As I see it, Pierre De Vos’s recent blind-eyed look at the constitutionality of the Expropriation Act seeks to justify the indefensible by building an argument based on an extreme.
But no one seriously suggests that the property right is absolute any more than they would claim any other constitutional right enjoys that status. One is dealing with a matrix of rights which must be balanced in accordance with section 36, having regard to the general purpose of our having those rights in the first place.
So, the constitutional question is not whether nil compensation is justifiable or if market value in the commercial sense is the only basis of valuation. Section 25 of the Constitution disposes of both those questions. The question, which De Vos ignores, is what compensation is fair and whether it can be defended as such in the open and democratic society that the majority of South Africans want and which our government should be trying to build.
It seems clear, at least to me, that the Expropriation Act falls way short of meeting that standard. So does the old Act for that matter. Both are far too susceptible to abuse and, as regards the old Act, it has been abused by pre- and post-1994 governments.
Section 25 sets out a broad principled framework for determining when property may be legitimately expropriated. It is the job of the legislature to provide detail to this so that the general principles set out in the clause may be lawfully applied by the executive branch of government.
In simple terms that subsidiary legislation (the Expropriation Act) should provide detail as to how the various factors that influence fair compensation should be applied in practice and what measures are in place to ensure this is done.
Woefully short
The Expropriation Act falls woefully short of what is necessary to achieve either goal.
Firstly, it does no more than restate the factors that may be taken into account without providing any detail as to how this is to be done. This is left to the discretion of the decision maker. That is an unconstitutional delegation of legislative power vested in the legislature to the decision maker.
Secondly, as many have already pointed out, me included, the provisos governing its implementation open the door to abuse both in and of themselves and because of the lack of clarity about how a fair valuation is to be determined.
The first issue might be ameliorated if the implementation of the Act was delayed pending regulations that provided the necessary detail regarding valuations. However, I would argue that that still amounts to an unconstitutional delegation of legislative power. Moreover, it is open to abuse, given that regulations come into force immediately despite legal challenge. Government can and will take unfair advantage of this.
So, even if regulations are promulgated, expect delays and regulation changes just before a matter gets to court. Also expect government to abide by the judgment but ignore the precedent. I say so because this is already common practice.
However, as we stand now, the Act is in force and no regulations are in the pipeline.
Low-hanging fruit
The DA is correct to go after low-hanging fruit. Any lawyer worth his or her salt will tell you this. Headshots are better than drawn-out wars. But it is also a mistake to think that the war can be avoided.
Skirmishing, and that is just what the DA case is, may frustrate or delay government, but it does not stop them in their inexorable desire to centralise control of the resources and the economy regardless of what the Constitution says to the contrary.
That requires South Africans to defend the meat of the Constitution rather than its procedural detail.
Time will tell if we have the stomach for it. Government is betting that we don’t and, so far, they would not be wrong.
[Image: Ulrike Mai from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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