While these demarcation principles may seem artificial or arbitrary to some, they have of the inquiry to manageable proportions. Some of the implications of this inquiry could be ope the advantage of isolating a relatively clear field of investigation and thereby reducing the sce suitable for extension to other areas in the broader field of constitutional property, and perhaps they can even be used to construct a rud imentary basis for a methodology of comparative constitutional property rights. My aim here is more modest, though, and I make no claims in this regard. The main reasons for selecting a topic defined by these rather narrow criteria are that it epitomises some of the most intriguing difficulties that confront a student of constitutional property law, and that the case law on this topic is so interesting and confusing that it deserves special attention anyway. To demonstrate my awareness of the fact that my selection is as significant in its exclusions as in its inclusions, I start the discussion off with a case that does not satisfy the criteria I have identified Harksen v Lane no and Another. This is the first case in which the South African Constitutional Court was offered an opportunity to say somethin& ubstantial about the property clause in section 28 of the interim Constitution of 1993, an 997(11)BCLR 1489(CC); 1998(1)SA 300(CC). For a discussion of the case see AJ van der WaIt h Botha >Getting to grips with the new constitutionalorder: Critical comments on Harksen v lane No (forthcoming 1998)13 SA Public Law. The property clause appears in s 28 of the interim Constitution; s 25 of the final Constitution. Both versions feature a deprivation clause( s 28(2), s 25(1)and an expropriation clause with prov ision for compensation (s 28(3), s 25(2)and 25(3). S 28(1)also included a positive property guarantee, and s 25 (5)-(9)contains land-reform provisions. S 28 referred to >rights in property=, s 25 to >property= For a discussion of s 25 see AJ van der Walt The Constitutional Property Clause: A Comparative Analysisof Section 25 ofthe South African Constitution of 1996(1997)Juta& Co, Cape Town/Wetton/Johannesburg. In the so-called First Certification Case(reported as In Re: Certification ofthe Constitution of the Republic of South africa, 19961996(10)BCLR 1253 (CC: 1996(4)SA 744(CC), the Constitutional Court was asked to certify the constitutional validity of the initial draft of the Final Constitution, and a few interesting remarks were made on the nature and purpose of a property clause in s 25(at pa ras[701-75 1286D-1289C, 797D-80 Section 28 of the 1993 Const itution was referred to in Transkei Public servants= Association v government of the Republic of South Africa and Others 1995(9)BCLR 1235(Tk)(whether state contracts, pension and mployment benefits were >property= for purposes of s 28; answered in the affirmative in principle ); Transvaal Agricultural Union v Ministerof land Affairs and Another 1996(12)BCLR 1573(CC)(whether provisions in the restitution of Land Rights Act 22 of 1994 were valid in view of s 28; see further T Turning a deaf ear: The right to be heard by the Constitutional Court=(1997)13 SA Journalon Rights 216-227) Constitution of the Republic of South Africa 200 of 1993, now replaced by the Constitution of the republic of South Africa 1996. The 1996 Constitution was accepted by the Constitutional Assembly on 8 May 1996 and, afterthe final draft was certified by the Constitutional Court, it came into operation on 4 February 1997. In the so-called First Certification Case(reported as n Re: Certification ofthe Constitution ofthe Republic of South Africa, 19961996(10)BCLR 1253(CC, 1996 (4)SA 744(CC), the Constitutional Court was asked to certify the constitutional va lidity of the initial draft of the Final Constitution, which had to comply with certa in constitutional principles referred to in the interim Constitution. For a discussion the process see D van Wyk >=n Paar opmerkings en vrae oor die nuwe grondwet=(1997)60 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 377-394, M Chaskalson& D Davis >Constitutiona lism, the rule of law and the First Certification Judgment: Ex Parte Chairperson of the Constitutional Assemblyinre Certification ofthe Constitution ofthe Republic ofSouth Africa 19961996(4)SA 744(CC)=(1997)13 SA Journal on Human Rights 430-4454 While these demarcation principles may seem artificial or arbitrary to some, they have the advantage of isolating a relatively clear field of investigation and thereby reducing the scope of the inquiry to manageable proportions. Some of the implications of this inquiry could be suitable for extension to other areas in the broader field of constitutional property, and perhaps they can even be used to construct a rudimentary basis for a methodology of comparative constitutional property rights. My aim here is more modest, though, and I make no claims in this regard. The main reasons for selecting a topic defined by these rather narrow criteria are that it epitomises some of the most intriguing difficulties that confront a student of constitutional property law, and that the case law on this topic is so interesting and confusing that it deserves special attention anyway. To demonstrate my awareness of the fact that my selection is as significant in its exclusions as in its inclusions, I start the discussion off with a case that does not satisfy the criteria I have identified: Harksen v Lane NO and Another. 6 This is the first case in which the South African Constitutional Court was offered an opportunity to say something substantial about the property clause in section 287 of the interim Constitution of 1993,8 and it 6 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC). For a discussion of the case see AJ van der Walt & H Botha >Getting to grips with the new constitutional order: Critical comments on Harksen v Lane NO= (forthcoming 1998) 13 SA Public Law. 7 The property clause appears in s 28 of the interim Constitution; s 25 of the final Constitution. Both versions feature a deprivation clause ( s 28(2), s 25(1)) and an expropriation clause with provision for compensation (s 28(3), s 25(2) and 25(3)). S 28(1) also included a positive property guarantee, and s 25(5)-(9) contains land-reform provisions. S 28 referred to >rights in property=, s 25 to >property=. For a discussion of s 25 see AJ van der Walt The Constitutional Property Clause: A Comparative Analysis of Section 25 of the South African Constitution of 1996 (1997) Juta & Co, Cape Town/Wetton/Johannesburg. In the so-called First Certification Case (reported as In Re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC; 1996 (4) SA 744 (CC)), the Constitutional Court was asked to certify the constitutional validity of the initial draft of the Final Constitution, and a few interesting remarks were made on the nature and purpose of a property clause in s 25 (at pa ras [70]-[75]1286D-1289C; 797D-800B). Section 28 of the 1993 Constitution was referred to in Transkei Public Servants= Association v Government of the Republic of South Africa and Others 1995 (9) BCLR 1235 (Tk) (whether state contracts, pension and employment benefits were >property= for purposes of s 28; answered in the affirmative in principle); Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573 (CC) (whether certain provisions in the Restitution of Land Rights Act 22 of 1994 were valid in view of s 28; see further T Roux >Turning a deaf ear: The right to be heard by the Constitutional Court= (1997) 13 SA Journal on Human Rights 216-227). 8 Constitution of the Republic of South Africa 200 of 1993, now replaced by the Co nstitution of the Republic of South Africa 1996. The 1996 Constitution was accepted by the Constitutional Assembly on 8 May 1996 and, after the final draft was certified by the Constitutional Court, it came into operation on 4 February 1997. In the so-called First Certification Case (reported as In Re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC; 1996 (4) SA 744 (CC)), the Constitutional Court was asked to certify the constitutional validity of the initial draft of the Final Constitution, which had to comply with certain constitutional principles referred to in the interim Constitution. For a discussion of the process see D van Wyk >=n Paar opmerkings en vrae oor die nuwe grondwet= (1997) 60 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 377-394; M Chaskalson & D Davis >Constitutionalism, the rule of law and the First Certification Judgment: Ex Parte Chairperson of the Constitutional Assembly in re: Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC)= (1997) 13 SA Journal on Human Rights 430-445