A Constitutional Analysis of the Capitalist Party Manifesto

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At the Johannesburg launch of the Capitalist Party of South Africa, someone asked how that party’s principles and policies relate to the Constitution of South Africa. The answer offered by the party representatives was relatively brief and lacked detail. The essence of what they said – that in the final analysis it comes down to constitutional interpretation – was however correct.

In this article I will subject the Capitalist Party’s 10 principles to a constitutional analysis. As such, I will deal with those statements of principle that I regard as somehow constitutionally significant, and will disregard uncontroversial ones.

“1. Liberty
Liberty is the primary political value of our country
[…]
Government should only act to prevent harm to others.”

There is no explicit right to “liberty” in the Bill of Rights. It is rare to see such a right in constitutional instruments internationally.

As Coval and Smith write in “The foundations of property and property law”, however, freedom of action – liberty – is usually left implied by the various ‘specific’ rights that are protected. Thus, when constitutions contain such rights as freedom of expression, privacy, property, etc. as does ours, “they are likewise committed to the protection of action or agency since the protection of action is the [implication] of those explicit freedoms”.

But the Constitution is not silent on freedom as an underlying constitutional value. Section 1 of the Constitution provides that South Africa is founded upon, among other things, the “advancement of human rights and freedoms”. Section 7, which introduces the Bill of Rights, might be taken as a confirmation of Coval and Smith’s implied right to liberty, where it provides that the Bill of Rights “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Section 36, which enables government to limit rights, provides that rights may only be limited if those limitations are “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

The closest thing to an explicit constitutional right to freedom is section 12, which provides for freedom and security of the person. While this notion of freedom is narrower than liberty (and relates mostly to one’s right to not be physically deprived of freedom), it does say that everyone has the right “to be free from all forms of violence from either public or private sources”. The implications of this provision, on a proper interpretation, are wide-ranging, given that all State conduct is inherently violent.

The Capitalist Party clearly intends to place emphasis on the constitutional value of freedom; something that has hereinto been neglected by our government and courts, who have placed the “achievement of equality” (perversely interpreted) on a pedestal above the other values. Regardless of this negligence by our judiciary, liberty is in the final analysis accorded the status of a founding value in our constitutional order.

“2. Equality: Individual rights before group rights
[…]
We must not sacrifice the interest of individuals for the ‘common good.’ Every individual matters, every individual is worthy of respect, every individual is equal before the law.
Affirmative action undermines meritocracy. Historic discrimination against certain groups does not justify present discrimination against other groups.”

As alluded to above, government and the judiciary have gone about an interesting and unfortunate construction of the notion of “equality” in our constitutional regime.

The provisions of the Constitution that relate to equality are as follows. Section 1 of the Constitution provides that South Africa is founded among other things on the “achievement of equality”. Section 3 provides that all citizens are “equally entitled to the rights, privileges and benefits of citizenship”. Section 7 provides that the Bill of Rights enshrines the rights of “all people” and affirms the value of equality. Section 36 provides that rights may only be limited if it is “reasonable and justifiable in an open and democratic society” that is based, among other things, on equality.

Clearly, equality, like freedom, is a recurring and fundamental postulate of our constitutional order.

Section 9 contains the so-called right to equality, and this is the provision that has been used to justify affirmative action on racial grounds (among a host of other government interventions in private economic affairs).

This provision, in section 9(1), says that everyone is equal before the law. This is the basis of the provision, and cannot be, as it has been, disregarded. Each following part of section 9 must be read as compliant with this basic reality. Section 9(2) says that the meaning of equality “includes the full and equal enjoyment of all rights and freedoms”, and in this regard, government must “promote the achievement of equality” through law for people who have been “disadvantaged by unfair discrimination”. Section 9(5) says that government may discriminate on various listed grounds if the discrimination is found to be “fair”.

The Capitalist Party in its second principle regards equality essentially as an individual right to equal treatment before and by the law, and that affirmative action is repugnant.

The fact is, however, that the Constitution does enable affirmative action, but only insofar as South Africans do not enjoy the “rights and freedoms” in the Bill of Rights equally. This is a key clause to understand.

Government’s programmes can only be aimed at ensuring equal enjoyment of those rights and freedoms expressly or impliedly stated in the Bill of Rights. As such, it is worth noting that there is no right to ‘demographic representivity’ in the Bill of Rights, which is what affirmative action policy in South Africa is based upon.

One must also take into account the fact that section 1 entrenches “non-racialism” and “non-sexism” as founding values of South Africa, meaning that even if affirmative action is constitutionally permissible, discrimination on the grounds of race or sex is not. In this respect, the Institute of Race Relations’ “equal empowerment for the disadvantaged” is far more constitutionally sound than what government is pursuing.

Finally, the Capitalist Party is also making implicit reference to the constitutional value of human dignity, which is a founding value in section 1, an affirmed value of the Bill of Rights in section 7, a right in section 10, and a characteristic of an open and democratic society in section 36.

Holistically, the Capitalist Party’s principle of equality will more than likely fall foul of how the Constitutional Court has interpreted the Constitution, but in any society based on constitutional supremacy and free discourse, constitutional interpretation is not the exclusive domain of the courts. As such, on a textual reading of the Constitution, the second principle of the party does accord with the constitutional logic.

“3. Tolerance and absolute protection of freedom of expression
[…]
Hate speech laws are used by governments to censor discussion.
Words can never be equated with physical violence”

Section 16 of the Constitution guarantees freedom of expression. Firstly, the provision sets out the right of everyone to “receive or impart information or ideas”, among other things, and secondly, in section 16(2), the provision says that this protection of freedom of expression does not extend to “propaganda for war”, “incitement of imminent violence”, or “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

The question, therefore, is whether the Capitalist Party’s statement of “absolute protection” for this right, and its clear opposition to hate speech laws, is inconsistent with the Constitution.

It is important to note that the limitation on freedom of expression found in section 16(2) is not itself a substantive limitation. It does not say that one may not engage in propaganda for war, incite violence, or engage in hate speech. Instead, it empowers government to enact legislation that prohibits these kinds of expression without infringing the protection in section 16(1). (There is an inherent common law prohibition on incitement of imminent violence.)

In other words, one is not infringing on a constitutional right if one engages in hate speech or the like, but if government has passed legislation on these topics, that speech is not constitutionally protected. Unlike other constitutional provisions that oblige government to enact legislation that gives effect to constitutional rights, section 16(2) does not oblige government to enact legislation that prohibits warmongering, incitement of violence, or hate speech. This is left up to the government itself.

The result is that under a Capitalist Party government, or a government influenced by the Capitalist Party, can validly regard the section 16(1) right to freedom of expression as absolute. All it needs to do is omit to make provision in legislation for the prohibitions in section 16(2). As a consequence, the third principle of the Capitalist Party manifesto is constitutionally sound.

“4. Private property rights protected by law
[…]
The State has the right to expropriate property in the public interest, for example to build dams or freeways or railways, but such expropriation should be based on fair market value decided by the courts.
‘Expropriation Without Compensation’ is legalized theft by the State”

Section 25(1) of the Constitution says that nobody “may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property”. Sections 25(2) and (3) provides for the State’s power to expropriate “in terms of a law of general application for a public purpose or in the pubic interest” and subject to just and equitable compensation.

It is interesting to note that the Capitalist Party refers to this power of the State as a “right”. Jurisprudentially, subjective rights in the categories of real rights, personal rights, personality rights and intellectual property rights, contain no discernible “right” to expropriate. Instead, expropriation is a creature of statute (in this case, the Constitution), and should more appropriately be referred to as a power, an authority, or at least, an entitlement. The Constitution itself employs the word “power” throughout when talking of the functions of government.

The courts, when determining whether the compensation rendered is just and equitable, are constitutionally required to take account of more than only the market value of the property. They must, in addition to the market value, take into account the “current use of the property”, the history of its acquisition and of its use, the “extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property” and the “purpose of the expropriation”. On this point, the Capitalist Party might need to provide more elaboration.

The principle notes correctly that expropriation without compensation would only amount to legalised theft (or, in the case of fixed property, dispossession subject to vindication). Hugo de Groot, one of the foremost writers on Roman-Dutch law and international law, is credited with popularising the notion of ‘eminent domain’ – expropriation – in his De Jure et Pacis in 1525. In that text he wrote that “the State is bound to make good the loss to those who lose their property”.

Since the earliest days of this concept of expropriation, thus, it has been tied (almost definitionally) with compensation, to the extent that in the United Kingdom and elsewhere, expropriation is known as “compulsory purchase”. A purchase, per definition, cannot take place without a trade in value. If the jurisprudential contradiction in terms known as ‘expropriation without compensation’ passes in South Africa, it will not amount to ‘expropriation’ at all, but would better be described as legalised dispossession; which is completely contrary to international law and human rights standards.

The Capitalist Party’s commitment to private property rights is, on the whole, sound, but could use some tweaking that would not change its meaning in any significant sense.

“5. Rule of law
The State cannot do whatever it wants to do when it wants to.
Rule of law requires the State to exercise power in accordance with well-established and clearly written rules, regulations, and legal principles.
Before the State may impose civil or criminal liability, laws must be written with enough precision and clarity that an ordinary person will know that certain conduct is forbidden.
All people are equal before the law”

Section 1(c) of the Constitution provides that South Africa is founded upon the supremacy of both the Constitution itself and of the Rule of Law.

The Capitalist Party’s description of the Rule of Law is sound. For more detail on what the Rule of Law means, see the Rule of Law Project’s “10 Imperatives of the Rule of Law”, and my book, The Constitution and the Rule of Law: An Introduction.

“6. Right to work
Any person has the right to work for another person on terms which they both agree to and the State should not be able to impose minimum wage requirements.
If a school-leaver or graduate wishes to work for no pay in order to gain experience, it is their right to do so.
No person should be forced to join a union or forced to pay contributions to a union.”

Section 22 of the Constitution, perhaps the most underappreciated and ignored provisions in the highest law, provides that everyone “has the right to choose their trade, occupation or profession freely”, subject to the practice (not the choice) of that trade being liable to regulation (not prohibition) by law (not regulations or ‘policies’). Section 23 provides that everyone “has the right to fair labour practices”.

There is no explicit right to work in the Constitution, but it can be reasonably deduced from both sections 22, 23, and the general right to liberty discussed above.

The excessive coercive powers that trade unions wield today is found in legislation like the Labour Relations Act, not the Constitution. What is a fair labour practice is also not outlined in the Constitution, but in legislation. As such, the Capitalist Party’s regarding of the right to work without third party interference as a fair labour practice is constitutionally sound.

“7. The right to be secure on your own property and to defend yourself against intruders
The old saying, “A man’s home is his castle” (and that means women too) comes from the Castle Doctrine which says that if an intruder enters your property without permission, you are entitled to use force to protect yourself and your family.”

As mentioned above, section 12 of the Constitution guarantees the right to freedom and security of the person, which includes the right to be free from all forms of violence. This, read with the section 25 right to private property, does provide constitutional impetus to the notion of the castle doctrine.

This is an uncontroversial principle, and might well have been included in principle 4 above.

“8. Free markets and international free trade based on enlightened self-interest
Economic exchange is voluntary activity between individuals. The State should not tell people where to work, how to save, what to build, what to produce.
Leaving things to free market, rather than government planning or organization, increases prosperity, reduces poverty, increases jobs, provides goods that people want to buy.
Our country’s economic interests should not be compromised because of the State’s political prejudices. If the best source for oil is Iran or the best source for technology is Israel, such trade should be given preference.”

Contrary to popular belief, the Bill of Rights does not bestow upon government an obligation to direct the forces of the economy.

Section 41(1) of the Constitution, which provides for the principles that govern intergovernmental relations, says that all spheres of government must “secure the well-being of the people” of South Africa. It is uncontroversial among reasonable people that the free market is the best, if not only, method of securing the welfare of a whole country. It also provides that no sphere of government must “assume any power or function except those conferred on them in terms of the Constitution”.

Schedule 4 sets out those things Parliament may legislate on, which includes various economic matters. This must, however, always be constrained by government’s duty to respect the rights in the Bill of Rights, and to, in the words of section 195 (the principles that govern the public administration), promote “efficient, economic and effective use of resources”.

Needless to say, by interfering in market processes, government has neither secured the welfare of South Africans nor promoted economic use of resources. Where it has not gone as far as to infringe on the rights of South Africans to free economic activity, it has simply undermined the spirit of the Constitution in these respects.

The Capitalist Party’s overarching dedication to the free market, in other words, does not fall foul of any right or principle of the Constitution, and instead promotes the values of the Constitution.

“9. Firearms for self defence
Every citizen who is properly trained in the safe use of firearms has the right to acquire guns for self-defence, unless criminally convicted or mentally unstable.
Safe use of firearms should be taught to high school learners.”

There is no explicit right to bear arms in South Africa, unlike in the United States. Such a right, although it can never within the confines of the Constitution be as absolute as the American equivalent, however, might be gleamed from a holistic reading of the Constitution.

Section 12 of the Constitution, which guarantees the right to freedom and security of the person, including the right to be free from all forms of violence, is again relevant here. Section 12(2), furthermore, provides for “security in and control over” one’s body.

The founding values of freedom and dignity could also provide some guidance. It follows, in my view, that in a free society, individuals would be allowed to defend themselves and their rights with appropriate tools. Furthermore, could one ask whether South Africa is truly founded upon the value of dignity if the primary recourse for safety that South Africans depend on, is a mostly-incompetent police force? Dignity means the ability to rely on oneself for safety and security.

Needless to say, there is nothing in the Constitution that prohibits a Capitalist Party government from entrenching a generous statutory right to use firearms for self-defence, and nothing among the constitutional values and principles would indicate an opposition to such a phenomenon in the constitutional logic.

“10. Fraternity — Spontaneous order and Civil Society
[…]
The State should only play a role to resolve conflicts.
[…]
We believe that most social problems can be more effectively dealt with through such voluntary organizations, like the family, like religious institutions, like cultural organizations, like NGOs, because they have knowledge about the individuals hey are dealing with.
[…]
Civil society is much more effective and can do many things better than a welfare state can.”

These statements are true in fact, although might not necessarily hold up constitutionally.

As we have already seen, the Constitution does contain a cumulative right to liberty. Its values of freedom, human dignity and equality necessarily mean government must respect the people following their own destinies and providing for their own interests.

But there are obligations placed on government that go beyond the mere resolving of conflicts.

Section 6(2), for instance, obliges government to “take practical and positive measures to elevate the status and advance the use of” South Africa’s eleven official languages. Section 9(4) says government must enact legislation “to prevent or prohibit unfair discrimination”. Section 25 provides for government’s duty to expand property rights. Section 26(2) says the government has to take measures to progressively realise the right to housing. The same is true in terms of the right to healthcare, food, water, and social security under section 27, and education under section 29.

These do not necessarily mean government must interfere in private affairs to the extent that it does today. In fact, it might simply mean government must play a tertiary, supporting role, like with vouchers, the provision of information, or simply having laws that ensure, for instance, that nobody may stand in anyone else’s way to provide for their own housing. But these obligations do go somewhat further than mere conflict resolution.

While it goes without saying that any party that is truly capitalist would balk at these welfarist suggestions – and it should, rightly – the Capitalist Party in South Africa might need to accept that a government that it leads might need to be creative in how it interprets these provisions. It cannot ignore them, but there are likely many ways to have these welfare provisions harmonised with the imperatives of individual freedom and private property rights.

Conclusion

On the whole, with minor criticisms, the Capitalist Party’s 10-principle manifesto does accord with the Constitution, its text, spirit, purport, and values. This is unlike other parties like the Economic Freedom Fighters and Black First, Land First, who couldn’t care less about the norms the Constitution has entrenched in our society.

The Capitalist Party is probably the closest thing to a libertarian party we will see in the 2019 general election. Its real test, however, will begin after the election. Will they persevere, even if they do not attain a seat in Parliament? I, for one, hope so. There is potential for the creation of a movement here, but only if the election is not considered to be its final destination.

* If you enjoyed this article, read my book, The Constitution and the Rule of Law: An Introduction, where I explore many of the topics discussed above in more detail. This includes what the Rule of Law means, how racial affirmative action is unconstitutional, and why respecting private property is an inherent feature of constitutionalism.

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