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298 Chapter 17
According to a reading of FC section 25 once proposed by AJ van
der Walt but rejected by the Constitutional Court in FNB, 28 any law
limiting a property interest, or authorising such a limitation, would
have to pass (at least) a double inspection. First, the law would have
to meet FC section 25(1)’s ‘internal’ requirement of being nonarbitrary.
29 Second, it would have to meet FC section 36(1)’s
‘external’ requirement of being reasonable and justifiable (etc). Had
Van der Walt’s proposal been accepted, it would have raised the
following puzzle.
‘Not arbitrary’ in FC section 25(1) and ‘reasonable’ in FC section
36(1) appear to name stronger and weaker versions of the same sort
of test. 30 To say it a little differently, the two terms seem to name
different points on the same scale or axis of appraisal of a law, the
one by which we measure the acceptability of a burdensome means
by assessing its utility, as compared with less burdensome or
otherwise less noxious alternatives, in terms of the ends (and their
weights) for which the means is said to be required. Let us call this
the axis of ‘mean/ends inspection’. Let the zero point lie at the origin
of the axis, and let it represent a judgment that the law in question
is as wildly arbitrary or unreasonable, in means/ends-inspection
terms, as any law can be imagined to be: If the apparent objective
(‘end’) is within the state’s legitimate pursuit at all, there are a
thousand obviously more effective, less costly or noxious ways to get
at it.
A point near the origin represents a judgment that the law, if
arguably rational by a hair, is still quite plainly not what you would
expect of a reasonably well-informed and considerate lawmaker. A
point quite distant from the origin represents a judgment that the law
stands up well against a robust proportionality test.
Now, as between ‘not arbitrary’ (FC section 25(1)) and ‘reasonable’
(FC section 36(1)), either those two terms name the same point
on the means/ends-inspection axis, or one of them names a point that
is more distant, while the other names a point that is less distant,
from the origin. Any way you cut it, the prospects for double
inspection appear to collapse. If the two terms name the same point,
double inspection is redundant. If the FC section 25(1) test is weaker
— nearer the origin — than the FC section 36(1) test, one need never
trouble to apply the FC section 25(1) test, because the only question
that finally matters is whether the law can pass the more demanding,
28 See n 4 above and text accompanying; FNB (n 5 above) para 70.
29
I am here setting aside cases involving facial expropriations, where the internal
requirements of sec 25(2) would also come into play.
30 Inclusion in this analysis of FC sec 36(1)’s additional demand for justifiability in an
open and democratic society (etc.) would only complicate the exposition without
altering the analysis.