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16
THE ‘ARBITRARY
DEPRIVATION’
VORTEX:
CONSTITUTIONAL
PROPERTY LAW
AFTER FNB
Theunis Roux
1 Introduction
When I wrote the chapter in CLoSA on the constitutional property
clause, I was not yet one of the editors. Stu Woolman’s response on
receiving my chapter was to say: ‘This is not a chapter on
constitutional property. This is an extended case note on a single
decision — FNB. 1 And you don’t cite enough foreign law!’ I replied:
‘But it has to be this way, because FNB sets out the framework for all
future constitutional property cases, and in so doing renders foreign
law largely irrelevant.’ In this presentation I want to record my
reasons for that reply — to explain why I thought that the only way to
write a chapter on constitutional property law in the immediate
aftermath of FNB was to write an extended case note on that
decision, and why it is that FNB, which is itself heavily reliant on
foreign law, renders foreign law largely irrelevant to the resolution of
future constitutional property cases.
The letters ‘FNB’ stand for First National Bank — the claimant in
the first case to come to the Constitutional Court under FC section 25,
the property clause of the Final Constitution. The opening gambit in
1
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service & Another; First National Bank of SA Ltd t/a Wesbank v Minister
of Finance 2002 4 SA 768 (CC), 2002 7 BCLR 702 (CC). See T Roux ‘Property’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2004)
Chapter 46, available at www.westlaw.com.
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