Law of property - Semester 1
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, Subsidiarity Principles Question (Growthpoint)
Issue
Which source of law should be used to decide the dispute?
Law/application
Single system of law
According to the Pharmaceutical Manufacturers case, there is only one system of law which is shaped by the
Constitution, which is the supreme law. All law including the common law derives its force from the
Constitution and is subject to constitutional control. Therefore, courts should be cautious to create a divide
between the Constitution and other sources of law such as the common law by developing them in isolation.
Subsidiarity principles
In deciding which source of law to apply, the subsidiarity principles are used. However, the subsidiarity
principles should not restrict the application of the Constitution and BoR, nor constitutional values. They must
rather act as a starting point. Furthermore, both parties obliged to rely on subsidiarity principles
First subsidiarity principle:
a) Litigant averring infringement of a constitutionally protected right, must rely on legislation enacted to give
effect to that right and cannot rely directly on the Constitution to protect it
b) Proviso: litigant may rely directly on the Constitution to attack the legislation for being unconstitutional or
inadequate in protecting the right
Second subsidiarity principle
a) Litigant averring infringement of a constitutionally protected right, must rely on legislation enacted to give
effect to that right and cannot rely on the common law when brining an action to protect it
b) Proviso: litigant may rely on common law if legislation does in fact not protect the right (or particular
aspect of it)
c) Common law must not conflict with Constitution/legislation and can be developed through interpretation in
terms of S 39
Applicable case
In Growthpoint, the court had to decide whether the dispute was subject to the Labour Relations Act (LRA) or
whether it would have to balance the Constitutional rights directly. The court held that the issue is dispute
was not a labour dispute as the applicant was not the picketer’s employer and its cause of action was based
on grounds unrelated to the labour dispute
Van der Walt criticised the Growthpoint case, claiming that while the issue in dispute was not a labour
dispute, the LRA was enacted to give effect to the right to picket as well as determine its boundaries and
limits of other rights affected by lawful picketing. Thus, the applicants in Growthpoint should not have been
allowed to rely on the Constitution directly and the subsidiarity principles should instead have been applied.
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, Limitations on ownership (Gien, VA Waterfront, PE Municipality)
The common law definition of ownership is: a real right which gives the owner the most complete and
absolute entitlements to a thing. In terms of the rights paradigm, traditionally ownership is on the top of the
hierarchy and thus trumps all other rights below it in the hierarchy.
Ownership is often described as:
“Absolute” – owner has absolute and unlimited control of the thing and can use it as he sees fit.
“Individualistic” – given the strong position enjoyed by ownership in the rights paradigm, courts tend to focus
on the interests of the owner and not necessarily on the interest of parties with lesser or no rights in the land
“Exclusive” – it is enforceable against the whole world (indicates exclusive entitlements of disposition and
enjoyment)
However, Van der Walt and Dhliwayo clarified on these characteristics. Even before the Constitution,
ownership was never absolute as it could be limited by public law, private law, and also voluntarily. They
state:
Notion of “absoluteness”: refers to completeness, in the sense that the owner holds all the entitlements that
have not been suspended or transferred. However, the enjoyment and exercise of those entitlements is not
unrestricted.
“Individuality” of ownership: refers to the fact there is only kind of ownership, and it is not fragmented amongst
more than one person at a time (only one kind of legally recognised ownership over any given property at any
given time).
“Exclusivity” of ownership: implies that the owner’s right is enforceable as a real right, meaning there is a
strong right to vindicate the property from anyone who cannot prove a valid and enforceable right to the
property
Limitation of ownership
Private law and rights of others
Even before the Constitution, ownership could be limited in terms of private law and was thus not absolute.
In Gien, ownership was described as the most complete real right a person can acquire with regard to a
thing, and the owner can as a rule act upon and with his property as he pleases. However, the court held that
this principle is qualified – the owner’s apparently unrestricted freedom of use exists within the limits of the
law (ie limited by objective law and the rights of others). When the two rights of two owners conflict, there
must be an objective balancing of the rights and interests of both parties, and through this ownership can be
limited.
Constitutional rights
The position enjoyed by ownership in the rights paradigm under pre-constitutional law no longer applies
under the Constitution. This is especially so as according to the Pharmaceutical Manufacturers case, there is
only one system of law which is shaped by the Constitution, which is the supreme law. All law including the
common law derives its force from the Constitution and is subject to constitutional control.
In VA Waterfront, the court held that ownership can be limited by the human rights of others, such as the
right to freedom of movement, dignity, and life. The court held that when ownership and these rights conflict,
the conflict should be resolved through a balancing of the rights so that the rights of both parties are
vindicated to the greatest extent possible.
Legislation
In PE Muncipality the court held that courts must, in terms of the Constitution, simultaneously protect the
rights of property holders but also the interests of human dignity of the homeless, poor, and vulnerable
members of the community. In this case, ownership and ability to evict unlawful occupiers was limited in
terms of legislation which was enacted to give effect to the right to housing (S 26). Again, the court stated
that there must be a balancing of rights and interests. Therefore, the right to exclude (and “exclusivity of
ownership”) was limited.
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