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Periodical article | Leiden University catalogue | WorldCat |
Title: | Property rights in the new constitution: an analytical framework for constitutional review |
Author: | Murphy, John |
Year: | 1993 |
Periodical: | The Comparative and International Law Journal of Southern Africa |
Volume: | 26 |
Issue: | 2 |
Pages: | 211-233 |
Language: | English |
Geographic term: | South Africa |
Subjects: | constitutional amendments property rights |
Abstract: | A property clause is certain to be included in a bill of rights for a democratic South Africa. Both the ANC and the Law Commission have published proposals in this regard. The author examines the practical workings of property rights under a bill of rights and offers an alternative to the clauses recommended by the ANC and the Law Commission. The right to property presupposes a theory of the separation of constitutional powers. Any comment on property rights, therefore, must be predicated on an awareness of the process of constitutional review. The model relied on here sees investigation into the proportionality of the means of government policy as the principal function of constitutional review. When evaluating the ends or objectives of government policy, judges ought to observe a measure of deference towards the legislative will. Before turning to these questions, the author refers to the ANC's and the Law Commission's proposals and the context in which they have been made. Notes, ref. |