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286 Chapter 17
to applaud them. Where I am going to find ground for applause, Roux
apparently can and does find cause for concern and second thought.
For the first step in presenting my view, we shall need to look
closely at exactly how, in Roux’s contemplation, the doctrine
according to FNB works out to the redundancy-producing result upon
which we are agreed. Roux chalks it up to ‘the FNB Court’s decision
(in para 57) to treat expropriations as “a subset of deprivations”’, and
to the Court’s further prescription 8 that all challenges to property
deprivations in terms of FC section 25 are to be channeled first
through inspection under FC section 25(1), with only the survivors
ever possibly to be sorted into those that are and are not
‘expropriations’ to be submitted to further inspection, under FC
section 25(2). As Roux explains:
What this means ... is that claims which appear to involve
uncompensated expropriations ... will be tested first against the
standard set by FC section 25(1) for the arbitrary deprivation of
property. [T]he sorts of governmental regulation that are typically the
subject of [constructive expropriation] inquiries in the United States –
exercises of the [regulatory] power that go ‘too far‘ – will in South Africa
be subject first to the test for arbitrary deprivation. A regulation that
[the Americans might treat as a constructive, uncompensated
expropriation] will in South Africa likely be struck down under FC section
25(1) as providing for the arbitrary deprivation of property. The
[constructive expropriation] question ... will never arise ... [A]n
uncompensated expropriation ... will be treated as an arbitrary
deprivation, the arbitrariness of which will lie precisely in the
legislative scheme’s failure to provide for compensation. 9
Just so. I think Roux moves too quickly, though, when he blames the
effect that worries him — the redundancy or swallowing-up effect —
on either the Court’s decision ‘to treat expropriations as “a subset of
deprivations”’, or its direction that FC section 25(1) inspection is
always to precede any possible FC section 25(2) inspection,
apparently regardless of how the claimant may choose to frame its
complaint. As to the first point, I think the FNB Court really had no
choice. As to the second, I think it is not the direction to channel all
cases first through FC section 25(1) that directly leads to the
circumvention of FC section 25(2) inspection that worries Roux, but
rather the idea that failure to provide compensation may be the (sole)
vice in a law that causes it to fail FC section 25(1) inspection.
To construe FC section 25(1) ‘deprivation’ and FC section 25(2)
‘expropriation’ as naming two mutually exclusive categories would be
unnatural to an extreme. Roux himself suggests, as one appropriate
8
FNB (n 5 above) para 46.
9 Roux (n 2 above) 276-77 (my emphasis).