The courts may retain some ability to review executive decisions on compensation, but not to enforce an alternative. There is much here that is reminiscent of the Expropriation Bill of 2008, which similarly sought to limit the role of the courts, writes Terence Corrigan
Expropriation without compensation (EWC) has loomed over South Africa since at least the end of 2017, a cause of significant concern for (initially) the farming community, and over time for various others.
There exists by now considerable trepidation among businesses - local and foreign - and ordinary homeowners, who see in this a threat to their assets and livelihood.
They are right to do so.
EWC is not only a threat to people's property, but shifts the relationship between the state and those subject to it decisively in favour of the former.
The degradation of property rights would undermine material well-being and citizenship.
Yet throughout the past two years, these concerns have partly been assuaged by a faith that South Africa is a constitutional state.
The powers of the state, even those that might be expanded by legislation or a constitutional amendment, would still be restrained.
President Cyril Ramaphosa has been at pains to reiterate that whatever happens will happen within the Constitution and the law.
To which one might respond: it depends what the fate of the Constitution and the law is.
That the flagship of the EWC drive has been the amendment of Section 25 of the Constitution always made reliance on the constitutional order an uncertain strategy.
And now, it seems, the ANC has shown its hand.
After the recent lekgotla of the party's National Executive Committee, Ramaphosa remarked that the gathering had "endorsed the recommendation that the power to determine the quantum of compensation for land expropriation should reside in the executive".
Although noted in the media, the full implications of this would be spelled out by Dr Mathole Motshekga, chairperson of Parliament’s ad hoc committee on the amendment of the Constitution.
As it had been introduced, the amendment provided for an explicit role for the courts in cases of EWC – its wording being: "a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil."
The ANC's position is now to excise this provision, and vest this function - following the president's comments, matters relating to the amount of compensation in general - in the executive.
This is not just as a matter of practical policy (though it is that, and will presumably be confirmed through forthcoming legislation), but as a constitutional stipulation.
This is deeply concerning, as it sweeps away a vital protection against abuse that South Africa's Constitution has promised its citizens. What this portends is the replacement of the adjudication of the courts with the discretion of politicians and bureaucrats.
The courts may retain some ability to review executive decisions on compensation, but not to enforce an alternative. There is much here that is reminiscent of the Expropriation Bill of 2008, which similarly sought to limit the role of the courts – and was ultimately withdrawn as its manifest unconstitutionality became evident.
In the current train of events, it is the Constitution itself that will be tampered with to facilitate just this goal, to the detriment of South Africa’s citizens. This has grave implications for the country’s constitutional order itself. For people’s rights in respect of their property are no less important than any others presented in the Constitution.
In this respect, it is worth reflecting on the comments of Tembeka Ngcukaitobi - a vocal advocate of land reform - who had this to say just over a month ago.
In an essay on the (then) proposed constitutional amendment, he drew attention to the need for land reform to be undertaken via processes that respect the rule of law.
"The amendment returns into the spotlight the rule of law," he said.
"The centrality of courts as arbiters of disputes in society is entrenched in the Constitution. Not only is the law supreme, judicial pronouncements are final and binding on other organs of state. The amendment affirms this. Only a court may decide whether compensation is to be paid.
"A flexible standard that is just and equitable should still be applicable in cases of disputes over compensation. Unless legislation further elucidates the content of justice and equity, courts will operate from a blank slate. Many will view this as slowing down land reform, because disputes about compensation are notoriously slow to resolve in courts. Yet the rule of law is a crucial safeguard against the rule of the strong."
One may of course argue with his interpretation of the text of the amendment (which the ANC is now intent on discarding), but it is difficult to argue with his contention about the crucial importance – extending beyond land reform – of the law and the courts.
The outcome of an election or the popularity of a government, which Motshekga has invoked to justify his party's plans, should never be seen as a substitute.
Indeed, if South Africa has learned anything from the past decade it should be a skepticism of the exercise of power.
It is something that is easily abused. The dangers of the ANC's plans are profound and immediate for property rights and people's assets – and they are insidious for the constitutional order.
- Terence Corrigan is a project manager at the Institute of Race Relations