Giving the executive, rather than the courts, the power to decide when seizing property without paying for it is fair does not serve the quest for human dignity, liberty and prosperity; instead it destroys it.
Government’s approach should concern all South Africans who consider themselves constitutionalists.
The proposed amendment to the Constitution that will allow for land expropriation without compensation is already at odds with the principles of constitutionalism, and the parliamentary committee’s intended modification of it will render it catastrophic.
The apartheid regime flourished on disregarding private property rights, particularly of black South Africans.
It was in the wake of this terrible episode of our history that South Africans decided to never again let the rights of citizens become the domain of government’s discretion.
While the Constitution did not originate our inborn rights, they were spelled out for protection’s sake.
This recognition and protection of rights is what many people died for during the struggle.
It is the very reason for the existence of our constitutional order.
Expropriation without compensation is deeply offensive to this fact.
Constitutions – be they of a country, a firm or a club – exist to constitute certain structures and delimit their powers and scope.
Constitutionalism, as the surrounding philosophy or doctrine of constitutions, is all about limiting the power and scope of government.
The motivation for this doctrine is the protection of the rights and interests of citizens, which the state, through the hypothetical social contract, has promised to secure against interference.
This brief and perhaps reductionist exposition of constitutionalism is key to appreciating the problematic nature of the South African government’s adoption of the notion of expropriation without compensation.
The proposed Constitution Eighteenth Amendment Bill was published over the holiday period with a hopelessly inadequate public comment period – a mere 49 days.
Government on Thursday extended this short period until the end of February.
Briefly, the eighteenth amendment will change the Constitution to allow government to seize private property without paying for it, and tasks Parliament with defining – in legislation – under which circumstances this may happen.
The courts will then decide in those specific circumstances whether zero compensation is just and equitable.
The committee tasked with drawing up this amendment, however, has made an about-turn and now says it will modify the amendment to say that the executive government – Cabinet, ministers and officials – not the courts, will determine in the final instance whether any compensation should be paid.
The courts’ role is not, and cannot be, entirely ousted but significantly reduced.
Expropriation of land without compensation, irrespective of the details of its implementation, is itself inherently contrary to the Constitution.
In open and democratic societies, a standard the Constitution commits South Africa to reaching, only criminals are liable to having the property they used in their crimes seized without compensation.
Outside of these circumstances the private property of citizens is respected and protected, and compensation is paid when it is expropriated, given the importance of security of ownership to human dignity, individual liberty and economic prosperity.
Having nameless, faceless bureaucrats in the executive government decide whether it is fair to allow property to be seized without compensation would be disastrous.
It is precisely the kind of invasive discretionary power that the imperatives of the rule of law – another fundamental postulate of our constitutional order – try to guard against.
To have the executive, rather than the courts, make this determination is to sacrifice South Africa’s future at the altar of political expediency.
The courts, at least, are staffed by judicial officers immersed in the doctrine of constitutionalism.
They do, or at least are certainly supposed to, appreciate the fact that the Constitution seeks to protect citizens and their property against undue interference from government.
Undermining judicial review is therefore grossly inappropriate.
We must, nevertheless, be alive to the fact that government may be engaged in a sophisticated tactic to get the public to accept the eighteenth amendment in principle.
Indeed it might happen that just before the amendment is adopted government will abandon its plans to have the executive determine when zero compensation is payable, which would understandably create the impression that government has been beaten by the forces of reason.
The opposite would be true because the Constitution would still have been amended to allow for expropriation without compensation, even if the courts would be involved in trying to ensure its fair application.
It is for this reason that South Africans should reject the eighteenth amendment in principle, even if our particular focus is on retaining strong judicial review mechanisms as a second prize.
The Constitution is in imminent danger.
It does not matter that government complies with the amendment procedure set out in section 74 of the Constitution because the Constitution is not only relevant to the legal domain but also to the political, economic and social domains.
It is here where it must be jealously guarded.
Our supreme law is being amended with an unambiguous ulterior motive – besides land reform – in mind, and that is the centralisation of power in the hands of government.
Whether the legislature or the courts are said to be the final arbiter on expropriation without compensation, both those institutions will in time be the lapdogs of the executive, as has happened in every society that abandoned constitutionalism to satisfy passing political whims.
The Constitution Eighteenth Amendment Bill is set to become law. This is not constitutional development, but constitutional deterioration.
Constitutionalists of all stripes must see it as their mission, with time, to undo this lethal injury to our legal order and to restore the constitutionalism that was painstakingly constructed in the ruins of apartheid.
- Van Staden is head of legal policy and research at the Free Market Foundation. He is pursuing a Master of Laws degree at the University of Pretoria and is author of The Constitution and the Rule of Law: An Introduction (2019). The views expressed in the article are the author’s and are not necessarily shared by the members of the foundation