Property rights are not a colonial construct

Section 25 of the Constitution is constantly under attack. South Africa is coming off a vote in Parliament where its proposed amendment failed. The Constitution in general was criticised by Lindiwe Sisulu. Property rights specifically are singled out, citing Professor Ramose who called it (section 25) the ‘longest clause’. The right to private title is attacked as being representative of colonialism. Is this true?

Those who have crowned themselves the sole representatives of ‘the downtrodden’ – the monopolisers of blackness – believe that owning land to the exclusion of others is a propagation of colonialism. They posit that anyone who has exclusive property rights established through action is but a ‘house negro’ in the terminology of Malcolm X. They say section 25 is an impediment to redressing the injustice perpetrated by the colonial South African Westphalian state. By protecting that which was acquired through force, the anti-proprietarians claim the Constitution perpetuates the injustice itself.

What these critics do not realise is that without the protection of section 25, the remedies sought by those who were dispossessed, or their descendants, would be less secure.

A right to private property does not inhibit challenging of the title or ‘belonging’ of that right. As most of this camp will say, there were unjustly acquired property rights. Having constitutional protection for property rights does not preclude one from challenging rights that were improperly obtained.

From a legal-philosophical perspective, it is this right in property that will inform the remedy of the party which is challenging the validity of any title to property. 

The alternative proposed by these proponents of ‘the people’ is the scrapping of private property protection and the institution of a collective landed property regime. Basically, having the entirety of the population being tenants of the powerful administrators of the state at any given time. 

The major parties who propagate this ideal in South Africa may differ on the details, but one thing brings them together: Abantu must not have private property rights. For, after all, abantu also enjoy protection from section 25, and, if anything, that right to property empowers them to reclaim property that is rightly theirs. 

The issue is one of will, of capacitating the institutions, including the much-hated judiciary, to handle matters of restitution and justice. Protection of the right to private property guarantees that after the contestation of title in whatever property is settled, the rights belonging to the rightful owners will still be protected. 

The June 2021 judgment of the KwaZulu-Natal Division of the High Court, in the matter of Council for the Advancement of the South African Constitution v Ingonyama Trust, highlights how the right to property cannot be undermined by claims to ‘African culture’ which is said to have no latitude for private property rights. When those who are against the right to private property argue against it, they must do so without their usual appeals about it representing a betrayal of African culture or the African way of life. When political parties claim that the Westphalian state ought to be custodian of all property, they must do so without saying it is the ‘African way’. 

Their ambitions to control people’s lives by denying them rights to private property must not be couched in cultural rhetoric.

The right to property, legally, is integral to any functional society. It does not inhibit the restitution of property that was unjustly acquired or unjustly transferred, and currently is used by an unjust ‘owner’. The right to property does not inhibit justice. What it does, and what the South African state wishes to circumvent, is it inhibits the state from picking and choosing property expediently and dishing it out to political allies in the name of redistribution. Note the difference between the justice concept of restitution, and the uniquely Western socialist concept of redistribution.

Justice, properly understood, is about restoring the status quo prior to the injury. In the specific case of property ownership, it would simply be transferring title to the rightful owner. 

The tirades against the right to property for purposes of justice against past property dispossession are misguided. For sound justice, property rights and their protection ought to be central. Rather than eliminating them, finding ways to make their protection stronger ought to be the focus.  

Zakhele Mthembu BA Law (Wits) LLB (Wits) is a legal researcher at the Free Market Foundation. The views expressed in the article are the author’s and not necessarily shared by the members of the Foundation.


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