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Reply - Frank Michelman 289
expropriation of property. If a course of action in the set is classed
(only) as a deprivation of property, but not as an expropriation, the
course is one that the state is free to pursue without any further
obligation. If the course is classed (also) as an expropriation, the state
may proceed only on the further condition of payment of
compensation. A payment condition is obviously more onerous to the
state than no condition. The converse holds if we look at the situation
from the standpoint of property owners. What owner in her right mind
would not wish a larger, as opposed to a smaller, fraction of the cases
to be classed as expropriations? If it’s an expropriation, I collect a just
and equitable compensation by force of FC sections 25(2)(b)/(3); if
it’s not, I don’t.
But of course all of this reasoning presupposes that it won’t be
held — as, according to Roux, it has been or will be held — that all
deprivations, if unaccompanied by compensation sufficient to qualify
as just and equitable in the circumstances (noting that this amount
may often be R0), are, for just that cause, unconstitutional by the
non-arbitrary-law test of FC section 25(1). If that truly is to be the
shape of the doctrine, then, as Roux has observed, 15 owners can have
no reason to care about whether any instance of a deprivation is
further classed as an expropriation — unless (which I assume we all
hope and suppose will never be the case, and which FC section 25 as
written seems to oppose) owners also can hope that an
‘expropriation’ finding will somehow garner for them a compensation
that is greater than justice and equity require.
That is how the matters will look to owners. How will they look to
the state? Roux says that ‘the [constitutionally imposed] obligations
attaching to the expropriation of property are more onerous from the
state’s perspective than those attaching to the deprivation of
property.’ But again the doctrinal question arises whether a
deprivation-authorising law that fails to provide for compensation
sufficient to qualify as circumstantially just and equitable is to be
deemed ipso facto arbitrary in terms of FC section 25(1). If so, then
the state’s obligation attaching to deprivation is not less onerous than
that attaching to expropriation; rather, the two obligations are the
same: Pay or desist. 16 But this is exactly the result that Roux contends
(and I cheerfully agree) is foretold by the vortex-inducing doctrine
announced by the Constitutional Court in FNB.
15
See Roux (n 1 above) 46-20 and 46-29 — 46-30.
16 To spell it out: The obligation attaching to all deprivations is to make sure there is
authorising law, which provides for some amount of compensation not less than
what justice and equity require in the circumstances. That is identical in practice
to the obligation attaching to expropriations.