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302 Chapter 17
The most obvious gain would be in putting the two-stage inquiry
unquestionably back on track in property clause cases. That counts as
a gain, other things remaining equal, if only because it redeems the
symmetry — or call it legibility — of the constitutional corpus juris of
South Africa. But of course that is not all. The doctrine of the twostage
inquiry presumably has something going for it normatively (or
else why have we got it?). Commitment to the two-stage inquiry is a
loud and clear token of the shift from a culture of authority to a
culture of justification. Protections set forth in the Bill of Rights are
to be given a generous initial scope, with the state then permitted —
but also required! — to explain persuasively to a court what good
reasons (if any) it has for limiting the rights thus generously defined.
Something of value is lost if the Constitutional Court finds itself forced
to yield on this simple precept for any clause in the Bill of Rights.
But surely, you will protest, the possible cure I have suggested for
this symbolic loss (for is it really anything more?) would be like
throwing out the baby with the bath water. ‘Remember’, you will say:
‘We are dealing here with a truncated property right. If FC section
25(1) does not mandate means/ends inspection for deprivationauthorising
laws, nothing does, because FC section 36(1) never
fastens its teeth on a law passing muster under FC section 25.’ And
that, you say, makes confinement of ‘arbitrary’ to cases of prima
facie maldistribution of burdens unacceptable.
Right you are. Such confinement would open up the very pitfall
that Van der Walt’s rejected double-inspection proposal wisely
foresaw and was meant to avoid. Once the Constitutional Court has
opted in favor the truncated-right construal of FC section 25, it
cannot also so confine the meaning of ‘arbitrary’ in FC section 25(1)
as to forgo entirely a means/ends inspection of deprivationauthorising
laws. 41 That, however, does not totally defeat my point.
As long as some laws that pass muster on the axis of means/ends
inspection will still be found to fail FC section 25(1) inspection, on the
sole ground of maldistribution of burdens (consider again my three
illustrative laws, above), the two-stage inquiry is still in business
under the Property Clause. As I read the law according to FNB, it is
receptive to this very understanding. And that, I say again, is a good
thing.
41
This assumes the Court would not wish to saddle the drafters with the design of
entirely precluding means/ends inspection for laws impinging on property but on
no other constitutionally protected interest. Van der Walt’s initial proposal
proceeded from a well-considered reluctance to impute such a design to the
drafters. Van der Walt (n 3 above).