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Comment: The Common Law as Baseline? (A Reading of the Judgments of the Supreme Court of Appeal of South Africa in the Case of Minister of Minerals and Energy v. Agri South Africa)


Frank I. Michelman


Harvard Law School

October 2, 2012

Harvard Public Law Working Paper 12-40

Abstract:     
This Comment presents a reading of the judgments of the Supreme Court of Appeal of South Africa in the recent case of Minister of Minerals and Energy v. Agri South Africa. The judgments reject a claim of unconstitutional expropriation of property by force of a recent, major statutory revision of laws governing acquisition, retention, exercise, duration, and transfer of mining rights in South Africa.

The Comment makes no attempt to provide a complete account of these judgments (which will undergo review by South Africa’s Constitutional Court) or all of their reasoning. Its scope is restricted to questions regarding the appearance in the judgments, and certain arguments to which the judgments respond, of what I have called “the baseline dignity of the common law,” which comes to the fore when the rule or model of the common law is taken to provide a baseline of justified expectation, by reference to which to measure claims of excessive or otherwise impermissible deprivations or expropriations by the state.

Number of Pages in PDF File: 28

Keywords: comparative constitutional law, property rights, expropriation

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Date posted: October 3, 2012 ; Last revised: October 26, 2012

Suggested Citation

Michelman, Frank I., Comment: The Common Law as Baseline? (A Reading of the Judgments of the Supreme Court of Appeal of South Africa in the Case of Minister of Minerals and Energy v. Agri South Africa) (October 2, 2012). Harvard Public Law Working Paper 12-40. Available at SSRN: http://ssrn.com/abstract=2155898 or http://dx.doi.org/10.2139/ssrn.2155898

Contact Information

Frank I. Michelman (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
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Cambridge, MA 02138
United States
617-495-4628 (Phone)
617-495-1110 (Fax)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdi
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