9 April 2019
Land reform bills threaten everything the struggle achieved
Should the change to section 25 of the Constitution to allow expropriation without compensation (EWC) go ahead, government, in effect, while continuing to recognise property rights, will fail in its constitutional duty to protect them. Recognition without protection is meaningless. The constitutional guarantee of protecting property rights is fundamental to a democratic, free and prosperous society. Removing the guarantee of compensation removes these conditions. It is contrary to the concept of human rights and against the logic of the Constitution itself. Rights are not owned by government. They belong to the people.
The Bill of Rights does not ‘give’ rights. It merely recognises already-existing rights and protects them. Human beings have an inherent human right to receive compensation when their legal property is taken from them. If this right is not respected, it threatens all other human rights including the rights to dignity, to liberty, to just administrative action, to fairness, and to accountability.
Free Market Foundation (FMF) directors Leon Louw and Temba Nolutshungu were instrumental in having the property rights provision inserted into the Constitution in the mid 1990s. Through its Khaya Lam land reform project, the FMF continues to fight for property rights for the millions of South Africans who, even today, still do not enjoy freehold title.
There is some confusion regarding the two bills in circulation regarding land reform. The Expropriation Bill, closed for public comment since 19 February, is not of the same nature as the upcoming Constitution Amendment Bill, which was due to open for comment on 31 March 2019.
Although both bills will provide for expropriation without compensation, they are different in important respects.
The Expropriation Bill seeks to replace the previous, pre-constitutional 1975 Act of the same name. The FMF has made a written submission calling for its withdrawal or substantial amendments (read here). This bill, however, is ordinary legislation that has been work in progress for many years. It is not new and is not related to the current political push for EWC as a fundamental change to the Constitution. Enacting, amending, or in future repealing the Expropriation Bill requires a simple majority of 50% + 1.
The Expropriation Bill is being enacted within the current constitutional context, meaning the Bill recognises that there is a need for “just and equitable” compensation but the bill also makes the case for nil compensation in certain circumstances. Should the Constitutional Amendment Bill be enacted into law, the Expropriation Bill may have to be amended again to reflect the new paradigm.
The Constitution Amendment Bill that will bring about EWC is constitutional law, and is unprecedented in South Africa because it is the first ever change to the Bill of Rights. The Bill of Rights is enshrined in chapter 2 of the Constitution, which contains section 25.
There is some debate about the size of majority required to amend the Bill of Rights but the minimum it would require is 66%. This two thirds majority protects the current structure of the Constitution, but it also makes it difficult for future generations to reverse this imprudent change to our highest law. The change also creates a dangerous precedent for future governments to take away other rights such as the freedom of expression.
While the Expropriation Bill is problematic, it does not present an irreversible and existential threat to our future as does a constitutional amendment.
Expropriation without compensation is a bad idea in any form. Proposed changes to section 25 will reverse much of the gains for which South Africans fought, and many died.
Now, in 2019, it will give constitutional authority to the same doctrine under which black South Africans had to suffer during Apartheid where property could be confiscated and, if any at all, grossly inadequate compensation was paid.
The current Constitution guarantees property rights for all, irrespective of race. Amending section 25 will undermine this protection and, once again, the most vulnerable in society will be the main victims. No compensation will hit poor black people the hardest and will be subject to the whims of lowly municipal officials who may have petty scores to settle.