Media release: Expropriation without compensation will require 75 per cent vote – Professor Robert Vivian

Media release
17 September 2018

Expropriation without compensation will require 75% vote – Professor Robert Vivian 

75% of the National Assembly vote would be required to change the Constitution to allow general expropriation without compensation, not 66% as the ANC and EFF believe, according to Robert Vivian, Professor of Finance and Insurance, Wits School of Economics and Business Science at a media briefing held at the FMF on 12 September 2018. “SA’s Constitution is based on the supremacy of the rule of law and the advancement of human rights. The right to enjoy undisturbed ownership of own property is achieved through the Rule of law and is a basic human right protected by S 1 of the Constitution. Changing S 25 to allow general expropriation without compensation would violate S 1 and render any legislation derived from this, including the mere changing of S 25 to be unconstitutional and open to legal challenge,” he said. “Amendments to S 1 require 75%.”

Vivian said S 25 (4) (b) means that expropriation of property is not limited to land but applies to all property, and, therefore, general expropriation without compensation places all property rights at risk.

Vivian argues that amending S 25 will require amending S 1 which in turn requires 75 percent vote. “If expropriation is a violation of a basic human right, racist or a violation of the rule of law it would be a breach of S 1 which would need to be amended to remove these terms. Removing these words is such a violation of these concepts that SA would be operating outside of the rule of law.

“These concepts do not get credibility from the South African Constitution. The Constitution gets its credibility and legitimacy by upholding these concepts,” Vivian said. The rule of law is widely misunderstood and often interpreted as merely obeying and applying the law. Not so; this is Rule By Law. He quoted Justice (retired) Rex van Schalkwyk’s definition: “The Rule of Law is the barrier the law sets against tyranny” as correctly expressing the meaning of the Rule of Law. In essence, the rule of law stands between individuals and dictatorship including legalised or institutionalised murder, theft and so on.

Under the rule of law and the development of constitutionalism, individuals are endowed with unaliable rights, which are not given by constitutions, or governments or assemblies and, therefore, there is no need for these rights to appear in constitutions. But it is the obligation of the state to protect these rights.

He presented a detailed and comprehensive review of the evolution of the origins of the rule of law and constitutionalism from the English Magna Carta to the US Constitution and to our own showing that all are based on the same founding principles.

The V amendment (Takings Clause) in the USA constitution correctly states:

“No person … be deprived of life, liberty, or property [natural rights; fundamental human rights], without due process of law; nor shall private property be taken for public use, without just compensation.”

Vivian said, “It does not matter which way one looks at it, the requirements of S 1 must first be addressed, before amending S 25 is addressed. S 1 cannot be simply ignored but can be amended or repealed in its entirety (but) that would still require a 75 percent vote.” Until the actual wording of the proposed amendments to the Constitution is known, we cannot determine whether a limited expropriation without compensation can be so carefully crafted so as not to violate the rule of law.

In terms of the Rule of Law, general expropriation without compensation is an impossibility: “These are mutually exclusive,” he said. “The taking of private property without compensation is a violation of the Rule of Law and thus a violation of the basic right to property and of a basic human right.” (This was understood with the passing of United Nations GA Resolution 1803 (Dec 1962))

Vivian ended his presentation on a positive note by saying that there is still time for this issue to be resolved without resorting to amending the Constitution.


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