To Pierre de Vos and other transformationists like Karl Klare and Dennis Davis, the world is government’s oyster, and the state may grab words appearing in the Constitution and give them any meaning it likes. Nowhere is this more the case than when it comes to “property.”
This is the second part of my challenge to De Vos’s pseudo-jurisprudence surrounding expropriation without compensation.
Part 1 concerned De Vos’s inadequate response to my submission, in a law journal, that Parliament may not utilise special word-combinations to sidestep the protections of section 25 of the Constitution (which guarantees the right to secure private property).
This part will focus on De Vos’s offhanded dismissal of a “libertarian” conception of property rights, which he deems incompatible with the Constitution.
Part 3 will focus on De Vos’s erroneous reading-in of the power to redistribute land into the Constitution.
And Part 4 will deal with De Vos’s uncritical and unwavering deference to the Constitutional Court.
We must start with the opportunistic premise De Vos creates near the beginning of his article.
Citizens of good faith
De Vos writes that the Expropriation Act does have faults, and therefore “it should also be possible for citizens of good faith with radically different political views to have a relatively constructive discussion about the overall merits of the act and on whether it is likely to speed up land redistribution.”
Did you catch it?
De Vos is begging the question. He implies, strongly, that only those who support the “[speeding] up [of] land redistribution” could qualify as being “citizens of good faith with radically different political views.”
In other words, to De Vos, South Africa’s respectable political spectrum stretches only from left to far-left, and the only valid “radically different political views” would be those that distinguish a Trotsky from a Lenin, or a Chavez from a Castro.
If you were to oppose land redistribution, you are not a citizen of good faith, and whatever political convictions you might have sit comfortably outside of the realm of legitimate constitutional contestation.
This is, obviously, no way to engage in good-faith discourse. And it is evident throughout De Vos’s writing: the left owns the Constitution, and any interpretation or construction of the Constitution that treats civil liberties, property rights, or limited government with the reverence that they require, are necessarily incorrect.
This brings us to De Vos’s offhanded dismissal of the much-abused notion of libertarianism.
“Libertarian conception of property”
De Vos writes that opponents of the Expropriation Act have a “tendency to ignore or downplay those parts of the [constitutional] property clause that conflict with a particular libertarian conception of property that is assumed to be self-evident and uncontroversial (even pre-ideological), thus so obvious that it would be irrational to conceive of property in a different way.”
In Part 1, I argued that jurists like De Vos cannot divorce section 25 of the Constitution – the property provision – from the constitutional(ist) tradition of property rights.
When a constitutional instrument, in particular a supreme constitution, refers to “property,” that word is not devoid of meaning. It is not an empty vessel waiting for the state to give it its own desired or convenient content.
When the Constitution refers to the right to “life”, the state may not regard “life” as meaning “death” and thus that extrajudicial executions qualify as respect for the right to “life.” Life has legal meaning that pre-exists the Constitution, and property has legal meaning that pre-exists the Constitution.
At no juncture does the Constitution claim to originate the notions of either “life” or “property.” Like all constitutional instruments – and particularly the bills of rights in those instruments – it is a mechanism to protect the pre-existing rights and legal interests of legal subjects. One may not divorce the Constitution, the Bill of Rights, or section 25, from its jurisprudential context and tradition: constitutionalism, and the liberal jurisprudential revolution that sparked it centuries ago.
There is nothing “uncontroversial” about this so-called “libertarian conception of property” (hereafter, constitutionalist conception of property), and liberals (the South African equivalent of the American word “libertarians”) are keenly aware of just how contentious it is.
To people like De Vos – and indeed many others, even judges – constitutional protection for civil liberties and property is extremely contentious, indeed problematic, which the school of Critical Legal Studies (CLS) has made very clear over decades.
During the transition, many CLS and CLS-adjacent legal thinkers worried that a supreme constitution would serve to protect bad-vibes white privilege from a new good-vibes democratic government. The compromise they appeared to arrive at was that while yes, there would be a supreme constitution, it would be interpreted and construed in a way that separates it from its inherent classical liberal nature.
Fellow-traveller to De Vos, Karl Klare, made this abundantly clear in 1998 when he wrote a journal article that is now regarded as constitutional gospel by jurists of the left. In it, he encouraged the courts to re-think the “rule of law” and the whole enterprise of constitutionalism, in a redistributionary, essentially statist direction that throws individual liberty aside in favour of state social engineering.
Dennis Davis shares similar sentiments.
Many judges appointed by the ultimately ANC-majority Judicial Service Commission took Klare’s advice to heart.
So the contentiousness of the constitutionalist approach to property is not in dispute.
Basic justice
What is in dispute is De Vos’s desire to sap the meaning of “property” – particularly in its constitutionally-protected sense, which the tradition has always associated with protections against expropriation. This, despite the fact that section 25 of the Constitution, and specifically the protections against expropriation in sections 25(2) and (3), is truly a stock-standard constitutional property provision.
You cannot “conceive of property in a different way” – which is what De Vos encourages – from how the Constitution – and constitutional law, and constitutionalism – conceives of it.
One can, of course, conceive of property in a different way privately. In a family unit, the breadwinner tends to own all property like a communistic authority. In tribal contexts, chiefs are often the custodians of property in the area. But these are premised, ultimately, on some explicitly or implicitly voluntary covenant.
The moment you step out of these private affairs into a context where many people, if given the choice, would rather opt-out of the polity than be bound by its rules, you have to defer to the conception of property that constitutionalism envisions. Constitutionalism’s conception of property is one whereby the state is strictly limited from interfering unless it is necessary for the preservation of the rights and property of others (thus why restitution qualifies comfortably within this paradigm).
If you seek to go beyond basic justice, serious questions arise about why, ultimately, the members of this polity are bound in conscience by the laws it seeks to impose.
In other words, if the value-proposition of the 1996 Constitution is partly that the state may confiscate your property freely based on whimsy (which, despite the nice language of the Expropriation Act, it effectively amounts to), then many South Africans can legitimately ask what magical force binds them to this utterly useless, arguably evil, supreme law.
Thankfully, this is not how it works. One must read the Constitution’s text with all the premises and rules of constitutionalism foremost in mind.
“Absolute” property rights
De Vos’s criticism of constitutionalist property rights proceeds to “property rights [being] conceived in more or less absolutist terms, as a private right that an owner exercises to the exclusion of all others, with limitations on the right having to be kept to the minimum.”
He is, of course, correct in this characterisation. (Any other notion of property rights, in addition to being constitutionally unsound, is also simply functionally useless.)
The reference to “absolutist,” however, should not confuse readers. De Vos and I know there is a legal-technical meaning that attaches to “absolute” property rights, and it has nothing to do with the notion that that right somehow magically (and unreasonably) supersedes everything else.
Property rights, like any other subjective or constitutional right, have baked-in limitations.
For instance, while I do have a right to dig a hole in my own property, I cannot do so in a way that removes the geological supports of my neighbour’s property and cause it to cave in sideways.
Similarly, while I do have a right to store whatever I want in my own shed, if my shed stands right next to my neighbour’s house – on my side of the boundary – and I have stored several tonnes of ammonium nitrate in the blistering Karoo heat, biding my time, I have obviously strayed over the inherent limits of my property rights.
(Owning property while committing the grave, unforgivable crime of having white skin is not straying over an inherent limit of property rights. Sorry!)
In addition, property rights in South Africa can be limited if the state adheres to the strict confines of section 36(1) of the Constitution – a much-cited though much-disrespected and misunderstood provision.
“Absolutist” is a term of abuse in this context that creates the impression of irrational chaos. Rights, as conceived in liberal constitutionalism, are internally and relationally coherent, despite any CLS claims of indeterminacy.
As to the second part of De Vos’s statement – that limitations on the right must be kept to a minimum – this really should go without saying.
Purpose of constitutionalism
And it should not be contentious. In almost any other circumstance, caught off guard, De Vos would (or should) jurisprudentially agree with me. We are only caught in this debate because we are dealing with one of De Vos’s disfavoured rights, being property.
If your approach to a constitutional right is that limitations on the right are plentiful and generous, then that “right” tends to lose its claim on the nomenclature of “right.” A right is a trump, and stands elevated above other legal interests, including the state’s interests.
People are powerless compared to the state, and rights, as a legal-fictional institution, exist primarily to try (and often fail) through formality to overcome the substantive might of government.
This is, ultimately, why we have to be very careful with legislation like the Expropriation Act.
Weakening the right to property – by taking away the right to compensation whenever the state has such a whim – gives more power to an already too-powerful state. The Act’s protections are inadequate and largely formalistic, to be wielded by a state apparatus that has repeatedly shown itself to be capturable by malicious and corrupt interests.
By endorsing legislation like the Expropriation Act, De Vos, as an ostensible scholar of constitutional law, undermines the very purpose of constitutionalism and makes himself a tool in the hands of politicians seeking to benefit at the expense of the liberties of the people.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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