According to Black’s Law Dictionary (10th edition, 2014), ‘common law’ is “the body of law derived from judicial decisions, rather than from statutes or constitutions”.
It is ‘case law’ based on precedent, as opposed to the ‘statutory laws’ enacted by a legislature.
The latter tend to take away from common law rights. For example, in South Africa, the state long ago expropriated the land’s mineral rights. A farmer who discovers gold on his or her farm would benefit little from the discovery.
Now, ownership of the land itself is being threatened. Yet, unless explicitly removed by statute, common law rights remain in force, starting with the fact that title at the registry of deeds is solid proof of ownership, valid against all comers.
Difficult to dislodge
If government wants to take away all rights to property, the set of statutes it would need to draft to achieve this would have to be very well considered indeed. If its ‘expropriation laws’ are carelessly drafted, a property owner might be deprived of only some rights in and to the property.
Furthermore, there is a presumption under common law that any statute that limits existing rights must be very narrowly interpreted. The contra fiscum rule is an example of this; if a statute serves to tax a person, any ambiguity must be interpreted in such a way that the least tax is paid.
Common law presumptions are rooted in centuries of case authority, making them difficult to dislodge. People in certain quarters believe that South Africa’s electorate has the power to alter the Constitution at will, to its benefit.
But they forget (or don’t care) that:
- The Constitution exists, in part, to protect minority interests and uphold the rule of law;
- Should a government, merely by virtue of being ‘democratically elected’, manage to change the Constitution, common law will remain;
- The rule of law, which serves to uphold common law, remains as a bulwark behind the Constitution, as changeable as the Constitution appears to some people.
An offence against the rule of law
A rule (statute) whereby property is taken away with no compensation would not be supported by common law and would offend against the rule of law.
Its implementation would be an economic disaster. The government’s rumblings about expropriation have already had a major negative economic effect.
Advocate Peter O’Halloran is a tax specialist.