All the progress made since Apartheid ended stands to be undone unless people recognise that a most fundamental human right is for people to have the ability to own and control property – this includes the produce of their own efforts and being able to dispose of it as they see fit.
This implies a market economy, where all people are at liberty to deal with their property and conduct their affairs according to their own needs and motivations. Apartheid was a denial of this fundamental human right to the majority of South Africa’s citizens. To be in favour of property rights today, therefore, is not to maintain so-called white privilege, but to ensure that the benefits of property ownership that whites had enjoyed be extended to everyone. If people of all races could have the security the white population had, we would see more suburbs and fewer townships, tar rather than dust, and prosperity rather than destitution.
When the current Constitution came into operation in 1996 with a relatively strong property rights provision, everyone finally had the right to property, and almost immediately black incomes which had plateaued during Apartheid began rising steadily. This, of course, plateaued again around the time government started introducing draconian labour legislation.
Property rights are meaningless if the State is not under an obligation to provide compensation for expropriation. If you are not entitled to compensation, it means your prior legitimate ownership is denied. Such a state of affairs will make the granting of credit in respect of mostly agricultural property a thing of the past. This is what destroyed the Zimbabwean economy.
White South Africans, for the most part, will survive expropriation without compensation. There are no majority-white shanty towns in Zimbabwe. Farmers either left Zimbabwe to farm in neighbouring states, returned to England, or moved into the cities where they are still, by far, more prosperous than the black Zimbabwean majority. Expropriation without compensation would be a significant inconvenience for white South Africans, but completely disastrous for most black South Africans, in particular, the poor. This not because black people cannot farm, but because, as tenants on State-owned land, they will have no security of tenure or guaranteed entitlement to the land’s produce.
Also, people do not want to go out to the rural areas where government appears intent on driving them. They wish to live in the cities, as do people across the world. But they are not being accommodated, because many township inhabitants continue to live on municipal land; a leftover of Apartheid leasehold tenure that this government refuses to abolish.
Where government does try empowerment in the cities, it fails. RDP house title deeds come with pre-emptive clauses that, for the first eight years, prohibit owners from selling their property to others, but stipulate that they must sell to government at cost. These owners are not given a title deed when they move in but often only after several years’ delay.
Restitution of property is an imperative recognised by South Africa’s Roman-Dutch common law, and is a principle deeply entwined with property rights. It has a simple meaning: if you take property without the consent of the owner, whether through law or not, you are obliged to give that property back, and if that is physically impossible, pay compensation.
In South Africa, wherever someone can prove a claim to a piece of land that was taken from them or their ancestors by the Apartheid regime, they are entitled to that property. But the current ‘owner’, who will almost universally be an innocent party who bought the property in good faith, should be compensated and, at the very least, get back what they paid for the property. They are blameless and in no system dedicated to constitutionalism will innocent parties be punished in the way envisioned by those who favour expropriation without compensation.
To achieve a better life for all, including the poorest of the poor, freedoms and security of property must be respected and expanded. The Economic Freedom of the World study, published annually by the Fraser Institute, illustrates this by showing a strong correlation between GDP per capita and economic freedom, of which property rights is a precondition.
Every tyranny in the world today is noted for the absence of property rights. The Rule of Law, freedom, and property rights are a package deal. They do not exist in isolation from one another. None of the rights in the Bill of Rights exist without property rights. There is no freedom of expression without the ability to own our cell phones and our art and clothing. There is no right to privacy when we live in State housing. And there is no right to human dignity without having a place to call our own.
Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.