案例法的比較分析

1、<p>　　POLICE POWER REGULATION OF INTANGIBLE COMMERCIAL PROPERTY AND THE CONSTITUTIONAL PROPERTY CLAUSE: A COMPARATIVE ANALYSIS OF CASE LAW</p><p>　　A.J. van der Walt</p><p>　　Readers are re

2、minded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, excep

3、t for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.</p><p><b>　　ABSTRACT</b></p><p

4、>　　This article analyses case law dealing with >police power= regulation that results in the effective loss or destruction of intangible commercial rights or interests. The cases that deal with this kind of situati

5、on are often used interchangeably, but in the article it is argued that it is necessary to distinguish between a number of quite different situations. It is proposed that the following primary distinctions be made for th

6、is purpose: the >regulatory= cancellation of state debts; the >regula</p><p><b>　　Contents</b></p><p>　　1. Introduction</p><p>　　2. A South African case study</

7、p><p>　　3. Regulatory cancellation of state debts</p><p>　　4. >Regulatory= creation of state monopolies</p><p>　　5. Regulatory interference with the management of business enterpris

8、es</p><p>　　6. Regulation by way of licences, permits and quotas</p><p>　　7. Regulation of immaterial property rights</p><p>　　8. Concluding remarks and evaluation</p><p&

9、gt;　　1. Introduction</p><p>　　Comparative constitutional case law presents the analyst with a quite bewildering array of precedents regarding the validity, in terms of a constitutional property guarantee, of

10、 state interferences with private property interests. The reported cases cover a diversity of topics, ranging from the content and meaning of >property= to the calculation of just and equitable compensation in cases w

11、here the property in question is expropriated. In addition to the cases, there is an equally extensive vol</p><p>　　The first consideration narrows the analysis down to cases regarding intangible property, a

12、nd particularly intangible property with some form of commercial interest or value. Included in this category are business enterprises in general; the goodwill of a business concern; shares in a company; debts; a busines

13、s interest in a commercial licence, permit or quota; immaterial property interests deriving from or connected with patents, copyrights, trademarks and confidential commercial information; a</p><p>　　The seco

14、nd consideration narrows the analysis down to instances of state regulation of commercial enterprises and property interests, based on the police power and aimed at the promotion of the public interest. The intention of

15、the state actions and statutes in this category is always to control and regulate the use, enjoyment and exploitation of the property involved, in the public interest. It will be necessary, in the course of the analysis,

16、 to refer to wider issues such as the constitutional</p><p>　　The third consideration narrows the analysis down to situations where the regulation in question, although it is aimed at police power control ov

17、er the use and exploitation of property, results in infringements that practically destroy the property rights, thereby raising questions about the nature of the limitation imposed and its general validity. The regulatio

18、n can have extraordinarily harsh effects because the business is taken over by the state, or because a state monopoly is created at the</p><p>　　While these demarcation principles may seem artificial or arbi

19、trary 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 sui

20、table 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&l

21、t;/p><p>　　In the next section of this paper I discuss the Harksen decision by way of a case study that highlights some of the problems raised by the regulation of intangible commercial property and the case la

22、w on that topic. In the case study, I propose that the problems raised by the regulation of intangible commercial property are often exacerbated by the fact that precedent in this area is considered and used very loosely

23、, and not in terms of the distinctive context of different issues and problems. T</p><p>　　2. A South African case study</p><p>　　Harksen v Lane NO and Others concerns an attack on the validity

24、of section 21 of the South African Insolvency Act 24 of 1936. Section 21(1) of the Insolvency Act provides that, upon the sequestration of the estate of an insolvent spouse, the property of the solvent spouse shall vest

25、in the master of the Supreme Court and, once one has been appointed, in the trustee of the insolvent estate; and that the solvent spouse=s property shall be dealt with by the master and trustee as if it were property<

26、/p><p>　　The applicant=s husband=s estate was sequestrated, and subsequently her property was attached by the trustees of the insolvent estate, and she was summoned to appear and be interrogated at a meeting of

27、 her husband=s creditors. The applicant challenged the constitutional validity of sections 21, 64 and 65 of the Act to the extent that they affect the property and affairs of the solvent spouse. She claimed that section

28、21 is in conflict with section 28(3) of the 1993 Constitution in that it effect</p><p>　　For present purposes we are interested in the property issue: the charge that section 21 of the Insolvency Act is inco

29、nsistent with section 28(3) of the 1993 Constitution in that section 21 of the Act constitutes an expropriation of the property of the solvent spouse without provision for compensation as required by section 28(3) of the

30、 interim Constitution. The basis for this argument is that the vesting of the solvent spouse=s property in terms of section 21 amounts to a transfer of the solven</p><p>　　In his judgment for the majority Go

31、ldstone J pointed out that the distinction between deprivation and expropriation of property, as set out in sections 28(2) and 28(3) of the interim Constitution, is recognised in South African law and in many foreign jur

32、isdictions. The main difference, as the Court described it, is that a deprivation falls short of the >acquisition of rights in property by a public authority for a public purpose= (and usually against compensation) th

33、at characterises an expropri</p><p>　　One may or may not agree with this decision, and in a sense the main problem is not whether this finding is correct, but rather that the constitutional validity of secti

34、on 21 was tested with reference to section 28(3) only, and not with reference to the requirements for a deprivation of property in terms of section 28(2) of the interim Constitution. This is of course the result of the a

35、pplicant=s rather limited attack, but that is not the focal point of my interest in the decision. For purposes </p><p>　　Apart from ignoring the differences between various kinds of property, the reasoning o

36、f the Harksen court (and the Zimbabwean Supreme Court in the cases referred to) is too simplistic in its analysis of the effects of the regulation concerned. Although there is no clear approach in case law, a comparative

37、 analysis suggests that, as far as constitutional property guarantees are concerned, the scope of the term >expropriation= or >compulsory acquisition= cannot simply be restricted to physical dis</p><p>

38、;　　The considerations set out in the previous paragraphs indicate that academic and judicial discourse on the problem of regulation of intangible commercial property has not come to terms yet with the fact that contempor

39、ary property law, especially in the constitutional area, has moved away from its pre-modern roots in the social and economic appreciation of tangible things and the ways in which they are regulated by the modern state. T

40、he insistent focus on the classic image of expropriation as a p</p><p>　　The case study of Harksen and its reference to the Zimbabwean decisions in Hewlett and Davies illustrates some of the problems surroun

41、ding the regulation of intangible commercial property rights: unless the characteristics and unique features of different cases in the field of regulation of intangible property are distinguished and accounted for quite

42、carefully, decisions and the reasoning behind them will suffer from unnecessary inconsistency and lack of clarity. This means not only that injust</p><p>　　3. Regulatory cancellation of state debts</p>

43、<p>　　One of the most controversial areas where the regulation of intangible commercial property results in claims that the results of regulation are expropriatory or confiscatory, is the regulatory cancellation o

44、f state debts. Some of the cases that feature in this category involve private rather than commercial property (debts), but these cases are nevertheless often confused with some of the other categories discussed below, a

45、nd although the cases involve private property there is nothing in the pr</p><p>　　The most controversial decision in this area was handed down by the Zimbabwe Supreme Court in Hewlett v Minister of Finance

46、and Another, which was decided in terms of the original 1980 version of section 16 of the Zimbabwean Constitution, prior to the amendment of 1990. The applicant was a farmer to whom a sum of money was awarded in respect

47、of losses suffered as a result of >acts of terrorism= as defined in the Victims of Terrorism (Compensation) Act. Subsequent to the award being made, the Eme</p><p>　　The first part of the Hewlett decision

48、 is uncontroversial, but the second part, which deals with the nature and validity of the regulation in question, is not. Initially the court=s approach to the regulation issue looks acceptable. The term >deprivation=

49、 does not appear in the Zimbabwean property clause, but the court nevertheless decided that the distinction between deprivations and expropriations forms part of Zimbabwean law, and that the nature and validity of the Co

50、mpensation Act had to be </p><p>　　Generally speaking, the court=s analysis of the distinction between non-compensable, non-acquisitive regulation (deprivations) of property in terms of section 11 and compen

51、sable compulsory acquisitions of property in terms of section 16 is clear and convincing, but the application of the distinction to the facts of the case is questionable. In accepting the narrow interpretation that restr

52、icts >compulsory acquisitions= to situations where the state actually acquires something, the court allowed </p><p>　　In view of the nature of intangible property which is included in constitutional prope

53、rty guarantees, and given the public-law nature of the constitutional relation between state and citizen, the court=s approach is even less acceptable. In a situation where the state is in a position to use its state pow

54、er to make a law that benefits itself by nullifying an existing and >crystallised= debt, and thereby deprive a citizen of property, the inequality of the relationship between the state as lawmak</p><p>　　

55、A completely different approach was followed by the Uganda High Court in Shah v Attorney-General (No. 2). The plaintiff concluded a contract with the former government of Buganda in terms of which, once he fulfilled his

56、obligations under the contract, he was entitled to a money payment from the government. Shortly afterwards the kingdom of Buganda ceased to exist and the government of Uganda took over the assets, rights and liabilities

57、of the former administration in terms of the Local Administr</p><p>　　A similar approach was followed by the Australian Federal Court in Peverill v Health Insurance Commission. Peverill was a specialist path

58、ologist who rendered certain pathology services to the state. He sued the Health Insurance Commission for Medicare benefits due to him for these services in terms of the Health Insurance Act 1973. The Health Insurance (P

59、athology Services) Amendment Act 1991 effected certain retrospective changes to the Health Insurance Act, with the result that Peverill=s right</p><p>　　The principles deriving from the Ugandan Shah decision

60、 and the Australian Peverill decision clearly contradict the Zimbabwean Hewlett decision, and in my view they present the better arguments and authority for cases of this nature. They have been confirmed in a number of o

61、ther cases dealing with the salaries of state employees and with a statutory freeze of public servants= wages. The principles can be summarised as follows:</p><p>　　-A money debt, once vested according to t

62、he normal principles of law, constitutes property for purposes of the protection of a constitutional property clause. Such a debt can vest by contract, or by court order, or by legislation, depending on the nature of the

63、 debt.</p><p>　　-A statutory cancellation of such a vested debt benefits the state by absolving it from the duty to pay, and therefore constitutes a compulsory acquisition of property, which may be subject

64、to payment of compensation in terms of the relevant property clause.</p><p>　　An interesting variation on the question of cancellation of state debts appears in the decision of the Zimbabwe Supreme Court in

65、Chairman, Public Service Commission, and Others v Zimbabwe Teachers= Association and Others. Public servants in Zimbabwe had been paid an annual bonus since 1974. In September 1995 it was announced by regulation that the

66、 annual bonus for 1995 would not be paid. The Zimbabwe Teachers= Association attacked this decision on behalf of all public servants, averring that it </p><p>　　On the basis of the analysis above it seems re

67、asonably clear that a state action that cancels or destroys a vested state debt should probably, depending on the structure and phraseology of the relevant constitutional property clause, be regarded as an expropriation

68、rather than a mere regulation of the property in question and should, therefore, either be in conflict with or require compensation in terms of the property clause. However, this cannot be proposed as a general and absol

69、ute rule. Ther</p><p>　　On appeal, the Supreme Court of Namibia was not willing to actually decide that a cancellation of the debt was constitutionally in order because of moral objections to the way in whic

70、h it was created and vested in the organisation, but the decision did make it possible for the new Namibian government to distance itself from the obligation without releasing them from paying the debt. The interesting p

71、art of the decision a quo, in terms of which the essential section 2(2) of the Act was declared u</p><p>　　4. >Regulatory= creation of state monopolies</p><p>　　A second category of cases whe

72、re the regulation of commercial property often results in claims that the effects of the regulation are expropriatory or confiscatory, concerns the situation where the regulation in question, usually in the form of produ

73、ction, trade or import/export regulations pertaining to a certain commercial branch, simultaneously destroys or prohibits the continued existence of a private enterprise and establishes a state monopoly in the same area.

74、 The question is whether this </p><p>　　A good example of this kind of situation appears from the widely cited Malaysian case of Government of Malaysia & Another v Selangor Pilot Association. The respond

75、ents provided private pilotage services and had an effective monopoly on the business in certain pilotage districts. The Port Authorities (Amendment) Act 1972 prohibited the respondents from carrying on their business wi

76、thin the relevant pilotage districts. The physical assets of the respondents were sold voluntarily to the second appe</p><p>　　The same argument was used in the Canadian case of Manitoba Fisheries Ltd v The

77、Queen. The plaintiffs were the owners of a private fish-exporting business until 1969, when the Fresh Water Fish Marketing Act 1970 was promulgated. This Act gave a statutory corporation an effective monopoly on the busi

78、ness of exporting fish, except if the corporation were to grant a licence to or exempt anyone from the prohibition on continuing their business. No licences were issued and no exemptions made. The Act</p><p>

79、;　　The comparison between the Canadian Manitoba decision and the Malaysian Selangor decision raises the question whether it is necessary that intangible commercial property must actually be acquired or used by the state

80、to constitute a taking. The Canadian court was satisfied that the property in question (the goodwill) was actually taken or acquired by the state, because the plaintiff=s customers were actually forced to trade with the

81、state corporation, which suggests that there might be a taking </p><p>　　The appellant companies were engaged in the business of storing and loading sugar for export by means of manual labour by dockers and

82、stevedores. New developments changed the method of loading sugar from the manual loading of bags to mechanised bulk loading. Following this development, the Mauritius Sugar Terminal Corporation Act 1979 established the M

83、auritius Sugar Terminal Corporation, which had a monopoly on the storing and loading of sugar for export (except insofar as the Minister might aut</p><p>　　Firstly, the fact that the Mauritian government was

84、 clearly exercising its police power in this case does not necessarily mean, as the Privy Council seems to have thought, that its actions cannot attract a compensation award. The mere fact that the state clearly exercise

85、s its police power in a legitimate situation and for the public interest does not dispose of the matter completely: the question remains whether the promotion of technological progress also requires the state to get invo

86、lved in t</p><p>　　However, even though Allen=s criticism of the decision seems reasonable, he (like the Privy Council) fails to take into account a second major factor that influences the situation in the M

87、auritian case. Both the Privy Council=s decision and Allen=s discussion of the Societe United Docks case fail to pay sufficient attention to the fact that the Mauritian property clause is different from, for example, the

88、 Malaysian property clause in one essential aspect: being a >standard= variation of the >dou</p><p>　　The same is true of the decision of the Indian Supreme Court in Saghir Ahmad v The State of Uttar P

89、radesh and Others. The appellant was a private entrepreneur who provided transport on the Bulandshahr-Delhi route. Section 42(3) of the Motor Vehicles Act 1939 exempted government-owned transport vehicles from the requir

90、ement of obtaining permits. The government of the state of Uttar Pradesh decided to operate their own buses on the public thoroughfares as competitors with the private operators. Th</p><p>　　The High Court d

91、ecided that the mere prohibition of the business ventures in question did not amount to a compensable acquisition in terms of article 31(2), because no property was taken over by the state, although it was clear that the

92、 prohibition was aimed at instituting a state monopoly. With reference to the majority decision in State of West Bengal v Subodh Gopal Bose the Supreme Court overturned this decision, and held that the effect of the law

93、was to deprive the plaintiffs of their inter</p><p>　　The general trend in decisions in this category seems to be that a regulatory control measure does not necessarily constitute a compulsory acquisition of

94、 commercial property and require compensation simply because it destroys or prohibits the continued existence of a private business enterprise; but on the other hand the simultaneous destruction or prohibition of a priva

95、te enterprise and establishment of a competing state monopoly could be an indication that at least part of the private property</p><p>　　5. Regulatory interference with the management of business enterprises

96、</p><p>　　In some instances, the regulation of commercial property also interferes with a private commercial enterprise in a manner that seems to threaten its continued existence, but without setting up a st

97、ate monopoly or competing state enterprise. The relatively obvious >taking-over= element that pointed in the direction of a compulsory acquisition in the previous category is therefore absent in this case, and claims