A critical analysis of the constitutional concept of property in light of the judgment in Shopright Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape 2015 (6) SA 125 (CC).

Abstract

The meaning of “property” in a constitutional sense is a globally contested concept. As a result, various jurisdictions have adopted varying approaches to defining the meaning of this concept. Consequently, different conclusions have been reached with regard to the even more controversial issue of the inclusion of public law entitlements within the ambit of constitutional property. Like in other foreign jurisdictions, the South African courts had no difficulties when dealing with the inclusion of rights and interests already protected as “property” under private law within the constitutional definition of problem. Challenges only arose when the court had to extend the ambit of constitutional property beyond the rights and interests protected under private law. In much of the cases, unfortunately, the Courts extended the constitutional concept of property without fully explaining the reasons for such a decision, in a manner that would give certainty of outcomes in future cases. The Shoprite Checkers case, was the first case in which the Constitutional Court engaged fully with the meaning of constitutional property, and even went on to decide that constitutional protection of property extends to commercial licences which are public law entitlements. This dissertation will critically analyse the constitutional concept of property in light of the Shoprite Checkers case. It will question whether the Constitutional Court was correct to extend the constitutional meaning of property to include commercial licenses.