The very first founding provision of the Constitution declares that the Republic is a state founded on values. Our social order is in the first place a value based society, and not rule based. The importance of this point of departure can hardly be underestimated, because it means that the rules must be adapted from time to time to give clearer expression to those values which the Constitution entrench, namely, human dignity; human rights and freedoms; and social justice. The Constitutional Court (CC) plays a decisive role in this process of the continuous adaption of rules to better express, protect and promote our constitutional values: ‘The challenge for South African courts is to develop a substantive account of the values and purposes which the socio-economic rights protect …’ (S Liebenberg Socio-Economic Rights (Cape Town: Juta 2010) at 42).
This article aims to consider briefly, and in very broad strokes, how the concept of property rights in a democratic constitution differs from the pre-constitutional dispensation, what the values are that underlie the rules of constitutional property rights, particularly vis-à-vis use rights, the impact on social and environmental justice, and how the CC is giving effect to these changes.
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