A chorus of voices from the mainstream media, certain business groups, the ANC-controlled GNU, and even the DA, have told the public, “Relax – everything will be fine,” since the gazetting of the Expropriation Act on 24 January. Take care with such reassurances.
These Pollyannas are correct about one thing: we should not panic. But that is not what they mean. They want us to feel reassured about the Act per se, and not worry.
Panic induces inaction, and should therefore always be avoided. But there are very good reasons to be concerned about the new Act. Virtually all of its chapters suffer from some or other constitutional deficiency, but that is not the primary reason to be sceptical of the Pollyannas.
Imagine that this whole saga, with the same Expropriation Act, played out in Sweden, Canada, or New Zealand. Put aside for now the fact that neither the state nor civil society – however left-wing – in each of the countries would ever allow such a law to progress beyond the green paper stage. Imagine that the bill had gone through the process, and was now law in one or each of these jurisdictions.
We would have virtually no reason to worry. The provisions of the Act are and will remain problematic in themselves, but in those societies it would be largely an academic concern. The situation is quite different in South Africa.
Whereas Sweden, Canada, and New Zealand have deep traditions of limited state power and restrained politics, countries like South Africa do not.
When the political class in South Africa wants to upset the applecart – from withdrawing recognition of Taiwan, failing to arrest Omar al-Bashir, threatening to nationalise private healthcare, committing blood libel against the Jewish people, to adopting damaging confiscation laws – it simply does so.
Constitutional propriety, respect for the privacy and affairs of ordinary, rights-bearing people, and general civility, are of lesser concern than the immediate ideological imperatives – and corrupt self-interest – of the elite.
This is why societies with low levels of social trust – that is, societies where individuals and communities can coexist peacefully but do not share a strong ethical framework inter se – require a different approach to politics and law. South Africa is such a society.
To assume that the ANC-controlled GNU will ever use a power like “nil-compensation expropriations” in a sensible and cautious manner is to abstract oneself from the South African experience. This is exactly what the Pollyannas at Agbiz, News24, and numerous law and property firms across South Africa are now doing.
The power that the Expropriation Act allows the state is unacceptable in principle, but especially in South Africa, with its long history of state disrespect for private property rights. It is precisely in light of this history that protections for property rights, and more specifically the right to compensation, are enshrined in sections 25(2) and (3) of the Constitution.
Parliament – encouraged by legal academics and its own legal advisors – is now using the Expropriation Act to circumvent constitutional protections with clever but euphemistic legalese such as “nil compensation” (supposedly constitutional) versus “without compensation” (unconstitutional).
As the parliamentary Constitutional and Legal Services Office (CLSO) told the ad hoc committee considering an amendment to section 25 of the Constitution in February 2021:
“[…] the concept of ‘compensation’ is required as part of the process of expropriation. Compensation as a concept is closely linked to the concept of expropriation. This is globally accepted. The Bill can thus not exclude the concept (by using the phrase ‘without compensation’), but the Bill can make the amount of compensation nil Rand, which in practice has the same effect (the land will be expropriated without the State having to pay money for it), and is a legally sound formulation.”
Such nonsense would not have been out of place in George Orwell’s Nineteen Eighty-Four.
The Constitution protects compensation, the so-called legal thinkers argue, and so we must respect that right. But if Parliament uses special words – as if it were an incantation – the constitutional protection falls away and the state can achieve exactly the same goal: confiscation of property without paying a cent. 2+2=5.
Newspeak. Fraud.
This is not how constitutionalism should work.
That seemingly honourable legal thinkers had to go to such lengths to constitutionally legitimise the granting of an authoritarian power to the state should give the Pollyannas reason for pause. Such tricks are not necessary under normal circumstances in free societies, and the Pollyannas are trying to mislead South Africans into thinking that the Expropriation Act is perfectly normal.
South Africans must not allow clever word games or formal “safeguards” on paper to confuse us about the reality of our political situation. Our fate is not hopeless – not at all! – but hope is not to be found in the nice reassurances of political parties and overpaid lawyers.
Real hope lies internally – with ourselves – more specifically: community organising and building strong domestic and international ties to stateproof ourselves against political abuse.
[Image: Screenshot LinkedIn/Shala-Rachel Mohammed]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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