POLICE POWER REGULATION OF INTANGIBLE COMMERCIAL PROPERTY AND THE CONSTITUTIONAL PROPERTY CLAUSE: A COMPARATIVE ANALYSIS OF CASE LAWI A.J. van der Waltz Readers are reminded 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, except for reasonable quoting, clearly indicating the source Readers are permitted to make copies, electronically or printed, for personal and classroom use abstract 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 gulation 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 Background article for a paper read at the second conference, entitled >Contemporary Issues in Property Law=, presented by the Centre for Property Law at the University of Reading from 25 to 27 March 1998 The article is based on sections from different chapters of the incomplete manuscript of AJ van der WaIt Constitutional Property Clauses: A Comparative Analysis(forthcom ing 1998, Juta& Co, Cape Town/Wetton/Johannesburg). I am grateful to Denise Prevost, Karen Prinsloo and Marjan Gerbrands for research assistance, and l owe a huge debt of gratitude to frank michelman, Joe Singer, Laura Underkuffler-Freund, Clement Ng=ong=ola, Johan Erasmus, Peter Butt, Klaus Stern, Neville Botha, Josef Kruger, Kate O=Regan, Gretchen Carpenter and John Murphy for comments on and suggestions regarding different chapters of the manuscript. The Centre for Research Development(Human Sciences Research Council, Pretoria ) the Research and Bursaries Committee(University of South Africa, Pretoria)and the Alexander von Hum boldt-Stiftung(Bonn)supported different stages of the research process during 1990 1992 and from 1995 to 1998. The views and opinions expressed in this papershould not be attributed to any of these institutions B lur Honns (BA)LLB LLD(Potchefstroom)LLM(Witwatersrand), Professor, Department of Private Law, University of South Africa, PO Box 392, 0003 Pretoria, South Africa. E-mail addres <vdwalajaalpha unisaacza>
1 POLICE POWER REGULATION OF INTANGIBLE COMMERCIAL PROPERTY AND THE CONSTITUTIONAL PROPERTY CLAUSE: A COMPARATIVE ANALYSIS OF CASE LAW1 A.J. van der Walt2 Readers are reminded 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, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract 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 1 Background article for a paper read at the second conference, entitled >Contemporary Issues in Property Law=, presented by the Centre for Property Law at the University of Reading from 25 to 27 March 1998. The article is based on sections from different chapters of the incomplete manuscript of AJ van der Walt Constitutional Property Clauses: A Comparative Analysis (forthcoming 1998, Juta & Co, Cape Town/Wetton/Johannesburg). I am grateful to Denise Prévost, Karen Prinsloo and Marjan Gerbrands for research assistance, and I owe a huge debt of gratitude to Frank Michelman, Joe Singer, Laura Underkuffler-Freund, Clement Ng=ong=ola, Johan Erasmus, Peter Butt, Klaus Stern, Neville Botha, Josef Krüger, Kate O=Regan, Gretchen Ca rpenter and John Murphy for comments on and suggestions regarding different chapters of the manuscript. The Centre for Research Development (Human Sciences Research Council, Pretoria), the Research and Bursaries Committee (University of South Africa, Preto ria) and the Alexander von Humboldt-Stiftung (Bonn) supported different stages of the research process during 1990, 1992 and from 1995 to 1998. The views and opinions expressed in this paper should not be attributed to any of these institutions. 2 B Iur Honns (BA) LLB LLD (Potchefstroom) LLM (Witwatersrand); Professor, Department of Private Law, University of South Africa, PO Box 392, 0003 Pretoria, South Africa. E-mail address: <vdwalaj@alpha.unisa.ac.za>
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 any given interference with intangible property can be considered and discussed more easty il of a state monopoly or the >regulatory= cancellation of a state debt. It follows that the legitimac within a framework that allows a fundamental evaluation of the nature and effect of d ifferent 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 stud 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. Conclud ing remarks and evaluation 1. Introduction Comparative constitutional case law presents the analyst with a quite bewildering array of precedents regarding the valid ity, in terms of a constitutional property guarantee, of 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 where the property in question is expropriated In addition to the cases there is an equally extensive volume of academic commentary, often accompanied by an apology for the confusing state of learning in this field. The purpose of this paper is to suggest an avenue of avoiding at least some of the confusions in this field by introducing a number of distinctions that highlight the dangers of using decisions in one area as authority for cases in another. I focus on a limited category of cases, defined by three considerations: Firstly, the property in question consists of some kind of intangible commercial right or interest; secondly, the purpose of the state interference with the said property is to regulate, in terms of the state=s police power, the use and exploitation of that property in some way or another; and, thirdly, the effect of the regulation in question is so harsh or extreme that the property interest is lost, destroyed or rendered worthless in the process The first consideration narrows the analysis down to cases regard ing intangible property and particularly intangible property with some form of commercial interest or value. Included in company; debts, a business interest in a commercial licence, permit or quota; imate es in a this category are business enterprises in general; the goodwill of a business concern; share property interests deriving from or connected with patents, copyrights, trademarks and confidential commercial information; and so forth. Occasionally, reference will be made to
2 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 1. Introduction 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 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 where the property in question is expropriated. In addition to the cases, there is an equally extensive volume of academic commentary, often accompanied by an apology for the confusing state of learning in this field. The purpose of this paper is to suggest an avenue of avoiding at least some of the confusions in this field, by introducing a number of distinctions that highlight the dangers of using decisions in one area as authority for cases in another. I focus on a limited category of cases, defined by three considerations: Firstly, the property in question consists of some kind of intangible commercial right or interest; secondly, the purpose of the state interference with the said property is to regulate, in terms of the state=s police power, the use and exploitation of that property in some way or another; and, thirdly, the effect of the regulation in question is so harsh or extreme that the property interest is lost, destroyed or rendered worthless in the process. The first consideration narrows the analysis down to cases regarding intangible property, and 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 business interest in a commercial licence, permit or quota; immaterial property interests deriving from or connected with patents, copyrights, trademarks and confidential commercial information; and so forth. Occasionally, reference will be made to a
case where the property in question was intangible but held individually rather than commercially, but in these cases the question whether the property was owned individually or commercially will usually not make much difference. However, because of the focus on commercial interests certain related issues are ignored B for example, rent control regulation cases are ignored because they normally affect private residential rather than commercial property, and interesting as housing regulation and rent control cases are, they involve unique characteristics and problems all their own that cannot be addressed here. This analysis will not attempt to describe or investigate the constitutional nature and content of intangible commercial rights in any detail either; the nature of the property interest is used as a demarcation criterion here but does not constitute the focus of the investigation The second 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 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, to refer to wider issues such as the constitutional valid ity of limitations of entrenched rights and the distinction between deprivations and expropriations of property, but once again the police power nature of regulations features here as a demarcation criterion and not as a central concern. moreover, cases dealing with land-use regulation, while arguably satisfying this criterion, will be ignored because land-use regulation cases are determined by unique and specif ic factors not necessarily germane to the regulation of intangible property as such The third consideration narrows the analysis down to situations where the regulation question, although it is aimed at police power control over 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 valid ity. The regulation can have extraord inarily harsh effects because the business is taken over by the state, or because a state monopoly is created at the cost of the private enterprise, or because the state interferes with the management of a commercial enterprise, or because the business that loses its permit or licence cannot function, or for any similar reason. In some cases the loss is caused by a statute that cancels a state debt. Again, the intention here is to analyse cases dealing with regulations that have the defined kind of effect, and not to discuss the wider issues surrounding this category of regulations and their justifiability or valid ity in general. Some general remarks about the nature of regulation and the public interest it serves are included in the conclusion Such as the nature of land as a limited resource, considerations relating to planning and development theory and policy, conservation principles and practices, and so forth Is it a >police power= regulation or an >em inent domain= expropriation of the property; or does it fall inte the middle category of >inverse condemnations=? Even if it is accepted that the lim itation constitutes a >police power= deprivation rather than an >eminent domain=expropriation, is it constitutionally justifia ble in view of the harshness of its effects for the property owners involved
3 case where the property in question was intangible but held individually rather than commercially, but in these cases the question whether the property was owned individually or commercially will usually not make much difference. However, because of the focus on commercial interests certain related issues are ignored B for example, rent control regulation cases are ignored because they normally affect private residential rather than commercial property, and interesting as housing regulation and rent control cases are, they involve unique characteristics and problems all their own that cannot be addressed here. This analysis will not attempt to describe or investigate the constitutional nature and content of intangible commercial rights in any detail either; the nature of the property interest is used as a demarcation criterion here but does not constitute the focus of the investigation. The second 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 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, to refer to wider issues such as the constitutional validity of limitations of entrenched rights and the distinction between deprivations and expropriations of property, but once again the police power nature of regulations features here as a demarcation criterion and not as a central concern. Moreover, cases dealing with land-use regulation, while arguably satisfying this criterion, will be ignored because land-use regulation cases are determined by unique and specific factors3 not necessarily germane to the regulation of intangible property as such. The third consideration narrows the analysis down to situations where the regulation in question, although it is aimed at police power control over the use and exploitation of property, results in infringements that practically destroy the property rights, thereby raising questions about the nature of the limitation imposed4 and its general validity.5 The regulation can have extraordinarily harsh effects because the business is taken over by the state, or because a state monopoly is created at the cost of the private enterprise, or because the state interferes with the management of a commercial enterprise, or because the business that loses its permit or licence cannot function, or for any similar reason. In some cases the loss is caused by a statute that cancels a state debt. Again, the intention here is to analyse cases dealing with regulations that have the defined kind of effect, and not to discuss the wider issues surrounding this category of regulations and their justifiability or validity in general. Some general remarks about the nature of regulation and the public interest it serves are included in the conclusion. 3 Such as the nature of land as a limited resource, considerations relating to planning and development theory and policy, conservation principles and practices, and so forth. 4 Is it a >police power= regulation or an >eminent domain= expropriation of the property; or does it fall into the middle category of >inverse condemnations=? 5 Even if it is accepted that the limitation constitutes a >police power= deprivation rather than an >eminent domain= expropriation, is it constitutionally justifiable in view of the harshness of its effects for the property owners involved?
While these demarcation principles may seem artificial or arbitrary to some, they have of the inquiry to manageable proportions. Some of the implications of this inquiry could be ope the advantage of isolating a relatively clear field of investigation and thereby reducing the sce suitable for extension to other areas in the broader field of constitutional property, and perhaps they can even be used to construct a rud imentary basis for a methodology of comparative constitutional property rights. My aim here is more modest, though, and I make no claims in this regard. The main reasons for selecting a topic defined by these rather narrow criteria are that it epitomises some of the most intriguing difficulties that confront a student of constitutional property law, and that the case law on this topic is so interesting and confusing that it deserves special attention anyway. To demonstrate my awareness of the fact that my selection is as significant in its exclusions as in its inclusions, I start the discussion off with a case that does not satisfy the criteria I have identified Harksen v Lane no and Another. This is the first case in which the South African Constitutional Court was offered an opportunity to say somethin& ubstantial about the property clause in section 28 of the interim Constitution of 1993, an 997(11)BCLR 1489(CC); 1998(1)SA 300(CC). For a discussion of the case see AJ van der WaIt h Botha >Getting to grips with the new constitutionalorder: Critical comments on Harksen v lane No (forthcoming 1998)13 SA Public Law. The property clause appears in s 28 of the interim Constitution; s 25 of the final Constitution. Both versions feature a deprivation clause( s 28(2), s 25(1)and an expropriation clause with prov ision for compensation (s 28(3), s 25(2)and 25(3). S 28(1)also included a positive property guarantee, and s 25 (5)-(9)contains land-reform provisions. S 28 referred to >rights in property=, s 25 to >property= For a discussion of s 25 see AJ van der Walt The Constitutional Property Clause: A Comparative Analysisof Section 25 ofthe South African Constitution of 1996(1997)Juta& Co, Cape Town/Wetton/Johannesburg. In the so-called First Certification Case(reported as In Re: Certification ofthe Constitution of the Republic of South africa, 19961996(10)BCLR 1253 (CC: 1996(4)SA 744(CC), the Constitutional Court was asked to certify the constitutional validity of the initial draft of the Final Constitution, and a few interesting remarks were made on the nature and purpose of a property clause in s 25(at pa ras[701-75 1286D-1289C, 797D-80 Section 28 of the 1993 Const itution was referred to in Transkei Public servants= Association v government of the Republic of South Africa and Others 1995(9)BCLR 1235(Tk)(whether state contracts, pension and mployment benefits were >property= for purposes of s 28; answered in the affirmative in principle ); Transvaal Agricultural Union v Ministerof land Affairs and Another 1996(12)BCLR 1573(CC)(whether provisions in the restitution of Land Rights Act 22 of 1994 were valid in view of s 28; see further T Turning a deaf ear: The right to be heard by the Constitutional Court=(1997)13 SA Journalon Rights 216-227) Constitution of the Republic of South Africa 200 of 1993, now replaced by the Constitution of the republic of South Africa 1996. The 1996 Constitution was accepted by the Constitutional Assembly on 8 May 1996 and, afterthe final draft was certified by the Constitutional Court, it came into operation on 4 February 1997. In the so-called First Certification Case(reported as n Re: Certification ofthe Constitution ofthe Republic of South Africa, 19961996(10)BCLR 1253(CC, 1996 (4)SA 744(CC), the Constitutional Court was asked to certify the constitutional va lidity of the initial draft of the Final Constitution, which had to comply with certa in constitutional principles referred to in the interim Constitution. For a discussion the process see D van Wyk >=n Paar opmerkings en vrae oor die nuwe grondwet=(1997)60 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 377-394, M Chaskalson& D Davis >Constitutiona lism, the rule of law and the First Certification Judgment: Ex Parte Chairperson of the Constitutional Assemblyinre Certification ofthe Constitution ofthe Republic ofSouth Africa 19961996(4)SA 744(CC)=(1997)13 SA Journal on Human Rights 430-445
4 While these demarcation principles may seem artificial or arbitrary 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 suitable 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 aim here is more modest, though, and I make no claims in this regard. The main reasons for selecting a topic defined by these rather narrow criteria are that it epitomises some of the most intriguing difficulties that confront a student of constitutional property law, and that the case law on this topic is so interesting and confusing that it deserves special attention anyway. To demonstrate my awareness of the fact that my selection is as significant in its exclusions as in its inclusions, I start the discussion off with a case that does not satisfy the criteria I have identified: Harksen v Lane NO and Another. 6 This is the first case in which the South African Constitutional Court was offered an opportunity to say something substantial about the property clause in section 287 of the interim Constitution of 1993,8 and it 6 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC). For a discussion of the case see AJ van der Walt & H Botha >Getting to grips with the new constitutional order: Critical comments on Harksen v Lane NO= (forthcoming 1998) 13 SA Public Law. 7 The property clause appears in s 28 of the interim Constitution; s 25 of the final Constitution. Both versions feature a deprivation clause ( s 28(2), s 25(1)) and an expropriation clause with provision for compensation (s 28(3), s 25(2) and 25(3)). S 28(1) also included a positive property guarantee, and s 25(5)-(9) contains land-reform provisions. S 28 referred to >rights in property=, s 25 to >property=. For a discussion of s 25 see AJ van der Walt The Constitutional Property Clause: A Comparative Analysis of Section 25 of the South African Constitution of 1996 (1997) Juta & Co, Cape Town/Wetton/Johannesburg. In the so-called First Certification Case (reported as In Re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC; 1996 (4) SA 744 (CC)), the Constitutional Court was asked to certify the constitutional validity of the initial draft of the Final Constitution, and a few interesting remarks were made on the nature and purpose of a property clause in s 25 (at pa ras [70]-[75]1286D-1289C; 797D-800B). Section 28 of the 1993 Constitution was referred to in Transkei Public Servants= Association v Government of the Republic of South Africa and Others 1995 (9) BCLR 1235 (Tk) (whether state contracts, pension and employment benefits were >property= for purposes of s 28; answered in the affirmative in principle); Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573 (CC) (whether certain provisions in the Restitution of Land Rights Act 22 of 1994 were valid in view of s 28; see further T Roux >Turning a deaf ear: The right to be heard by the Constitutional Court= (1997) 13 SA Journal on Human Rights 216-227). 8 Constitution of the Republic of South Africa 200 of 1993, now replaced by the Co nstitution of the Republic of South Africa 1996. The 1996 Constitution was accepted by the Constitutional Assembly on 8 May 1996 and, after the final draft was certified by the Constitutional Court, it came into operation on 4 February 1997. In the so-called First Certification Case (reported as In Re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC; 1996 (4) SA 744 (CC)), the Constitutional Court was asked to certify the constitutional validity of the initial draft of the Final Constitution, which had to comply with certain constitutional principles referred to in the interim Constitution. For a discussion of the process see D van Wyk >=n Paar opmerkings en vrae oor die nuwe grondwet= (1997) 60 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 377-394; M Chaskalson & D Davis >Constitutionalism, the rule of law and the First Certification Judgment: Ex Parte Chairperson of the Constitutional Assembly in re: Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC)= (1997) 13 SA Journal on Human Rights 430-445
does not really fit into the framework of this discussion because it concerns all the property of the applicant and not just her(individually held)intangible assets. However, patriotism demands that i should start off with a discussion of a South african case. and besides the harksen decision offers an opportunity to segue into a discussion of a number of decisions of the Zimbabwe Supreme Court that do satisfy my selection criteria, and that illustrate the problem I had in mind when selecting this topic 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 law 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, and not in terms of the distinctive context of different issues and problems. The case study is followed by an analysis of cases in a number of categories that I propose for this purpose: cases dealing with the cancellation of state debts regulation that creates state monopolies; regulation that interferes with the management of a business enterprise; regulation by way of licences, permits and quotas; and the regulation of immaterial property rights. In each category, I consider a number of cases that may be classified under that head ing, and the effect of the classification for the problems and solutions on offer Finally, I consider the implications and possible value of the classification for the problem of regulation of intangible commercial property as a whole 2. A South African case study Harksen v Lane no and Others concerns an attack on the valid ity of section 21 0 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 in the master of the Supreme Courtand, 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 of the sequestrated estate In De villiers NO v Delta Cables(Pry) Ltd2 the former Appellate Division of the Supreme Court stated obiter that the effect of the vesting of the solvent spouse=s property is to transfer full ownership(dominium)of the propert 1997(11)BCLR 1489(CC): 1998(1)SA 300(CC). References to this case below cite the relevant paragraph number in the decision. The discussion of this case below is based partly on sections of AJ van der WaIt h Botha >Getting to grips with the new constitutionalorder: Crit ical comments on Harksen Lane NO=(forthcoming 1998)13 SA Public law The applicant also attacked ss 64 and 65, but for present purposes this a spect is ignored Now the High Court; see the 1996 Constitution s 166(c) 12 1992(1)SA9(A)at151J Now the Supreme Court of Appeal; see the 1996 Constitution s 166(b)
5 does not really fit into the framework of this discussion because it concerns all the property of the applicant and not just her (individually held) intangible assets. However, patriotism demands that I should start off with a discussion of a South African case, and besides, the Harksen decision offers an opportunity to segue into a discussion of a number of decisions of the Zimbabwe Supreme Court that do satisfy my selection criteria, and that illustrate the problem I had in mind when selecting this topic. 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 law 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, and not in terms of the distinctive context of different issues and problems. The case study is followed by an analysis of cases in a number of categories that I propose for this purpose: cases dealing with the cancellation of state debts; regulation that creates state monopolies; regulation that interferes with the management of a business enterprise; regulation by way of licences, permits and quotas; and the regulation of immaterial property rights. In each category, I consider a number of cases that may be classified under that heading, and the effect of the classification for the problems and solutions on offer. Finally, I consider the implications and possible value of the classification for the problem of regulation of intangible commercial property as a whole. 2. A South African case study Harksen v Lane NO and Others9 concerns an attack on the validity of section 2110 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 in the master of the Supreme Court11 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 of the sequestrated estate. In De Villiers NO v Delta Cables (Pty) Ltd12 the former Appellate Division of the Supreme Court13 stated obiter that the effect of the vesting of the solvent spouse=s property is to transfer full ownership (dominium) of the property 9 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC). References to this case below cite the relevant paragraph number in the decision. The discussion of this case below is based partly on sections of AJ van der Walt & H Botha >Getting to grips with the new constitutional order: Critical comments on Harksen v Lane NO= (forthcoming 1998) 13 SA Public Law. 10 The applicant also attacked ss 64 and 65, but for present purposes this a spect is ignored. 11 Now the High Court; see the 1996 Constitution s 166(c). 12 1992 (1) SA 9 (A) at 15I-J. 13 Now the Supreme Court of Appeal; see the 1996 Constitution s 166(b)