The relevance of constitutional protection and regulation of property for the private law of ownership in South Africa and Germany : a comparative analysis with specific reference to land law reform

[摘要] ENGLISH ABSTRACT: This dissertation is an attempt at reconciling the existing (and until recently predominant) privatelaw concept of ownership and the property rights espoused by the new constitutional order. Theattempts at land reform in South Africa and Germany are used as specifie examples of themanner in which the whole property law order in both these legal systems is developed throughlegislative and judicial initiative, on the basis of the constitutional provisions concerningproperty protection and regulation. The purpose of the investigation is to determine to whatextent constitutional development of the private law of property will result in a property laworder serving the socio-economic and political goals of economic growth and self-fulfilment andempowerment of the individual. Focus is placed on the influence of the constitutional protectionand regulation of property as a mechanism for developing the private law of ownership inGermany and South Africa.In the first part of the exposition, the choice of legal comparison as course of inquiry issubstantiated, and the terminological difficulties connected with an investigation into thedevelopment of the private law of property by the constitutional protection and regulation ofproperty are discussed. Attention is given to the use of the terms ownership and property inthe private law and in the constitutional context. The term tenure is also discussed in thecontext of land reform in South Africa. Further, the usc of terms such as public interest,common weal and public purposes is discussed. The use of these terms are particularlycomplicated by the fact that each of them are often used in more than one sense, and that the useof these di fferent terms overlap to varying extents.The second part of the exposition contains information on the background of the constitutionalproperty orders as they arc found in Germany and South Africa.The drafting histories of the South African and German constitutional property clausesindicate that in both these legal systems, the constitutional property clauses have hybridideological foundations. Both contain a compromise between, on the one hand, classicalliberalism (which affords the holders of rights a high degree of individual freedom andautonomy) and, on the other hand, social democracy (which allow stronger regulatory measures,also upon private properly).Further, some of the structural aspects connected to constitutional protection andregulation of property in Germany and South Africa are discussed. The positively phrasedproperty guarantee in art 14 GG is compared with the negatively phrased guarantee of s 25 Fe,whereby the transitional property guarantee in s 28 JC is also considered. Further, the basicstructure and stages of an inquiry into the constitutional property clause are discussed, withreference to differences between the German and South African methods. These differences arenot of such a nature that it excludes further comparison. Ilowever, it is necessary to keep thedifferences in the judicial system in mind when conducting a comparison of the present nature.Therefore, a brief overview of the judicial systems of Germany and South Africa is provided,with specific reference to the manner in which the courts resolved certain property questions.The principles underlying the constitutional orders of Germany and South Africa are alsodiscussed with specific reference to their significance for the treatment of property issues. Inparticular, the meaning of the constitutional state (Rechtsstaat) and the social wei fare state(Sozialstaat) for the solution of problems connected to property is discussed. It is indicated thatthe legitimacy of the legal order in general and property law in particular, depends on the degreeof success in the implementation of these values. Further, it is indicated that the implementationof these values also determines the importance of private property and/or regulation thereof in aspecific legal system.In the third part of the exposition, the relevance of the constitutional protection and regulationfor the private law of ownership is discussed.The expansion of the concept of property by the application of a purely constitutionaldefinition thereof raises the question as to the continued relevance of the private law concept ofownership. This issue is discussed with reference to the protection of property in terms of theconstitution in comparison with the scope of property in private law. It is indicated that theexclusively constitutional concept of property is by no means based only on Constitutionallaw. The role of the private law concept of ownership in a constitutional order is then elucidated.The discussion then turns to an analysis of the limitations on property endorsed by theconstitutional order. Two main kinds of limitation are possible: (i) limitation of property throughvertical operation of the constitution (ie a broad category of legislative and administrativedeprivation (regulation), and a more specialised category, namely expropriations), and (ii)limitation through horizontal operation of the constitution (ie through the inroads allowed onproperty rights by the protection of other rights in the Bill of Rights). It is indicated that theapplication of the public interest / public purposes requirements are sometimes intended toprotect individual interest above those of society in general. In other cases, the public interest /public purposes requirement is aimed at securing the interests of the society at large. Further, it isindicated that the purpose of constitutional interference in the area of private property law is tocorrect imbalances in the relations among private persons which are regarded by the law asequals, even if they are not equal for all practical purposes.The fourth part of the exposition concentrates on the land reform programmes in Germany (afterthe reunification of 1990) and South Africa (since 1991) in order to analyse the attempts by thelegislature and judiciary to give effect to the improved property order as anticipated byconstitutional development of property. In both Germany and South Africa political changesmade land reform programmes essential:In South Africa the land reform programme was introduced to reverse the injusticescreated by colonialism and apartheid. A tripartite programme is employed for this purpose. Thenew kinds of land rights created through this system of land reform are indicated. The manner inwhich this body of law is treated by the courts is also analysed with reference to its relevance forthe development of Property Law in general.In Germany a property and land reform programme became necessary with thereunification. On the one hand, the socialist property order in the former GDR had to be replacedby the property order already existing in the FGR, and on the other hand the individual claimsfor restitution of the land and enterprises taken by the GDR state or its Soviet predecessor had tobe balanced against the claims that present occupiers of such land have to it. The influence oflegislation and litigation connected to these issues on the development of Property Law isdiscussed.The final part of the exposition is a summary of the conclusions drawn during the course of theanalysis.

[发布机构] Stellenbosch University