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288 Chapter 17
make provision for due compensation to owners for their losses. Had
the FNB Court so held, or were it in future to do so, the redundancy
and the circumvention effects that bother Roux would disappear
(although some other untoward consequences might then arise). 12
The necessity for the Court to propound some way of drawing the line
between those deprivations that are and are not also expropriations
would then be back on the table. A dénouement devoutly to be
wished? I say no; decidedly no. And my chief reason is that such a
construction of FC section 25 opens the door to the rise in South
African constitutional jurisprudence of a doctrine of ‘constructive
expropriation’ or ‘regulatory taking’ that it is better off without.
But that is jumping too far ahead in my story. Let us back up, and
proceed more slowly.
Roux observes that a line separating the state’s acts of
‘deprivation’ from its acts of ‘expropriation’ (or separating those
deprivations that are also expropriations from those that are not) can
be placed so that a greater or lesser fraction of the cases will be
classed as expropriations. The line can also, as Roux further notes, be
drawn either categorically or contextually. Thus, Roux lists as one
plausible line-drawing test that of whether ‘the impact on the [right
holder is] so severe as to require payment of just compensation’. That
would be a maximally contextual test. It also is a test that could end
up treating far fewer cases as expropriations than some categorical
tests would do: say, an ‘American’ test treating every instance of
physical invasion by force of the state, no matter how paltry, as an
expropriation for which compensation is constitutionally required. 13
The choice of a line-drawing method or test thus would seem to
be an important question. Why so? Because, Roux explains, ‘the
obligations attaching to the expropriation [compare US ‘taking’] of
property are more onerous from the state’s perspective than those
attaching to the deprivation [compare US ‘mere regulation’] of
property.’ The choice of a line-drawing method thus will ‘affect the
balance struck between the public interest and individual property
rights.’ A line-drawing method that is comparatively expansionary on
the expropriation side ‘put[s] a thumb on the individual side of the
scales, and vice versa.’ 14
At first look, this thinking seems obviously correct. We start with
the set of all possible courses of action by the state that are
authorised by non-arbitrary laws. Any course of action in this set may
or may not be classed as a deprivation of property and/or as an
12 As above.
13
See Loretto v Teleprompter Manhattan Cable TV Corp 458 US 419 (1982).
14 Roux (n 2 above) 267-68.