9 S. Afr. J. on Hum. Rts. 388 (1993)
Problem with Property: Thoughts on the Constitutional Protection of Property in the United States and the Commonwealth, The; Chaskalson, Matthew

handle is hein.journals/soafjhr9 and id is 404 raw text is: THE PROBLEM WITH
PROPERTY: THOUGHTS ON THE
CONSTITUTIONAL PROTECTION
OF PROPERTY IN THE UNITED
STATES AND THE
COMMONWEALTH
MATTHEW CHASKALSON*
1 INTRODUCTION
As South Africa advances towards its first democratic constitution there
appears to be a broad consensus among the major negotiating parties that
this constitution will protect property rights.' Consensus on such a
contentious issue is surprising. A proposal to include property rights in
the Canadian Charter provoked much animated debate in Canada, and
was ultimately rejected.2 Canada is a country with a much more equitable
distribution of property than our own, yet the parties negotiating our
constitutional future do not seem to share the Canadian anxiety about
protecting property.
The complacency of our leaders with respect to property rights is all the
more remarkable when viewed in the light of experiences of countries
where the right to property has been protected constitutionally. In the
following paper I discuss some aspects of these experiences. The
countries which I examine are, with the exception of the United States,
all Commonwealth countries. The selection of countries is based on my
inability to read any international languages other than English, but we
should bear in mind that most South African lawyers share my limitations
in this regard. Thus we can expect the case law of English speaking
jurisdictions to exercise a dominant influence over the development of
South African constitutional law.
* BA (Hons) LLB (Witwatersrand), Lecturer in law, University of the Witwatersrand
I There are disputes over the extent of the protection to be provided in a bill of rights but substantial
protection of property rights is proposed in all of the draft bills of rights that have been published by
parties to the multilateral negotiating forum. See Art 13 of the ANC Draft Bill of Rights (November
1990), Art 18 of the National Party Draft Bill of Rights (February 1993), Arts 34-36 of the Inkatha
Freedom Party Draft Bill of Rights (December 1992). Art 9 of the Democratic Party Draft Bill of
Rights (May 1993).
2 See RW Bauman 'Property Rights in the Canadian Constitutional Context* (1992) 8 SAJHR 344.
388

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