Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Subject "Arbitrariness test"

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    Re-evaluating the Constitutional Court’s approach to deprivation of property since the FNB decision
    (Stellenbosch : Stellenbosch University, 2020-12) Sono, Nhlanhla Lucky; Slade, Bradley V.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This dissertation re-evaluates the Constitutional Court’s approach to deprivation of property since the seminal decision in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (FNB), with a particular focus on the Court’s constitutional interpretive framework, the FNB questions and the FNB methodology. Whether the Constitutional Court’s approach, beginning with FNB and advanced in subsequent cases, has established any clarity regarding the Court’s constitutional interpretive framework, the FNB questions and the methodology is further investigated. Core concepts emanating from the FNB questions such as the meaning of “property” and “deprivation”, as well as specific issues regarding the requirements for a valid deprivation, such as law of general application and the substantive arbitrariness test are analysed. The dissertation further focuses on the inconsistencies and the fact that there is a lack of clarity regarding the position of the Court on core concepts. These core concepts include the meaning of “property”, “deprivation”, and the application of the requirements for a valid deprivation such as law of general application and the substantive arbitrariness test. The dissertation also shows that there are inconsistencies and a lack of clarity regarding how the Court’s constitutional interpretive framework is relied upon to decide the FNB questions. Moreover, the methodology that was established by the Court in FNB to resolve constitutional property disputes is not strictly adhered to and in some cases, seems to have resulted in a vortex effect. It is revealed in this dissertation that the Court’s lack of clarity and consistency in its approach regarding the issues above, complicates the section 25(1) inquiry and makes future case law on section 25(1) disputes unpredictable. Therefore, the dissertation analyses and evaluates the developments in post-FNB case law in light of scholarly work and theoretical frameworks and concludes by making recommendations for the adjudication of section 25(1) disputes that will arguably make the outcome predictable.