Martin van Staden | Legal Researcher | Free Market Foundation | mail me |
With only 45 days to comment on changing S 25 of the Constitution – the property rights clause – is irresponsible and anti-democratic.
The Free Market Foundation is appalled and alarmed that expropriation without compensation of property (EWC), probably South Africa’s most important constitutional debate since the 1996 formation of the Constitution, will have only 45 days for written submissions.
It is irresponsible and anti-democratic.
A year-long debate is being squeezed into the short period remaining before the 2019 election. The FMF was part of the process to define and formulate S 25 which took a great deal of time to finalise and is one of the most important provisions in the Constitution. Government must reconsider and allow a minimum of six months, preferably 12, for debate, discussion and the lodging of submissions. Not to do so is reprehensible. And, furthermore, it is not necessary to amend the Constitution to effect land reform.
Despite this being the first time that the Bill of Rights may be amended, Parliament’s Constitutional Review Committee has allotted a mere 45 days, from 13 April to 31 May 2018 for public comment. This is to accommodate Parliament’s arbitrary deadline of August for the committee to deliver its report. A politically driven deadline cannot be allowed to determine an undertaking as important as the divesting of rights. (A previous minor constitutional amendment that did not affect ‘rights’ per se – a boundary change – was given roughly three months’ comment allowance.)
Property rights are integral to the basic structure of the Constitution and the Rule of Law. Removal of property rights will damage the fabric of the Constitution and may put its broad legitimacy into jeopardy.
EWC will have disastrous consequences for all property owners, white and black, as well as the economy in general as international and domestic investors lose confidence in the government’s intent regarding protection of property.
Moreover, government has no mandate to change the Constitution. The Institute of Race Relations’ recent Reasons for Hope study shows that a small minority of South Africans (1% total, 1% black, 2% coloured, 4% Indian, 1% white) regard land reform as an important issue. What most people are concerned about are unemployment (35% total, 38% black, 42% coloured, 30% Indian, 16% white) and education (27% total, 26% black, 24% coloured, 42% Indian, 46% white).
At the recent National Land Forum at GIBS, the ANC’s Ronald Lamola noted that amending the Bill of Rights sets a precedent and called for thorough consideration of the potential consequences.
The FMF welcomes the developing consensus among intellectuals and the ruling party that land reform is possible without amending the Constitution or the Bill of Rights.
The Constitution already empowers government to effect radical land reform:
Section 25(2) provides that private property may be expropriated subject to compensation for both public purposes (e.g. building a road, the Gautrain) or in the public interest (e.g. land reform).
Section 25(3) deals with how compensation is to be determined. Market value is only one consideration. There is no mention of willing buyer-willing seller.
Section 25(5) mandates government to take reasonable legislative measures to enable citizens to gain access to land on an equitable basis.
- The Subdivision of Agricultural Land Act goes against the spirit of this provision, as it prohibits subdivision of property so that smaller, more affordable parcels can be sold, e.g. to farmworkers, and perpetuates ‘megafarming’, condemned by minister Gwede Mantashe at the Land Forum.
- Another ‘reasonable legislative measure’ would be to give State land to the poor. False and misleading statistics are used disingenuously to show how much land the state owns, which is far higher than the 13-15% often stated.
Section 25(6) says government must ensure insecure tenure is secured.
- The FMF’s Khaya Lam initiative is transforming apartheid-style insecure tenure to secure tradable ownership by giving title deeds to owners.
- Government and conveyancers must stop hindering the implementation of legislation like the Upgrading of Land Tenure Rights Act.
- Apartheid leasehold titles must be upgraded to full ownership.
- Pre-emptive clauses in RDP house title deeds act against the spirit of this provision making tenure insecure and precarious for the first eight years of ‘ownership’.
- RDP deeds must be made into real title deeds.
Section 25(7) is the restitution provision.
- Owners whose property was taken because of race are entitled to receive the property back or financial compensation. Restitution is very important in the security of property rights.
Section 25(8) says that no provision in section 25 can be interpreted to impede government from effecting land reform.
Any departure from section 25 by government must be justifiable in accordance with the limitations provision in section 36.
This provision makes expropriation without compensation possible, i.e. the Constitution need not be amended.