Dimensiones de los ambientes de aprendizaje en Educación Inicial

The right to property is one of the important factors that influence the FDI inflow. The right to property is provided for in section 25 of the Constitution. Section 25(1) of the Constitution provides 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”. This provision protects the right to control assets. However, the acquisition of property is not provided for directly by section 25 the Constitution. Was it an error of the constitutional drafters not to provide for it directly, or was this done intentionally? The formulation of the right to property does not expressly refer to the acquisition of

property.286 _{In the pre-1994 era, the acquisition of property was severely restricted for}

the majority of South Africans.287 _{It is difficult to assume that the constitutional drafters}

did not intend to include the constitutional right to property acquisition and protection. Therefore, one may conclude that the right to constitutional acquisition of property is implied by the Constitution since it is not provided for expressly.

281 _{P Gordhan is the former Minister of Finance of South Africa}

http://www.treasury.gov.za/ministry/minister.aspx (Date of use: 17 March 20170).

282 _{Business Tech S Writer “This is who Zuma is blaming for the political instability in South Africa.”} https://businesstech.co.za/news/government/143895/this-is-who-zuma-is-blaming-for-the-political- instability-in-south-africa/ (Date of use: February 2017).

283 _{ENCA News “Update: Rand takes biggest weekly dive since 2015”}

https://www.enca.com/money/rand-drops-in-face-of-cabinet-reshuffle (Date of use: 31 March 2017). 284 _Ibid.

285 _Ibid.

286 _{Rautenbach I M Constitutional Law (6}th _{ed 2012) 398.} 287 _Ibid.

The right to property includes the right to ownership, to use, to the exclusion of s from

using it, to derive income from it, and to transfer and dispose of the property.288 _The

right to reparation of the property is provided for in section 11 of the Protection of Investment Act, which provides that a foreign investor may, in respect of the investment, repatriate funds subject to taxation and other applicable legislation. The repatriation in this context includes the owner’s property and is one of the main provisions in BITs. However, in the Investment Bill, the repatriation of property was not included, which was a great cause for concern on the part of foreign investors. The right to be able to move property at will is important.

The government realised this error and included the right to repatriation of property in the subsequent Protection of Investment Act. The right to property is provided for in section 10 of the Protection of Investment Act, in terms of which it provides that investors have a constitutional right to property. Section 10 allows foreign investors to owner property within the Republic.

It is important to determine whether the person or institution whose right to property has allegedly been infringed, is indeed protected by the Constitution. Woolman and Bishop argue that there are theoretically six approaches in the constitutional property clause to be taken in order to determine how the competing interests between the

public and the individual’s property can be resolved.289 _{Firstly, the definition of property}

in terms of the Constitution will assist in determining the interest to be protected.290 _If

the interest in question is not of a type that can be protected by the Constitution, then

it will not receive protection.291 _{In this instance, the interest protected will be the public}

interest.

Second, the public interest as opposed to the individual right to property can be

resolved by the court’s approach to the concept of deprivation.292 _{In order to deal with}

this enquiry, Woolman and Bishop differentiate between a strict approach and a

288 _Ibid.

289 _{Woolman S and Bishop M Constitutional Conversations (2008) 266.} 290 _Ibid.

291 _Ibid. 292 _Ibid.

generous approach.293 _{A strict approach would exclude an ambit of constitutional}

concern types of regulations and thereby resolve the issue in favour of the public

interest.294 _{A generous approach tends to include a broader range of types of}

regulation and thereby resolves the issue in favour of the individual interest.295

Third, these competing interests can be resolved by using the application of the test of

arbitrary deprivation in section 25 (1) of the Constitution.296 _{Fourth, the distinction}

between sections 25(1) (the deprivation clause), and 25(2) (the expropriation clause) of the Constitution plays an important role in this enquiry. The deprivation of property must occur in terms of the law of general application and arbitrary deprivation of

property if not permitted.297 _{The expropriation of property is permitted only if it is for a}

public purpose and if just and equitable compensation is paid.298 _{Therefore, if these}

requirements are not met, the issue will be resolved in favour of private interest.

Fifth, the competing interest may be resolved once the court has decided that deprivation or expropriation has taken place and then enquire as to the amount, the

time and the manner of compensation.299 _{If, for example, the amount is not just and}

fair, or the compensation was made after an unreasonable time has passed, the issue will be resolved in favour of the private interest. Lastly, the limitation clause applies to all rights in the Bill of Rights; therefore, the competing interest can be resolved by

applying the requirements of section 36 of the Constitution.300

It is important to take this enquiry a step further and not only look at whether there is indeed a right to property that can be protected. As stated above, the competing interests of the host state and the foreign investor must be balanced in order create a mutually conducive foreign investment environment that will benefit both parties to a larger extent. 293 _{Id at 267.} 294 _Ibid. 295 _Ibid. 296 _Ibid. 297 _Ibid. 298 _{Id at 268.} 299 _Ibid. 300 _Ibid.

In South Africa, property rights are generally well protected and secured. According to the 2017 Index of Economic Freedom, South Africa scored 67,6 per cent in property rights protection.301