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Reply - Frank Michelman 285
alternative reading proposed some years ago by AJ van der Walt, 4 FC
section 25 implicitly requires section 36(1) justification for any
limitation of a very broadly defined right to ‘acquire and hold rights
in property’ (to borrow language from IC section 28(1)), in addition to
the requirements laid down by the internal limitations contained in FC
sections 25(1) and (2). FNB has now settled the question in favor of
the truncated-property-right reading, 5 while also imbuing the nonarbitrary-law
requirement of FC section 25(1) with a sweep that
apparently diminishes the practical stakes of choice between the two
readings to near-zero. 6 A genuine puzzle remains about how to relate
the justificatory demands of FC sections 25(1) and 36(1). I shall
discuss this relationship in the second part of this comment.
2 The FNB vortex: A cause for concern?
I turn now to my first question. Roux claims — correctly, so far as I can
see — that the doctrine according to FNB will tend to 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. I read Roux further to suggest that there is
here some cause for concern or regret. It is a ‘problem’, he feels, in
the law according to FNB, that ‘if a court strikes down a law that fails
to provide for compensation under FC section 25(1), the claimant will
not be able to demand compensation under FC section 25(2).’ The
effect, Roux writes, is to make ‘redundant’ any inquiry about whether
the challenged action of the state does or does not qualify as an
‘expropriation’ in terms of FC section 25(2) — or, as he also puts the
matter, the effect is to ‘swallow up’ that seemingly textually
mandated stage of the ‘constitutional property clause inquiry’. 7
‘Problem’, ‘make redundant’, and ‘swallow up’ do not strike my ear
as flattery of the doctrine according to FNB.
As I have said, I do not doubt at all that the doctrine according to
FNB has the effects that Roux describes by those mildly opprobrious
terms. I only cannot see any cause at all for regretting these effects
of the doctrine — or indeed, as I eventually shall suggest, for failing
4
See AJ van der Walt The constitutional property clause: A comparative analysis
of section 25 of the South African Constitution of 1996 (1997) 21-28.
5 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) para 70.
6 As nicely explained both by Roux (n 2 above) and by AJ van der Walt (n 3 above)
62-65.
7 Roux writes: ‘Since two different standards are [respectively] prescribed [by
sections 25(1) and 25(2)], the text requires the interpreter to distinguish between
the deprivation and the expropriation of property.’ Roux (n 2 above) 267. I shall
be, in effect, raising a doubt about whether that is so.