Media release: President Ramaphosa betrays constitutional promise with Expropriation Bill – Free Market Foundation

13 January 2022

Gail Day
076 836 5661

The FMF is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for a non-racial, free and prosperous South Africa. As a policy organisation it promotes sound economic policies and the principles of good law. As a think tank it seeks and puts forward solutions to some of the country’s most pressing problems: unemployment, poverty, growth, education, health care, electricity supply, and more. The FMF was instrumental in the post-apartheid negotiations and directly influenced the Constitutional Commission to include the property rights clause: a critical cornerstone of economic freedom.

+27 11 884 0270
PO Box 4056, Cramerview 2060

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
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


Help FMF promote the rule of law, personal liberty, and economic freedom become an individual member / donor HERE ... become a corporate member / donor HERE