To consider the fundamental question of whether to change S 25 of the Constitution to allow for expropriation without compensation (EWC), it appears that the Constitutional Review Committee studied just 0.01% of the public submissions, if that. This is outrageous and unacceptable in a constitutional democracy. It sets a dangerous precedent and makes ones suspect that there was a pre-determined outcome. S 25 refers to all property, not just land. Despite making a substantial submission, the committee twice refused the Free Market Foundation (FMF) an opportunity to present its case for land reform in Parliament. The FMF is considering a constitutional legal challenge.
On 15 November 2018, the Constitutional Review Committee adopted its report on EWC. The five-page report recommends that the Constitution be amended to provide ‘explicitly’ for what the Constitution already provides ‘implicitly’.
Over 700,000 submissions were made on EWC, most of which were firmly against it. The committee claims it considered only a sample of 400 submissions, but even this is doubtful, given the brevity of the report. Five pages to justify changing a provision for which black South Africans suffered is an insult to our constitutional democracy. The property provision was enacted specifically to protect those who had, up to 1994, never had property protection – black South Africans. To now take away the right to compensation is a direct attack on the protection black South Africans – who today own more fixed property than whites – have enjoyed for the last two decades.
If true – just 400 submissions out of more than 700,000 were considered – it is highly improper for a constitutional body to consider only 0.01% of the public’s views on a constitutional change, and makes a mockery of true public consultation which is required by the Constitution. It is even less appropriate to then issue a report that does not consider a fraction of the perspectives on this important question. Also, which of the 700,000 were the ones considered? We have a right to know.
It is clear that the committee started the process with a forebegotten conclusion: that the Constitution must be amended, regardless of what anyone says or thinks.
Is this how democracy works in South Africa today?
The Constitution need not be amended for substantive land reform. Government has alternative solutions:
- Issue title deeds for those today leasing on state land;
- Redistribute unused or underused state land;
- Repeal laws that hinder land reform like the Subdivision of Agricultural Land Act.
The committee report says the amendment to the Constitution must be processed and passed before the 2019 elections. However, ANC MP and former chairperson of the committee, Vincent Smith, says it will be done after the election. The uncertainty and confusion surrounding the process is far from over and the economy will suffer further as foreign and local investment dries up.
The report refers specifically to “land”, not “property”. The Constitution does not distinguish between property in general and land in particular. A pure amendment to the compensation clause (section 25(3)) will enable government to seize any property – homes, bank accounts, money, heirlooms, businesses, trademarks, etc. – without compensation. To distinguish between land and property, a further amendment must be made to section 25(4)(b) to state clearly that EWC can only legally apply to agricultural land.
This point alone shows the committee has not thoroughly considered the matter it was tasked with. The constitutional, social, economic, and political implications of this moment in South African history are vast yet the committee could only spare five pages. It is more than likely that the committee also did not consider the fact that the new power it recommends – to expropriate property without compensation – will long outlive anyone who today is part of government. Any future, potentially tyrannical government will be empowered to expropriate without compensation if this amendment is adopted.
The whole process is procedurally flawed and inevitably tainted with the mark of politicians eager to campaign on a “radical” ticket for next year’s election. It is reckless and irresponsible to decide constitutional questions purely for sectional electoral agendas.
The 2017 High Level Panel commissioned by Parliament, recommended that the Constitution should not be amended, but that government should use the Constitution as it exists. It has been totally ignored.
President Ramaphosa’s stated goals of EWC to increase agricultural output, promote economic growth, and protect food security, will not happen with EWC. Only with secure property rights can those objectives be attained.
Madiba’s words, “Never, never and never again shall it be that this beautiful land will again experience oppression of one by another and suffer the indignity of being the skunk of the world,” ring hollow today.