The recent death of Professor Andre van der Walt on 5 November 2016 has left a huge and tragic void, not only among the South African legal community, but also worldwide among constitutional property lawyers. He was one of only a few constitutional lawyers in the world with extensive knowledge of the South African property clause and related constitutional matters, as well as property clauses worldwide.
Andries Johannes van der Walt was born on 5 March 1956 in Postmasburg and completed his primary education in Johannesburg and his secondary education at the Potchefstroom Gimnasium. He obtained the B Iur et Art degree in 1977; Hons BA (cum laude) (Philosophy) in 1978; LLB (cum laude) in 1980 and LLD in 1985, all from the Potchefstroom University. In 1986 he obtained an LLM (cum laude) from the University of the Witwatersrand. He taught law at the Potchefstroom Law Faculty from 1981 to 1986 and was subsequently appointed as professor of Private Law at UNISA. In 2000 he became professor of Public Law at the University of Stellenbosch. During his brilliant career two exceptional achievements can be highlighted. In 2002 he received an A1 rating as researcher from the National Research Foundation, which was repeated in 2008 and 2013. The A1 category is awarded to a researcher who is recognised by all reviewers (nationally and internationally) as an international leading scholar in his field and for the high quality and wide impact (beyond a narrow field of specialisation) of his recent research outputs. In 2002 Professor van der Walt was one of only five South African scholars from the Humanities and Social Sciences and the only lawyer to be awarded an A1 rating. His second outstanding achievement, indicating his international stature, was a Tier 1 SARCHI Research Chair in Property Law (funded by the Department of Science and Technology and hosted by the University of Stellenbosch) which was awarded to him in 2008 for a ten-year period. Since 2008 17 doctoral and 13 LLM students completed their postgraduate studies at the South African Research Chair in Property Law under his supervision.
Since 2008 Professor Andre van der Walt's research had been concentrated on the SA Research Chair in Property Law. The aims of the Chair were to analyse the theoretical foundations of property law in post-apartheid South Africa, to determine the implications of the new Constitution for the development of post-apartheid South African law and to contribute to the development of property law in this new paradigm. His interest in the confluence of these three aspects led to the establishment of the series Juta's Property Law Library, of which he was the main editor. Since 2010 12 volumes by himself and other property lawyers in South Africa have been published, and another 10 volumes are being planned for future publication.
Professor van der Walt published widely in South African and international law journals and in chapters in collective works and he wrote several monographs and textbooks. The two most comprehensive and comparatively most wide-ranging books published by him in the field of constitutional property law are Constitutional Property Clauses (2011), an analysis of legal systems in Europe, the Americas, Southeast Asia, Australia and Africa, and Constitutional Property Law (first edition 1997, second edition 2005 and third edition 2011). The latter is the most comprehensive treatise on South African constitutional property law with references to specific topics in foreign systems. Two of his monographs, Property in the Margins (2009) and Property and Constitution (2012), as well as several journal articles, are based on the idea that the transformation of law eventually works right through to technical detail in legislation and doctrine; transformation cannot only be done by the constitution or a constitutional court, but it also requires serious legislative and doctrinal work to succeed. For these publications he received worldwide recognition from his peers. He received numerous invitations to speak at conferences locally and abroad, to act as examiner for doctoral theses, as well as to write recommendations for appointments, promotions and research awards.
Professor van der Walt’s expertise and doctrinal leadership on constitutional property matters were often used as authority by South African courts, and especially the Constitutional Court, which often quoted directly out of his publications. Two of his well-known theories were often applied by the courts. In several Constitutional Court cases, but most predominantly the case of First National Bank of SA Ltd t/s Wesbank v Commissioner, South African Revenue Services 1996 (1) SA 768 (CC) the Court endorsed his theory that ownership is not the strongest and most protected real right in a hierarchy of rights (as was the case in terms of Roman-Dutch principles), but that ownership in the new constitutional dispensation is one of many rights which enjoy equal protection under the property clause (section 25 of the Constitution). Furthermore, it is the Court's duty to maintain a delicate balance between a range of diverse property rights without relying on a hierarchy or predominance of specific rights. The Constitutional Court quoted him in this respect: “The meaning of section 25 has to be determined, in each specific case, within an interpretative framework that has due cognisance of the inevitable tensions which characterise the operation of the property clause. This tension between individual rights and social responsibilities has to be the guiding principle in terms of which this section is analysed, interpreted and applied in every individual case.”(p. 794B of the report). This principle was again emphasised in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) and many subsequent cases with reference to the theoretical basis laid by Professor van der Walt.
A second theory supported and built out by him is the subsidiarity test. This test is based on the principle that litigants are not entirely free to base their cause of action or defence on a constitutional provision, legislation or common law, but litigants who aver that a right protected by the Constitution has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly, unless they want to attack the constitutional validity of the legislation. His clear theoretical exposition of this test was endorsed in many Constitutional Court cases, especially Chirwa v Transnet Ltd 2008 (2) SA 24 (CC) and Walelev City of Cape Town 2008 (6) SA 129 (CC).
During his lifetime Professor van der Walt received several honours and awards. Besides several research awards from the Potchefstroom University, UNISA, the University of Stellenbosch, the National Research Foundation and the Oppenheimer Research Foundation he received prizes for the best publication on constitutional law in the Journal of Contemporary Roman-Dutch Law in 1986 and 1998. He was also co-recipient of the Top Researcher Award (Humanities) of the Human Sciences Research Council in 1993, was co-recipient of a research award of the Royal Dutch Academy in 1996, was elected as Visiting Fellow Commoner, Trinity College, University of Cambridge in 2004 and 2010, and visited Germany as an Alexander von Humboldt scholar in 1990, 1996, 2003 and 2010. In 2008, Professor van der Walt was elected a Fellow of the Royal Society of South Africa. He often acted as external examiner for postgraduate dissertations and theses for most of the law faculties in South Africa as well as for several abroad, more specifically Cambridge, Maastricht, Dublin, Warwick, Leeds, Yale and Duke.
On a personal level Andre van der Walt was a dignified, yet down-to-earth, colleague and supervisor. He was a dedicated husband, loyal friend, sympathetic (but rather perfectionistic) supervisor, who supported quite a number of financially disadvantaged students with University funding and bursaries. The memory of his academic brilliance, compassion, character and sophisticated sense of humour is shared by his wife Christa, his academic colleagues in South Africa and abroad, the wider legal community in South Africa, as well as his undergraduate and postgraduate students.