The new draft constitutional amendment that would allow for expropriation of private property without compensation is an affront not only to a prosperous society, but to the legitimacy of the Constitution itself.

If adopted, it will do unspeakable harm to the economy and fuel divisive sentiments. This would be unfortunate, because the amendment is itself unnecessary. The Constitution already makes ample provision for substantive land reform. South Africans should rally around our lauded highest law and defend it against the onslaught of passing political expediency.

National legislation vs the Constitution

The draft constitutional amendment bill recently revealed at the parliamentary ad hoc committee tasked with drafting the constitutional changes necessary to allow government to expropriate property without compensation does three things: It allows the courts to determine that compensation is ‘nil’ when property is expropriated for land reform; it provides that ‘any’ payment may be just and equitable; and requires that national legislation should provide for those specific circumstances in which compensation may be ‘nil’.

The problem with this last change is evident: National legislation may be amended or repealed by a simple majority in Parliament, whereas the Constitution may only be amended with either two-thirds or 75% (in the case of amendments to sections 1 or 74) of the votes in the National Assembly, respectively. There is a far lower threshold in the case of legislation, therefore making the potential for abuse greater.

South Africans must object in principle to the Constitution being amended in the first place, not because of any constitutional defect, but because government is attempting to score cheap political points. But, if the Constitution is to be amended to allow for expropriation without compensation, the circumstances under which compensation may be zero should be spelled out in the constitutional amendment itself. This means government will not able simply to chop and change the circumstances under which it may expropriate without compensation on the basis of expediency. 

If the draft amendment is adopted, the constitutional structure that South Africa has had since 1993 will be severely shaken. It might lead to the beginning of the empty constitutionalism we see across the continent, where virtually nobody knows, and nobody cares, what their constitutions say, because it no longer serves the fundamental purpose that any constitution must exist for: limiting the scope and power of the State.

In order to allow government to adopt national legislation setting out the circumstances in which property may be expropriated without compensation, previously existing limitations on government power would have to be undone. Permitting the possibility of zero compensation, without any clear criteria in the Constitution itself to determine when this may occur, would mean that the remainder of section 25 will be made virtually redundant. It will be entirely up to the discretion of Parliament and government to determine what the extent of compensation will be.

The distant possibility of judicial review benefits only those few South Africans who can afford the best legal counsel, and those with the patience and time to navigate the often-inaccessible pro bono and law clinic institutions throughout the country. To make this amendment to the Constitution would be to make everyone’s property rights less secure, particularly those of the poor.

Flawed public participation

It is worth remembering that the process to amend the Constitution has also been fatally tainted by procedural irregularity.

The Constitutional Review Committee roadshow was characterised by radical political parties busing in supporters to create the appearance of popular support for expropriation without compensation. There was also constant shouting-down of opponents. This was not a conducive environment for the public to consider constitutional change in a level-headed fashion.

The written submissions portion of the process, too, was defective, when the committee decided to ‘sample’ a small number of the hundreds of thousands of mostly oppositional comments made to it.

Finally, the hearings the committee conducted in Cape Town were irregular, as only a select few organisations were invited to present arguments.

It was clear that the committee, and evidently Parliament itself, began the process with the foregone conclusion that the Constitution was to be amended. It did not allow for the possibility that it could be swayed from that desired end. Unsurprisingly, the committee’s report recommended that the Constitution be amended to allow for expropriation without compensation.

This flawed public participation process alone should be grounds for declaring the decision invalid.

Flawed premises of the draft amendment

But the premises of the draft amendment, which speak to the possibility of fraus legis (Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A) at page 793), are equally problematic.

The preamble to the draft amendment reads like a political election campaign speech rather than constitutional law. The Constitution exists for all South Africans, not only the sections of the population that government is attempting to appease in the moment. The preamble is also rife with lies and deceit.

Among other things, it is claimed that there is ‘palpable’ ‘land hunger’ among South Africans, who are deeply concerned about ‘the skewed land ownership pattern’. Section 25 must apparently be amended to ‘make explicit that which is implicit therein’. The amendment, it is claimed, ‘will contribute to address the historic wrongs caused by the arbitrary dispossession of land’. And the amendment will ostensibly ‘ensure equitable access to land’ and ‘empower the majority of South Africans’.

There is, of course, no palpable ‘land hunger’. There is hunger for employment, education, housing, and safety from crime, but not for land. Ordinary South Africans do not care about abstract problems like the so-called ‘skewed land ownership pattern’. Successive research by the Institute of Race Relations has shown this, and government has repeatedly ignored it. This decision to ignore evidence is entirely ideological, for there is an ideological imperative at the heart of the government’s philosophy. This imperative is that government must either exercise strict control over how the means of production, like land, are utilised, or else own the land outright. The fact that this is economically inefficient, indeed disastrous, and jurisprudentially unjustifiable, does not seem to worry the government.

Similarly, the notion that allowing for expropriation without compensation will address historic wrongs is similarly nonsensical. Apartheid was characterised by the arbitrary denial of property rights to black South Africans. Our Roman-Dutch and English common law regards that as arbitrary, and African customary law regards it as arbitrary. Both the common law and customary law systems prioritise restitution of property that was unjustifiably taken away, and this is the only way the historic wrongs of apartheid can legitimately be addressed.

Restitution simply means that those who themselves, or their ancestors, were dispossessed of property, have the right to receive that property or the monetary equivalent back. This is justice. But government is not interested in restitution: It is angling for redistribution at best, and nationalisation at worst. Redistribution means that property is taken from some and given to others who have no relationship with that property – it was never theirs or that of their ancestors to begin with – and nationalisation means the property is taken into government ownership.

In other words, government is attempting to pass off the draft amendment as a means to effect restitution. But this is not government’s intention.

Finally, expropriation without compensation by its nature will not empower ordinary South Africans: It is disempowering by design. The right to compensation when one’s property is expropriated is empowering, as it protects people from both government tyranny and petty corruption. This is, after all, the function of our Bill of Rights and of any charter of rights. Section 1(a) of the Constitution in particular says that South Africa is founded upon the advancement of human rights and freedoms. By watering down the right to compensation in the manner contemplated by the draft amendment, the Government is undermining, not advancing human rights and freedoms.

Defending constitutionalism against political expediency

Should the Constitution be amended to provide for expropriation without compensation, it would be the first time that the hard-won Bill of Rights is amended. And this amendment would not be about strengthening a right, but weakening it.

Weak property rights were a feature of apartheid for the majority of South Africans. Legislation like the Natives Land Act and the Group Areas Act allowed government to disregard title deeds and all the protections of private property that Roman-Dutch and English common law had to offer, and shift people around like pawns on a chessboard.

This was put to an end both in the interim Constitution of 1993 and in the final and current Constitution of 1996. Now all South Africans are entitled to security of tenure for that property they have legitimately acquired. Government has launched a frontal assault on this security, and that is to be condemned.

If government insists on proceeding with the amendment of the Constitution, it must spell out in crisp detail those limited circumstances under which property may be expropriated without compensation. Anything less than this would betray the spirit of constitutionalism and doom South Africa to economic ruin. Let us not allow former President Nelson Mandela’s ‘never again’ promise to be unceremoniously abandoned less than three decades into democracy.

The views of the writer are not necessarily the views of the IRR.

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