Section 25 vortices (part 1)

Van Der Walt, A. J. (2016-10)

CITATION: Van Der Walt, A. J. 2016. Section 25 vortices (part 1). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2016(3):412-427.

The original publication is available at https://journals.co.za/content/journal/jlc_tsar

Article

Roux introduced the notion of the “arbitrariness vortex” to illustrate his observation that the constitutional court’s FNB decision could “telescope many of the issues that might have been addressed (and in comparative constitutional law are addressed) at other stages of the property clause inquiry into [the arbitrariness] stage” or, as he describes it elsewhere, of “sucking the [whole property] inquiry into the arbitrariness test”. Crucial to the idea of a vortex is that what is perceived as the crux of a section 25 dispute, namely the balancing of individual property interests and the public interest, is “sucked into” just one stage or part of a section 25 challenge, instead of taking place in or being spread over several discrete stages or parts of the inquiry.

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