Property clause is contained in section 25 of the Constitution. This clause basically provides for the protection of property as a constitutional right. The presence of this clause in chapter 2 of the Constitution and the manner in which it is formulated causes controversy since it is not universally accepted that property be property should be protected constitutionally. Notwithstanding this, section 25 of the Constitution is said to be in conformity with an established worldwide tradition of human right’s protection.
Four broad clusters of provisions are contained in section 25 of the Constitution, namely: deprivation, expropriation, interpretation of the property clause and the reformative aims of the constitutional property clause. On one hand, the objective of the first three clusters is to provide a guarantee for the existence as well as protection of individual property rights. On the other hand, the purpose of the last cluster is to promote land and other related forms. The researcher will only discuss the first and second clusters separately. Before this is done, it is significant to first note that all expropriations are deprivations, and some deprivation are expropriations. Put more differently, expropriation may be said to be a particular species of deprivation. What is basically implied from this is that expropriation may not take place if there is no deprivation. Another note to be taken into account is that it is sometimes difficult to differentiate between deprivation and expropriation.
Section 25(1) of the Constitution stipulates that “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”. Van der Walt pointed out that, “the use of the term ‘deprived’ in this section may lead to confusion in the since that it creates the mistaken impression that it refers to taking away of property”. Such confusion was resolved by Judge Ackerman, in the FNB-case, when he states that deprivation entails any interference with the use, enjoyment or exploitation of private property. In another Constitutional Court case, Judge Yacoob stipulated that:
Whether there has been a deprivation depends on the extent of the interference with, or limitation of the use, enjoyment or exploitation of property. At the very least, substantial interference or limitation that goes beyond the normal restrictions on property use or enjoyment found in an open and democratic society would amount to deprivation.
However, Van der Walt denied the judgement to be accepted as a correct definition of deprivation. He is of the view that in order for deprivation to take place there has to be restriction on property. The extent of such restriction does not matter at all. The judgment of Judge Yacoob was revisited in the Agri-case by Judge Du Plessis. The latter, however, made some adjustment. Judge Du Plessis stipulated as follows:
Deprivation should not be given too limited a meaning. It should be emphasised however, that there may be limitations on property rights which are either so trivial or are so widely accepted as appropriate in open and democratic societies as not to constitute ‘deprivations’ for the purpose of s 25(1).
Consequently, for the purposes of this discussion, Judge Du Plessis’s description wil be followed. Section 25(1) of the Constitution provides two requirement that have to be met in order for deprivation to constitutionally valid, namely: deprivation must take place in terms of law of general application and no law may allow arbitrary deprivation.