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296 Chapter 17
expropriation may seem to be executed at the first instant of
implementation of the offending regulation, thus bringing into play at
that instant an irrevocable obligation of the state to compensate for
the full value of a permanent encumbrance on the owner’s use and
enjoyment. (Compare ‘you broke it, you bought it’, uttered by an
antique shop proprietor to a clumsy shopper.) 24 If that is the view we
would take, then the presence of a regulatory-taking doctrine in
South African law would make a real difference in outcome in some
cases. 25 Would this be a normatively desirable consequence?
The consequence is surely troublesome from the standpoint of the
state. The state then finds itself exposed to the risk of very
substantial, unexpected monetary liabilities for purchases that it
never meant to make nor would deliberately have chosen to make,
had it known that its action would be treated by the law as a
purchase, as opposed to a lawful exercise of a general power to
regulate. There is, from a social-transformative standpoint, no
possible advantage to the state or to the public interest in such an
exposure. 26 A likely and, in the US, an oft-reported consequence of
24 As Roux writes (Roux (n 1 above) 46-29), under the law according to FNB:
The only situation in which a claimant might have an interest in
persuading the court that the law being challenged provides for the
expropriation of property rather than the arbitrary deprivation of
property is where it wishes the court to uphold the law and to read in a
requirement that the state pay [just and equitable] compensation. ...
Where ... the purpose of the challenge is to have the law struck down, a
24 finding that the law provides for the arbitrary deprivation of property is as
As Roux
good
writes
as (from
(Roux
the
(n
claimant’s
1 above) 46-29),
perspective)
under the
a finding
law according
that the
to
law
FNB:
provides
for The expropriation only situation and in fails which to meet a claimant the two additional might have requirements an interest set by in
s persuading 25(2). the court that the law being challenged provides for the
See also
expropriation
Roux (n 1 above)
of property
46-20.
rather than the arbitrary deprivation of
25 Relevant
property
US doctrine
is where
shows
it wishes
that
the
numerous
court to
complications
uphold the law
lie
and
down
to read
this path
in a
of
reasoning.
requirement
Suppose,
that
for
the
example,
state pay
that
[just
the
and
state
equitable]
imposes a
compensation.
temporary but
...
total
moratorium
Where ...
on
the
development
purpose of
of
the
land
challenge
in an
is
ecologically
to have the
sensitive
law struck
zone,
down,
pending
a
completion
finding
of
that
a less
the
restrictive
law provides
set of
for
permanent
the arbitrary
regulations.
deprivation
Is the
of property
result (a)
is
zero
liability
as good
to compensate,
as (from the
or (b)
claimant’s
liability to
perspective)
compensate
a
but
finding
only for
that
the
the
temporary
law
loss of
provides
use, or
for
(c) liability
expropriation
to compensate
and fails
for
to
permanent
meet the
loss
two
of use?
additional
See First
English
requirements
Church v
set
County
by s 25(2).
of Los Angeles 482 US 304 (1987); Tahoe-Sierra
See Preservation also Roux Council, (n 1 above) Inc. 46-20. v Tahoe Regional Planning Agency 535 US 302 (2002).
26 25 Relevant AJ der US Walt, doctrine whom shows Roux that cites numerous on this point, complications adduces lie instances down this in which path of a
reasoning. land-reform Suppose, program for cast example, in non-acquisitive, that the state regulatory imposes form a temporary (say, a somewhat but total
moratorium drastically pro-tenant on development revision of of land the law in an of ecologically eviction) can sensitive be saved zone, from pending judicial
completion nullification of under a less sec restrictive 25 if, but set only of permanent if, the court regulations. has the power Is the to result treat the (a) zero case
liability as one for to which compensate, it can order (b) some liability amount to compensate of compensation. but only See for AJ the van temporary der Walt
loss (n 3 of above) use, 235-36. or (c) liability From the to point compensate of view for of the permanent state and loss the of transformationminded,
Church such a regime v County seems of clearly Los Angeles less to be 482 preferred US 304 than (1987); one Tahoe-Sierra
in which the
use? See First
English
Preservation court is powerless Council, to Inc. order v Tahoe compensation, Regional Planning but simply Agency nullifies 535 US the 302 regulatory (2002).
26 program in the absence of constitutionally requisite compensation. Or perhaps a
court might also indicate in its judgment the form and amount of compensation
that could save the program if provided, along the lines of the German idea of
‘equalisation payments’ — see Van der Walt (n 3 above) 222-23 — leaving the
government to choose between its options (ie, to desist or to pay). Or a court
might even see fit to suspend its order of nullification for a time, while
government ponders its alternatives. The key requirement, in my view, is that