Muddying the waters – the lack of clarity around the use of s 25(1) of the Constitution: Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism: Eastern Cape.

This article focuses on the case ofShoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism: Eastern Capein so far as the Constitutional Court deals with the test for deprivation and arbitrariness in terms of section 25 of the Constitution. By referring to the recent decisions of the court around the tests for both deprivation and arbitrariness, the aim of the article is to show that the test for deprivation as set out in the judgment departs from the courts previous jurisprudence and is rendered too narrow and convoluted. In the case of the test for arbitrariness, it is argued that there is a lack of formulaic application by the court which has the potential to lead to a disproportionate amount of judicial discretion. This article concludes by arguing that unless the court endeavors to define the tests for deprivation and arbitrariness clearly and precisely, the property clause in the Constitution will be rendered meaningless. [ABSTRACT FROM PUBLISHER]