Expropriation: From Constitutional Development to Constitutional Deterioration

South African political discourse has been alive with discussion about the Constitution and specifically section 25 thereof, which protects the right to private property and obliges government to undertake land reform programmes to extend the right to private property to those who were denied it...

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South African political discourse has been alive with discussion about the Constitution and specifically section 25 thereof, which protects the right to private property and obliges government to undertake land reform programmes to extend the right to private property to those who were denied it under Apartheid. With government now intending to introduce an amendment to the Constitution that will hypothetically remove the right to claim compensation when one’s private property is expropriated, all reasonable South Africans are understandably worried about the road ahead.

Expropriation without compensation (EWC), in my view, will be the thin edge of the wedge that will pierce the blanket of constitutionalism that protects ordinary South Africans from tyrannical government. In and of itself, EWC may seem like an isolated new aspect of our constitutional order, but its introduction will undoubtedly set in motion a slippery slope of government infringing more and more on other constitutional rights to the point of rendering the Bill of Rights redundant.

Professor Koos Malan, in the comment to the Constitutional Review Committee submitted by AfriBusiness (now known as Sakeliga), describes the various ways in which introducing an EWC amendment would undermine the fabric of constitutionalism itself.

Firstly, writes Malan, property rights are important to the notion of citizenship. If the State becomes the sole or primary owner of property, citizens’ ability to actively participate in governance and be independent actors in civil society would be undermined. Citizens will become completely dependent on government and thus be subordinate to it, whereas in constitutional theory, the source of sovereignty lies with citizens. Private property rights guarantee autonomy, and without it, people be powerless, reliant, and needy.

Secondly, assuming that constitutionalism implies a level of power parity between the State and civil society, with civil society being a check and balance on the State, infringing on property rights will put this to an end. Like with citizenship, private property enables private institutions to be autonomous and act without constantly having to ask for permission. Sans property rights, these institutions would be emasculated.

I would add to Malan’s points the fact that constitutionalism necessarily implies a limited government, with ‘limited’ obviously meaning it is limited in the extent of its authority over legal subjects. Without being required to pay compensation when private property is expropriated, government is effectively given an unlimited power to seize assets from its subjects. EWC thus negates the essence of constitutionalism itself.

It is therefore unfortunate that we are as far along in adopting EWC as we are today, despite the fact that the constitutional order we find ourselves in is quite young and underdeveloped.

The US Constitution has always undergone development. Its basic character has consistently been to limit government and protect individual rights. It had a central theme when it was adopted and that has carried through until today. Even the authoritarians on the left and the right, often to their dismay and condemnation, admit this. There were aberrations such as acquiescing to slavery and segregation, but these were eventually done away with during this development in realisation of the Constitution’s ultimate goal to protect individual rights.

South Africa’s youthful highest law has also undergone development up to now. The Constitutional Court has arguably made some very wrong judgments, but the character of the Constitution has remained the same since it was enacted in 1996. Its basic character from the start was to act as a ‘bridge’ between an authoritarian, racialised past with unequal treatment by government, to a liberal, non-racial future based fundamentally on equality, human dignity, and fundamental rights.

If EWC is introduced into the Constitution, we will enter a process of constitutional deterioration. Our highest law will no longer fundamentally be a protector of rights (be they natural rights, or socio-economic ‘rights’), but now an aggressor against rights.

But more worryingly, if EWC is adopted, it is highly unlikely that it will be removed from the Constitution. Very few, if any, governments or opposition movements voluntarily sacrifice powers that previous administrations granted to them. The Republicans incessantly criticised the Obama administration for its over-use of executive orders, yet, when Barack Obama left office and the Republicans gained control of the presidency and both houses of Congress, no law was introduced to curb this tendency. Indeed, Donald Trump himself has made use of executive orders in circumstances where legislative action would have made more sense. Similarly, Democrats who historically criticized Republicans for being warmongers and surveillance hawks have themselves also made generous use of the executive government’s newfound spying and war-making powers. In South Africa, the post-Apartheid government has kept illiberal measures like the Protection of Information Act and the Subdivision of Agricultural Land Act, which were enacted by the Apartheid regime, on the books and have used them to their fullest extent.

EWC, thus, will likely only end in one way: the Constitution will eventually be replaced when South Africans realise the mistake that they have made. This will happen either peacefully after a prolonged period of intense and total poverty, or it will happen through violent revolution.

Constitutionalism and EWC are by their very natures incompatible. One is dedicated to limiting government, and the other’s essence is about freeing government from limitation. The system of constitutionalism simply isn’t built for accommodating both these values at once. South Africans will do well to avoid venturing further down this path.

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