It is disappointing that various stakeholders who wished to make verbal submissions on the Constitution Eighteenth Amendment Bill and the Expropriation Bill have been denied that opportunity, according to the Free Market Foundation (FMF). An amendment to the Constitution is an important event, requiring government to act in good faith by allowing all concerned citizens and civil society formations to participate in the process.
Expropriation without compensation does not describe an ordinary legislative phenomenon. For the first time in 27 years, Parliament is proposing to amend the Bill of Rights, which according to section 7(1) of the Constitution is a "cornerstone of democracy in South Africa". Not only is Parliament proposing to amend the Bill of Rights, but its proposal is to weaken a guaranteed right, not strengthen it.
This means government must proceed very cautiously and not do anything without a democratic mandate. A democratic mandate to amend the Constitution - by weakening a guaranteed right - must be given by means of a national consensus, which is only possible when a good-faith public participation process has been followed.
Martin van Staden, an Executive Committee and Rule of Law Board of Advisors member at the FMF, notes that, "As things currently stand, there is a right to always be paid an amount in compensation when private property is expropriated. The Constitution Eighteenth Amendment Bill removes that unqualified right, and replaces it with a qualified right that depends entirely on how government exercises its discretion."
Van Staden concludes, "Whichever way you slice it, this is a weakening of the right to property, not an advancement of it." The FMF has long been at the forefront of insisting that socio-economic impact assessments (SEIA) be conducted on any legislative, regulatory, or policy interventions.
Similar calls have been made by other groups, prominently the Institute of Race Relations. Cabinet policy already mandates that a SEIA be done on any such proposals. The more invasive the intervention, the more urgent it is for an accurate SEIA to be conducted, and subsequently published for public scrutiny.
The Constitution Eighteenth Amendment Bill and the Expropriation Bill represent two of the most invasive and disruptive interventions in three decades of South African public policy. That neither intervention was accompanied by a SEIA is indicative of government either wishing to hide the inevitable consequences that will result from the adoption of these two bills, or not caring enough about hard-won civil liberties to inquire in the first place.
"A proper socio-economic impact assessment on the Amendment Bill will show that immense harm will be done to the economy, particularly to the poor, should law of this nature be adopted," noted the FMF in its February 2020 submission on the Constitution Eighteenth Amendment Bill. The same applies to the Expropriation Bill.
"Whatever the case," says Van Staden, "government is asking South Africans to leap blindly into the experiment of expropriation without compensation, which has always done its part to destroy economies in Venezuela and Zimbabwe."
Note: Constitution Eighteenth Amendment Bill vs Expropriation Bill
The Constitution Eighteenth Amendment Bill and the Expropriation Bill are distinct interventions.
Presently the Constitution requires government to provide compensation when it expropriates property. The Constitution Eighteenth Amendment Bill proposes to remove this constitutional requirement, and allow Parliament to determine in ordinary legislation when it may expropriate property without compensation.
The Expropriation Bill is the ordinary legislation to which the Constitution Eighteenth Amendment Bill refers. Constitutional amendments like the Constitution Eighteenth Amendment Bill must be enacted with the support of at least two-thirds of the members of the National Assembly, or 75% in special cases. Ordinary legislation like the Expropriation Bill may be enacted with a simple majority of 50%+1 of the members of the National Assembly.