South African Constitutional Property Clause : Arbitrary Deprivation of Money – An Analysis of the Constitutional Court’s Application in Chevron SA (Pty) Ltd v Wilson [2015] ZACC 15

In Chevron SA (Pty) Limited v Wilson t/a Wilson's Transport [2015] ZACC 15 petroleum products were provided to Wilson, an owner of a truck business, by an unregistered credit provider, Chevron. In terms of the National Credit Act 34 of 2005 (ZA) (“NCA”) an agreement by an unregistered credit provider is void. Section 89(5)(b) of the NCA, in addition, requires a court to order an unregistered credit provider to refund all money paid by the consumer to the credit provider. Section 89(5)(b) of the NCA exposed Chevron to repay R33 million in payments made by Wilson in the years since the NCA came into effect on 1 June 2006. The South African Constitutional Court considered whether section 89(5)(b) of the NCA was inconsistent with the Constitution of the Republic of South Africa, 1996 (ZA) “on the basis that it permits arbitrary deprivation of property in contravention of section 25(1) of the Constitution”. In terms of section 25(1) of the Constitution, property is protected against arbitrary deprivations by law. At issue was also whether the said section was reasonable and justifiable in terms of section 36(1). Section 36(1) of the Constitution limits fundamental rights only in terms of a “law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. The Constitutional Court decided and confirmed that section 89(5)(b) of the NCA is constitutionally invalid as it is inconsistent with sections 25(1) and 36(1) of the Constitution. It was also decided that the availability of an enrichment claim (restitution), namely, the condictio ob turpem causam, to the credit provider did not ameliorate the arbitrariness of the deprivation. The Constitutional Court's conception of property for purposes of section 25(1) of the Constitution, the issue of whether an arbitrary deprivation of property took place and the non-availability of an enrichment claim will be discussed with a concluding comment about the implications of the decision