Correcting Pierre de Vos on the Constitution and the Constitutional Court

Prof Pierre de Vos of the University of Cape Town recently wrote on his popular blog, Constitutionally Speaking, a response to Dr Frans Cronje of the Institute of Race Relations (IRR)’s referral to the centrality of property rights to the so-called “Judeo-Christian ethic”. The first...

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Prof Pierre de Vos of the University of Cape Town recently wrote on his popular blog, Constitutionally Speaking, a response to Dr Frans Cronje of the Institute of Race Relations (IRR)’s referral to the centrality of property rights to the so-called “Judeo-Christian ethic”.

The first thing De Vos writes that I wish to quote encapsulates the two problems that permeate the remainder of his article:

[Cronje] invokes the Constitution as an ally, but presents an argument that is completely at odds with the relatively progressive jurisprudence of the Constitutional Court, which recognises the need to respect and celebrate diversity of belief and opinion in South Africa.

Thus, these problems are:

1. De Vos is confusing the Constitution with the jurisprudence of the Constitutional Court.

2. De Vos is reading things into the Constitution which are not there.

I am not insinuating that De Vos alone is to blame for these two errors. Indeed, legal academia as a whole, as well as judges, are all guilty of treating the words of the Constitutional Court as if they are written in the Constitution itself, and furthermore, thinking that those things they prefer, are in fact the things the Constitution actually provides for.

In this case, I can therefore comfortably point out that the Constitution, in no provision, obliges (someone?) to “respect” or “celebrate” diversity of belief and opinion. Indeed, with regard to the right of freedom of belief and opinion, only the State is required not to interfere with or infringe this right. Other South Africans, certainly, need to tolerate differing ideas or opinions, but they certainly need not, under the Constitution, respect or least of all celebrate them.

It is also quite ironic that, in August of 2017, De Vos was arguing that the Constitution did not protect the right of South Africans to display the old South African flag, and indeed that they might be sanctionable at law for doing so. This does not at all mesh with the notion that the Constitution requires (us?) to “respect” and “celebrate” differing opinions. See my response to De Vos’ flag argument here and here.

It should be noted at the outset that nowhere in his article does De Vos address what Cronje was actually talking about: the absolute disaster that awaits South Africa on the other side of expropriation without compensation. Instead, he treats Cronje’s warning as a theocratic rant aimed at either establishing a Christian state or bizarrely, somehow going back to the days of Apartheid, when the Institute of Race Relations was one of that system’s greatest opponents.

De Vos continues:

The Constitution demands of us to think differently about the world we live in. Cultural, religious, and other differences are no longer viewed as something to be feared, something that you have to do battle with and defeat. Instead such differences are rhetorically accepted and celebrated.

The Constitution does no such thing. The Constitution, being both constructive in that it organizes the State, and normative, in that it contains a Bill of Rights spelling out how the State and society must interact, does not “demand” of “us” to think differently about anything. By giving different individuals and communities the right to have and practice their own cultures, religions, and lifestyles, the Constitution is not obliging other individuals and communities to welcome or “think differently” about anything.

If you have a particular distaste for, say, Afrikaner patriarchy or Xhosa initiation rituals, then the Constitution allows you to air that distaste passionately. You are under no obligation to be accepting of or celebrate other cultures or religions, but simply to tolerate them, that is, by not getting in the way of those other individuals and communities practicing their beliefs.

De Vos continues:

(Of course, just because the Constitution demands this, does not mean it has actually happened to the extent the judges of the Constitutional Court would have wished.  Which says something about the limits of the Constitution and the law to change deeply entrenched economic and social power relations in society.)

Fifty-five million South Africans need to accord their lifestyles, cultures, and behaviours with what “the judges of the Constitutional Court would have wished”? De Vos is treating the Constitution like something it isn’t.  Nowhere does the Constitution oblige the changing of “deeply entrenched economic and social power relations in society”, so it follows, logically, that the Constitution would be “limited” in this regard. De Vos is criticising the Constitution for failing to achieve something which the Constitution at no point sets out to achieve!

But De Vos also makes a correct observation here, if only implicitly: If you want change, the law is not always, and I submit it rarely is, the vehicle through which to try and attain that change. If you want change, be the change and make the change. Don’t use the violence of the State, as it is not only ineffective but also coercive.

De Vos continues:

When the Constitutional Court engages with issues of difference and diversity, its language is worlds removed from the kind of language employed by Cronje.

This should go without saying. Frans Cronje is a liberal who is serious about defending and entrenching individual freedom in South Africa, whereas the judges of the Constitutional Court are often ideologues who want nothing more than to enforce some grand socially-engineered political scheme upon otherwise-free individuals.

De Vos continues:

When people invoke the Constitution and especially the property clause in it to argue that the survival of a certain way of life is at stake, they tend to ignore some parts of the text of the Constitution as well as the jurisprudence of the Constitutional Court on the matter.

De Vos again here confuses the Constitution with the jurisprudence of the Constitutional Court. The Constitutional Court is not staffed by wise sages who can do no wrong. The property provision has been widely misinterpreted and misconstrued by legal academia and especially by judges, who read all manner of redistributionist provisions into its text. The most severe example was the 2012 Agri SA case which I will mention below.

De Vos continues:

One section of the property clause that is often ignored is section 25(5), which places a positive obligation on the state to take steps to address the unequal distribution of land in South Africa.

Here De Vos reads something into the Constitution that is not there, despite him quoting the actual words of the Constitution. The words “unequal distribution of land” are nowhere mentioned in the Constitution. The Constitution, indeed, says that the State must take reasonable measures fostering conditions that enable citizens to gain access to land on an equitable basis.

There is a world of a difference between clinically arguing that blacks must be made to own the exact amount of land proportional to their population size, and arguing, as the Constitution does, that all South Africans must be enabled to access immovable property on a fair basis.

Reasonable measures that foster conditions enabling citizens to gain access to land on an equitable basis cannot be interpreted as providing for or implying coercive redistribution. Redistribution does not “enable citizens” to gain access to land; instead, it deprives some citizens of land and makes other citizens tenants on the land which is now owned by the State. Coercive redistribution is also not “reasonable”, if reasonableness is understood as the convictions of the reasonable person. Indeed, as IRR research shows, only about 1% of South Africans want land reform to be sped up.

De Vos continues:

There is also a tendency to ignore the jurisprudence of the Constitutional Court on property rights.

Disagreeing and ignoring are not the same thing.

De Vos writes of the infamous Agri SA case, where the Constitutional Court essentially amended-by-interpretation the Constitution to say things that it does not say. The Constitution is unambiguous on the topic of requiring compensation when property is expropriated, but through some of the most dishonest semantic reasoning (and with the court relying on prior decisions that are equally flawed) I have thus far seen in a superior court judgment, the court came to the conclusion that no expropriation took place when the State nationalized privately-owned minerals, because the State-in-name did not become the “owner” of the minerals. Instead, “the people” became the owner, by way of the “custodianship” of the State.

This judgment is a perversion of the Constitution and should not be defended or, for that matter, considered as serious precedent. Thankfully, the court did say in that case that it’s a case-by-case matter and not a general principle, and thus most of the nonsensical politicking it engaged in can and should be treated with a pinch of salt. So to lambaste liberals for treating cases like these with the contempt they deserve, yet act as if we are “ignoring” them, is intellectual dishonesty. Organisations like the IRR and the Free Market Foundation have dealt in detail with the problems underlying erroneous Constitutional Court decisions.

De Vos continues:

The court is far less wedded to an absolutist idea of the right to property than writers like Cronje sometimes suggest.

The court’s conception of property rights is simply incorrect, but that’s besides the point. Cronje is considering the concept of property rights per se, and the concept of property in the Constitution; not the court’s conception of property rights.

De Vos concludes with the following:

An important discussion is to be had about land redistribution in South Africa. But it is very difficult to have a meaningful discussion on this when protagonists use alarmist language and ignore the Constitution they claim to invoke.

This is sophistry of the highest order. De Vos has been focusing almost exclusively on the jurisprudence of the Constitutional Court, and not the Constitution. The one ignoring the Constitution, in other words, is De Vos, and not Cronje.

As I indicated above, the Constitution itself nowhere speaks of “land redistribution”. Section 25 of the Constitution, basically, does five things instead:

1. It prohibits arbitrary deprivation of property.

2. It allows for expropriation for public purposes or public interest.

3. It obliges the State to foster conditions enabling citizens to gain access to land on an equitable basis.

4. It obliges the State to rectify insecure tenure left over from Apartheid.

5. It empowers people whose property was seized under the Natives Land Act to reclaim the property.

It would be grossly dishonest for a jurist to interpret the words “access to land” and “equitable basis” as meaning “the State must violently seize private property”, especially in light of the fact that these words appear in a constitution. Constitutions are instruments designed to limit State power, in favour of citizens.

It is also becoming increasingly worrying how the commentariat is treating truthful concern about the state of property rights in South Africa as if it is “alarmism”. Do not lull yourselves into delusion, my fellow South Africans: there is reason to be alarmed.

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