The wording of the proposed amendment to Section 25 of the Constitution – the so-called property clause – is now out. There are, no doubt, those across the country who are asking themselves what the fuss was about. The amendment is, after all, a modest one. It effectively says there are circumstances under which the state will be able to expropriate at “nil” compensation, and that Parliament will need to determine, through legislation, what exactly that is.
Considering what the fearmongers and prophets of doom (or for that matter, the radical economic transformers, from a different perspective) have been saying about how this was the end of property rights in land, or the end of property rights altogether, this is a relief. Isn’t it? We dodged a bullet. Didn’t we?
Amending the country’s Constitution – its foundational compact and book of rules – is a grave matter. This is all the more so when it comes to the Bill of Rights, in a sense, the heart of the Constitution, which establishes the rights and entitlements of people in respect of the state. It is these that protect each of us individually and all of us collectively when the state or its agents try to trample on us.
Tampering with citizens’ rights always carries a risk, no matter how innocuous doing so may appear at first. This is certainly how many have represented the current drive. The Constitution already allows expropriation without compensation. The amendment is intended to do no more than making “explicit that which is implicit”. By implication, symbolically important, but of limited substantial impact (distractions for the public, perhaps?). When President Ramaphosa made his late-night announcement at the end of July 2018 that the amendment was going ahead, even though the consultation process was not complete and no report had been produced by the committee, this was his reasoning.
But this reading is fundamentally incorrect. Removing or diluting such a protection shifts the relationship between citizens and the state in favour of the latter.
More significantly, though, is the following provision: “National legislation must, subject to subsections (2) and (3), set out specific circumstances where a court may determine that the amount of compensation is nil.”
In other words, having gone a long way towards immunising the state from a constitutional challenge to compensation-free expropriation, it charges Parliament with determining the conditions under which this is to be done.
This will be achieved through ordinary legislation, which will need no more than a simple parliamentary majority to pass. The latitude for expropriation without compensation could be set very generously indeed.
Something to watch here is the pending Expropriation Bill. Drawing on the reasoning in the 2013 case of Agri South Africa v Minister for Minerals and Energy, it defines “expropriation” as the “compulsory acquisition” of property by the state, not merely as the deprivation of ownership by state action.
So, in terms of the Bill, something like a mass taking of all land into the “custody” of the state would be eminently possible. “Nil” compensation would be payable here. And this could be achieved by means of a simple act of Parliament, rather as in the case of water and mineral rights.
This, incidentally, is an option that has previously been mooted in an early draft of the Preservation of Agricultural Land Framework Bill of 2014, and in the report of the 2017 land audit. Indeed, long-standing policy with respect to land redistribution, the recent assent to the Traditional Khoisan Leadership Bill and the government’s conduct in the case of David Rakgase – where it fought a court action to allow itself to renege on an agreement to sell to a successful black farmer the land he had been working since the 1990s – all suggest, at the most optimistic reading, a deep official ambivalence to private property in land.
It would be foolish to lose sight of this.
The threat to private property remains very real. We have not dodged a bullet, but merely heard the gun being cocked. Should it be fired, the wound it will inflict may be severe indeed. DM