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Where is property? Some thoughts on the theoretical implications of Daniels v Scribante

The theoretical implications of the Constitutional Court's decision in Daniels v Scribante are analysed in this article. With reference to Jane Baron's theory of the contested commitments of property, it considers the place of property, or ownership, in resolving property disputes in the new constitutional dispensation. The starting point of a dispute involving property is important in the sense that it may determine the potential outcome, or remedy that is awarded, in any particular dispute. Placing property at the centre, or at the heart of any dispute that may involve property, can in certain circumstances go against the constitutional aspirations of healing the divisions of the past and building a society based on fundamental values, such as human dignity. With reference to the arguments of progressive theorists, it is argued that the Constitutional Court in Daniels placed property on the fringes; indicating that property owners may have to sacrifice more in protecting the rights of non-owners. Therefore, the Daniels decision is an important decision for our evolving understanding of the place of property in democratic South Africa.