Earlier this month Nedbank Private Wealth published a note in which JP Landman promised to “cut through the noise” about expropriation without compensation.
Mr Landman then kicked up a bit of noise himself. “All hell had broken loose”, the “hysteria had been overdone”, there had been an “explosion of emotion”, “constant emotional explosions were undermining confidence, investment, and growth”, you name it.
Well then, to use Mr Landman’s own terminology, let us “cut” through his own “noise” to see what he is actually saying. His first point is that “nothing” has been proposed to change “the current system of expropriation where the executive takes the decisions and the courts can review them”. Secondly, “one does not want judges acting as civil servants”. Thirdly, “it all comes down to the doctrine of separation of powers”.
His first argument is simply wrong. His second is a red herring. His third is back to front.
Mr Landman’s first point is that under the “current system” of expropriation “the executive takes the decisions and the courts can review them”. But this is not how the current system works. Nor is it what the Constitution says. Under the “current system”, set out in section 25 of the Constitution, the amount of compensation to be paid must either be “agreed to by those affected or decided or approved by a court”. This is quite clear. However, Mr Landman mysteriously makes no reference to this explicit provision that in the absence of agreement, the court decides or approves.
By misrepresenting what the Constitution actually says, Mr Landman would have us believe that the only power the courts have ever had is that of “review”. He thus contrives to obscure the fact that the proposed constitutional amendments will remove the power of “decision and approval” from the courts and replace it with a much lesser power, that of “review” of decisions already taken by the executive branch of government.
Nor is it even clear that decisions on expropriation by the executive branch of government in the pursuit of land reform will qualify for “review” except in limited circumstances such as bad faith, errors in law, or beyond the bounds of what is reasonable.
The powers of the courts are to be diminished. The constitutionally guaranteed rights of property owners are also to be diminished. Yet Mr Landman would have us believe that “nothing” will change.
Mr Landman’s second argument is that judges should not “act as civil servants”. They should not administer legislation but only mediate in disputes. But section 25 does not require them to administer legislation. It requires them only to decide on the amount of compensation when no agreement can be reached, and it sets out the guidelines according to which they must determine the amount of compensation. They have had this responsibility since the Constitution came into operation in 1997, so it is both a misrepresentation and a red herring to suggest that they are now being asked to act as “civil servants”.
Mr Landman’s third argument is that “it all comes down to the separation of powers”, which, he helpfully reminds us, is between legislature, executive, and judiciary. His implication is that all those “hysterical” and “emotional” people who oppose the plans to amend section 25 somehow now want judges to trespass upon the terrain of the executive. But the powers over expropriation entrusted to the courts have been in the Constitution all along.
The separation of powers is indeed at issue here. On that Mr Landman is correct. But he gets the argument exactly back to front. Section 25 allows the state to expropriate. It sets out the criteria according to which this may be done. When the amount of compensation cannot be agreed upon between the state and the person affected by the expropriation, the courts decide.
The proposed amendments to the Constitution will not only upset this balance, they will also transfer power from the courts to bureaucrats staffing a government with a long track record of incompetence and corruption.
Apart from that obvious objection, Mr Landman wrongly states that “some political parties want a change that will put that decision-making with the courts”, which, he says, the African National Congress (ANC) is “unlikely” to accept.
As we have seen, however, the decision-making is already with the courts, where it has been since the Constitution came into effect 23 years ago. The ANC is the party wanting the change to remove the decision from the courts. Those opposing the ANC on this issue want the decision-making to stay where it is. Once again, Mr Landman gets his arguments back to front.
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