The year 2021 marks 25 years since the adoption of the 1996 Constitution. Celebrations have been held in Parliament, in newspaper columns, and at university law faculties. Hailed as one of the best founding charters in the world, there is good reason to praise the Constitution of South Africa and many of the institutions and conventions it brought about. But it is barely mentioned during these celebrations that we are in the process of destroying the very object of our celebration.
I am not referring to Jacob Zuma and his pals flouting the Rule of Law and ignoring constitutional rules. I am not even referring to the African National Congress’s so-called ‘democratic centralism’ that undermines the transparency and accountability required by the Constitution. South Africa is destroying the Constitution in a far more direct manner.
‘Amendment’ to the Constitution
Parliament is at an advanced stage of adopting a so-called ‘amendment’ to Section 25 of the Constitution that will see the institution of expropriation, well-known around the world, replaced with the institution of confiscation. This will place South Africa among only a handful of countries that allow their governments to whimsically ‘expropriate’ property without being required to pay compensation under all circumstances. At worst, Parliament may even entrench the “custodianship” principle, effectively nationalising all fixed property and placing it under State ownership.
What Parliament is envisaging is not an amendment of the Constitution at all. Amendments presuppose something that adds to an existing structure according to its own logic and character. Amending someone’s speech or essay can never mean replacing it with another speech or essay. Parliament is engaged in replacing, not amending, the Constitution, as what it proposes is contrary to the basic structure of the Constitution – its logic and character.
Property rights are foundational
Property rights are a foundational element of constitutionalism and of the Constitution. Various provisions in the Constitution assume the existence (and protection) of property rights, including the rights to privacy, expression, and housing, as well as the provisions related to rates and taxes, and the police. But property rights are even more fundamental than their explicit and implicit recognition in constitutional provisions. The enterprise of constitutionalism itself is founded, in part, upon property rights.
As Professor Koos Malan astutely argues, without property rights, both citizenship and civil society, and by implication, democracy, come to an end. This stands to reason. If one rents one’s home and business from the State, the State can revoke those leases. Certainly, some legal safeguards can exist, but fundamentally, the owner decides at the end of the day. This is something that emerging farmers who, since the end of Apartheid, have only been given leases rather than title deeds, understand all too well. Rarely do days go by without us reading of another arbitrary eviction of farmers by some organ of State.
Why would citizens and civil society campaign against particular politicians or political causes if they know such civil action has the potential to result in their losing their homes and livelihoods? Safeguarding property against the State (i.e., property rights) is not only crucial for constitutional democracy, but it is one of the very reasons we have a conception of constitutionalism today. Constitutionalism did not appear out of thin air – it resulted from the insistence that even the monarch must be bound by common legal principles (relating to liberty and property), just as subjects are.
Watering down Section 25 of the Constitution is a betrayal at a constitutional scale. Most South Africans went for generations without property rights, until this provision and its predecessor in the interim Constitution finally entrenched those rights against overbearing government. Not only did Section 25 guarantee security of property, but it also obliged government to positively ensure the denial of property rights came to an end. This government did not do this to any adequate extent, and now it seeks to simply destroy the nuisance of Section 25 entirely, and entrench its own power instead.
‘Original sin’
Opportunists always deflect attention by calling the destruction of the Constitution a matter of justice. It is about dealing with the ‘original sin’ of unjust property acquisition. This argument must be recognised for what it is: sophistry.
Section 25 already provides for the restitution of ill-gained property. But it also recognises that the current holder of that property, who might have innocently bought it, is not to blame for what government did generations ago – government must bear responsibility today for its own prior conduct. In good faith, the current holders have used the property to contribute to the social wellbeing of South Africa, in addition to providing for themselves and their families. While the property they hold may as a matter of justice be returned to its previous owners, the current holder must be compensated, too, as a matter of justice.
Government can afford to compensate these holders. In fact, it can afford to overcompensate them, and still have substantial change to spare.
Worth fighting for
But compensation is not a practical concern for the State. The State seeks power at the expense of the citizenry and civil society as part of its National Democratic Revolution. Increasingly, it knows its dominance is threatened by an increasingly unemployed and poor population – something government itself caused through boneheaded policy decisions – as well as by the middle- and upper-class finally discovering a dissenting voice. By taking for itself the authority to confiscate property without paying for it, or even nationalising all fixed property – part of a broader political scheme – government is trying desperately to secure itself against the likely loss of political power.
South Africa has a Constitution worth fighting for. Fighting for it not to be destroyed; but also, if it is destroyed through the adoption of the so-called “amendment”, we must fight to restore the Constitution. If we do not, then South Africa will find itself in a permanent constitutional crisis, which must as a necessary result mean social cohesion will become a fantasy. This puts an imminent expiry date on the viability and sustainability of the South African state.