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Reply - Frank Michelman 301
occupiers who is penalised for nonpayment for services she never
ordered or consumed in Mkontwana, or the class — in Pennell — of
rental-housing suppliers (as opposed to doctors, pharmacists, food
and clothing purveyors, and the taxpayers at large) that is required to
pay specially for fulfillment of the basic need of the destitute?) 39
I don’t thus mean to be anticipating a final decision of
unconstitutionality for any of the laws in question. To the contrary,
my suggestion is that the prima facie, normatively dubious
distribution of burdens that is apparent on the face of all these laws
might be a feature that renders them all ‘arbitrary’ in terms of FC
section 25(1) — thus ‘limitations’ of the truncated property right for
purposes of the first stage of the traditional two-stage inquiry — while
saving the possibility of rescuing any or all of them from
unconstitutionality by showing them, at the second stage, to be
nevertheless reasonable and justifiable in terms of section 36(1). To
illustrate: The FC 36(1) inquiry might (or might not) save our second
law though reasoning along lines such as those suggested by Justice
O’Regan in Mkontwana 40 — perhaps assisted by argument that the law
as written gives landowners socially beneficial incentives to work
harder at watching out for illegal occupation and notifying public
authorities promptly when such occupation occurs.
The suggestion, in sum, would be that a deprivation-authorising
law should be held ‘arbitrary’ in terms of FC section 25(1) if — and
only if — the law casts its burdens according to an apparently arbitrary
or unfair pattern, judging generously from the standpoint of the
complainant (as always in the two-stage inquiry), prior to any focused
justificational inquiry. Let us now consider what would be gained and
what would be lost by adopting that suggestion, in place of the
exegesis of ‘arbitrary’ now found in the law according to FNB.
39 See Scalia J’s dissent in Pennell (n 37 above) 21-22
40
n 36 above para 115:
[I]t is important to bear in mind that it would be difficult to narrow the
scope of section 118(1). Section 118(1) is a simple procedure which
requires that in all cases a registrar of deeds may not effect the transfer
of immovable property without a certificate from the municipality
confirming that all consumption charges and rates incurred in respect of
that property in the preceding two years have been paid. It is accordingly
the municipality that issues the certificate. It will not always be clear to
a municipality, from its records, who has actually consumed the services
on that property for the previous two years, nor will it be clear whether
that person is the owner or a tenant or an unlawful occupier. Limiting the
terms of the certificate to consumption charges incurred by only
particular classes of occupier may create substantial difficulties for the
efficient conveyancing of the property, as the municipality may not be in
a position to determine the class of occupier that in fact incurred the
consumption charges. This practical difficulty needs to be borne in mind
in determining the sufficiency of the reason for [the failure to except
illegal-occupier cases from the coverage if s 118(1)].