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Reply - Frank Michelman 299
FC section 36(1) inspection, with the onus on the party supporting
constitutionality (the state). If the section 25(1) test is stronger —
further from the axis — then any law that passes muster under FC
section 25(1) is a fortiori cleared under FC section 36(1). 31 There is
no possible case in which a meaningful double inspection can occur.
The FNB court’s rejection of Van der Walt’s proposal reconfigures
our puzzle, but does not do away with it. We now have a ‘truncated’
property right. 32 FC section 25(1) gives you a right not to be deprived
of property in the absence of a non-arbitrary, authorising law, and
that’s all. 33 And even that truncated right — like all rights under the
Bill of Rights — is subject to limitation by law that meets the test of
FC section 36(1). 34 A law authorising deprivations of property, found
arbitrary in terms of FC section 25(1), may nevertheless be upheld as
constitutional if found reasonable in terms of FC section 36(1). 35 But
this, as Roux observes, appears to make no sense, or to posit what
seems a virtual impossibility: To wit, that a law can be simultaneously
arbitrary and reasonable. The prospect of a two-stage inquiry thus
appears to collapse for property clause cases.
Notice, however, that this holds true only on the assumption I
introduced above, that ‘(non)arbitrary’ and ‘reasonable’ both name
points somewhere along the same axis of appraisal of laws — the one
I have been calling the axis of means/ends inspection. If
‘(non)arbitrary’ were construed to refer to some quality in a law quite
plainly distinct from its location along that axis, then no collapse
would occur. A law that is arbitrary in that sense might nevertheless
sometimes be upheld as reasonable in terms of FC section 36(1); we
would have to look and see in each case. (To make my point here
crystal-clear, suppose for a moment that when we look up ‘arbitrary’
in the legal dictionary, we unexpectedly find that this word means
‘enacted prior to 27 April, 1994’. It would not, then, be nonsense to
offer the state the opportunity to rescue earlier-enacted (‘arbitrary’)
31 But (you may ask) what about the possible effect of onus placement? Under the
rules generally governing the two-stage inquiry, the claimant bears the onus on
the sec 25(1) test, while the state bears the onus on the sec 36(1) test. It thus
seems theoretically possible that the claimant could fail to carry the onus of
showing that the law is arbitrary in terms of sec 25(1), while the state might also
fail to carry the onus of showing that the law is reasonable in terms of sec 36(1),
even if sec 36(1)’s demand for a reasonable law is considered weaker — closer to
the origin of the mean/ends-inspection axis — than sec 25(1)’s demand for a
nonarbitrary law. (Maybe, for example, the state wholly fails to lead evidence or
offer argument on the point.) What would you say is the practical likelihood of
such a combination of judicial findings?
32
See n 3 above and accompanying text.
33 I continue to ignore cases of expropriation, for the sake of expository simplicity.
34 See FNB (n 5 above) paras 46, 59 and 110.
35
Again I set aside sec 36(1)’s additional requirement of justifiability etc., as
needlessly complicating the exposition.