ANC national executive committee member Dr Mathole Motshekga (“ANC leader says SA’s Constitution ‘an obstacle to socio-economic transformation’”) joins a small chorus of critics who have decried the supreme constitutional instrument of our society as an ‘obstacle’ to whatever ‘good idea’ they might have in mind.

What these critics fail to understand is that the very point of constitutionalism is to act as a brake and a barrier on excessive use of political power.

Constitutions are meant as protectors of society, not enablers of government. When political elites seek to change society, it must not surprise them that the Constitution finds itself in society’s corner, not that of the elite.

Private property protections

In this instance, Motshekga’s agenda relates to land and the protections the Constitution affords private property owners. Motshekga is concerned that these protections stand in the way of redistribution efforts by government, and he is correct in this. As a seeming solution, Motshekga suggests a national referendum, allowing South Africans to express their view on what must be done about the ‘land question’.

Demographically representative polling by the Institute of Race Relations (IRR) has shown what ordinary South Africans think about land reform. The newest poll, from this year, reveals that only between one and two percent of black South Africans regard land reform as one of the top two priority areas for government intervention, well behind employment (about a quarter), electricity provision (14%), and violence against women and children (13%).

Asked what the most important thing is that government can do to make their lives better, only five percent of black South Africans answered that it was more land reform, compared to 43% in favour of ‘more jobs and education’, 22% in favour of better service delivery including electricity provision, and 14% in favour of more empowerment policies. Nearly 80% of black South Africans support a growing economy and more jobs over 18% who favour expropriation without compensation.

If there is to be a referendum, we expect these results to be borne out unless, of course, (as is likely) the government loads the question.

Part of the minority

Motshekga has made it clear that he is part of the minority on each of these questions. To him and a small number of elites in the ANC and EFF, the ‘land question’ is the most pressing item in the discourse. To them, redistributing land is apparently the answer to improving people’s lives.

Most absurdly, though, Motshekga and company likely regard expropriation without compensation as perfectly compatible with economic growth and job creation, when it is in fact one of the most serious threats to growth and jobs.

And it is precisely because something like property confiscation is hugely  detrimental to society that any constitution worth its salt stands squarely in the way. Even in countries that do not have explicit written constitutional protections for private property, the common law and statute offer such an advanced level of protection against confiscation that constitutional entrenchment is unnecessary.

Most social justice activists are convinced in their heart of hearts that their own cause, whatever it might be, is beyond dispute. When these activists successfully lobby government, or themselves become part of government, it is precisely this dogmatic confidence that becomes dangerous to a healthy society.

Societies do have ills, and South Africa’s legacy of property deprivation is one we are yet to fully confront. But the hammer (and sickle) of government power is rarely the right medicine. As South Africa has experienced over the past two decades, this medicine has proven quite poisonous.

Constructive land reform

Constructive land reform, which respects the constitutional framework while at the same time encouraging economic activity and direct community empowerment, is possible.

The IRR’s own Ipulazi and Indlu policy proposals would represent precisely the kind of responsible land reform South Africa needs. Ipulazi focuses on the transfer of land to those who wish to be successful commercial farmers. They must be empowered through bonds, finance, skills, security, and, above all, registered individual ownership. Indlu, meanwhile, is concerned with the direct empowerment of disadvantaged households in urban areas with, amongst other things, registered ownership and housing vouchers.

Naturally, where land claimants can prove that the property in question belonged to their family before it was seized by the colonial or apartheid governments, they are entitled to receive that property back. This is land restitution. It is one of the few successful government programmes from 1995 to the present, and forms part and parcel of a society that respects property rights.

It is not, however, redistribution. Redistribution is simply power politics, not justice, that seeks to confiscate property without regard to whether the current owners hold it legitimately or not. That property is then to be allocated to someone else who need not be a descendant of a property-deprived family or individual. Voluntary redistribution is another matter.

Whatever its nature, redistribution is all about racial social engineering: formulas, ratios, proportions, and population collectives. Restitution, an entrenched principle of every tradition represented in our legal system – African, Roman-Dutch, English – is about seeing justice done between eras and people, setting right injustices without creating new ones.

South Africans can be glad that we have a Constitution that understands this distinction, coming down clearly in favour of a property-respecting legal system with generous allowance for responsible land reform.

That the Constitution stands in the way of radical plans by the likes of the ANC or EFF to ride roughshod over the foundations of future prosperity must then not surprise us. It is a feature, not a bug.

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Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit