POLICE POWER REGULATION OF INTANGIBLE COMMERCIAL PROPERTY AND THE CONSTITUTIONAL PROPERTY CLAUSE: A COMPARATIVE ANALYSIS OF CASE LAWI A.J. van der Waltz Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source Readers are permitted to make copies, electronically or printed, for personal and classroom use abstract This article analyses case law dealing with >police power= regulation that results in the effective loss or destruction of intangible commercial rights or interests. The cases that deal with this kind of situation are often used interchangeably but in the article it is argued that it is necessary to distinguish between a number of quite different situations. It is proposed that the following primary distinctions be made for this purpose: the >regulatory= cancellation of state debts: the >regulatory= creation of state monopolies; regulatory interferences with the management of business enterprises; regulation of businesses by way of licences, permits and quotas; and the gulation of immaterial property rights. It is argued that the cases in each of these categories can and should not be applied as authority for any of the other categories, since the problems and solutions for each category differ in fundamental respects. The distinction also makes it easier to argue about the legitimacy of a specific kind of regulatory interference with intangible property while it is obvious that regulation of businesses by way of licencing is legitimate in principle, it Background article for a paper read at the second conference, entitled >Contemporary Issues in Property Law=, presented by the Centre for Property Law at the University of Reading from 25 to 27 March 1998 The article is based on sections from different chapters of the incomplete manuscript of AJ van der WaIt Constitutional Property Clauses: A Comparative Analysis(forthcom ing 1998, Juta& Co, Cape Town/Wetton/Johannesburg). I am grateful to Denise Prevost, Karen Prinsloo and Marjan Gerbrands for research assistance, and l owe a huge debt of gratitude to frank michelman, Joe Singer, Laura Underkuffler-Freund, Clement Ng=ong=ola, Johan Erasmus, Peter Butt, Klaus Stern, Neville Botha, Josef Kruger, Kate O=Regan, Gretchen Carpenter and John Murphy for comments on and suggestions regarding different chapters of the manuscript. The Centre for Research Development(Human Sciences Research Council, Pretoria ) the Research and Bursaries Committee(University of South Africa, Pretoria)and the Alexander von Hum boldt-Stiftung(Bonn)supported different stages of the research process during 1990 1992 and from 1995 to 1998. The views and opinions expressed in this papershould not be attributed to any of these institutions B lur Honns (BA)LLB LLD(Potchefstroom)LLM(Witwatersrand), Professor, Department of Private Law, University of South Africa, PO Box 392, 0003 Pretoria, South Africa. E-mail addres <vdwalajaalpha unisaacza>1 POLICE POWER REGULATION OF INTANGIBLE COMMERCIAL PROPERTY AND THE CONSTITUTIONAL PROPERTY CLAUSE: A COMPARATIVE ANALYSIS OF CASE LAW1 A.J. van der Walt2 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract This article analyses case law dealing with >police power= regulation that results in the effective loss or destruction of intangible commercial rights or interests. The cases that deal with this kind of situation are often used interchangeably, but in the article it is argued that it is necessary to distinguish between a number of quite different situations. It is proposed that the following primary distinctions be made for this purpose: the >regulatory= cancellation of state debts; the >regulatory= creation of state monopolies; regulatory interferences with the management of business enterprises; regulation of businesses by way of licences, permits and quotas; and the regulation of immaterial property rights. It is argued that the cases in each of these categories can and should not be applied as authority for any of the other categories, since the problems and solutions for each category differ in fundamental respects. The distinction also makes it easier to argue about the legitimacy of a specific kind of regulatory interference with intangible property: while it is obvious that regulation of businesses by way of licencing is legitimate in principle, it 1 Background article for a paper read at the second conference, entitled >Contemporary Issues in Property Law=, presented by the Centre for Property Law at the University of Reading from 25 to 27 March 1998. The article is based on sections from different chapters of the incomplete manuscript of AJ van der Walt Constitutional Property Clauses: A Comparative Analysis (forthcoming 1998, Juta & Co, Cape Town/Wetton/Johannesburg). I am grateful to Denise Prévost, Karen Prinsloo and Marjan Gerbrands for research assistance, and I owe a huge debt of gratitude to Frank Michelman, Joe Singer, Laura Underkuffler-Freund, Clement Ng=ong=ola, Johan Erasmus, Peter Butt, Klaus Stern, Neville Botha, Josef Krüger, Kate O=Regan, Gretchen Ca rpenter and John Murphy for comments on and suggestions regarding different chapters of the manuscript. The Centre for Research Development (Human Sciences Research Council, Pretoria), the Research and Bursaries Committee (University of South Africa, Preto ria) and the Alexander von Humboldt-Stiftung (Bonn) supported different stages of the research process during 1990, 1992 and from 1995 to 1998. The views and opinions expressed in this paper should not be attributed to any of these institutions. 2 B Iur Honns (BA) LLB LLD (Potchefstroom) LLM (Witwatersrand); Professor, Department of Private Law, University of South Africa, PO Box 392, 0003 Pretoria, South Africa. E-mail address: <vdwalaj@alpha.unisa.ac.za>