Where is property? Some thoughts on the theoretical implications of Daniels v Scribante
Date
2020
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
NISC
Abstract
The theoretical implications of the Constitutional Court’s decision in
Daniels v Scribante are analysed in this article. With reference to Jane Baron’s theory of
the contested commitments of property, it considers the place of property, or ownership,
in resolving property disputes in the new constitutional dispensation. The starting point
of a dispute involving property is important in the sense that it may determine the
potential outcome, or remedy that is awarded, in any particular dispute. Placing property
at the centre, or at the heart of any dispute that may involve property, can in certain
circumstances go against the constitutional aspirations of healing the divisions of the
past and building a society based on fundamental values, such as human dignity. With
reference to the arguments of progressive theorists, it is argued that the Constitutional
Court in Daniels placed property on the fringes; indicating that property owners may
have to sacrifice more in protecting the rights of non-owners. Therefore, the Daniels
decision is an important decision for our evolving understanding of the place of property
in democratic South Africa.
Description
CITATION: Boggenpoel, Z. & Slade, B. 2020. Where is property? Some thoughts on the theoretical implications of Daniels v Scribante. Constitutional Court Review, 10:379–399, doi:10.2989/CCR.2020.0014.
The original publication is available at https://constitutionalcourtreview.co.za
The original publication is available at https://constitutionalcourtreview.co.za
Keywords
Property, Dispute resolution (Law), Property law in society, Understanding of property, Ownership, Daniels v Scribante
Citation
Boggenpoel, Z. & Slade, B. 2020. Where is property? Some thoughts on the theoretical implications of Daniels v Scribante. Constitutional Court Review, 10:379–399, doi:10.2989/CCR.2020.0014.