Protection of property

The protection of property gives every person the right to peaceful enjoyment of their possessions.

This imposes an obligation on the State not to:

• interfere with peaceful enjoyment of property;
• deprive a person of their possessions; or
• subject a person’s possession to control.

However, there will be no violation of this right if such interference, deprivation or control is carried out lawfully and in the public interest.

The concept of property and possessions includes tangible things like land and money but also includes contractual rights; shares; leases; claims for compensation; intellectual property rights; statutory rights to benefits etc.

The genuine, effective exercise of this right does not only depend on the State’s duty not to interfere, but it may also require positive measures to protect property to be taken. This is particularly the case where there is a direct link between the measures a property owner may legitimately expect from the authorities and the effective enjoyment of his or her possessions. So, for example, a public authority’s negligence that leads to property destruction may breach this right.

This right also imposes an obligation on the government to take necessary and reasonable steps to protect property, for example in the event of natural disasters, but only to the extent that is reasonable in the circumstances.

Any interference with this right must be subject to conditions provided for by law and must achieve a fair balance between the general public interest and the protection of an individual’s property rights.

What is considered to be in the public interest is often left to the Government to decide, but any interference must strike a fair balance between the demands of the general interests of the community and the requirements of the individual’s fundamental rights. A lack of appropriate compensation would be likely to be considered disproportionate.