Expropriation amendment harkens back to apartheid legal thinking

South Africans are overwhelmingly focused on the Zondo commission of inquiry into allegations of corruption during the scandalous presidency of Jacob Zuma.

There also remains lingering hope for the future under the administration of Cyril Ramaphosa.

But behind the scenes something far more deserving of attention is afoot: The mass deprivation of property rights of all South Africans in unashamed apartheidesque fashion.

If there is anything South Africans should be united against, this is it.

The calls to bring about a fundamental change to property rights in South Africa by eliminating the constitutional right to compensation when property is expropriated will serve two purposes: Giving politicians corruption-inducing amounts of power and driving a social wedge between South Africans.

We have gone through this before but have not learned from that history.

The Natives Land Act of 1913 prohibited black South Africans from owning or leasing land in the greater part of South Africa.

Obviously, however, the act had a flip side, which is often ignored. It also prohibited white South Africans from selling property to blacks or allowing them to rent parcels on their land.

As Sol Plaatje wrote in his Native Life in South Africa shortly after the act’s introduction, existing tenancy contracts could thus not be legally renewed.

Violating the act would entail a fine of up to 100 pounds – a considerable amount of money at the time – or imprisonment or hard labour for up to six months.

Government sought to prohibit the common practice at the time of whites engaging in mutually-beneficial proprietary arrangements with black South Africans.

The Act also created the Natives Land Commission, tasked with determining which areas the above principle would and would not apply to.

It applied everywhere in the meantime, except in the native reserves.

Crucially, the act gave government the power to expropriate any land if the owners did not agree to comply with this scheme of social engineering.

Plaatje wrote that many white farmers and black tenants continued entering into mutually beneficial verbal arrangements because they were unaware of the Natives Land Act coming into operation, and thus exposed themselves to serious penalties.

Cooperation and transaction between white and black was effectively outlawed. The law stood in the way of non-racialism.

And today we risk going down the same path.

The constitutional protection for property rights introduced in the 1990s ensured that all South Africans would be entitled to own property where they pleased, and that if that property is seized by the State, compensation would be paid.

The Constitution recognised the necessity of restitution of property, which is a matter of justice.

Where it can be shown that property was taken – and the apartheid state kept clear records of its seizures of property – it must be returned to its legitimate owners or their descendants.

Under government’s proposed regime of expropriation without compensation, the focus will shift from the strengthening of property rights for all South Africans, particularly black South Africans, to vesting more power in the hands of the State.

Government justifies this almost exclusively on racialist rhetoric, just like the government in 1913 did.

The justice that the Constitution calls for will be replaced by political expediency.

Expropriation without compensation will benefit nobody other than the ruling elite and their cronies, and certainly not the poorest of our society.

It has been shown conclusively that strong protections for private property rights produce wealth.

The Fraser Institute’s Economic Freedom of the World report consistently ranks those countries with such protections in the top quartile of its index.

The World Justice Project’s Rule of Law Index, furthermore, measures governments’ respect for property rights and makes clear that providing adequate compensation when property is expropriated is fundamental to upholding the rule of law.

When both these indices are compared with measures of prosperity like the United Nations’ Human Development Index, the most prosperous countries are those that uphold and respect private property rights and the rule of law.

The Fraser Institute’s index even shows that the poorest 10% in free-market societies earn around seven times more than the poorest 10% in societies with controlled markets.

But private property is not only a key ingredient for the prosperity of all South Africans. It is also a fundamental part of human dignity.

Without the ability to keep and use the fruits of our labour, we lose the ability to decide for and take responsibility for ourselves.

Property rights are not some tool for commercial exploitation, but are an intrinsically human institution without which we cannot progress.

The Bill of Rights protects this institution, and has been consistently undermined over the last few years as South Africa’s declined ranking in both the economic freedom and Rule of Law indices shows.

Civil society must close ranks around the Constitution and its guarantee of protected private property, and tell government “never again.”

• Martin van Staden is Head of Legal Policy at the Free Market Foundation and is pursuing a Master of Laws at the University of Pretoria. He is author of ‘The Constitution and the Rule of Law’ (2019).

 This article was first published on City Press on 10 October 2019

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