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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The property clause: section 28 of the Constitution
Author:Chaskalson, MatthewISNI
Periodical:South African Journal on Human Rights
Geographic term:South Africa
property rights
Abstract:The protection of property rights was a hotly contested issue at South Africa's multiparty negotiations. The disputes over an interim property right reflect the fact that the ANC and the National Party (NP) came to the negotiating forum with conflicting concerns relating to the constitutional protection of property. The ANC were anxious that a constitutional right to property should not impede legislative programmes addressing the massive disparities of wealth in society; the NP were intent on ensuring that the property of existing owners would be safe from the depradations of a future democratic government. Section 28 of the 1993 Constitution is the product of attempts to reach a compromise around these conflicting concerns. Property is protected, but interference short of expropriation does not attract compensation. Compensation for expropriated property is to be determined by a court of law, but it can be adjusted below market value in appropriate circumstances. The wording of s 28 is not always clear, but in interpreting this wording, the courts would do well to adopt a purposive approach and to bear in mind the compromise which the section seeks to achieve. Notes, ref.