Re-examining the Constitutional Court's Approach to the Property Question Since 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 2002 4 SA 768 (CC)

Abstract

The 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 2002 4 SA 768 (CC) (FNB) decision led to the development of several questions that need to be answered when deciding whether there had been a deprivation of property for the purposes of section 25(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution). The first question that needs to be asked when deciding whether there has been deprivation is whether that which was taken away from the property holder qualified as property for the purposes of section 25(1).

It appears that the Court in post-FNB case law fails to decide the first question in a principled manner. In some cases the Court simply assumed that the interests at issue were property for the purposes of section 25 without a thorough investigation or clear guidelines regarding whether such interests were indeed property. Analysis of post-FNB case law also indicates that there are seemingly two approaches that may need to be followed to decide complicated categories of property interest. The Court has not made it clear which approach should be followed.

In this article, I examine the Constitutional Court's approach to deciding what property is for section 25(1) purposes. The purpose is to determine how and to what extent the Court has decided what constitutes property for constitutional purposes. After an examination of the FNB decision and post-FNB case law, as well as analysing academic criticism, I suggest guidelines that the Court may follow to decide what constitutes property for section 25(1) purposes in future cases.