POLICE POWER REGULATION OF INTANGIBLE COMMERCIAL PROPERTY AND THE CONSTITUTIONAL PROPERTY CLAUSE: A COMPARATIVE ANALYSIS OF CASE LAW

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 situation 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 this purpose: the ‘regulatory’ cancellation of state debts; the ‘regulatory’ creation of state monopolies; regulatory interferences with the management of business enterprises; regulation of businesses by way of licences, permits and quotas; and the regulation of immaterial property rights. It is argued that the cases in each of these categories can and should not be applied as authority for any of the other categories, since the problems and solutions for each category differ in fundamental respects. The distinction also makes it easier to argue about the legitimacy of a specific kind of regulatory interference with intangible property: while it is obvious that regulation of businesses by way of licencing is legitimate in principle, it is much more difficult (but still possible) to justify regulations that interfere with the management of a business enterprise, and even more difficult to justify the ‘regulatory’ creation of a state monopoly or the ‘regulatory’ cancellation of a state debt. It follows that the legitimacy of any given interference with intangible property can be considered and discussed more easily within a framework that allows a fundamental evaluation of the nature and effect of different kinds of regulatory action that affects property. This classification also makes it possible to judge the comparative value of foreign case law in a more rational and justifiable manner.

Contents

1. Introduction

2. A South African case study

3. Regulatory cancellation of state debts

4. ‘Regulatory’ creation of state monopolies

5. Regulatory interference with the management of business enterprises

6. Regulation by way of licences, permits and quotas

7. Regulation of immaterial property rights

8. Concluding remarks and evaluation

Notes