President Ramaphosa betrays constitutional promise
with Expropriation Bill – Free Market Foundation
The Free Market Foundation (FMF) regards President Cyril Ramaphosa’s announcement that his government will attempt to adopt the Expropriation Bill, despite the failure of its planned amendment to section 25 of the Constitution, as an unfortunate betrayal of the promise of constitutional supremacy. In December 2021, justice minister Ronald Lamoa made a similar problematic announcement.
“If a constitutional amendment is necessary to achieve a government purpose, failing to amend the Constitution can never lawfully be circumvented by appeals to ordinary legislation,” says Martin van Staden, FMF Executive Committee member.
“It is a clear case of fraus legis – or defrauding the law – if government attempts to achieve something indirectly after they could not lawfully achieve it directly. In this case, government failed to amend the Constitution, which is the least that is necessary if they wish to pursue confiscation of property without compensation. But now, government seeks to achieve the same end by adopting an ordinary piece of legislation, the Expropriation Bill. This is impermissible and illegal,” says Van Staden.
The FMF regards the Expropriation Bill as unconstitutional, in particular clause 12(3) of that Bill, because it provides for so-called “expropriation” of private property where no compensation need be paid by government. As it stands, sections 25(2) and (3) of the Constitution mandate that just and equitable compensation be paid in all events of expropriation, without exception. Without compensation, or with so-called “nil compensation,” one is not dealing with expropriation, but with confiscation, which the Constitution does not permit.
“As one of South Africa’s original constitutionalists, President Ramaphosa must not make himself guilty of undermining the supremacy of the Constitution over ordinary legislation,” observes Van Staden. “The President and Parliament’s time are much better spent strengthening private property rights so that a stable foundation for economic prosperity and growth can be secured.”
The FMF’s submissions on the failed proposal to amend section 25 of the Constitution can be found here (2018), here (2020), and here (2021).
The FMF’s submissions on the Expropriation Bill can be found here (2019) and here (2021).
Private property, public interest: Alternatives to confiscation and nationalisation can be read here.
In 2020 and 2021, the FMF published and circulated two editions and thousands of copies of Security of Property Rights in South Africa: A critical response to expropriation without compensation. The first edition of the book can be read online here.