Browsing by Author "van der Sijde, Elsabe"

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    Reconsidering the relationship between property and regulation: a systemic constitutional approach
    (Stellenbosch : Stellenbosch University, 2015-12) van der Sijde, Elsabe; Van der Walt, A. J.; Quinot, Geo; Stellenbosch University. Faculty of Law. Department of Public Law
    ENGLISH ABSTRACT :This dissertation considers whether the approach to the regulation of property in the constitutional context is compatible with either one of the major theoretical approaches in private law, namely that ownership is fundamentally absolute or alternatively that regulatory limitations are inherent to ownership. It finds that the inherent/external debate is of limited value in South Africa’s constitutional context because there has been a shift toward a stronger emphasis on reconciling individual entitlements with other (constitutional) interests. In response to the inadequacy of the existing (private law) approaches, this dissertation proposes a systemic constitutional approach. In terms of this approach, property is regarded as part of an inherently regulated constitutional legal system. Disputes regarding the protection of entitlements must be addressed with reference to the objectives of the system as a whole and regulation is understood as a mechanism through which constitutional values are promoted. Thus, regulation of the use of property does not erode the institution of private property, because the system provides for constitutional or statutory control over the regulatory process. In this context there is an overlap between sections 25 and 33 of the Constitution, since the secondary regulatory function can be fulfilled by the principles of either constitutional property law or administrative law, when the use of property is regulated through administrative action. The complicating factor is that not all regulatory measures are also administrative actions. The use of property can also be regulated directly through common law or legislation, or through acts of the executive or judiciary. In terms of the systemic constitutional approach, direct application of section 25 should be reserved for cases of direct statutory or common law deprivation. Where more than one regulatory framework is potentially applicable, the subsidiarity principles should identify the appropriate framework, to avoid the creation of parallel systems of law. Ultimately, reconsideration of the relationship between property and regulation is part of an ongoing constitutional conversation which can only take place when we explicitly engage with questions regarding the role, function and status of property and regulation in the constitutional legal system.