It seems the African National Congress (ANC) is determined to press ahead with the expropriation of property without compensation. This raises a number of constitutional questions. These questions and offered answers have appeared in the press.
Some have argued the constitution will have to be amended while others have argued land can be expropriated without compensation without amending the constitution. Along these lines, then, a further question which has arisen is, if it is amended, what percentage of members of the National Assembly will be required to approve the amendment?
In terms of s74 (1)(a) of the constitution, 75 per cent is required, but, in terms of other provisions, two-thirds is required. So, the question arises, does the amendment fall within the purview of s74(1)(a) or does the amendment fall to other provisions of the constitution? Amending s1 of the constitution falls within the preview of s74(1)(a) which requires 75 per cent of the vote.
I am of no doubt that to expropriate property without compensation so as not to breach the constitution will require 75 per cent of the vote because s1 will have to be amended to excise the words “rule of law” and “human rights” from the constitution. The Rule of Law and Human Rights requirements are contained in s1 of the constitution.
The Rule of Law is a well-known concept but seldom specifically incorporated into legislation. It is one of those fundamental concepts which form the foundation of constitutional principles but is not itself specifically incorporated into the constitutional document. This is like coming across a breathtaking scene and gasping “What a beautiful sight”, but, try as you may, the words cannot be found to explain what you mean by a “beautiful sight”. The detailed description of the scene does not succeed in conveying the “beautiful sight”. The verbal description does not come close to conveying the abstract beauty. The readers of your words will never, via those words, experience the actual “beautiful sight”. In similar manner, the words contained in legislation can never quite express the full meaning of the Rule of Law. In most cases legislation although informed by the concept, the phrase “rule of law” is omitted as part of the legislative text.
The South African Constitution is a rare exception to the rule.
It explicitly incorporates the Rule of Law into the constitution as the fundamental principle of the constitution. That this was done is correct. A constitutional democracy can only be a constitutional democracy if it functions in terms of the Rule of Law. The requirement for the Rule of Law is incorporated into section 1 of the constitution. There are some who hold the South African Constitution as one of the leading constitutions in the world. Incorporation and functioning in terms of the Rule of Law would validate that view.
Section 1 thus contains the founding provisions of the nature of the Republic of South Africa. The relevant portion reads:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values
(a) … the advancement of human rights and freedoms…
(c) Supremacy of the constitution and the rule of law.”
Section 2 is also pertinent:
“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.
In terms of s2 the Rule of Law cannot be breached and must be upheld. It cannot be ignored. If breached or ignored the constitution is violated.
I have demonstrated elsewhere that expropriation of property without compensation is a violation of the Rule of Law. Thus any “law” which is passed allowing expropriation without compensation would be in breach of s1 (a) and (c) of the constitution and this “law” would be invalid in terms of s2 of the constitution. The state acting in terms of that “law” would breach s2 of the constitution.
This brings us to human rights contained in s1(a) of the Constitution.
The Lord Chief Justice of the United Kingdom, Tom Bingham, spent the final period of his productive life finishing his book, The Rule of Law. He explains the Rule of Law in terms of eight imperatives, one of which was to protect Fundamental Rights. He points out the Rule of Law prohibits the arbitrary confiscation of property without compensation. He continues; the treatment of white farmers in Zimbabwe would be the most obvious example of this.
Thus, the only way to pass the law allowing expropriation of property without compensation without violating the constitution would be to excise “human rights” and “the rule of law” contained in s1 from the constitution. To do this requires a 75 percent vote.
Of course, excising “rule of law” from the constitution does not mean the Rule of Law is not violated. It simply means the letter of the South African Constitution is not breached. The Rule of Law itself is still violated. In fact, in all probability, so will the amended constitution be violated even with the words “rule of law” excised. As indicated above, the Rule of Law is seldom explicitly included in legislative documents. But the spirit of the Rule of Law is infused deeply in constitutional theory which informs constitutionalism as a whole.
One cannot thus say America is a country which operates outside of the Rule of Law simply because the words “Rule of Law” does not appear in the American Constitution. The spirit of the Rule of Law will remain infused in the South African Constitution. While one may be unable to find the words to explain why a scene is beautiful, without those words the scene remains beautiful.
Excising the words “rule of law” and “human rights” requires a 75 per cent vote to formally remove these words. As long as the words remain in s1 of the constitution, it will be clear to all that expropriation without compensation violates the South African Constitution and the government is failing in its obligation to uphold the Rule of Law. Removing them, allowing some to claim they have acted in terms of the constitution, is as meaningless as the Nazi generals claiming at Nuremberg they were merely following their orders; they were merely acting in terms of the “law” of their land. The answer given at Nuremberg to that argument was clear: In obeying the “laws” of their land, they were committing crimes against humanity.
The Rule of Law does not obtain legitimacy from the South African Constitution. The South African Constitution obtains its legitimacy by upholding the Rule of Law. Without the Rule of Law, the South African state becomes but yet another failed state and its constitution yet another failed constitutional experiment.
Robert W Vivian is Professor of Finance & Insurance, School of Economic and Business Sciences, University of the Witwatersrand