the Dynamics of Constitutional Property Clauses In the DevelopIng World: ChInA AnD soUth AfRICA

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THE DYNAMICS OF CONSTITUTIONAL PROPERTY CLAUSES IN THE DEVELOPING

WORLD: CHINA AND SOUTH AFRICA

Hanri Mostert* and Chen Lei**1

No constitutional provision and no judicial method of interpreting a constitutional provision can possibly resolve,

once and for all, value conflicts over property.(G. Alexander, The Global Debate over Constitutional Property

(University of Chicago Press, Chicago 2006), p. 247)

ABSTRACT

This article examines the theoretical development of Chinese constitutional property law, compared with the experience in South Africa, which is another emerging jurisdiction of constitutional property law. Being cautious of the political, economic and social differences between two countries this endeavour is nevertheless important, because of its potential to spark renewed interest in the comparability of property law systems worldwide. It highlights that the third-generational constitutions of the developing world focus not only on participatory and political rights, but also on social rights and responsibilities of citizens, and in fact supports actionable socio-economic rights. Perceptions of property that may be regarded in the developing world as ‘Eurocentric’, i.e. that a system of ‘individual’ property interests is the predominant form of organization, are losing support. From the Chinese perspective, there seems to be an awareness of the increasing need to limit the vast regulatory reach of the state and to afford the individual better protection and opportunities to engage in personal wealth-enhancing activity. Yet, the promotion of individual property right should be comprehended in the view of the communitarian needs.

Keywords: China; constitutional property clauses; expropriation; public interest; South Africa

* BA LLB LLM LLD (Stell). Professor of Private Law, University of Cape Town; Visiting Professor, Centre for Law and Governance, Rijksuniversiteit Groningen. The financial support of the National Research Foundation is acknowledged with gratitude. Opinions expressed here should not be attributed to this institution. The research assistance of Nkanyiso Sibanda is gratefully acknowledged.

** LLB LLM (Aberdeen) LLD (Stell). Assistant Professor, School of Law, City University of Hong Kong.

Hanri Mostert and Chen Lei

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§1. INTRODUCTION AND BACKGROUND

Property is more than just something tangible: it is the embodiment of a human being’s relationship with the outer world. Hegel pointed out that individual will is an ‘objective in property’, that it is a human right to own property and use it as a means of self-development.1 In the Hegelian view, property is intimately connected to personal freedom. From the Chinese perspective, ancient philosopher Mengzi (Mencius) indicated that a person who owned property had a higher level of morality and behaved in a more disciplined way than those who did not own property.2 From this stance, the communitarian perception of the right to private property promotes a harmonious and ordered society. The viewpoints of the likes of Hegel and Mengzi are not necessarily antithetical. Property can represent both personal freedom and restraint simultaneously. Nowhere is this dichotomous truth better illustrated than in studies about constitutional property protection.

Our paper examines constitutional property protection in China and South Africa, and focuses specifically on expropriation. It certainly is beyond doubt that the Chinese constitutional amendments of March 2004 were far-reaching. They elevated private property rights to a level deserving better protection than was previously envisaged. They introduced into Chinese law a notion of property that renders a free-market economy more viable and economic development more sustainable. Nevertheless, the principles for constitutional property protection in China have yet to be translated into more concrete implications. It is still not generally appreciated that the Chinese Constitution plays an important part in property law, particularly in matters relating to expropriation. Two major difficulties present themselves here: these are the deficiencies as regards enforcement of judgments and the lack of judicial review in China.3 Though these practical challenges must, importantly, be overcome if the constitutional provisions are to have a significant impact on Chinese property law, they are not the main focus of our analysis. Our goal is more modest, because China’s constitutionalization of private property rights has only just begun. This presents an appropriate opportunity to examine the possible theoretical development of Chinese constitutional property law, in comparison with similar developments from elsewhere in the world. At this point, the necessity and value of legal-comparative study cannot be denied. We base our analysis

1 G.W.F. Hegel, Elements of the Philosophy of Right (Cambridge University Press, Cambridge 1991), chapter 78, p. 46; P. Drahos, A Philosophy of Intellectual Property (Dartmouth Publishing Group, Aldershot 1996), p. 73–94.

2 English version: ‘The way of the people is this: if they have a certain livelihood, they will have a fixed heart; if they have not a certain livelihood, they have not a fixed heart.’ Teng Wen Gong, Book I, Mencius.

3 See He Xin, ‘The Judiciary Pushes Back’, in R. Peerenboom (ed.), Judicial Independence in China: Lessons for Global Rule of Law Promotion (Cambridge University Press, Cambridge 2010), p. 180–195.

The Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa

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on lessons taken from another very recently emerging body of constitutional property law, namely that of South Africa.

A. COMPARATIVE STUDY

There are good reasons for employing a comparative methodology in our analysis. First, it is in line with current scholarly practice in China to look towards other jurisdictions for ideas about law reform and reconstruction of the law. China is still in an early stage of development as regards private property rights. It will be useful to refer to other jurisdictions with longer histories and more voluminous jurisprudence on property law to shed some light. Secondly, as regards constitutional property jurisprudence specifically, it has a distinctly comparative character. Considering the Chinese attempt at constitutionally protecting property would be in line with comparative studies undertaken in respect of many other jurisdictions as regards the same topic. After all, maintaining a guarantee of private property is a global issue, demanded by the global economy.4

In our opinion, South African constitutional property law forms a particularly good agent for a comparative analysis with the Chinese provisions. Certainly, there are obvious differences between the two legal systems. Most importantly, for instance, the societal values upon which the law is based in these jurisdictions may be significantly different, given the very dissimilar political and legal histories of the two jurisdictions. In fact, the conception of landownership in these jurisdictions for the longest time have been very different, with the Chinese focus being mainly on public landownership, whilst private landownership is paramount in South African law. However, there are compelling reasons favouring a comparative analysis. Both China and South Africa are developing countries. They deal with common developmental problems, such as balancing economic development, redressing past injustice and protecting private property rights. Most notably, land reform initiatives are ongoing in both jurisdictions.5 Furthermore, both China and South Africa are experiencing rapid urbanization and economic development. The need for expropriation in this particular context may pose specifically similar challenges in jurisdictions which otherwise have very different backgrounds.

Moreover, South African post-apartheid constitutional property law enjoys a special standing in legal-comparative circles. Constitutional property protection and regulation in South Africa has captured the imagination of comparative scholars since the idea

4 Foote, ‘The Roles of Comparative Law: Inaugural Lecture for the Dan Fenno Henderson Professorship in East Asian Legal Studies’, 73 Washington Law Review 25 (1998), p. 25 at 28.

5 Specifically, China is currently experimenting with the liberalization or privatization of the farmers’ land use rights. The South African land reform programme deals with restitution of land dispossessed because of apartheid, the provision of more equitable access to land and the improvement of legally secure tenure.


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was introduced in the early 1990s,6 when the political negotiations about incorporating property as a fundamental right in the Constitution demonstrated the controversies surrounding the compromise between protection of vested interests and the goals of political reform. Immediately, academics began contemplating which of the prominent models of constitutional property protection encountered worldwide would lend itself best to adaptation for South Africa.7 The main contenders were the Anglo-American and German models of constitutional property protection, although studies of many other jurisdictions were also undertaken.8

This exercise was an important contribution to the discipline of property law worldwide, as it sparked renewed interest in the comparability of property law systems. South African constitutional property law represents an important ‘moment’ in the development of constitutional property law into a specialized genre. The American Constitution is a typical eighteenth-century, first-generation, classical-liberal constitutional document.9 It is characteristically libertarian, as it deals with civil and political rights only. It incorporates property protection through the due process and takings clauses. By contrast, the German Grundgesetz (Basic Law) is described as a second-generation (post-WWII) constitution and, in this sense, it is juxtaposed with the American Constitution. Characteristically, the German Basic Law focuses on rights as well as duties, and is distinctly dignitarian.10 The South African Constitution was one of the many subsequent constitutions influenced by the German Basic Law. Like the German Basic Law, the South African Constitution is a modern and transformative instrument,11 acknowledging more than merely civil and political rights. Being of the third generation (post-Berlin Wall), however, the South African Constitution goes even further by enumerating specific social and economic rights as positive constitutional rights. As such, the South African Constitution is liberationist, rather than libertarian.12

6 See e.g. Lewis, ‘The right to private property in a new political dispensation in South Africa’, 8 South African Journal on Human Rights 3 (1992), p. 389–430; Van der Walt, ‘Comparative notes on the constitutional protection of property rights’, 19 Recht & Kritiek (1993), p. 263–297.

7 See e.g. Van der Walt, ‘Notes on the interpretation of the property clause in the new constitution’, 57 Tydskrif vir Hedendaagse Romeins-Hollandse Reg (1994), p. 181–203; Murphy, ‘Interpreting the property clause in the constitution act of 1993’, 10 South African Public Law (1995), p. 107–130; Eisenberg, ‘Public purpose and expropriation: Some comparative insights and the South African bill of rights’, 11 South African Journal on Human Rights (1995), p. 207–221.

8 Most notably in A. J. van der Walt, Constitutional property clauses – A comparative analysis, (Juta, Cape Town 1999).

9 G.S. Alexander, The global debate over constitutional property – Lessons for American takings jurisprudence (University of Chicago Press, Chicago 2006), p. 11.

10 Ibid., p. 11–12.11 Van der Walt, ‘Transformative Constitutionalism and the Development of South African Property

Law (part II)’ 1, Tydskrif vir die Suid-Afrikaanse Reg (2006), relying on K.Stern, Staatsrecht der Bundesrepublik Deutschland III/1 (C.H. Beck, Munich 1988), p. 1553.

12 See Du Plessis, ‘The genesis of the chapter on fundamental rights in South Africa’s transitional constitution’, 9 South African Public Law (1994), p. 17; and the implications of this characterization in Mostert ‘South African constitutional property protection between libertarianism and liberationism:


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With this typification, focus is placed on adherence to ideologies ranging from social-democratic to the democratic-socialist; some degree of tolerance for an interventionist state, for the sake of equality; and fair social distribution. Hence, socio-economic upliftment is a core goal of the South African Constitution.13 In this regard, it represents an excellent comparator as concerns the Chinese constitutional property provisions.

Normatively, the Chinese constitutional property law is now only ‘taking off ’. Very little has already been done in Chinese law to provide for the interpretation of the public interest requirement; to deal with the notion of due process; and to define the parameters of just compensation. There may be caution amongst scholars of Chinese law to opt for the comparative method, because of the disregard this may supposedly entail for the Chinese national characteristics.14 However, we argue that, if the analysis remains context-sensitive, legal principles can be extracted from a different foreign legal culture and adapted to suit the needs of the Chinese context. In this paper, we do not argue that China needs to follow South African jurisprudence blindly. What we do hope to show, however, is that a comparative exercise may be useful to understand the issues in Chinese constitutional property law better and that South Africa has a particular set of offerings in this regard. Comparison is not an end, but a means. It is perhaps just an initial step to provide the insights necessary to promote the private property rights already enshrined by the new Chinese property code.

B. BACKGROUND

In the following paragraphs, the constitutional property issues of China and South Africa are contextualized by brief discussions of the respective jurisdictions’ historical and political backgrounds, in as far as these relate to the constitutional property issue.

1. China

Initially, there was no provision for private property in the 1982 PRC Constitution. With the dramatic changes in economic and social conditions, the PRC Constitution was amended several times to entrench private property constitutionally. The 1999 constitutional amendment states that ‘individual private and other non-public economies that exist within the limits prescribed by law are major components of the socialist market economy.’15 In contrast, the 2004 constitutional amendment guarantees the right to hold

Challenges for the judiciary’, 60 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2 (2000), p. 295–330.

13 Du Plessis, ‘Drafting the Chapter on Fundamental Rights’, in B. de Villiers (ed.), Birth of a Constitution (Juta, Cape Town 1994), p. 91–92.

14 Chen Lei and Mostert, ‘The Unavoidable Necessity of Formalizing Condominium Ownership in China: A Pilot Study’, 2 Asian Journal of Comparative Law 1 (2007), p. 83–85.

15 Article 11 of China’s Constitution (amended on 15 March 1999 at the 2nd session of the 9th NPC).


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private property.16 This most recent amendment will lead to legal changes improving the country’s legal framework for trading in real estate, stocks, bonds and other kinds of property. Although private property is protected in various ways under Chinese law, the constitutional amendments are important in that they acknowledge the status of the right to private property as a fundamental freedom. This is a symbolic milestone that pre-empts the enactment of further laws relating to property.17 The constitutional entrenchment of property rights gives equal protection to privately owned, state-owned and collectively owned property.

In a nutshell, the Chinese land tenure system is still socialist in nature. This is evidenced by the dichotomy between landownership and land-use rights.18 All the urban land is state-owned and all the rural land is collectively owned. In brief, there is no private landownership in China. However, under the Chinese constitution, the highly commercialized land-use right is created to separate itself from landownership.19 As a result, while land is still publicly owned, the land-use right to such land is allocated to private individuals and can be freely transferable for value. For rural land, the current legal framework governing land expropriation requires that all non-agricultural use of land must use state-owned land.20 Where the land is collectively owned in rural areas, it must first be taken by the state to be converted into state-owned land.21 Because land is publicly owned in China, expropriation of land only involves withdrawal of land-use rights.

Before 1994, when housing privatization occurred, the expropriation of urban housing was mainly aimed at serving the needs of urban regeneration. Expropriations were largely government-oriented and benefited the public by improving poor living conditions. However, the Urban Real Estate Management Law22 changed the face of expropriations of urban housing. The Law created a number of de facto monopolies that render the implementation of just compensation almost impossible. Primarily, both the Urban Real Estate Management Law and the Land Administration Law require that various constructions be completed on state-owned land. Since the local government is the only authority that may assign a piece of state-owned land to developers, or take collectively owned land and convert it to state-owned land, the government effectively monopolizes the supply of land for construction.23 Hence, the

16 Article 13 of China’s Constitution (amended on 14 March 2004 at the 2nd session of the 10th NPC).17 Miao Lianying, ‘Safeguarding Constitutionalism in a Harmonious Society’, 24 Wuhan University Law

Review 1 (Fa Xue Ping Lun) (2006), p. 10.18 Hu Zhigang, New Discourse on Real Property (Xuelin Press, 2007), p. 151–152.19 Article 10 of PRC Constitution.20 Land Administration Law Article 43.21 Land Administration Law Article 44.22 Urban Real Estate Management Law of 1994 by the Standing Committee of the National People’s

Congress of PRC.23 P. Ho, Institutions in Transition: Land Ownership, Property Rights, and Social Conflict in China (Oxford

University Press, Oxford 2005), p. 44–48.


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entrepreneurial interests of local governments are easily intermingled with the public interest.24 Since the Urban Real Estate Management Law only allows licensed developers with the necessary qualifications to construct infrastructure facilities and housing in urban areas, individuals, organizations and enterprises are unable to build their own housing. Moreover, the licensing system welcomed a sizeable private capital flow into the construction market. In order to maximize profit in redevelopment, a private developer removes the residents from a piece of land at a low price, redevelops the area and sells the real estate at a much higher price.

2. South Africa

By contrast, the South African land system had been based on private ownership since at least the advent of colonization of the area around the mid 1650s. South African ‘common law’ relating to land is based on the Roman law as it was understood and practiced in the province of Holland around the time when the first Europeans settled at the Cape of Good Hope.25 Because of the bipartite colonial history of the country, influences from both the English common law and continental civil law traditions were absorbed, in relation to the governing political forces at various points in the country’s colonial history. Property law has always been one of the ‘strongholds of civilian jurisprudence’.26 This implies a particular understanding of the relation between ownership and other rights in respect of property. In very broad strokes,27 this understanding supports an economic system based on capitalist ideology. Rights to property are usually divided into real rights, on the one hand, and personal rights or statutory grants, on the other. Real rights comprise two broad categories in traditional private law theory in South Africa, namely ownership and limited real rights. Ownership of land is traditionally described as the most complete right, and indeed the only real right that a person can hold with regard to her own property. Other rights in property are usually limited in scope and/or time. Limited real rights are defined as rights to specified uses of property belonging to another, which restrict the exercise of the ownership entitlements by the owner thereof.

The strong protection afforded in South African common law to property and real rights in respect of it was abused in the apartheid era to put in place the ‘grand social

24 Sargeson, ‘Full Circle? Rural Land Reforms in Globalizing China’, 36 Critical Asian Studies 4 (2004), p. 637 and 640.

25 Erasmus, ‘Thoughts on Private Law in a Future South Africa’, 5 Stellenbosch Law Review (1994), p. 105 and 107.

26 Zimmermann and Visser, ‘Introduction: South African Law as a Mixed legal System’, in R. Zimmer-mann and D.P. Visser (eds.), Southern Cross: Civil Law and Common Law in South Africa (Cape Town, Juta 1996), p. 28.

27 See e.g. P.J. Badenhorst et al., Silberberg and Schoeman’s The Law of Property (5th edition, LexisNexis Butterworths, Durban 2006), p. 47–89; H. Mostert and A. Pope (eds.), The Principles of The Law of Property in South Africa (Oxford University Press, Cape Town 2010), p. 41–50; C.G. Van der Merwe, The Law of Things (Butterworths, Durban 1987), p. 35–47.


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experiment’28 of spatial separation of races under apartheid. This was particularly obvious in the context of landownership and land tenure.29 Especially at the bottom-end of the property market, laws were put in place to hamper rather than promote access to land. Eventually, both colonial and apartheid land policy resulted in a perplexing array of insecure land relations and rights affecting the ability of especially black people to use their property rights to maximize wealth.30

When the new constitutional democracy was negotiated in South Africa at the beginning of the 1990s, it was clear that the question of how the Constitution could ensure a reversal of the inequalities as regards property rights whilst protecting existing positions would arise. Eventually the right to property was entrenched as a fundamental right.31 The South African property clause is now recognized as a two-pronged mechanism with which to protect private property against impermissible impositions, on the one hand, and with which to bring about transformation of existing patterns of private property on the other.32 This property clause has to serve the needs of a population that is more than 60% urbanized and which is driven by an economy relying quite extensively on primary industry and especially on the exploitation of the country’s rich natural resources. The country has a modest social welfare policy in place and is nowadays most comfortably described as a social democracy.

In South Africa, the constitutional right to property must be understood against the backdrop of the foundational constitutional values, the importance of socio-economic development, international law, South Africa’s peculiar and unfortunate history of dispossession and its hopes for a democratic future.33 This translates into a number of interpretive guidelines: first, an equitable balance between private and public interests hinges on acknowledgement of both the protective as well as the reformative function of the property clause.34 Secondly, despite the negative formulation of property protection in section 25(1), it must be accepted that the clause really does guarantee property.35 Thirdly, the individual freedom to exercise property rights is protected to the same extent

28 Minister of the Interior v Lockhat 1961 2 SA 587 (A) p. 602E–F.29 See e.g. Van der Merwe and Pienaar, ‘Land Reform in South Africa’, in P. Jackson and D.C. Wilde (eds.),

The Reform of Property Law (Dartmouth, Ashgate 1997), p. 334–340; P.J. Badenhorst et al., Silberberg and Schoeman’s The Law of Property (5th edition, LexisNexis Butterworths, Durban 2006), p. 69 and p. 586–588.

30 The Black Land Act 27 of 1913, the first in a long line of racially motivated land laws, provided the statutory basis for territorial segregation by dividing South Africa into the so-called ‘black spots’ on the one hand and the ‘non-African’ areas on the other hand. See maps and illustrations in Van der Merwe and Pienaar, in P. Jackson and D.C. Wilde (eds.), Reform of Property Law, p. 336–337.

31 Section 28, Act 200 of 1993; section 25, 1996 Constitution.32 I. Currie and J. De Waal, Bill of Rights Handbook (5th ed., Juta, Cape Town 2005), p. 533; First National

Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (7) BCLR 702 (CC); 2002 (4) SA (CC) para. 49, p. 793.

33 Zimmerman, ‘Property on the line: Is an expropriation – centered land reform constitutionally permissible?’, 122 SALJ 2 (2005), p. 401.

34 A.J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005), p. 25–26.35 Ibid.


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as the public interest in individual property.36 Fourthly, the conflicting interests relating to economic and political power (or a lack thereof) that characterize the stark divisions underlying South African society must be taken into account.37

§3. THE CONSTITUTIONAL PROVISIONS ON PROPERTY IN CHINA AND SOUTH AFRICA

The South African constitutional property clause, section 25 of the 1996 Constitution, reads

(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application – (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including – (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.

(4) For the purposes of this section – (a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (b) property is not limited to land.

This section regulates the extent to which the state can justifiably place restrictions on private property; and the circumstances under which compensation can be claimed for such restrictions. These are the kinds of provisions one finds in many jurisdictions boasting constitutional entrenchment of private property rights and/or constitutionally imposed standards for the limitation of property rights. But the South African property clause goes further. Section 25 further provides:

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

36 Ibid., p. 32.37 Ibid., p. 37.


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(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

(9) Parliament must enact the legislation referred to in subsection (6).

It hereby provides a blueprint for reforming existing patterns of control over land. It contains a commitment to the objectives of access to land, provision of legally secure land tenure, land restitution and related reforms. Accordingly, the South African property clause is characterized by an inherent tension between its dichotomously protective and reformative aspects.38

The Chinese constitutional amendments of March 2004 introduced the provision that ‘the lawful private property of citizens is inviolable.’39 In addition, the Chinese Constitution provides explicitly that ‘[t]he state protects according to law the right of citizens to own and inherit private property’.40 More importantly, the Chinese constitution enshrines that the state may, for the public interest, expropriate (Zhengshou) or requisition (Zhengyong)41 private property of citizens for public use with compensation in accordance with the laws.42 According to Van der Walt’s dichotomy,43 the first and third sections of these provisions may be classified as a negative guarantee type while the second section can perhaps be regarded as a positive or institutional guarantee. In other words, a limitation of a private property right is permissible but subject to explicit safeguards or requirements. This means that under the Chinese constitutional property clauses, the private property of citizens may be encroached upon only in public interest and with compensation.

In this section, a textual analysis of the Chinese and South African constitutional property clauses is undertaken to identify preliminary similarities and differences. Our analysis follows the usual components of constitutional property clauses, in that it deals first with the ‘threshold’ question as to which rights may be constitutionally protected as property; and thereafter with the issue of what a curtailment of property would entail and the consequences thereof. In this context, we focus specifically on expropriation, given its importance in the Chinese context.

38 Ibid., p. 17.39 Article 13 section 1 of the PRC Constitution. See the government version of the English translation at

http://english.gov.cn/2005–08/05/content_20813.htm (last visited 14.12.2010).40 Article 13 section 2.41 Requisition in the Chinese context means temporary but compulsory use of land or other private

property without acquisition of ownership by the state.42 Article 13 section 3.43 Van der Walt, Constitutional Property Clauses: A Comparative Analysis, p. 11.


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A. STRUCTURE OF A CONSTITUTIONAL PROPERTY INQUIRY

In most instances of constitutional property inquiries around the world, three questions may arise: the first question is whether the particular interest forming the subject of a dispute involving a constitutional property inquiry is eligible to be protected constitutionally as property. This is generally referred to as the ‘threshold’ question,44 because it deals with whether a particular interest passes a threshold test to qualify for protection. A second question relates to whether a particular, constitutionally protected, interest had been infringed. This is referred to as the ‘curtailment’ question in our paper. A third question is whether the particular ‘curtailment’ or infringement is permissible in terms of the constitutional provisions. This really is the point at which the constitutionality of any given infringement on property is tested, usually against requirements for limitation of property rights prescribed by the particular constitutional provisions. We therefore refer to this question as the ‘constitutionality’ question.

The importance attached to each of the abovementioned questions varies from jurisdiction to jurisdiction and often from case to case within jurisdictions. The structure of such a constitutional property inquiry accordingly depends on the weighting of the different questions in a given jurisdiction and on the manner in which the constitutional provisions are phrased in such a jurisdiction.

In South Africa, for instance, the structure of the inquiry is as follows:45 First, it must be determined whether the interest affected by the operation of a particular law qualifies as property under section 25. If so, it must be determined whether a deprivation of that property interest has occurred. If it has, the next question is whether the deprivation is in conflict with Article 25(1), in particular the requirement of non-arbitrariness. If this much has been established, it must be determined whether the deprivation is justifiable in terms of the general limitations clause (section 36(1)) of the Constitution. Thereafter it must be determined whether the deprivation amounts to an expropriation in terms of section 25(2) and, if so, whether it complies with the requirements of both section 25(2)(a) and (b). If it does not, the final question is whether the expropriation is justifiable under section 36.

The structure of the inquiry in China would supposedly be quite different. Although the threshold question will probably also form the point of departure for the inquiry, the Chinese Constitution does not foresee the possibility of ‘deprivation’ of property, in other words, the permissible but non-compensable regulation of property in terms of the state’s police power. Instead, the Chinese constitutional provisions focus only on expropriation. In South Africa, the question as to expropriation is raised only once it is

44 See further below.45 First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service; First

National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para. 46, p. 792.


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established that the infringement is generally permissible and once the consequences thereof need to be determined.

1. Definition of ‘property’

The ‘threshold question’ in a constitutional property inquiry is whether a particular interest qualifies as property for purposes of constitutional protection.46 This question would entail issues such as: (i) whether interests that otherwise would not be covered by the ambit of property law would qualify as property for constitutional purposes; (ii) whether the protection afforded by the constitutional property clause depends at all on the way in which the clause is phrased as either positive (e.g. ‘the right to property is guaranteed’) or negative (e.g. ‘no one may be deprived of property’); (iii) whether substantive or only procedural protection is afforded.

The Chinese Constitution, before its amendment in 2004, provided that ‘[t]he state protects the right of citizens to own lawfully earned income, savings, houses and other lawful property.’ This restricted the scope of constitutional property protection. Specifically, it only covered the means of subsistence, obviously not the means of production, such as the real rights over land. This generated widespread academic criticism.47 In the 2004 constitutional amendment, the term ‘the lawful private property’ replaced the restrictive phrase ‘lawfully earned income, savings, houses and other lawful property.’ Whether the property concept under the Constitution extends to intellectual property rights, mineral rights, as well as other incorporeal property rights remains unclear. In the absence of further guidance from the Chinese legislature or courts, it is useful to turn to comparative law to make some suggestions as to the supposed scope of the property clause.

Section 25 of the South African Constitution, like its Chinese counterpart, does not contain a comprehensive definition of property.48 Section 25(4)(b) specifies only that for purposes of constitutional protection, ‘property is not limited to land.’ The Constitutional Court is inclined to interpret the property concept generously, whilst scrutinizing the justification of particular infringements on property more severely.49 The South African

46 Van der Walt, ‘Negating Grotius – The Constitutional Validity of Statutory Security Rights in Favour of The State: First National Bank of SA t/a Wesbank v Commissioner for the South African Revenue Service 2001 (7) BCLR 715 (C)’, 18 SAJHR (2002), p. 417.

47 Lin Laifan, ‘A comparative survey on state property entitlement’, 1 Law and Business Studies (2003), p. 54–57; Fan Yafeng, ‘The Incorporation of Property Provisions in Constitution and the Constitutional Legitimacy’, 4 Public Law Studies (2005), p. 205; Miao Lianying, ‘On the Constitutional Foundation of the Expropriation System’, 3 Henan Social Science (2004), p. 40–42.

48 Although s 25(4) of the Constitution functions as a definition clause within the property guarantee, it does not address all problems of interpretation. S 25(4) does not contain a closed category of proprietary interests that deserve protection. It is therefore up to the courts and the legislature to define the scope and limits of constitutional property.

49 First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (7) BCLR 702 (CC); 2002 (4) SA (CC) para. 54–60, p. 795–797.


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judiciary up to now has preferred to err on the side of inclusion, with the Constitutional Court in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service50 famously declining to venture a comprehensive constitutional definition of property and deliberately leaving open the question. This suggests that the South African Courts are open to a wide, accommodating notion of property for purposes of constitutional protection.51 According to the Constitutional Court, both the nature and object of the particular interest must be considered in order to determine whether it is protected under the Constitution.52 Perceptions about the function of the constitutional property guarantee in the South African context will hence influence the meaning of the constitutional property concept, as will those acknowledged categories of property rights in private law.

Just because the South African judiciary treats the ‘threshold question’ very leniently, subjecting it to a very low standard of scrutiny,53 it does not follow that protection under section 25 is guaranteed for most proprietary interests. Nor is it precluded that individual interests in property must be balanced against the public interest in limiting individual property rights. The South African judiciary really prefers to concentrate its analysis on the question of whether a particular infringement was arbitrary or not, rather than by excluding the constitutional protection outright.54 In this way, the threshold question is essentially disarmed, except in so far as it influences the outcome of the court’s analysis of the requirement that infringements on property may not be arbitrary. The South African Constitutional Court has been criticized fiercely for this approach.55

The lesson that may be passed on to the Chinese context is that the importance of the threshold question cannot be underestimated, especially where interests are involved that would not conventionally be typified as property.56 Ideally, any approach adopted should be flexible enough not to cause an eligibility hurdle for property interests where protection should be beyond doubt.

50 First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service above para. 48–49, 51–56, p. 793 and p. 794–796.

51 Van der Walt, Constitutional Property Law, p. 67.52 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service above para.

51, p. 794.53 Roux, ‘Property’, in S. Woolman et al., Constitutional Law of South Africa (Juta, Cape Town 2006),

chapter 46, p. 14, 21 et seq.54 First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service

above para. 100.55 E.g. Roux, in Woolman et al., Constitutional Law, chapter 46, p. 14 et seq.56 See Van der Walt, Constitutional Property Law, p. 72 in reliance on Lebowa Mineral Trust Beneficiaries

Forum v President of the Republic of South Africa 2002 (1) BCLR 23 (T); 2002 (3) SA 30 (T).


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2. Curtailment Question

Once a particular property interest has passed the threshold test, the infringing measure must be tested. This could require that the infringement at stake be identified and characterized. The nature of the curtailment question depends on how the constitutional property clause is formulated.

In South Africa, because of the manner in which the Constitutional Court proposed to approach the structural analysis of a constitutional property dispute, this question has not received any detailed attention. Constitutional property law in South Africa distinguishes between (non-compensable) deprivation of property and (compensable) expropriation of property. The latter is regarded as a special subcategory of the former, which invokes additional requirements, such as that the curtailment must be in the public interest and subject to compensation. Based on the considerations that distinguish ‘deprivation’ from ‘expropriation’ of property, the ‘somewhat misleading or confusing’57 term of ‘deprivation’ of property could be described as the (usually) uncompensated, duly authorized and fairly imposed restriction on the use, enjoyment, exploitation or disposal of property for the sake of the common good.58 However, no comprehensive definition of this term has as yet been accepted in case law. In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service, the Constitutional Court described the term very generally, indicating that basically any interference with the use, enjoyment or exploitation of private property involves some kind of deprivation relating to the entitlements to the property concerned.59

Recent South African case law tends to assume not only that specific property rights warrant constitutional protection but also that they are indeed curtailed by disputed actions of the state.60 This eliminates several interpretive possibilities, the most unfortunate of which is that the idea of an early-stage ‘filter’ in the constitutional property inquiry is disregarded. This approach is supported in recent literature, where it is argued

57 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (7) BCLR 702 (CC); 2002 (4) SA (CC) para. 57, p. 796. See also Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v Member of the Executive council for Local Government and Housing, Gauteng 2005 (2) BCLR 150 (CC); 2005 (1) SA 530 (CC) para. 32, p. 546 and the comparative synopsis of this term’s meaning in Van der Walt Constitutional Property Law, p. 122 et seq.

58 Van der Walt, Constitutional Property Law, p. 131.59 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service above para.

57–61, p. 796–797.60 See e.g. First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service above

para. 50, p. 794 et seq.; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (Agri-SA and Legal Resources Centre, Amici Curiae) 2005 (8) BCLR 786 (CC); 2005 (5) SA 3 (CC). The exception is Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v Member of the Executive Council for Local Government and Housing, Gauteng 2005 (2) BCLR 150 (CC); 2005 (1) SA 530 (CC) para. 34, p. 546 et seq., where the possibility of delimiting the deprivation question so as not to include slight or normal restriction was raised, but not really explored.


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that a distinction between ‘normal’ deprivations and those that exceed the restrictions of normality would be too artificial and would defeat the purpose of section 25(1) to legitimize the regulatory control of property.61 Nevertheless, early-stage filtering based on interest-balancing could ensure a good measure of predictability in the interpretation and application of the clause, without compromising on the flexibility62 required in this particular setting.

The Chinese provisions are in a sense simpler as regards this point. They do not provide for a complicated structure of limitations on property. Instead, the Chinese provisions deal only with the possible curtailment of rights by way of expropriation. This could result in an undue legitimization of infringements undertaken in the course of the state’s regulatory function. The state’s regulatory function cannot be tested against the constitutional provisions, which deal only with expropriation. Under these circumstances, the curtailment question becomes even more pressing: this is the point in the constitutional property enquiry where a disputed curtailment may fail to invoke the constitutional requirements because it does not amount to an expropriation. As such, it is recommended that careful attention be paid to this particular question in the Chinese context and that it not simply be brushed over in favour of a limitation analysis.

3. Limitation Question

The limitation question deals with the manner in which the constitutional provisions foresee the constitutionality of infringements on property. Hence, where the ‘curtailment’ question deals with the existence of an infringement upon property, the limitation question deals with whether or not an acknowledged infringement is constitutional. It requires scrutiny of the constitutional requirements for infringements upon property. In the South African inquiry, this is the point at which the requirements for a deprivation and expropriation of property are scrutinized. In the Chinese context, the fact that only expropriations of property are foreseen by the constitution would impact on the treatment of this question, particularly the requirements attached to it. To aid the comparison, the structure of the South African approach towards this question is discussed here. The comparison of the specific requirements for expropriation in the two jurisdictions is reserved for the next section of our paper.

The limitation question has proven to be the most decisive point in the South African analysis of constitutional property law disputes. In the South African context, all deprivations (also expropriations) must meet the requirements of section 25(1); in other words, they must be authorized by a generally applicable law and they may not permit arbitrary deprivation. If these requirements are not met, the infringement on property will be unconstitutional and invalid, unless they are justifiable under section 36(1) of the

61 Van der Walt, Constitutional Property Law, p. 127.62 See e.g. Roux, in Woolman et al., Constitutional Law, p. 19 and 20.


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Constitution, in other words, the general limitations clause. First, ‘law’ in this context includes statutes and accompanying legislative regulations,63 as well as rules of common law and customary law.64 Administrative regulations or decrees are less likely to pass this requirement.65 The limitation must be authorized by the democratically elected legislature, acting within the constitutional parameters. The limitation must furthermore be generally applicable. Most laws affect classes or groups of people, rather than all members of society. This does not mean that these laws will not pass the requirement of ‘general applicability’.66 Instead, a law will not comply with this requirement if it singles out a particular (group of) person(s) for discriminatory treatment.67

Secondly, generally applicable laws imposing on private property rights may not be arbitrary. This means that the measure effecting deprivation should not only illustrate a rational connection between a legitimate governmental purpose and the manner in which it should be achieved, but that there should be adequate cause for a deprivation.68 Depending on particular circumstances, therefore, the arbitrariness test may be anything between a purely procedural test69 and a thorough, substantive balancing of competing interests.70 In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service,71 it was held that the question whether a particular infringement is arbitrary is determined apart from any possible proportionality review in terms of the general limitation provision of section 36(1) of the Constitution.72 A deprivation of property hence is ‘arbitrary’ when the ‘law’ does not provide ‘sufficient reason’ for the

63 Roux, in M.H. Cheadle, D.M. Davis and N.R.L. Haysom, South African Constitutional Law – The Bill of Rights (LexisNexis Butterworths, Durban 2005), p. 458, in reliance upon Park-Ross v The Director, Office for Serious Economic Offences 1995 (2) SA 148 (C) 167B.

64 Van der Walt, Constitutional Property Law, p. 144.65 Blaauw-Wolf, ‘The ‘balancing of interests’ with reference to the principle of proportionality and the

doctrine of Guterabwagung: a comparative analysis’, 14 SAPR/PL 1 (1999), p. 178 et seq.; A. Gildenhuys, Onteieningsreg (Butterworths, Durban 2001), p. 93.

66 Compare Joubert v Van Rensburg 2001 (1) SA 753 (W) para. 42.1, p. 797 and see the criticism of this decision in, amongst others, Roux, in Cheadle, Davis and Haysom, South African Constitutional Law, p. 459 et seq.

67 Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa 2002 (1) BCLR 23 (T) 29H.

68 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service above para. 105(e)-115, p. 813–817.

69 For more detail, see H. Mostert, Constitutional Protection and Regulation of Property (Springer, Heidelberg 2002), p. 321–329 and Budlender, ‘The Constitutional Protection of Property Rights’, in G. Budlender, J. Latsky and T. Roux, Juta’s New Land Law (Juta, Kenwyn 1998), chapter 1, p. 34–35.

70 Van der Walt, Constitutional Property Law, p. 145–146.71 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (7)

BCLR 702 (CC); 2002 (4) SA (CC) para. 70, p. 801.72 In First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service

above, it is indicated (at para. 115, p. 817) that this inquiry focused on the issue of whether a rational connection existed between the deprivation and the purpose for it, after it was indicated (at para. 105 (g), p. 813) that this type of inquiry is but one function of the requirement of non-arbitrariness.


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particular deprivation in question or is procedurally unfair.73 The interplay between variable means and ends, the nature of the property in a specific instance and the extent of the particular deprivation will in some circumstances result in sufficient reason being established by ‘no more than a mere rational relationship between means and ends’, whilst in other circumstances it will call for proportionality review.74 The non-arbitrariness of limitations may therefore be relevant, applicable and decisive at practically any point in the inquiry and will determine the circumstances under which an imposition on property ‘[has cast] the net far too widely.’75 This test is so broad and flexible that it could apply to all property challenges, because it essentially requires infringements on property to be fair. Whereas a high degree of judicial discretion in applying the constitutional property principles is desirable at this early stage in the development of constitutional law, the disadvantage of an overbroad arbitrariness test is that it may engulf all the other elements of the constitutional property inquiry. This, in effect, limits possibilities of real interest-balancing at various points in the inquiry.76

There are three important consequences of the manner in which deprivations are dealt with under the South African Constitution: first, the type of scrutiny that the non-arbitrariness requirement invokes will determine whether section 36(1) of the Constitution could validate a deprivation that does not pass the standard of section 25. This could have an effect, secondly, on the treatment of excessive regulations and the question of whether there is room in South African law for a doctrine of constructive expropriation. Finally, there is the question of whether an extraordinary individual sacrifice in the context of a constitutionally legitimate deprivation could give rise to some form of remuneration. These issues are not explored further for now. Instead, focus is placed on the additional requirements of expropriation in the South African context.

South African case law regards expropriation as a particular kind – a subspecies – of deprivation.77 Expropriations thus have to comply with both requirements of section 25(1), which deals with deprivation of property, and sections 25(2) and (3), which deal with expropriation and just compensation. This means that the requirements of section 25(1) of the Constitution (discussed above) must be met first. In addition, expropriations

73 See First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service above para. 100, p. 810. Our emphasis.

74 First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service above, para. 65, p. 798.

75 First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service above, para. 114, p. 816.

76 Roux, in Woolman et al., Constitutional Law, p. 23 and 25.77 See e.g. Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA) para. 4–8, p. 1246–1247,

particularly para. 6, p. 1246; Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v Member of the Executive council for Local Government and Housing, Gauteng 2005 2 BCLR 150 (CC); 2005 1 SA 530 (CC) para. 34, p. 546 et seq. First National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (7) BCLR 702 (CC); 2002 (4) SA (CC) para. 57–59, p. 796–797 and Du Toit v Minister of Transport 2006 (1) SA 297 (CC) para. 28 and 34, p. 312 and p. 314.


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must be for a public purpose or in the public interest and they must be accompanied by compensation as defined in section 25(3). Expropriations by virtue of an administrative act under a statute additionally have to comply with the constitutional requirement of just administrative action.78 Thus, they must be lawful, reasonable, procedurally fair and must be substantially justifiable in terms of the reasons furnished by the administrator to the person whose rights have been affected.79 In addition, South African common law contains principles and rules for expropriation, as stipulated in the Expropriation Act 63 of 1975. In the new constitutional dispensation, the framework within which this Act is applied must necessarily be reconsidered. The legislature has not done so yet. Until it does, existing expropriation law may continue to influence the manner in which expropriation in a new dispensation is understood.

A more detailed analysis of these requirements is provided in the next section of our paper. By way of introduction, the Chinese expropriation law may be described as follows: in urban areas, Chinese provisions on taking urban land use rights are regulated by the 1998 Land Administration Law. The statute provides five situations under which the government may withdraw urban land use rights from the right holders. These are (i) public interest, (ii) renovation of old towns, (iii) expiration of land use terms without renewal or denial of the renewal application, (iv) dissolution or relocation of the holder of administratively allocated land rights and (v) termination of use of public infrastructure.80 The land use right holder may be only entitled to a general ‘appropriate compensation’ in the first two situations.81 As for the rural expropriation, it must first undergo a process of ‘nationalization’ that converted the farmland for agricultural purpose into non-agricultural land, in other words urban land holding. Consequently, local government becomes the owner of the expropriated land.82 Under such a land-taking framework, the state may take farmers’ land not only for public interests, but also for other commercial purposes driven by rent-seeking and cronyism.

78 Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa 2002 (1) BCLR 23 (T) para. 30E–F; Gildenhuys, Onteieningsreg, p. 58; M. Southwood, Compulsory Acquisition of Rights (Juta, Cape Town 2000), p. 31.

79 S 33 of the Bill of Rights read with s 3 of the Promotion of Administrative Justice Act 3 of 2000 and the common-law rules of natural justice. For a thorough analysis of the requirements, see e.g. Hoexter, Administrative Law in South Africa (Juta, 2007). In respect of expropriations specifically, see Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa 2002 (1) BCLR 23 (T) p. 30F; Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of the RSA 2000 (3) BCLR 241 (CC); 2000 (2) SA 674 (CC); Janse van Rensburg NO v Minister of Trade and Industry 2001 (1) SA 29 (CC) para. 18–26. The audi alteram partem rule is applicable to a decision to expropriate: M&J Morgan Investments (Pty) Ltd v Pinetown Municipality 1997 (4) SA 427 (SCA) at 439C–J. As to the legal position before the introduction of a Bill of Rights, see Hall, ‘Die toepassing van die audi alteram partem reel in die Suid-Afrikaanse onteieningsreg’, 8 SAPR/PL 2 (1993), p. 351; Purshotam, ‘The Expropriatee’s Right to a Hearing Before the Decision is made to Expropriate’, SALJ (1994), p. 237; Gildenhuys, Onteieningsreg, p. 81; Southwood, Compulsory Acquisition, p. 31.

80 Article 58 of the Land Administration Law.81 Ibid.82 Article 43 of Land Administration Law.


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C. EXPROPRIATIONS

As indicated, expropriation is the mechanism whereby state authorities take objects or rights that belong to private individuals for a public purpose or in the public interest and against payment of compensation. These requirements ensure that the state’s power of eminent domain is not abused. This is done under requirements prescribed by law. Both the Chinese and South African constitutions provide for expropriations to be undertaken under specifically legitimizing conditions. These are that the expropriation is in the public interest and that compensation is paid for it. In the following paragraphs, we deal with these requirements more specifically.

1. The Public Interest Requirement

One of the most controversial issues in expropriation law concerns the requirement that an expropriation must be in the public interest. This requirement prevents expropriation of private property for improper or unlawful purposes and controls the legitimate exercise of the power to expropriate.83 It is this requirement that legitimizes the compulsory taking of private property. Yet, there is no clear-cut statutory definition of the term ‘public interest’ or its equivalents. This is so for both China as well as South Africa. In this section, we focus on the definition of the term ‘public interest’ and ‘public purposes’, whilst reflecting on the question whether an expropriation could be undertaken to serve private (commercial) interests.

In the Chinese context, it has been argued that an inclusive list of specific permissible public purposes must be adopted to stave off abuses.84 However, others contend that it is almost impossible to provide an explicit statutory definition in an all-inclusive fashion since the term public interest is so dynamic that it does not have an absolutely clear meaning.85 What compounds the problem in China is the fine line between public interest and commercial interest in practice, especially in the context of urban redevelopment.86

No area of Chinese property law has been more contested in recent years than expropriation to further economic development programmes. Some may argue that local governments across China abuse their power and trample private property rights under the guise of economic regeneration. The typical examples include: (1) taking private land for the construction of a privately owned factory under the local government’s economic development plan; (2) taking farmland for constructing a shopping mall to improve the city’s image; (3) delegation of expropriation power to the commercial developers in

83 Van der Walt, Constitutional Property Law, p. 242.84 Liang Huixing, Commentary on Chinese Property Law Draft 191–193 (Social Science Literature Press,

1999).85 Wang Liming, ‘On Implementation of Property Law and the Improvement on Expropriation System’, 4

Law Science Magazine (2008), p. 15–22.86 Jiang Ping, ‘The Ideal and Reality of the Property Code’, 11 Forum of Social Science (2007), p. 84–85.


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cases of renovation of dilapidated areas or urban redevelopment.87 In such cases, the affected parties were often accused of obstructing urban economic development, which is said to be in the ‘public interest’. Indeed, establishing a shopping mall or a factory can increase local tax revenues and create more jobs for the local community. However, it must be questioned whether the commercial developers should legitimately be allowed to exercise the power of deciding when expropriation can be employed. These issues summarize the critical question of whether expropriations for economic purposes are in the public interest.

The Property Code and other relevant statutory instruments simply state that expropriations should be in the public interest and none of them provides any further detail on what specific purposes serve the public interest.88 The expropriation of farmland is profitable to the local government because the land is sold to commercial developers for substantially more than the compensation given to the affected parties. This demonstrates that the meaning of public interest is pliable and may include anything the local government conceived and desired. It also raises the question of how leniently the notion of public purpose or public interest should be interpreted. The term public purpose is not clearly defined and is thus subject to various interpretations. The ambiguity which surrounds the term is prone to abuse by local governments that are intent on encroaching on private interests. The caveat is that the constitutional provision may be rendered a ‘dead letter’;89 not a substantive safeguard on the use of expropriation. Such mandatory private-to-private transfers of private land do not constitute public interest. If this were so, there would be a risk that expropriation may operate as a form of private taking, which is an anathema in every jurisdiction worldwide.

On the other hand, the law should not impose a blanket prohibition on the expropriation of land for redevelopment projects with a commercial gain. This is because, in the process of urbanization, China needs to utilize more land to build factories, shopping malls and residential housing to develop the economy and accommodate an increasing population of urban residents. Without legislative criteria, local government usually interprets public interest broadly to permit an expropriation of a piece of land and assigns the land to developers for a project that primarily benefits private interest while bringing some benefits to the public.90

The South African constitutional requirement is that expropriations must be undertaken for a public purpose or in the public interest. The question about the exact

87 Fang Shaokun and Wang Hongping, ‘On the Normative Model of Public Interest in PRC Expropriation’, 1 Contemporary Law Review (2006), p. 68–71.

88 Wang Cailiang, The Law and Practice of Housing Expropriation (Law Press China, 2008), p. 26–31.89 The phrase of ‘dead letter’ is borrowed from Thomas Merrill, ‘The Economics of Public Use’, 72 Cornell

L. Rev (1986), p. 61.90 In Germany, the public interest requirement implies that expropriations cannot be taken for improper

purposes, such as the general improvement or increase of state property, or to benefit a private third party.


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nature, scope and definition of the ‘public interest’ requirement arises also in the South African context. The term is partially defined in the constitutional property clause, section 25(4), where it is indicated that the public interest includes the nation’s commitment to land reform. Ironically (compared to the Chinese dilemma) the purpose of this definition is to clarify the range of public interest obligations on the social, rather than economic, side of the spectrum. The problem in South African law is that pre-constitutional expropriation law, formulated under another political dispensation, already has in place a judicial definition of the term. Another part of the problem is the dual reference to ‘public purpose’ or ‘public interest’ in the constitutional setting. According to existing precedent, ‘public purpose’, broadly can refer to all purposes that pertain to or benefit the general public (as opposed to private individuals).91 It can more narrowly also refer to governmental purposes only.92 A range of interpretative possibilities exist between these poles, in terms of which more benefits than only those that relate strictly to public use are incorporated. In pre-constitutional case law, courts had an ad hoc approach toward the term ‘public purpose’ and tended to consider the particular authorizing statute at stake before delimiting the term.93 For purposes of the expropriation,94 the concept ‘public purpose’ was used in the wide sense.95 Under the Constitution, the terms ‘public purposes’ and the ‘public interest’ with reference to expropriation are interchangeable.

Section 25(4)(a) of the South African Constitution provides that ‘the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources’. The drafters of the Constitution herewith sent a clear message as to the importance of the expropriation mechanism in future attempts at social reconstruction in South Africa. The public purpose requirement may accordingly be interpreted so that it benefits private beneficiaries, as long as the purpose is legitimate.96 A typical example would be the objectives of the land reform programme, mentioned above. Because of the partial definition in section 25(4), it is uncontested that in South Africa formal expropriations under the Expropriation Act for purposes of land reform (or, for that matter, expropriations of mineral rights or water rights for redistribution of mineral rights or water rights) would meet the requirement of public interest. Where an expropriation is undertaken under the land reform programme, for the ultimate benefit of private individual(s), this would also meet the requirement of ‘public interest’. This is particularly evident in the context of restitution, where expropriation may be used to further the purposes of the restitution programme.97

91 See also Slabbert v Minister van Lande 1963 3 SA 621 (T) p. 621H.92 Rondebosch Municipal Council v Trustee of Western Province Agricultural Society 1911 AD 271 p. 283;

Slabbert v Minister van Lande 1963 3 SA 620 (T) p. 621F.93 See Mostert, Constitutional Protection and Regulation of Property, p. 330.94 African Farms and Townships Ltd v Cape Town Municipality 1961 (3) SA 392 (C) at 397C–E; Slabbert v

Minister van Lande 1963 (3) SA 620 (T), p. 622G–H.95 Gildenhuys, Onteieningsreg, p. 98.96 Van der Walt, Constitutional Property Law, p. 269.97 Section 42E, Restitution of Land Rights Act 22 of 1994.


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The South African property clause goes even further in promoting its own transformative goals. Section 25(8) of the Constitution provides that the property clause may not impede the state from taking legislative and other measures to achieve land, water and related reform,98 in order to redress the results of past racial discrimination. Such legislation or measures to achieve land, water and related reform are also in the ‘public interest’. This subsection enables the state to deviate from those aspects in the property clause which protect vested individual property interests where land and related reform initiatives may be hampered by their protection. It also regulates the environment in which such a deviation is permissible requiring compliance with the general limitation clause.99 Hence the reformative elements in the South African constitutional property clause can be taken to enjoy precedence in situations where the protective elements and the reformative elements of the property clause are in conflict. This provision is neither superfluous100 nor does it insulate land-reform expropriations from the other requirements for expropriation.101 The interpretation of the constitutional requirements for expropriation in South Africa therefore deviates somewhat from the idea that the public purpose requirement is a ‘remnant of the traditional, liberal character of the constitutional property guarantee as a defensive shield against unwarranted state interference in the private domain.’102

The task of deciding what is in the public interest is one for the legislature. Courts should generally respect the choices made by the legislature or executive as to where the public interest lies.103 It is inappropriate to leave this definition within the court’s discretion, especially if it would require the courts to second-guess the intention of the government.104 However, a constitutional indication of the principles to be served by the requirement of public interest in the context of expropriation is useful and to be recommended. Especially in China, a constitutional indication of the purported definition of public interest would provide certainty and guidance and prevent the administrative power from interpreting it in favour of developers.105

In the Chinese constitution, there is no explicit indication of how the requirement of the public interest is to be understood. There is, however, a reference to the state’s

98 ‘Related reform’ would include reform of the mineral and petroleum resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002.

99 Van der Walt, Constitutional Property Law, p. 267–269.100 See the discussion of Budlender, in Budlender, Latsky and Roux, Juta’s New Land Law, p. 1–73 and

Van der Walt, Property Clause, p. 147 as discussed in Zimmerman, ‘Property on the Line: Is an Expropriation-Centered Land Reform Constitutionally Permissible’, 122 SALJ 2 (2005), p. 414.

101 Contra Zimmerman see Anashri, ‘Reviewing Reasonableness: An Appropriate Standard for Evaluating State Action and Inaction’, 122 SALJ 2 (2005), p. 415 et seq.

102 Van der Walt, Constitutional Property Law, p. 242.103 Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa 2002 (1) BCLR 23

(T) at 31B–C; Gildenhuys, Onteieningsreg, p. 98–99.104 Wang Cailiang, The Law and Practice of Housing Expropriation (Law Press China, 2008), p. 373–375.105 Fang Shaokun and Wang Hongping, ‘On the Criterion Mode of Public Interest in Acquisition

Legislation’, 1 Contemporary Law Review (2006), p. 69–70 (Chinese version).


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encouragement, support and guidance of development of the non-public economic sectors, in accordance with law in clause five of the fourth amendment. This suggests, as indeed has been alluded to above, that economic advancement is a principle paramount in current Chinese constitutional law. Whilst the indication of the importance of this particular principle in the formulation of the public interest requirement may be noticeable, it will be up to the legislature and judiciary to refine the idea further. We are well aware that flexibility is important in the evolution of a concept such as the public interest and that presenting a numerus clausus of public interest clauses may be counterproductive and overly rigid. Our recommendation in this regard hence is exclusionary: the commercial interest of individual developers in private corporate profit should not constitute public interest for purposes of expropriation. It may be granted that huge public benefit may be the spin-off of such large-scale private corporate profit-maximizing ventures. Even so, the operation of an open market through normal arm’s length dealing should not be skewed by an over-developed expropriation system in favour of huge corporations or to the disadvantage of the small man. Private developers who wish to profit from redeveloping a piece of land should take their chances with a willing buyer/willing seller approach. To invoke quasi-constitutional powers of expropriation in such a setting would be aberrant. In fact, the amendment stipulates that the power of expropriation lies with ‘the state’. Our submission is that state institutions, acting in a private capacity to redevelop land, do not have powers under this provision, since they are not acting in the capacity of the state.

Hence, the public interest and/or purpose must be obvious. Expropriation can only be justified if the reutilization of expropriated property benefits the general interest of a community as opposed to the interest of particular individuals or groups. To our mind, an exclusionary understanding of the public interest at this point in time presents a suitable template for courts to determine the scope of the term, thus minimizing disputes between local governments and private property owners.

2. Just Compensation

The second element of an expropriation inquiry under the constitutional law of both China and South Africa concerns the just compensation provided to the affected parties in case of expropriation. The eminent question in this regard is the manner in which compensation is to be calculated.

Ideally, just compensation should be calculated on the basis of a full compensation covering a property owner’s actual losses and the loss of potential future income in expropriated property.106 This is, however, not the standard practice. The Chinese constitutional clause is very general; laying out the principle that compensation is payable

106 Shi Youqi, On the Protection of Private Property Rights in Public Law (Peking University Press, Beijing 2007), p. 196 (Chinese version).


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when private property is taken. It does not provide any detail as to how the compensation is to be calculated. The South African Constitution is very different on this point. There, the norm of compensation for expropriation is that it must be ‘just and equitable’, as reflected by the fact that the compensation has to be agreed upon by those affected107 and approved or decided by a court.108

This norm, in the South African context, is applicable to the amount109 of compensation, the time110 of payment thereof as well as the manner111 of payment.112 If one of these aspects proves to be unjust or inequitable, there is no compliance with the standard of compensation guaranteed by the Constitution.113 It is further required that an equitable balance between the public interest and the expropriatee’s and other affected persons’ interests must be reflected by the compensation amount. All relevant circumstances must be considered in determining whether the compensation complies with this norm, including: (i) the current use of property; (ii) the history of acquisition and use of the property; (iii) the market value of the property; (iv) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (v) the purpose of the expropriation.114

The requirements of section 25(2) and (3) with regard to the justness and equitability of the compensation amount involve balancing the interests of affected individuals against those of the public carefully.115 Most prominently, these have created an awareness that the market-value basis for determination of expropriation of the pre-constitutional

107 ‘Those affected’ are the expropriator and holder of the totality of real rights in property expropriated: Southwood, Compulsory Acquisition, p. 25.

108 S 25(2)(b).109 Compensation has to be in money or measurable in money. Gildenhuys, Onteieningsreg, p. 99.110 A future payment is permissible: Gildenhuys, Onteieningsreg, p. 99. See Southwood, Compulsory

Acquisition, p. 4.111 Compensation need not to be in cash. Gildenhuys, Onteieningsreg, p.99.112 S 25(3) of the Constitution.113 In the Interim Constitution the special factors mentioned in s 28(3) only affected the amount of

compensation and a court was only bound to consider them in the context of the quantum. Chaskalson and Lewis, ‘Property’, in M. Chaskalson et al. (eds.), Constitutional Law of South Africa (Juta, Cape Town 1996), p. 31–21.

114 I.M. Rautenbach, ‘Die reg op eiendom – arbitrêre ontneming, proporsionaliteit en die algemene beperkingsbepaling’, Tydskrif vir die Suid-Afrikaanse Reg (2002), p. 819–820; I.M. Rautenbach, ‘The limitation of rights and ‘reasonableness’ in the right to just administrative action and the rights to access to adequate housing, health services and social security’, Tydskrif vir die Suid-Afrikaanse Reg (2005), p. 629. The compensation clause prescribes the way in which a balance must be struck between the nature and extent of the limitation and the purpose of the limitation. As to the meaning and consideration of the factors listed in s 25(3), see Gildenhuys, Onteieningsreg, p. 170–179; Southwood, Compulsory Acquisition, p. 79 et seq. As to additional factors that may be relevant, see Southwood, Compulsory Acquisition, p. 26–27.

115 Van der Walt, ‘Reconciling the state’s duties to promote land reform and to pay ‘just and equitable’ compensation for expropriation’, 23 SALJ (2006), p. 38.


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era is shifting. 116 Hence, although the Expropriation Act remains in force, it has to be applied with due regard for the constitutional property clause.117 Theoretically, market value remains relevant, but cannot be the only – or even the most important – factor in determining the just and equitable amount of compensation.118 Yet, factually, market value will probably remain the starting point in determining ‘just and equitable compensation’,119 because it is so readily quantifiable. Other relevant circumstances may however influence the determination of the actual amount of compensation substantially.120 In Khumalo v Potgieter121 for instance, the court adopted a two-tiered approach by first establishing the market value of the property at stake122 and only thereafter considering the influence of the constitutional indications for valuation of property to be expropriated on the determined amount.123

In China, the constitutional provisions themselves do not provide a blueprint for determining compensation. There are several extra-constitutional mechanisms to deal with issues of compensation, but none of them is flawless. Under current law in urban China, for instance, the monetary compensation is negotiated between private developers and the to-be-expropriated parties. If the parties cannot agree on the amount, either

116 In Kerksay Investments (Pty) Ltd v Randburg Town Council 1997 (1) SA 511 (T) p. 522E–G it was indicated that the traditional view that market value forms the basis of the compensation norm in terms of the Expropriation Act should be rejected.

117 Du Toit v Minister of Transport 2003 (1) SA 586 (C) para. 14 and 27.118 Kerksay Investments (Pty) Ltd v Randburg Town Council 1997 (1) SA 511 (T) p 522E–G. See also

Claassens 1993 SAJHR, p. 422 et seq.; Eisenberg 1993 SAJHR, p. 416 et seq.; Kleyn 1996 SAPR/PL p. 441 et seq.; Van der Walt, Property Clause, p. 141 et seq.; Budlender, in Budlender, Latsky and Roux, p. 1–56 et seq.; Currie and De Waal, Bill of Rights Handbook, p. 554 et seq.; Roux, in Cheadle, Davis and Haysom, Constitutional Law: Bill of Rights, p. 463 et seq.; Gildenhuys, Onteieningsreg, p. 167 et seq. and Southwood, Compulsory Acquisition, p. 91 for support for the idea that market value no longer plays a central role in the calculation of compensation.

119 Ex parte Former Highland Residents: In re Ash v Department of Land Affairs [2000] 2 All SA 26 (LCC) p. 40D; Khumalo v Potgieter [2000] 2 All SA 456 (LCC) para. 23, p. 2417; Gildenhuys, Onteieningsreg, p. 167; Chaskalson and Lewis, in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, chapter 31, p. 23.

120 Ex parte Former Highland Residents: In re Ash v Department of Land Affairs [2000] 2 All SA 26 (LCC) p. 40E–F; Khumalo v Potgieter [2000] 2 All SA 456 (LCC) para. 23, p. 2417; Gildenhuys, Onteieningsreg, p. 167–168. The reasoning is that in international and foreign law (see p. 36F–40C) market value plays a central role in determination of compensation (p. 40C–D; p. 464G–H; see also Gildenhuys, Onteieningsreg, p. 168) and market value is the only factor listed in s 25(3) which is readily quantifiable (p. 40D). See, however, Southwood, Compulsory Acquisition, p. 29: ‘It is suggested that there is no warrant in s 25(3) for taking market value of the expropriated property as a starting point in assessing the compensation package. It provides that compensation must be just and equitable ‘having regard to all relevant circumstances including’ the named ones, which include market value without singling out market value as a starting point.’ As to other possible approaches, see Southwood, Compulsory Acquisition, p. 29–30. See also Van der Walt, Constitutional Property Law, p. 275 where it is indicated that comparative law does not support market value as primary standard to determine the compensation amount.

121 Khumalo v Potgieter [2000] 2 All SA 456 (LCC).122 Khumalo v Potgieter above, para. 72–92.123 Khumalo v Potgieter above, para. 93 et seq.


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party may apply to the relevant government authority for an administrative review.124 If either party is unhappy with the review decision, the courts may adjudicate the issue.125 However, a pending court decision does not stop developers from conducting the expropriation.126 Moreover, expropriatory compensation in the urban context covers house loss only. The land-use right, which is often more valuable than the structures or fixtures erected on the land, is left uncompensated. Despite these shortcomings, the new Property Code provides better protection by stating that, when the residential houses and immovable property owned by individuals and institutions are expropriated, they should be compensated for the cost of the demolition and removal. This is subject to law in order to maintain the legal interest of the expropriated institution or individual.127 When private homes are expropriated, the accommodation of the expropriated persons should be guaranteed during the removal period.128 Before the Property Code was enacted, the practice prevailed that local government compensated a property owner financially, in lieu of arranging temporary accommodation.129 Since the Demolition Regulation of 2001, monetary compensation has become and is still a prevailing means of compensation. In a market economy, of course, individuals are free to use their funds – also those obtained as compensation for expropriation – as they see fit. If an expropriated private property owner does not use the funds for real estate, they run the risk of losing their ability to access the real estate market later, with sharply rising prices being the order of the day. If, as in urban areas, residents are disadvantaged by their bargaining position as to price from the outset, the ability of conglomerate developers to manipulate housing prices further compounds their difficulties. Consequently, original residents are usually unable to afford to live in the same area. Therefore the current compensation standards and practices as regards urban expropriation affect private property owners, particularly the poor, negatively.130

Rural expropriations are governed by the Land Administration Law. It provides that the compensation for farmland expropriation consists of three parts. First, compensation for loss of land is set at six to ten times the average annual output value of the land for the three years prior to the taking. Second, a resettlement subsidy is set at four to six times the average annual output value. Third, compensation for buildings and houses and standing crops are to be determined by provincial governments. Quite recently, the Property Code further specified that the expropriated land owned by collectives should be compensated to the full extent of the loss suffered subject to law.131 The compensation

124 Article 16 Urban Housing Demolition and Reallocation Regulation.125 Ibid., Article 15.126 Article 25 of the Implementing Regulations for the Land Administration Law.127 Article 42.128 Ibid.129 This can be done by assessing the value of an expropriated house and compensating a property owner

with an amount of money equivalent to the estimated value.130 Wang, Housing Expropriations, p. 21.131 Ibid.


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includes, among others, compensation for taking the land, a resettlement subsidy and compensation for the fixtures, crops and plants on the expropriated land. The premiums for social security should be compensated and the lawful interests of expropriated farmers should be safeguarded.132 This provision is welcomed since it recognizes the important social security function that expropriatory compensation may have to fulfill.

A further problem is that the evaluation of property and the calculation of compensation are problematic. In practice, property owners often are faced with undervaluation of the land by the government-appointed real estate valuers.133 The Guidance on the Assessment of Urban Housing Demolition and Redevelopment issued by the Ministry of Housing and Urban-Rural Development in 2003134 provides some guidance, but is subordinate law. When it is inconsistent with other, higher-ranking laws and regulations, the higher-ranking law will prevail. It would be sensible to bring these guidelines for assessment up into, for example, the Demolition Regulation.135

The fact that the rules governing expropriation in rural and urban areas of China are flawed is an incentive for more detailed research into the topic of expropriation law in China. That the constitutional provisions do not require compensation to be just or equitable compounds existing difficulties. Measures are urgently necessary to provide a basis from which to assess whether existing provisions and practices of compensation are sufficient. There are three reasons for the inclusion of a just compensation standard in the developing Chinese law on property under the constitution: firstly, clarity on the constitutional level would certainly deter uncompensated expropriations. Secondly, the requirement to provide just compensation balances the constitutional relationship between the protection of public or state-owned property and the right to private property. Thirdly, a just compensation caveat confirms the inviolability of property. Yet, the constitution is significant for a review of expropriation law in China.

§4. CONCLUSION

This paper is nothing more than a tentative, exploratory venture into the possibilities for legal comparison offered by the constitutional property clauses of China and South Africa. Three remarks serve to conclude the study: first, there is obviously a need for comparative guidance in developing a constitutional property model. China’s constitution, like that of South Africa, may be characterized as a ‘third generation’ constitutional document, in other words, one which focuses not only on participatory and political rights but also

132 Ibid.133 Wang Cailiang, The Law and Practice of Housing Expropriation (Law Press China, 2008), p. 33–34

(Chinese version).134 Guidance on the Assessment of Urban Housing Demolition and Redevelopment promulgated on

December 3, 2003.135 Wang, Housing Expropriations, p. 34–35.


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on social rights and responsibilities of citizens and in fact supports actionable socio-economic rights.

Secondly, however, a comparison of the Chinese and South African law on this point demonstrates fascinating ironies. Whereas both documents are third-generational, their aims can be very different. The South African constitution is, to quite an extent, geared towards creating social state safeguards; especially in as far as it attempts to be transformative. The South African constitutional property clause is, for instance, clear on the paramount importance of the land and resource reform initiative. The Chinese constitution attempts to rid its society of some of the constraints of its socialist state structure. Its property provisions demonstrate the awareness of the rights of the individual. Unfortunately, some of the expropriation practices have yet to be reconciled with the constitutional standards. These standards, in our opinion, also need to be scrutinized carefully. As they stand at present, they are prone to be misapplied in a way that will not serve the Chinese political and economic goals of improving the position of individuals and supporting entrepreneurial interests. At the very least, the import of a ‘just and equitable’ standard should be considered as regards expropriatory compensation. The details of that are left to be fleshed out in subsequent work. At this point, we simply remark that in our opinion, restoration in kind (or a ‘house for a house’ approach) may pose an appropriate solution in the Chinese urban context, to deal with the social problems created by expropriations in the wake of property developments. Restoration in kind might, equally, be appropriate in cases of rural expropriation, where farmers live on collectively owned land. According to the Land Administration Law,136 an expropriated farmer’s compensation is capped at a sum equivalent to up to 30 times of the revenue of the farmland in the preceding three years.137 This barely ever permits an expropriated farmer to purchase new accommodation and maintain a living.

Finally, related to the comment above, global pressure for development as far as it relates to land seems to be focused on achieving a convergence of land-holding patterns along the lines of legal formalization and recognition of the predominance of ‘individual’ interests.138 From a developing world perspective, this ideal may be too ‘Eurocentric’.139 Yet, the comparison of South African and Chinese constitutional property issues suggest

136 Promulgated on June 25, 1986 and amended on August 29, 1998 and August 28, 2008 respectively.137 Article 47 of the Land Management Law.138 T. Scheepers, A Practical Guide to Law and Development in South Africa (Juta, Cape Town 2000); Muir

and Shen, ‘Land Markets – Promoting the Private Sector by Improving Access to Land’, 300 Public Policy for the Private Sector (2005), Foreign Investment Advisory Service, World Bank Group.

139 It is acknowledged that the use of the term Eurocentric here relies on an essentially post-colonial view of legal norms in the European sphere. In this sense, the term reflects a perception (which may be erroneous) about the unitary nature of property law as it was practiced on the European continent at a time when reception of European legal norms into the systems of developing countries was prevalent. We are grateful for the enlightening input of Sjef van Erp (spurred by his participation in the Property and Pluralism Conference for Acta Juridica 2011, November 2010, UCT) on hidden legal pluralist issues in the European context; and how this shifts the debate in Europe on what may be regarded as Eurocentric. We do not intend to engage with that debate here.


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that in the developing world, such perceptions of property are busy changing in and as of themselves, because of the changing demands upon these modern, developing societies. There is a growing tendency – in South Africa reflected especially by Constitutional Court decisions – to subject individual property to the ever-increasing demands of social duty and public interest. This suggests that the characteristic unlimited nature of ownership and the predominance of individual interests in the protection of private ownership are depreciating in value. From the Chinese perspective, there seems to be an awareness of the increasing need to limit the vast regulatory reach of the state and to afford the individual better protection and opportunities to engage in personal wealth-enhancing activity. Yet, in a similar vein, the promotion of individual property right should be comprehended in the view of the communitarian needs.

So, from both sides, our communities are expected to embrace changes to the legal structures that have governed their land-control patterns for ages, to bring their control of land on a par with traditionally western forms of land control, for the sake of efficient and sustainable economic development. The issues arising in constitutional property law in China and South Africa, especially the issues pertaining to expropriation, demonstrate that in both societies the first world and third world are living on each other’s doorsteps. One may expect issues of constitutionalism and development policy to continue impacting on each other in years to come, for this very reason.

the Dynamics of Constitutional Property Clauses In the DevelopIng World: ChInA AnD soUth AfRICA

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