The public can comment on the proposed Expropriation Bill until 28 February. We should all register our dissatisfaction with the bill. In addition, the parliamentary ad hoc committee on the amendment of section 25 of the Constitution very recently announced that it will attempt to finish its work by mid-March. But perhaps we are missing the fundamental point regarding expropriation without compensation (EWC), and we should re-orientate ourselves first before continuing the discourse.
Where are we now in the process?
Section 25 of the Constitution requires that when government expropriates private property, just and equitable compensation must be paid. Government wants an exception wherein it may sometimes expropriate property without any compensation being required. To achieve this, government needs to amend the Constitution, and this is known as the Constitution Eighteenth Amendment Bill. The amendment bill provides that Parliament may determine in legislation those cases where no compensation need be paid. Putting the cart before the horse, government has proposed an Expropriation Bill which defines those cases.
The provisions in the Expropriation Bill that relate to EWC, as things currently stand, are unconstitutional. Contrary to the views of some, EWC is not already "implicitly" possible in terms of the Constitution. Therefore, before the Expropriation Bill can be adopted, the Constitution Eighteenth Amendment Bill must be adopted. But these are the very types of details that South African constitutionalists must not get lost in.
While commenting on and opposing the Expropriation Bill and the Constitution Eighteenth Amendment Bill is crucial, we must guard against playing by government's parameters, thereby allowing it to define the field of opposition. The details are important, of course, but we must not lose sight of the fundamental principles at play.
The bigger picture is that EWC is intrinsically a disastrous idea: the stuff of societal collapse and even dictatorship. I'm sure this assertion will attract the ire of many apologists of the so-called reformists in the ANC, who also like finger-wagging at classical liberals for "alarmism" or "unrealistic" expectations about secure property rights. That aside; in every instance where EWC has been tried, it has eventuated in disaster. And the governments that have implemented this policy have rarely been, or remained, democratic.
There is nothing respectable about EWC. Restitution of land rights is what is respectable, but EWC has nothing to do with righting the wrongs of the past. If that were government's true objective, it would long ago have allocated a bigger budget to the Land Claims Court, which deals - quite effectively when it has the resources - with restitution claims. No, EWC is nothing more than an ideological power-grab - a first step in the second stage of the widely acknowledged National Democratic Revolution: taking over the reins of economic power.
A government bent on monopolising the levers of power cannot tolerate a propertied citizenry. When the people are prosperous owners, civil society becomes a powerful force equal in stature to that of the State, allowing it to effectively push back on government's preferred impositions. But when the people are mere tenants who live at the mercy of politicians or officials, permanent hegemony is guaranteed. None will bite the hand that feeds them.
It is precisely because EWC is not respectable and only concerned with power rather than justice, that even if government goes ahead with this ill-fated policy, it will eventually have to walk it back. There will come a time in five years, ten years, 50 years, when a sane faction in the ANC, or a different party altogether, will take over government.
This government will, rightly, be desperate for foreign investment and for ordinary South Africans to also start investing in their assets. Once EWC is implemented, no rational South African will continue to develop and build-up their property, knowing the State can seize it at any moment without paying a dime. The hypothetical future government will therefore have no choice but to start paying compensation to the owners, or their descendants, of properties that it took through EWC. We are already seeing the Zimbabwean government making similar noises after its own ill-conceived flirtation with EWC in the early 2000s. The same scenario will play out in South Africa.
Why don’t we rather avoid this drama and humiliation?
Government can proceed with EWC, but it must firmly exclude all private property and set its sights firmly on unused or underused State property, of which there is a lot across the country. These properties must be taken without compensation and distributed to deserving families, not as tenants, but as owners.
Expropriation is hardly the only, or even the most effective, tool for speedy land reform.
Most South Africans have no desire to be agriculturalists. They want to live and prosper in the cities. Millions of poor South Africans have lived on peripheral townships for generations, but never as owners. They are tenants of the municipality, which is a relic of the Apartheid legal doctrine that blacks, coloureds, and Indians could not own property in "white South Africa", but were "temporary sojourners".
In many cases people built their homes for themselves, and in others, the municipality built the houses. But in all cases, these are the rightful owners of their homes today, and they should be given the title deeds to their property immediately. Only then will "townships" - a word which, uniquely to South Africa, carries the implication of poverty - become "suburbs". For what has always set "suburbs" and "townships" apart, has been that in the suburbs there are private property rights, and in the townships there is municipal leasehold. The Free Market Foundation's Khaya Lam project leads the way in this regard.
It is very important that South Africans not become mere passengers on government's expropriation narrative. It will have us believing that government is 'helping' our society by destroying constitutional property rights. There are very real, easily implementable things that government can and must do -- distributing State land, recognising urban property rights -- but which it doesn't want to do for self-interested reasons. The time is now for South Africans to rally around the Constitution and prevent the potential death of the South African dream.
This article was first published on City Press on 25 February 2021.