Submission on Revised Constitution Eighteenth Amendment Bill

The FMF’s submission to the Ad Hoc Committee to Amend Section 25 of the Constitution on the Revised Constitution Eighteenth Amendment Bill, 2021 can be read HERE.

The central problem with expropriation has been that it is intended to do so without paying compensation.  To achieve this, it is proposed to amend section 25 of the Constitution.  However, the amendment does not achieve this. It does not specify the grounds upon which expropriation without compensation is permitted in the Constitution. Instead, it purports to delegate that responsibility to yet-to-be-enacted legislation.   This cannot be done.  To understand this Sir Leslie Stephen’s great constitutional conundrum can be evoked, when he asked, if Parliament is sovereign, is a law which puts blue-eyed babies to death a valid law (Stephen 1882)? The answer to that question to those who subscribed to the view that Parliament was sovereign is “yes”, the law is valid. In a constitutional democracy, the answer would be “no it is not”, since Parliament is no longer a sovereign law-making body. In a constitutional democracy, blue-eyed babies cannot be put to death by placing the provision in the Constitution itself.  If a constitution did that, it would violate a fundamental principle of constitutionalism. In the same vein, a constitution cannot delegate to Parliament the authority to make laws to murder blue-eyed babies.  That too would be a violation of a fundamental principle of constitutionalism.

Thus firstly, the Constitution cannot delegate to Parliament the power to define when property can be taken without compensation.  Secondly the only recognized ground to expropriate property is for public use and then only if compensation is paid.  The addition of other grounds is problematic and now the addition of yet another ground “state custodianship” tends toward arbitrary expropriation and worse than that, where it is without compensation.

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