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Reply - Frank Michelman 287
way to draw the line between property-impairing acts that are and
are not ‘expropriations’ governed by the requirements of FC section
25(2), that a court can ask whether ‘the impact on the [right holder
is] so severe as to require payment of just compensation.’ But then
how can a subset of impositions that are so specially severe as to
merit subjection to the special requirements of FC section 25(2) be
treated as exempt from a requirement (the one set forth in FC section
25(1)) to which all less severe limitations (‘deprivations’) are
subjected? ‘This imposition is so severe that the requirement of
authorisation by a nonarbitrary law, which is applicable to all less
severe impositions, should be deemed inapplicable to it’? Who would
credit a court that said that, when a way lies textually open to avoid
saying it?
Treating expropriations as a subset of deprivations is thus, in my
view, unavoidable. Granted, the result may be duplication of the FC
section 25(2) requirements by the FC section 25(1) requirement. If so,
then that is a kind of mild misfortune. But the misfortune is owing to
the drafters, not to the Constitutional Court, and I agree with the
apparent judgment of the Court that the duplication is a lesser
misfortune here than would be the anomaly of an exemption for the
most severe impositions on property from a non-arbitrariness
requirement that applies to those that are less severe. 10
The next point to see is that it is not, actually, the subsumption
of expropriations under the broader heading of deprivations, or the
direction (which seems plausible enough) to submit all deprivations to
FC section 25(1) inspection, that causes the effects that worry Roux.
It is rather the expectation created by the Court that (quoting again
from Roux) ‘an 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.’ Roux, I
think justifiably, treats this as a clear implication from the doctrine
according to FNB, and does so approvingly. 11 I am happy to follow
suit. Of course, we can imagine the Court holding oppositely. The FNB
Court could have held that FC section 25(1) inspection always comes
first. It could have also stated that ‘arbitrary’ in FC section 25(1)
refers only to the justifiability of the state’s end and the tightness of
fit (rationality, necessity) of its means, so that a deprivationauthorising
law is not ‘arbitrary’ in terms of FC section 25(1) if its only
alleged vice or deficiency is the distributional injustice of failing to
10 Of course there is no anomaly (but also no consequence that matters), if the
‘public purpose or public interest’ requirement in sec 25(2)(a) has a scope of
application that is known from the start to rule out all the laws that would be
ruled out by the non-arbitrary requirement of sec 25(1). As long as it is
conceivable that the latter may rule out one single law that the former does not,
the anomaly is there.
11 See Roux (n 1 above) 19-20.