Section 25 of the Constitution is, to many legal thinkers and judges, an inkblot in the constitutional text – it is the disfavoured right. Much intellectual and judicial work has been done to undermine it and water it down, no less by the likes of Pierre de Vos.
Read Part 1 and Part 2 of this series, dealing with constitutional fraud and legal philosophy respectively.
This part will address De Vos’s mischaracterisation of section 25 of the Constitution.
Part 4, the final part, will deal with De Vos’s and other people’s uncritical acceptance of judicial errors, particularly in light of disfavoured rights.
There is no better place to start than with the by-now-routine implication that private property somehow stands opposed to the public interest.
Private property is in the public interest
De Vos writes that when the courts are called upon to evaluate whether compensation in expropriation cases has been constitutionally compliant, the courts must balance the interests of the person whose property is being expropriated against the public interest – which includes land reform.
The actual constitutional language is that the determination must reflect “an equitable balance between the public interest and the interests of those affected.”
To read this provision – as De Vos does – as meaning the (private) interest of owners in their (private) property must be weighed against the (public) interest of government in that property, is to once again engage in counter-constitutional interpretation.
Secure property rights are in the public interest. If they were not, this would not have been included and recognised in the Constitution. Every civil liberty is in the public interest, hence the existence, per se, of bills of rights and constitutional restraints on state power.
Research done by Anisha Madan indicates clearly that those countries where the freedom of individuals – including their right to own private property – is respected and protected, are the countries that consistently top the indices that measure human development and prosperity.
This protection cannot be dismissed as a mere private interest that must be balanced against a perverse conception of state power as a matter of public interest.
Property rights are a necessary precondition for sustainable investment, development, and economic growth. This is made clear in the World Justice Project’s Rule of Law Index as well. None of these are “private” concerns; they quintessentially serve the public interest.
This does not mean property rights come at the expense of what most would – perhaps wrongly – regard as legitimate government social development and welfare programmes.
The far more likely case is that well-protected property rights, which lead to economic growth, investment, and development, in fact contribute in large part to the ability of the state to maintain and expand these programmes.
The Expropriation Act is a threat to private property rights (thus, to investment, development, and growth), and as such a threat to the public interest.
Finding “redistribution” in the Constitution
A phenomenon that is assuredly not in the public interest is so-called redistribution.
Redistribution, on paper, is the act of government seizing property from its rightful owner and giving it to someone else for some political reason or another. It is not a matter of restitution, where property is taken from an illegitimate owner and restored to its rightful owner.
In South Africa’s reality, redistribution is the government taking property from its owners and keeping that property under state ownership, to be leased out. This is, effectively, nationalisation.
De Vos reads a constitutional allowance for redistribution into section 25 of the Constitution, in particular section 25(5). This provision states that government “must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
As I have argued before, against De Vos, on this exact point:
“There is a world of a difference between clinically arguing that blacks must be made to own the exact amount of land proportional to their population size, and arguing, as the Constitution does, that all South Africans must be enabled to access immovable property on a fair basis.
Reasonable measures that foster conditions enabling citizens to gain access to land on an equitable basis cannot be interpreted as providing for or implying coercive redistribution. Redistribution does not ‘enable citizens’ to gain access to land; instead, it deprives some citizens of land and makes other citizens tenants on the land which is now owned by the State. Coercive redistribution is also not ‘reasonable’, if reasonableness is understood as the convictions of the reasonable person. Indeed, as IRR research shows, only about 1% of South Africans want land reform to be sped up.”
In fact, political and demographic formulas that problematise “patterns of ownership” are academic endeavours unrelated to the lived reality of ordinary South Africans – the “reasonable persons.”
Only academics, journalists, and politicians fret about the “problem” of the racial makeup of property owners – no ordinary South African lies awake at night worrying about the fact that people who belong to another race own a certain percentage of land. At best, they worry about the fact that ill-begotten land has not been returned to its true owners, which is restitution – a clear matter of justice, not redistribution – an academic political concern.
Constitutional reasonableness requires the existence of a legitimate government purpose, which in this context evidently does not exist. Using state force in pursuance of essentially academic ends is neither reasonable, nor is it a legitimate aim of government according to the Constitution.
The fostering of conditions also cannot be regarded as akin to directly seizing property and distributing it.
When government is enjoined to create a conducive environment, or “foster conditions,” that means – through policy or law – that it must enable ordinary South Africans to participate in land ownership themselves. Indeed, the fostering of conditions necessarily implies a supportive role for government, not a direct, interventionist role.
An example of government fostering conditions for citizens to gain equitable access to land in this context, is to repeal the laws against subdivision, and allow owners of large agricultural properties to subdivide that land freely and sell it at affordable rates to aspiring agriculturalists. Or, as another alternative, it can reduce or eliminate property taxes related to rural land.
Finally, to construe “equitable basis” as meaning the Constitution is implicitly reviving the old Population Registration Act and requires government to socially-engineer a new “pattern of ownership” of property, would be an unreasonable, arguably unlawful construction of constitutional meaning.
Section 1(b) of the Constitution provides that South Africa is founded upon the value of non-racialism. Section 25(5) cannot therefore be assumed to be animated by the same racial engineering considerations that the architects of race laws from the previous dispensation had in mind.
The far more reasonable and constitutional meaning of the reference to “equity” in this section, is that it requires the poor to be given a leg-up in access to the land market, and this is what government must create the conditions for. This is not within the nature of redistribution.
When De Vos therefore tries to rubbish arguments against the Expropriation Act on the basis that they pretend “that the provisions on land redistribution” in the Constitution “do not exist,” constitutionalists must with full-throated conviction submit that the provisions on “land redistribution” do in fact not exist.
Section 25 of the Constitution, plainly, concerns itself with:
- the protection of property rights (subsection 1);
- the strict control of the expropriation power (subsections 2-3);
- creating a conducive environment wherein land ownership becomes accessible on a broad basis (subsection 5);
- securing past legally-insecure tenure (subsection 6); and
- returning (specific) dispossessed property to its (specific) rightful owners (subsection 7).
There is no hint of coercive “land redistribution” in the Constitution. Reading section 25(5)’s plain language – whether you are an academic or a judge – in such a way is impermissible.
Clownish “nil” compensation
De Vos writes:
“Some critics of the Act also ignore the fact that it continues to require the payment of just and equitable compensation, either agreed to by the parties or determined by the courts, and thus that the ‘nil compensation’ provision does not allow expropriation without just and equitable compensation.”
Discourse between postmodernists like De Vos and the rest of us would have been more constructive if the former at least had some empathy for the immense frustration their abuse of language causes.
For De Vos to write, without a hint of comedy, that the Expropriation Act’s allowance of expropriation for “nil compensation” does not allow expropriation without just and equitable compensation, shows how this discourse amounts to an orgy in a clown car.
“Compensation” means to repair a damage done. It might not always, necessarily, mean repairing the full damage done, but some substantive measure of the damage must be repaired.
Why?
Because if not, then whatever you are engaged in, necessarily, logically, conceptually, is not compensation.
When you are engaged in the activity of compensation, your purpose is to repair the damage done. If you go no real distance toward repairing that damage, you are engaged in something else, rather than compensation, and thus are operating outside of the bounds of sections 25(2) and (3) of the Constitution.
“Nil” means nothing. “Nil” repairs nothing. “Nil” compensates nothing. “Nil,” therefore, never, ever, under any circumstances, could qualify as “compensation.” The Constitution goes further to clarify this, requiring explicitly that compensation must be an “amount,” and that there must be “payment” – neither of which “nil” could ever satisfy.
It is therefore just impossible, and no amount of intellectual sophistry will change this basic reality.
R1 compensation
In a follow-up thread on X, De Vos submitted R1 as an alternative.
At least with R1, we are making some discursive progress. We have departed from the clownish notion of “nil-can-be-compensation,” and entered another important discussion. This is excellent!
R1 is compensation. But it is, obviously, only formally compensation.
If a R15 million farm has been expropriated for R1, then this “compensation” (in form) amounts to nothing (in substance). It has achieved nothing. It has compensated nothing.
More importantly, once an expropriating authority seeks to pay R1 as compensation, it is brazenly engaged in malicious compliance with a constitutional requirement. This is impermissible.
And this would apply to any amount below R15 million that does not, in a real, substantive sense, compensate the owner for the damage suffered as a result of the expropriation.
At least since the end of parliamentary sovereignty and the formalism associated with that approach to governance, South African law has observed the overriding principle of substance over form. Reality over simulation. Actuality over appearance. Verity over façade. Truth over decoration.
Seeking to pay R1, or R100, or R100,000 for a R15 million property is calculated and designed to give the appearance, façade, decoration, simulation, of compensation – all without actually compensating anything.
I know De Vos knows this. And De Vos knows I know that he knows this. So I do not quite understand why he, a full professor of law, sought to take us down this road. After all, substance over form – in a most perverse application of that principle – is what animates De Vos’s and many others’ preoccupation with so-called “substantive equality” over “formal equality.”
In the same way that De Vos intellectually arrives at “substantive equality” over “formal equality,” he must (necessarily!) arrive at real “substantive compensation” over mere “formal compensation.”
Nonetheless, this is far better than remaining stuck in the absurd postmodernist world of trying to argue that “nil compensation” could ever qualify as the “payment” of an “amount” of “compensation” as required by sections 25(2) and (3) of the Constitution.
This does illustrate, however, that the problem with the Expropriation Act goes beyond its preposterous provision for R0 compensation. The fact that the Act, errantly supported in some cases by the courts and certainly by the intelligentsia, has seen fit to equate the constitutional “just and equitable compensation” with “below market value compensation” is almost as problematic.
This law has no place on the statute book of a country that regards itself as a constitutional democracy.
[Photo: by Pixabay: https://www.pexels.com/photo/assorted-banknotes-and-round-silver-colored-coins-210574/]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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