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292 Chapter 17
bear without compensation in a market/regulatory society such as
South Africa — the amount of just and equitable compensation will be
nil.
This body of law does not provide any occasion for a judge or other
official ever to be called upon to differentiate deprivations that are
also expropriations from those that are not (unless, to repeat, we
have some wish to compensate owners in ‘expropriation’ cases in
excess of what justice requires). However, it also does not leave
owners exposed to unjust distribution of regulatory burdens owing to
failure to compensate. In recognition of this latter effect of
protecting property owners against excessive, uncompensated
regulation, we might choose to call this body of law a ‘regulatory
taking’ doctrine. Shall we, or shall we not? You choose, Reader.
Should you choose ‘we shall’, then it will follow, at least for you, that
South Africa has already chosen in favor of a regulatory-taking
doctrine (it is not still an open question), because the body of law I
have just described is precisely the one Roux says, and I agree, is
prefigured by the opinion of the Constitutional Court in FNB.
Will you, then, choose ‘no, that body of law is not a regulatorytaking
doctrine’? What body of law would deserve that name, then? It
must be a body that deviates from the doctrine according to FNB.
There would seem to be two possibilities to consider. Here is the first,
presented in the form of a scenario of propositions:
(a) If some course of action by the state is classed as an ‘expropriation’
in terms of FC sections 25(2)(b)/(3), it is thereby excluded from the
class of ‘deprivations’ in terms of FC section 25(1). In other words,
‘expropriation’ and ‘deprivation’ are mutually exclusive categories in
terms of section 25.
(b) Regarding deprivations, a deprivation-authorising law is ‘arbitrary’
in terms of FC section 25(1), hence the deprivation is unconstitutional, if
the law fails to make provision for due compensation to owners for their
losses.
(c) Regarding expropriations, they are, by force of FC sections 25(2)(b)/
(3), unconstitutional unless accompanied by just and equitable
compensation.
(d) The measure of due compensation for a deprivation, in terms of the
non-arbitrary requirement in FC section 25(1), differs from the measure
of just and equitable compensation for an expropriation, in terms of the
compensation requirement in FC sections 25(2)(b)/(3).
(e) For typical impairments-by-regulation of property rights or values,
the measure of due compensation in terms of FC section 25(1) is more
suitable than the different measure of just and equitable compensation
in terms of FC sections 25(2)(b)/(3). But for a subset of exceptionally
severe (or whatever) impairments-by-regulation, the opposite is true.
(f) But it follows from (a), (b), and (c) that an impairment-byregulation
can trigger the constitutional requirement of a just and