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Addressing the land question requires less emotion and more rationality. (iStock)
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For an expropriation without compensation mechanism to pass constitutional muster, it must have in-built rationality processes, tests and appeals, writes Mpumelelo Mkhabela
One of the most remarkable aspects of South Africa's constitutional democracy is judicial review. It allows courts to overturn legislation or conduct that is inconsistent with the Constitution.
Firmly entrenched in Section 172 of the Constitution, judicial review (although the term is not used) is a bulwark against irrational decisions of the executive, Parliament and other organs of state.
It allows for the careful but necessary encroachment of the judiciary into the terrain of other arms of government. And it seeks to guarantee rationality and justification in decision making.
All organs of state must justify their decisions and align them with the Constitution.
Anything short of the constitutionality threshold is at risk of being challenged and turned down by our courts that are entitled to issue just and equitable orders.
Findings of constitutional invalidity and remedial orders taken by the high court or appellate court have to be confirmed by the Constitutional Court.
The system is designed to balance two imperatives: the democratic imperative that gives effect to the will of the majority and rationality in decision making.
In so doing, judicial review serves as a basis for political civilisation. Without it we would be doomed.
Think about all the executive decisions that were turned down by our courts: from the government's refusal to provide anti-retroviral drugs to the defence of the indefensible thing called Nkandla security upgrades.
It is precisely because of the immense powers it bestows on courts that judicial review must neither be abused nor revoked. The rule of law is as dependent on it as it is on credible judges who are independent from political or commercial manipulation. The security of tenure of judges provided for in the Constitution is meant to secure their independence.
The fact that some decisions of judges have political consequences does not mean judges aspire or must aspire to be political office bearers. Judges must not be carried away by sheer popularity of their decisions.
Nor should they be cowed by deafening protests at their unpopular decisions.
In an ideal world, the role of judges - subjecting decisions of other organs of state to rational and constitutional scrutiny - should have the effect of instilling a culture of constitutional discipline in political decision-making.
Had our politicians been imbued with the necessary learning faculties, irrationality in government decision-making would have long been tamed.
Alas, our politicians!
The fascination with the role of judges has resulted in some in our society to seek to involve judges in matters that should absolutely have nothing to do with them. I have discussed this problem previously in what I termed "dial-a-judge-democracy".
READ: SA's dial-a-judge democracy
Many people who are understandably terrified at the possibility of a cabinet minister taking a decision about whether or not a certain parcel of land should be expropriated without compensation, would prefer that such power be located within the judiciary. They trust judges more than they do politicians. To be frank, who would blame them?
But, outside their judicial role - which is to adjudicate legal disputes and develop jurisprudence - there is no guarantee that judges won't behave like incompetent politicians who are consistently under the whip of all kinds of interests - lobbyists or factional interests - bar the national interests.
That's why it would be foolhardy to give judges a role in administrative decisions such as determining land prices. It is simply not their job. It would be unconstitutional to require of them to perform such tasks.
However, excluding judges from administrative decision-making on land expropriation doesn't mean that a cabinet minister or a state or organ responsible for deciding on land values should have absolute discretion.
Discretion in such a matter without rationality would be recipe for political abuse.
It would be unconstitutional and most likely end up in front of judges where they belong: the courts.
For an expropriation without compensation mechanism to pass constitutional muster, it must have in-built rationality processes, tests and appeals.
Much as it would be in the national interests for the process to be fast-tracked, this should not happen at the expense of rationality, due process and ultimately constitutional compliance.
Amending Section 25 of the Constitution will not necessarily speed up the process, unless the intention is to allow arbitrariness and hasty decision making that will ultimately result in our courts being clogged up with complaints while the economy teeters on the brink due to uncertainty.
Fast-tracking the process without in-built rationality mechanism might end up having the opposite effect, in that the process of land reform could be delayed.
Unlike the apartheid government that used "ouster" clauses in law and regulations to "oust" courts from dealing with politically sensitive issues which led to gross violations of human rights and the subsequent coverups, the democratic government under the current Constitution has no power to oust courts.
Section 172 of the Constitution is not up for amendment. It's actually not amendable without destroying the very essence of constitutional democracy.
The land question is emotive and is justifiably used to express anger at genuine historic economic injustice of land dispossession and the current worsening economic inequalities.
Yet, addressing it requires less emotion and more rationality.
- Mkhabela is a regular columnist for News24.
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