SECTION 1 AND THE PROBLEMS OF CONSTITUTIONALISING EXPROPRIATION WITHOUT COMPENSATION IN SOUTH AFRICA

Martin van Staden

If passed, the Eighteenth Amendment Bill will modify the right to property contained in section 25 of the Constitution of the Republic of South Africa, 1996, to allow government to expropriate property without necessarily being required to render compensation. It has been argued that the Constitution already implicitly allows for expropriation without compensation, and that the Eighteenth Amendment will simply “make explicit that which is already implicit”. It has also been said that land reform has proceeded too slowly, and that amending the Constitution would make it more effective.

Section 74(2) of the Constitution requires Parliament to obtain a two-thirds majority in the National Assembly and six provinces in the National Council of Provinces for a constitutional amendment to the Bill of Rights, wherein section 25 is located, to be approved. The ruling African National Congress (ANC) and the Economic Freedom Fighters (EFF) together control enough parliamentary seats to enable such an amendment.

An argument has been made that the proposed amendment must also comply with section 74(1), which sets out the threshold for amending section 1 of the Constitution – containing the founding provisions – because the Eighteenth Amendment would have detrimental consequences to the values and promises set out in that section. This would require 75% of the National Assembly, which the ANC and EFF do not control.

This novel argument brings to light the problems associated with incorporating a notion of expropriation without compensation into South Africa’s Constitution, despite its doubtful chances of success in court.

Section 1(a) proclaims inter alia the “advancement of human rights and freedoms”, and section 1(c) the “supremacy of the constitution and the rule of law”, to be values upon which South Africa’s constitutional order is founded. The entrenchment of this section is a prima facie indication that section 1 is meant to be substantive and effective, rather than merely poetic or promissory. If it were not meant to contain a substantive element that government, particularly Parliament and the courts, must have regard and adhere to, there would have been no need to entrench it any more than the Preamble.

The Eighteenth Amendment, in the form gazetted on 13 December 2019, will, firstly, make it possible for so-called “nil compensation” to be “paid” when property is expropriated. Secondly, it will empower Parliament to determine, in legislation, under which circumstances the courts may find that nil compensation is just and equitable. The ad hoc committee responsible for the Eighteenth Amendment has indicated its intention to modify the amendment to empower the executive, not the courts, to determine when nil compensation is payable.

The incongruence between these proposed constitutional revisions and sections 1(a) and 1(c) are evident.

Removing the established right to be compensated when one’s property is seized by the State does not advance, but undermines and retrogresses, human rights and freedoms.

The argument that redress is an imperative is well-received, but it ignores the fact that section 25 already recognises this imperative and makes ample provision for it. Government itself has acknowledged that the unamended Constitution, as it currently stands, does not hinder land reform.
The established rights contained in section 25, including the right to compensation, thus do not undermine the objective of bringing about redress. Needlessly and dangerously removing this right clearly, then, contravenes the value proposition that South Africa’s constitutional order is based on the advancement of human rights and freedoms.

Section 1(c) also presents a challenge to expropriation without compensation.

The Rule of Law is declared, unequivocally, to be supreme, alongside the Constitution itself. Its supremacy inherently means it is not subordinate to anything, including the Constitution. The Eighteenth Amendment, even if adopted, must thus be seen in this light.

Madala J in his minority judgment in Van der Walt v Metcash highlighted the basic principles of the Rule of Law as the “absence of arbitrary power”, “equality before the law”, and “the legal protection of certain basic human rights”.

Albert Venn Dicey, who is most closely associated with the doctrine, and others, like the anti-Apartheid jurists Oliver Deneys Schreiner, Antony Mathews, and Edgar Harry Brookes and JB MacAulay, have also elucidated the substance of the Rule of Law. More so than Dicey, the latter jurists identify the protection of human rights and freedoms very closely with the Rule of Law.

Schreiner wrote that “an operative Bill of Rights seems to be the Rule of Law at its highest”. Mathews, arguing that the Rule of Law explicitly protects rights and freedoms, writes that “it is essential that the inroads [into rights and freedoms] be clearly defined and limited to those which long experience has shown to be necessary qualifications of the substantive right” (my emphasis). Yet the Eighteenth Amendment does not spell out those circumstances under which the right to compensation may be abridged. Instead, it delegates this discretion fully to Parliament.

Brookes and MacAulay argue that liberty and the Rule of Law are practically synonymous. Referring to how the Rule of Law had been undermined under Apartheid, the authors write:

“Some official discretion there must be, and properly exercised it may well be beneficial. But the wider its bounds are set, the more it touches the fundamental rights of human beings; and the less it is subject to the safeguard of appeals to impartial courts, the more baneful it becomes.”

If the ad hoc committee revises the Eighteenth Amendment to empower the executive to determine when expropriation without compensation is fair, the Rule of Law would evidently be deeply undermined, as power moves closer to officials and away from the courts. To Schreiner, independent courts standing guard in the “protection of the individual against unregulated state power” is integral the Rule of Law.

If the Eighteenth Amendment is adopted in compliance with section 74(2) with a two-thirds majority in the National Assembly, a cogent legal argument can thus be made that Parliament has, in so doing, undermined at least two of the founding provisions (sections 1(b) and 1(c)), and as a result will instead require a 75% majority to proceed.

I submit that expropriation without compensation has confused the public discourse around land reform. Land dispossessed during the colonial and Apartheid years must, as a matter of justice, be returned to those from whom it was taken. However, constitutionalists are now forced to oppose government’s reckless Eighteenth Amendment, and appear thus to oppose land reform. Section 25 has laid largely dormant for the last 25 years as government has ignored its obligation to bring about security of tenure and restitution. Now government seeks to do damage to the integrity of our constitutional order to hide its own failures.

Government’s proposal does not satisfy the two main reasons for the enactment of the Eighteenth Amendment. It does not make explicit what has always been implicit, as discretion to determine when “nil compensation” is to be “paid” is a novel phenomenon. Finally, land reform will not be expedited because it does not address the reasons for the slow pace of land reform that have hereinto existed. Instead, the Eighteenth Amendment undermines the founding values of the Constitution and threatens to set South Africa back two and a half decades.

Martin van Staden LL.B. (University of Pretoria) is the Head of Legal (Policy and Research) at the Free Market Foundation, South Africa. He is pursuing a Master of Laws degree at the University of Pretoria and is the author of The Constitution and the Rule of Law: An Introduction (FMF Books, 2019).

Disclaimer: The views expressed in these contributions are the author's own and do not necessarily reflect ANCL's positions.