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Stu Woolman & Michael Bishop 21
draw the line between deprivations and expropriations. FNB’s all-inone
test then looks to be completely sensible. In any event, FC
sections 25(2) and (3) will apply to instances of total acquisitive
expropriation: such expropriations will remain common in South
Africa for some time to come. Furthermore, Michelman believes that
Roux’s worry that FNB makes it impossible to predict outcomes will
diminish over time as the case law creates precedent, and thus rules,
that can be applied to future matters.
This exchange between Roux and Michelman has consequences
that extend beyond their immediate concern with the correct
interpretation of the property clause. The adoption of a
‘reasonableness’ approach to rights analysis has prompted Roux and
others to express concern about a mode of constitutional analysis that
possesses the potential to empty many of these rights of their
content.
In his second demurral from Roux’s characterisation of FNB,
Michelman suggests a reading that can give FC section 25(1) and FC
section 36(1) distinct and meaningful roles. While arbitrariness is
ordinarily viewed in terms of different points on the same axis —
which makes undertaking FC section 25(1) analysis and FC section
36(1) analysis duplicative — Michelman believes that the two sections
can operate on different axes. He argues that while FC section 25(1)
must be understood in terms of an ordinary means-ends rationality
test, FC section 36(1) can deployed when a court is asked to come to
grips with how various burdens are distributed. For example, in
Mkontwana, the law at issue required owners to pay their tenants
unpaid utility bills. 37 The law achieves the goal of ensuring that rates
are paid, but may unfairly place the burden solely on landowners.
According to Michelman, the law would not be arbitrary under FC
section 25(1), but would be unjustifiable under FC section 36(1).
2.9 Socio-economic rights
Socio-economic rights, it is safe to say, have generated some of the
liveliest debate amongst South African academics. The debate has,
for some time, revolved around the Constitutional Court’s decision to
adopt a reasonableness approach rather than a minimum-core
approach. The first approach requires only that government acts
reasonably in trying to fulfill gradually socio-economic rights. The
minimum-core approach sets minimum standards that the State must
37
Mkontwana v Nelson Mandela Metropolitan Municipality & Another; Bissett &
Others v Buffalo City Municipality & Others; Transfer Rights Action Campaign &
Others v MEC, Local Government and Housing, Gauteng, & Others (KwaZulu-
Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 1 SA 530 (CC),
2005 2 BCLR 150 (CC).