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294 Chapter 17
or sustain a regulatory-taking doctrine under our second propositional
scenario. Is this in any degree a regrettable result? We cannot call it
so, except insofar as we stand ready to pronounce the negation of (p)
in some degree regrettable. But what might be regrettable about that
negation?
There doesn’t seem to be anything normatively wrong with it.
Rejection of (p) allows the use of the non-arbitrary-law requirement
in FC section 25(1) to protect owners against unjust distribution of the
burdens cast by regulatory schemes that presumably are designed to
benefit society as a whole. That cannot be thought objectionable. But
how about a more formalistic objection: By reading FC section 25(1)
in that manner you render idle, or a dead letter, the express and
somewhat elaborate provisions for compensation contained in FC
sections 25(2)(b)/(3) — in a word, a ‘vortex’ objection. Without
doubting that an objection of this kind may sometimes carry weight,
let us ask whether it can possibly be weighty in this instance.
I do not see how it can. There are times, after all — and they are
not rarities — when nothing less will satisfy the state or its need than
a complete, overt removal from the erstwhile owner of the total
Hohfeldian package of ownership entitlements, so that Mr or Ms
Erstwhile or Erstwhile Ltd ends up with literally nothing: no right to
exclude, no privilege of entry or use, no power to reallocate
entitlements, no immunity against reallocations by others. You do not
need any sort of ‘constructive’ expropriation doctrine in order to
fasten the compensation duty spelled out by FC sections 25(2)(b)/(3)
onto these cases of (so to speak) undisguised real expropriation. And
of course the set of undisguised real expropriation cases I have just
described is of major potential importance in South Africa, for it
includes (but surely is not limited to) possible instances in which the
successful prosecution of land restitution and land redistribution
would require total divestiture by the state of extant titles to land,
on terms of compensation set not by the owner but, ultimately, by a
judicial umpire applying standards in keeping with those laid down by
FC section 25(3). FC sections 25(2)(b)/(3) have very important work
to do, even in the absence from South African constitutional
jurisprudence of any notion of taking-by-regulation. By no means can
FNB, on any reading, be said to have put those sections out of
business.
But consider, then, this further objection. Rather than applying
FC section 25(1) to decide contextually, case by case, whether (to use
Roux’s formulation) ‘the impact on the [right holder is] so severe as
to require payment of just compensation’, it would be better — you
the reader might think — to have some more categorical rule in play
for sorting the full set of regulatory cases into those in which
compensation is or is not to be an issue; better, that is, from the