Constitution errs in tipping the scales in favour of expropriation

The rule of law is the law of laws. Although the constitution gives explicit recognition to the rule of law, it has a separate authority that emphasises the primacy of individual liberty, as well as the right to private property. Since the advent of the constitutional era, SA jurisprudence has, however, focused upon the constitution, with scant attention paid to the rule of law.

First, a subversion: there is no good law, only necessary law, which is the law that serves a social utility. This assertion fits in precisely with the philosophy that emerged from the Enlightenment. A social utility is the fulfillment of the societal needs of a community of autonomous individuals. Those philosophers who conceived of the requirement of a social contract, and its purpose in the exchange of liberty for security, would have assented.

The aphorism quis custodiet ipsos custodes may be thought to be of juristic provenance, but is not. The author was a Roman poet named Juvenal, and the expression comes from his Satires. Its endurance shows that this poet had a profound social, political and juristic wisdom. There is much to be learned from the insights of literature; from the values of Shakespeare, Marlowe, Goethe and Dostoevsky.

In a tribute to Greek culture and philosophy, Albert Camus wrote: “Greek thought always took refuge behind the conception of limits. It never took anything to extremes, neither the sacred nor reason … it negated nothing … Nemesis, the goddess of measure and not of revenge, keeps watch …”

Camus alerts us to two critical elements of the rule of law here. The requirement that limits are set, and the measure by which these are determined. It speaks to the issue of legitimacy: that which the law may seek to accomplish and that which it dare not attempt. Legitimacy can only be achieved with an acknowledgment of the primacy of individual liberty. And economic freedom is inseparable from individual liberty. Wherever the one is threatened, an equivalent threat emerges for the other. The right to acquire and hold private property is therefore a consequence of the right to individual liberty. The two values are conjoined.

In his work, The Ethics of Liberty, Murray Rothbard wrote of a “natural self-ownership”, derived from the law of nature.

There are two sources for the concept of private property rights in SA law: the constitution (section 25) and the rule of law. The former is a creature of statute, and while there has been much debate about the possible amendment of this section and how that might be accomplished, the rule of law raises juristic issues of an entirely different kind. The rule of law is not dependent upon statutory verification because it is a primordial virtue, deriving from the law of nature. There is both a juridical and a philosophical dimension to the rule of law.

Philosophically it embraces the principles of right (not rights) and liberty. The right referenced within this context is the equivalent of reason. These are the values that emerged from the Enlightenment of the 18th century.

In its juridical conception the rule of law is the supervening authority of the law; it is not the law, it is the law of laws. It is not the given law that confers the right to private property, just as it does not confer liberty. Each value is a self-sustaining construct, a natural consequence of humanity. However, the subordination of the individual to the law, and to the lawmakers, has done much to subvert these truths.

The Enlightenment, which was a reaction against the tyranny of the feudal system, in which property rights and individual liberty were afforded only the aristocracy, placed great emphasis upon the inviolability of liberty and property for the advancement of the morally ordered society. John Locke wrote in his Two Treatises of Government of the virtue of life, liberty and property.

The origin of the rule of law is often said to be the Magna Cartaof 1215, but its real origin can be traced back millennia before that date. In 1750 BC, Hammurabi of Babylon subordinated his regal authority to the superior heft of the gods, Anu and Bel, who had, according to Hammurabi’s account, instructed him to “bring about the rule of righteousness in the land”. Hammurabi thereafter dutifully implemented the instruction. Because he “feared God”, it may be assumed that he would have been anxious not to disobey the command. Although not yet the rule of law in a formal sense, this account represents the nearest equivalent to the rule of law that ancient history has provided.

The Enlightenment spawned two related revolutions: the American revolution of 1775–1783 and the French revolution of 1789. An immediate outcome of the American revolution was the US constitution, the first example of a social contract and which also contained a codification of some of the important principles of the rule of law.

Likewise, the SA constitution represents a social contract between the various societal elements which might otherwise have been in a state of perpetual conflict, if not warfare. Like the US constitution, the SA constitution contains a codification of some important principles of the rule of law.

In SA jurisprudence, the constitution has received far greater attention than has the rule of law. This is a grievous error — for the rule of law, the progenitor of constitutionalism in any form, contains a wealth of moral wisdom unequalled in any constitutional dispensation.

The vexed issue of expropriation without compensation received judicial scrutiny in the case of Agri SA vs the minister of minerals and energy. In its judgment, the Constitutional Court based its conclusion exclusively upon the provisions of the constitution. In the process, it evaluated the form and substance of section 25 and determined that when the state acquires property without compensation this does not amount to an expropriation (for which compensation would be payable). The reason given for this extraordinary conclusion is that the state does not, in these circumstances, become owner of the property taken, but holds the property as “custodian” for the people of SA.

The requirements of the rule of law were not even considered in this judgment. Bearing in mind that the rule of law is a substantive and separate iteration of law and that the property rights rendered thereby are not susceptible to the same linguistic and contextual treatment as was applied by the court to section 25 of the constitution, this was a serious oversight.

It has rendered SA property rights far more vulnerable than they may otherwise have been. It is an error that should receive urgent attention in any similar litigation in the future.

• Van Schalkwyk, a former supreme court judge, chairs the Free Market Foundation’s rule of law board of advisers. 

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