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284 Chapter 17
deprivations). Roux worries that the doctrine will suppress forever
from South African constitutional law the question of developing a
doctrinal method for differentiating (in debatable cases) those stateauthored
property-value impairments that count as ‘expropriations’
from those that do not. From a US observer’s standpoint, the effect is
to deprive South Africa forever of the possible development of a body
of law paralleling that which in the US is known as the doctrine of
‘regulatory taking’ (and elsewhere is sometimes called ‘constructive
expropriation’). From among state actions that in form do no more
than regulate the use and enjoyment of an asset, such a doctrine
selects some for subjection to a compensation requirement that, by
the express terms of the constitutional text, applies only when the
state takes away property from an owner.
I agree with Roux that the doctrine according to FNB has the
effects I have just described. My view is that these effects supply no
ground, none at all, for reservation or worry. To the contrary, I
believe they leave South Africa with a reading of FC section 25 that is
normatively superior to any alternative one might envision, while
being no less textually justified. At the bottom line, my claim is that
a regulatory-taking doctrine would be a bad choice for South Africa
(not to say for any country, but that is beyond the scope of my
undertaking here). In my view, a reading of FC section 25 that
forecloses that possibility is to be preferred over one that doesn’t, all
else being equal. I postpone the justification for that normative claim
to late in my discussion. Everything else I shall have to say along the
way will be on an analytical-descriptive, not a normative-substantive
level. I thus aim to confirm and to drive home, in a somewhat
different way, much of what Roux has said, while perhaps questioning
one aspect of it. I confess to uncertainty about how far, if at all, Roux
will disagree with anything I shall have to say on this point. I do think
I am putting a somewhat different spin on the matters discussed than
is conveyed by the rhetoric, at least, of Roux’s Conversations-piece.
The second question I wish to examine is that of the relation
between FC section 25(1)’s ‘internal’ limitation clause and the
general limitation clause contained in FC section 36(1). Read strictly
according to its terms, FC section 25 grants only what has been called
a ‘truncated’ property right: 3 A right against deprivation not
authorised by a non-arbitrary law and expropriation not for a public
purpose or in the public interest, or not attended by just and
equitable compensation, with justification of violations of that
truncated right still a possibility in terms of FC section 36(1). In an
3 See AJ van der Walt Constitutional property law (2005) 62-65.