Is there a Constitutional Right to Intellectual Property in South Africa: Revisiting the Case of In re Certification of the Constitution of the Republic of South Africa, 1996

This chapter is divided into three main parts. In part one, there will be a critical re-examination of the 1996 decision of the Constitutional Court of South Africa with regard to the constitutional status of intellectual property rights in South Africa in the light of the current debates on the relationship between intellectual property and human rights in South Africa. Part 2 will question the view of those who contend that intellectual property rights fall within the scope of the constitutional protection of the right to property. In doing so, there will be a critical assessment of some of the cases where South African courts have dealt with the interface and tensions between intellectual property rights and human rights. In part 3, it will be contended that, even if one takes the view that intellectual property rights fall within the scope of the constitutional protection of the right to property, this should not constitute an impediment to the implementation of measures aimed at protecting the public health. Thus, it will be contended that, if measures relating to the plain packaging of tobacco products are implemented in South Africa, this would not amount to either an arbitrary deprivation or an expropriation of property rights in trademarks.