The approach to deprivation in the context of section 25 The term “deprive” or “deprivation” is, as Van der Walt (1997) points out,91 somewhat misleading or confusing because it can create the wrong impression that it invariably refers to the taking away of property, whereas in fact
“the term ‘deprivation’ is distinguished very clearly from the narrower term ‘expropriation’ in constitutional jurisprudence worldwide.”92
In a certain sense any interference with the use, enjoyment or exploitation of private property involves some deprivation in respect of the person having title or right to or in the property concerned. If section 25 is applied to this wide genus of interference, “deprivation” would encompass all species thereof and “expropriation” would apply only to a narrower species of interference. Chaskalson and Lewis, using a slightly different idiom and dealing with both the interim and 1996 Constitutions, put it equally correctly thus:
“Expropriations are treated as a subset of deprivations. There are certain requirements for the validity of all deprivations.”93
Viewed from this perspective section 25(1) deals with all “property” and all deprivations (including expropriations). If the deprivation infringes (limits) section 25(1) and cannot be justified under section 36 that is the end of the matter. The provision is unconstitutional.
If, however, the deprivation passes scrutiny under section 25(1) (i.e. it does not infringe section 25(1) or, if it does, is a justified limitation) then the question arises as to whether it is an expropriation. If the deprivation amounts to an expropriation then it must pass scrutiny under section 25(2)(a) and make provision for compensation under section 25(2)(b).94 Various writers, when dealing with the interrelation between deprivations and expropriations under section 25 refer to pre-constitutional judgments on expropriation. This must always be done circumspectly, because such judgments are not necessarily reliable when it comes to interpreting the property clauses under the interim and 1996 Constitutions.
The starting point for constitutional analysis, when considering any challenge under section 25 for the infringement of property rights, must be section 25(1).
The meaning of “arbitrary” in section 25
Introduction Dispossessing an owner of all rights, use and benefit to and of corporeal movable goods, is a prime example of deprivation in both its grammatical and contextual sense. The infringement issue in relation to section 25(1) is thus really limited to determining whether the deprivation of property enacted by section 114 is “arbitrary”, within the meaning of that concept as employed in section 25(1)95 of the Constitution, because section 114 clearly constitutes a law of general application.
The word “arbitrary”, depending on its statutory context, may only impose a low level of judicial scrutiny, requiring nothing more than the absence of bias or bad faith to satisfy such scrutiny. For example, it has been held to mean “capricious or proceeding merely from the will and not based on reason or principle”.96
“The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results . . . This does not mean that there has been a shift to merits review. On the contrary . . . the respective roles of judges and administrators are fundamentally distinct and will remain so . . . Laws LJ (at 847 (para 18)) rightly emphasised in Mahmood’s case [R (Mahmood) v Secretary of State for the Home Dept  1 WLR 840] ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in a case involving convention rights. In the law context is everything.” (Emphasis supplied.)
Context is crucial, both in the sense that the concept “arbitrary” appears in a constitution, and in the sense that it must be construed as part of a comprehensive and coherent Bill of Rights in a comprehensive and coherent constitution. This is certainly all part of the context.
Yet context goes further and would include the particular international jurisprudential context in which the Constitution came into existence and presently functions. Section 39(1) of the Constitution provides that a court, when interpreting the Bill of Rights, “must consider international law” and “may consider foreign law”. At the same time one should never lose sight of the historical context in which the property clause came into existence. The background is one of conquest, as a consequence of which there was a taking of land in circumstances which, to this day, are a source of pain and tension. As already mentioned, the purpose of section 25 is not merely to protect private property but also to advance the public interest in relation to property. Thus it is necessary not only to have regard to foreign law, but also to the peculiar circumstances of our own history and the provisions of our Constitution. In the present case all this would be relevant to determining what purpose the word “arbitrary” was intended to serve in a Constitution which has established a constitutional state and in a provision therein dealing with the protection of property against deprivation by the state. It must be construed in a manner that is appropriate to determining whether the section 25(1) protection of property against deprivation for which no compensation is payable has been infringed (limited).
In its context “arbitrary”, as used in section 25, is not limited to non-rational deprivations, in the sense of there being no rational connection between means and ends. It refers to a wider concept and a broader controlling principle that is more demanding than an enquiry into mere rationality. At the same time it is a narrower and less intrusive concept than that of the proportionality evaluation required by the limitation provisions of section 36. This is so because the standard set in section 36 is “reasonableness” and “justifiability”, whilst the standard set in section 25 is “arbitrariness”. This distinction must be kept in mind when interpreting and applying the two sections.
It is important in every case in which section 25(1) is in issue to have regard to the legislative context to which the prohibition against “arbitrary” deprivation has to be applied; and also to the nature and extent of the deprivation. In certain circumstances the legislative deprivation might be such that no more than a rational connection between means and ends would be required, while in others the ends would have to be more compelling to prevent the deprivation from being arbitrary.
De Waal et al98 are of the view that a deprivation “is arbitrary” for purposes of section 25(1) “if it follows unfair procedures, if it is irrational, or is for no good reason”. The protection against unfair procedure has particular relevance to administrative action – which protection is provided for under section 33 of the Constitution – but it could also apply to legislation and be relevant to determining whether, in the light of any procedure prescribed, the deprivation is arbitrary. Although the learned authors conclude that –
“the substantive element of s 25(1)’s non-arbitrariness requirement probably does not involve a proportionality enquiry”,99
their conclusion that deprivation would be arbitrary if it took place “for no good reason” seems to import a stricter evaluative norm than mere rationality, although less strict than the proportionality evaluation under section 36.
Chaskalson and Lewis,100 as well as Budlender,101 contest the view that “arbitrary” in section 25(1) of the 1996 Constitution imports anything more than non-rationality and rely in this regard on this Court’s judgment in Lawrence.102 After referring to the judgment, Chaskalson and Lewis state the following:
“The court stated that legislative measures are arbitrary when they bear no rational relationship to the legislative goal they are intended to achieve. In so doing the court equated a ‘non-arbitrary’ standard of review with the ‘rationality review’ standard of minimal scrutiny in United States equality law. It emphasized that the prohibition against arbitrariness did not involve a proportionality enquiry between means and ends, but only a rationality enquiry. The proportionality enquiry was excluded in order ‘to maintain the proper balance between the roles of the legislature and the courts’: in a democratic society it is not the function of courts to sit in judgment over the merits of socio-economic policies of the legislature.”103 (Footnotes omitted.)
In this passage the learned authors seek to extrapolate the dicta in Lawrence and raise them to a level of generality in a manner not warranted by the constitutional context in which Lawrence was decided.
The Lawrence case was concerned with certain provisions of the Liquor Act 27 of 1989 that restricted trading in wine under a grocer’s wine licence. The constitutionality of the provisions was challenged, amongst others, on the grounds that they infringed the right to free economic activity as guaranteed by section 26 of the interim Constitution.104 The case was not concerned with the meaning of “arbitrary”. That word did not appear in section 26, or in the Liquor Act. What was an issue in Lawrence’s case was the meaning to be given to a proviso to section 26 that excluded certain measures from the protection given by section 26 (1) to free economic activity if they were “justifiable in an open and democratic society based on freedom and equality”. Chaskalson P held that, in the context of section 26, measures that were arbitrary would be inconsistent with “values which underlie an open and democratic society based on freedom and equality” and would not pass constitutional scrutiny. The judgment went on to hold that if a broad meaning were to be given to the right to engage freely in economic activity under section 26(1), an equally broad meaning would have to be given to the power of the State to pass measures restricting economic activity under section 26(2). In that context, it was held that the provisions of section 26(2) would be met by measures embodying a rational relationship between means and ends. Absent such relationship, the measure would be arbitrary and would not pass constitutional scrutiny.105 That decision provides no authority for the manner in which “arbitrary” should be construed in the context of the property provisions of section 25 of the Constitution.
The present case does not deal with the implementation of legislative policies, whether social or economic, nor does it deal with mere differentiation in the context of equality jurisprudence. We are here concerned with statutory provisions in customs and excise legislation that deprive an owner of property for someone else’s customs debt. I accordingly find the approach of Chaskalson and Lewis unpersuasive in this regard and for the same reasons am unable to accept the views of Budlender,106 also based heavily on the Lawrence judgment. At the same time, I also cannot support the suggestion of Van der Walt that deprivations may have to comply with both the requirements of section 25 and the general requirements of section 36.107 If the deprivation is not arbitrary, the section 25(1) right is not limited and the question of justification under section 36 does not arise.