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Some in government believe that they were given carte blanche when they were elected. This misunderstands constitutional democracy at a very fundamental level. The Gauteng government’s reckless recent comments that it would start arbitrarily expropriating property without compensation amounts to a blatant rejection of constitutionalism and the Rule of Law.
Public participation in the Constitution is a much-touted phenomenon in public law textbooks and also by government itself. When it is time for public participation to be realised, however, government more often than not tries its best to display contempt for this principle of our highest law.
It is undecided whether most South Africans wish to see expropriation without compensation implemented. The struggle against Apartheid was all for recognising the private property rights of everyone – and not merely some. This is what people fought and died for. Section 25 of the Constitution does not simply protect property rights, but also obliges government to expand property rights through land reform initiatives to those who were denied it under Apartheid.
But the confused Gauteng government has made up its mind.
Gauteng premier, David Makhura, recently declared that the provincial government will distribute title deeds to beneficiaries every Friday until September – so-called “Title Deed Fridays”. The human settlements MEC, Uhuru Moiloa, claims that “Title deeds are very important”. In practically the same breath, the Gauteng government stated its intention to disregard title deeds and to expropriate property without compensation. This is because it is not happy with how people are using their property.
To be clear, a title deed itself does not confer property rights. All human beings are inherent bearers of property rights – private property is a human right. A title deed simply serves as proof that a particular person owns a particular piece of property. These deeds are crucial to ensuring property can be sold, mortgaged, etc. as well as giving the owner peace of mind that, by law, this property is recognised as theirs and that it won’t simply be taken away.
Yet, with the Gauteng government declaring the importance of title deeds, they also intend to ride roughshod over existing title deeds and engage in mass theft of property without compensating the owners.
This has nothing to do with restitution for the crimes of Apartheid. Restitution is different: if someone or their descendants had their property taken from them by the Apartheid regime, they are entitled to claim that property back through a fair judicial process. At the end of the process, the claimants can receive their property back or they can decide to take monetary compensation. The current possessors of the property, meanwhile, are constitutionally entitled to compensation, since it would be difficult for them to have known that they were purchasing property that was oppressively seized from others. Usually in good faith, they believe the property to be legitimately theirs.
The Gauteng government seeks to expropriate so-called “idle” land without compensation – not stolen land that is to be restituted, but idle land.
“Idle”, in this case, means land that is being used for purposes which the government does not approve of. This kind of arbitrariness flies in the face of the constitutional promise of a society governed under the Rule of Law and constitutional principles. This arbitrary whim of officials is now taking centre stage, and the warning is this: Use your property in a way we do not like, and we will take it from you without paying. Nothing less than naked, unashamed robbery.
When South Africans go to vote at the ballot box every five years, we do not vote for policies. We vote for political parties. Our elections do not determine what will become law, but rather which party will govern. This is why those who are fervently pushing for expropriation without compensation are doing so without a mandate.
Mandates for specific policies and interventions are gained only through a wide-ranging process of public participation, which is mandated by various provisions in the Constitution. They must put their proposed interventions to the people, accompanied by evidence that those interventions will achieve the desired result and what the unintended consequences of them may be. Only then can the mandate be developed.
This is certainly not happening in South Africa. Expropriation without compensation is being pursued without a mandate at the policy level. It is also being pursued arbitrarily and recklessly at a practical level. The struggle against Apartheid was not about substituting one tyranny for another. It was about winning freedom for the people under the Rule of Law, from overzealous ideological governance. That hard-won promise of freedom is being discarded by a regime intent on seizing the greatest amount of power for itself in the shortest possible time.