constitution generated a fair amount of speculation and debate amongst politicians and academics during the early 1990s, which is not surprising, given the novelty of such a clause and the legal and political controversy surrounding it. Early debates about the nature and potential impact of this provision were rather hesitant and mostly speculative, but an overview of the literature since 1990 indicates that they have - at least in places - since made way for a more sophisticated discourse about constitutional property issues.

The need to secure vested property interests and to promote investment confidence and, conversely, fears that the constitutionalisation of property could insulate existing property holdings and so impede or frustrate necessary land reforms, dominated the early debates. Similar concerns probably inspired the prominence given to the constitutional legitimacy of land reform initiatives in section 25 of the 1996 Constitution. Although these concerns still feature in the background of current constitutional property debate, academic discussion about the constitutionally legitimate and politically appropriate balance between the preservation of existing rights and the promotion of land reform has lost some of its original air of transformation anxiety and developed into a more rigorous, critical debate about the respective places and functions of land rights and land reform in South African society during the post-apartheid era. Since the introduction of the 1996 Constitution, South African constitutional property law has developed into a sophisticated field of scientific inquiry.

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