Pierre de Vos, a well-known legal commentator, warns in Daily Maverick that, “Constitutional nuances [are] lost in alarmist, misleading debate around the Expropriation Act.” In this broadside against South Africa’s constitutionalists – including the Institute of Race Relations (IRR), AfriForum, and the Free Market Foundation (FMF) – De Vos also homed in on my work.
My challenge against De Vos will come in several parts. Since he (hopelessly inadequately) addresses a peer-reviewed contribution of mine in the Potchefstroom Electronic Law Journal on expropriation without compensation, I will focus on that in this part. The next parts will deal with De Vos’s other jurisprudentially unsound takes.
First, a recap of my argument.
Legalistic wordplays
At the time of the law journal contribution, the parliamentary ad hoc committee considering the amendment to section 25 of the Constitution had approved the draft Constitution Eighteenth Amendment Bill. This amendment, in essence, would have allowed the courts to “determine that the amount of compensation is nil” when property is “expropriated” (in fact confiscated).
The government told us that this sought simply to “make explicit that which is already implicit” in section 25 of the Constitution.
I rejected this appeal to implication, very simply, by reference to sections 25(2) and (3) of the Constitution, which both state that when government expropriates private property, there must be a “payment” of an “amount” of just and equitable “compensation.”
While different rules might apply in fictional worlds, on this planet “nil compensation” can never:
- Involve “payment.” My bank gives an error message when I try to transfer R0.00 to someone else. Payment means something of value moves from one party to another. Nil compensation is the absence of a payment;
- Amount to an “amount.” 0 might be a number, but in the context of expropriation and compensation, “nil,” which means “nothing” or “non-existent,” is the absence of an amount;
- Be “compensation.” As Hugo Grotius, the father of expropriation law, writes: when the state expropriates property, it “is obliged to repair the Damages, sustained by any Subject on that Account, out of the public Stock.” Paying nothing to an expropriated owner does not repair anything or make right any loss. It is the absence of compensation.
Thus, no: the ability to render no-compensation does not exist “implicitly” in the unamended section 25.
I went on to argue that appeals to “nil compensation” as opposed to “without compensation” were calculated to deceive. Parliament’s Constitutional and Legal Services Office admitted as much:
“Property experts advised the committee that the concept of 'compensation' is required as a 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.”
In other words, expropriation necessarily requires compensation, so Parliament cannot approve any kind of expropriation-related law that does not inherently include compensation.
But, by playing with words (it is said), you can retain “compensation” in the concept of expropriation, and still achieve the same result as “without compensation” – i.e., pay nothing. This is obviously intentionally deceptive.
The result? I argued that the amendment was unlawful. Legal subjects, including the state, may not utilise formalistic trickery and smoke-and-mirrors to circumvent legal rules.
As we know, the Constitution was not ultimately amended, but Parliament decided to proceed with the Expropriation Act. Section 12(3) of the Act, in similarly cartoonish fashion, states that “nil” could amount to “just and equitable compensation” under certain defined and undefined circumstances.
Law 101
Enter left Pierre de Vos, in half-hearted response to this argument.
De Vos writes “the ‘nil compensation’ provision [in the Act] does not allow expropriation without just and equitable compensation” because the constitutional provision, in section 25 of the Constitution, that provides for the determination of what is “just and equitable” remains intact.
De Vos thus believes the nil-compensation provision of the Expropriation Act is not vulnerable to constitutional challenge.
This is Introduction to Law 101 stuff and, frankly, baffles me.
The IRR, FMF, and others’ argument is exceedingly simple:
The Constitution requires the payment of an amount of compensation. The Expropriation Act allows government to expropriate without the payment of an amount of compensation. Ergo unconstitutional.
If Parliament were to adopt an Act that provides “a police officer may perform corrective rape on any suspected lesbian,” one hopes that De Vos would agree with us that it is brazenly unconstitutional and in contravention of the plain text of sections 10 (human dignity), 11 (life), and 12 (freedom and security of the person) of the Constitution.
But according to the seriously flawed logic De Vos (and others) have adopted with regard to section 25, De Vos might as well in this case argue that such an Act would be perfectly constitutional, simply because sections 10, 11, and 12 of the Constitution remain intact and thus still provide protection to lesbians.
This is really silly stuff.
The corrective rape Act would be unconstitutional for precisely the same reason the Expropriation Act is unconstitutional, and this is what all law students are taught: the provisions of the Act allow the state to do something that the Constitution disallows the state (whether the courts agree or not) from doing.
Other parts of section 25
De Vos writes that I have ignored “the [other] relevant parts of the property clause highlighted above and [made] no attempt to assess whether the provision is justifiable under the limitation clause.” The conclusion he draws from this is that my argument is not a legal one, but a “purely political argument presented as a constitutional argument.”
The purpose of the law journal contribution was narrow, and concerned particularly whether Parliament may perceive constitutional safeguards, acknowledge them, and then on the basis of clever wording, utilise formalities to sidestep those safeguards. The obvious answer, belaboured in detail in the contribution, is no, Parliament may not.
None of the other provisions of section 25 that De Vos claims I “ignored” would have changed anything in this equation. Allow me to spell it out in perhaps annoying detail:
Section 25(4)’s clarification that “public interest” includes land reform… does not mean Parliament may utilise clever legalistic formulations to sidestep the protections offered by sections 25(1), (2), and (3), and deceive the public.
Section 25(5)’s obligation on the state to adopt reasonable measures to foster conditions that enable South Africans to equitably gain access to land… does not mean Parliament may utilise clever legalistic formulations to sidestep the protections offered by sections 25(1), (2), and (3), and deceive the public.
Section 25(6)’s obligation on the state to secure legally insecure tenure… does not mean Parliament may utilise clever legalistic formulations to sidestep the protections offered by sections 25(1), (2), and (3), and deceive the public.
Section 25(7)’s recognition of the right to restitution… does not mean Parliament may utilise clever legalistic formulations to sidestep the protections offered by sections 25(1), (2), and (3), and deceive the public.
Section 25(8)
Let us stand still for a moment at section 25(8). It provides:
“No provision of this section [25] may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results.”
Section 25(8), like section 25(4), is a clarificatory provision. During the 1990s, there still was – believe it or not – some on the left who believed that South Africa could elect a “conservative” government that would refuse to right the wrongs of the past because it did not want to be seen to infringe on property rights.
Both sections 25(4) and (8) are therefore in the Constitution to make it manifestly clear that the constitutional government has an obligation to engage in land reform, and cannot let it die in constitutional silence like so many other provisions ended up doing.
(Did you know there’s an actual, honest to God provision (section 195(1)(b)) in the Constitution that requires government to utilise public resources in an “efficient, economic, and effective” manner? This provision was stillborn.)
De Vos wants to lean on section 25(8) as a sort of “gotcha!” provision that somehow nullifies the rest of section 25 – which is a constitutionally impermissible interpretation if ever there was one. But, if anything, this provision strengthens property rights even further by directly involving section 36 of the Constitution.
Whereas the courts have – incorrectly – in the context of affirmative action under section 9(2) of the Constitution argued that they need not proceed any further than the isolated ostensible allowance of “redress” measures (in other words, that they need not look further to the test for “fair” discrimination, or to a section 36 limitation analysis), section 25(8) makes it crystal clear that the courts cannot do this in the case of section 25. A limitation analysis must be kept in reserve to test the exercise of state power.
Furthermore, in the context of section 25(8), it must be further noted that having to pay compensation when property is expropriated in and of itself cannot be considered an “impediment.”
In fact, it may not be, because as we have seen, compensation is part of the very concept of expropriation, and even with section 25(8) in mind, expropriation is the only way in which government may lawfully acquire property by force. Expropriation cannot be divorced from the payment of an amount of compensation.
Section 25(8)’s function within the constitutional scheme, therefore, is far from allowing the state to violate property rights en masse. It is to make clear that government has an obligation to engage in land reform – while respecting property rights – and that merely hiding behind the section 25(1) would be unlawful.
This, in no way, invalidates – again – the simple reality that Parliament may not utilise clever legalistic formulations to sidestep the protections offered by sections 25(1), (2), and (3), and deceive the public.
Politics?
It is quite rich for Pierre de Vos, of all people, to criticise (rather than merely note) my argument as being “political” rather than “constitutional.”
As De Vos himself understands – as a fellow-traveller, at least, of the Critical Legal Studies movement – the “distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain.”
Law is politics. But not all politics are created equal.
The so-called “libertarian conception” (here more appropriately called “liberal” or “constitutionalist”) of law and property that De Vos gleefully criticises – which I will defend in one of the next parts – is exactly the conception of law that achieves De Vos’s (opportunistic) standard of constraining “judges [from] merely impos[ing] their own personal political preferences on the parties in a dispute before them.”
Neither “property” nor “expropriation” are words that hang freely in the ether, for anyone to grab onto and weaponise for their particular purposes.
When a constitutional instrument refers to “property,” that is within a particular constitutional, moreover jurisprudential context. More specifically, when a bill of rights refers to property – especially when the first clauses of that provision are stock-standard property protection clauses – that focuses our jurisprudential context even more.
Bills of rights are and will always – no matter De Vos’s complaints – be constitutional protections for civil liberties. They are, under no circumstances whatsoever, divorceable from the so-called “libertarian” conception of rights and property. As my colleague, Dr Morné Malan, observed (quoted with permission):
“[De Vos’s] argument seems to be that critics of the [Expropriation] Act are mistaken in assuming that the property rights clause (and maybe the entire Bill of Rights) is intended, in any meaningful sense, to be a mechanism to safeguard the rights of citizens against state encroachment. He may even be correct, at least in so far as some courts have also seemed to affirm this view, but surely if they are right then that would be a lamentable or perhaps even an ‘anti-constitutional’ trend in our jurisprudence.
If the function of the Bill of Rights is merely to require a bit of extra paperwork and legislative finessing before such rights can be virtually eliminated, then it amounts to very little indeed. This may be Pierre de Vos's view, but if so, then he should probably just state it outright and relieve us of the burden of having to engage with him on purely ideological matters such as whether the Bill of Rights should be understood as anything other than a bill of niceties.”
Both sections 25(2) and (3) of the Bill of Rights in the supreme Constitution state that upon expropriation, an “amount” of “compensation” must be “paid.” I have to leave it to readers to decide which of the following two approaches to constitutional interpretation more closely approximates reality:
De Vos: Reading the Constitution in a special manner can lead us to conclude that the “amount” could be R0, the “compensation” need not make right the owner’s loss of their property, and the “payment” could involve a mere note that R0 has somehow been tendered. Section 12(3) of the Expropriation Act, at least, is therefore not necessarily unconstitutional.
Van Staden: The plain, protective meaning of the Constitution must be given effect to, that there must be an amount of money (amount), which must make right the loss of the expropriated owner’s property (compensation), and this amount of compensation must be transferred from one bank account to another (payment). Section 12(3) of the Expropriation Act, at least, is therefore necessarily unconstitutional.
[Image: Jeanine Smal from Pixabay
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend