Between custom and colony: Social-norm based property law in South Africa’s Post-constitutional “no-Man’s Land”

Abstract

Despite different historical influences, the social norm as articulated by Duguit found its way into the South African legal system and is now a permanent feature of South African property law. The reason for this can be found in the constitutional reform of the late twentieth century in South Africa. The constitutional property clause protects private holdings while simultaneously imposes obligations on the state for ensuring transformation of the historically unjust system of resource distribution. This essay questions the applicability of the norm in a jurisdictionwhere more than half of the constituents are formally classified as poor. The essay uses the student protests of recent years to contextualise the need to rethink the way property law can serve the South African society. The argument is for development of a property law which allows the traumatised population of South Africa to combine its distinctive capabilities of humanity (as expressed in the Constitutional norm of Ubuntu) and entrepreneurship to reach into the aspects of modern living in South Africa where the “evil triplets” of poverty, inequality and unemployment can be addressed. The guidance for such development is already locked into the Constitution. However, in considering elements of the compassionate and entrepeneurial property law already present in the system, it is clear that a partnership between an engaged citizenry and an enabling state is needed.