Melanie Verwoerd’s recent column on News24, “Section 25: Why the DA should vote with the ANC for the constitutional amendment”, leaves much to be desired. In summary, Verwoerd wants the Democratic Alliance (DA) to vote for the African National Congress (ANC)’s version of the proposed amendment to the Constitution which would allow government to “expropriate” property without compensation (i.e., confiscate it), because this version is apparently better than the Economic Freedom Fighters (EFF)’s proposal.
In the first place, she says there is a legitimate concern among ANC politicos about the slow pace of land reform. That’s obviously nonsense. The ANC has governed South Africa since 1994 — any “slow pace” in land reform has been due exclusively to its own lack of competence or will to implement a sound land reform programme. Of course, the party has no interest in a sound land reform programme, as increasingly all its land policies involve granting the State more power rather than vesting ordinary South Africans with ownership. Government has made it quite clear that when it comes to agricultural property, it wishes to lease out land reform farms, rather than transfer ownership. Verwoerd would, however, have been correct if she said there was a legitimate concern in the ANC that the land reform gravy train might be coming to an end, and that they need to open a new door for looting, in the form of confiscation without compensation.
In the second place, Verwoerd claims the ANC’s modifications to the EFF’s resolution paving the way for the Constitution to be amended to allow for confiscation of property were “measured and calm”. In her view, the Constitution Eighteenth Amendment Bill, as it currently stands (it is soon to be radicalised), is appropriate.
Following from this, she claims that, “The bottom line is that what was proposed in the amendment bill poses no threat to private ownership.” This is an incredible thing for a politically conscious South African to say. The Amendment Bill, in its current form, deviates substantially from the international standard of expropriation always involving compensation. It opens the door to government, utilising an open-ended discretion, simply deciding in some — conceivably most — cases not to pay any compensation whatsoever. In an article for the Potchefstroom Electronic Law Journal that will be published later this year, I argue that this is inherently incompatible with the character and structure of the Constitution, with international law, and with international best practice. The Amendment Bill as it currently stands poses an existential threat to private property rights, and the modified Amendment Bill we can expect to see soon, will likely be far worse.
In the third place, Verwoerd claims that if the ANC dropped the Amendment Bill and does not proceed with its plans to amend the Constitution, it will apparently disappoint “the majority” of South Africans because they want land reform. I do not understand why nobody accepts the reality that most South Africans — most black South Africans — do not care particularly much for land reform. Year after year, the Institute of Race Relations publishes research showing exactly that. There are many concerns that ordinary South Africans have, and the percentage-based formula ratio of land ownership is not one of them. Families who are waiting for land that is theirs to be restituted to them are a different story, but this is not a matter of land reform, but simply of enforcing property rights.
In the fourth place, Verwoerd says the DA, who she believes must vote with the ANC for its “moderate” Amendment Bill, has engaged in dishonest scaremongering about property confiscation. The DA claims that government’s proposals could see homes, businesses, and land taken without compensation. Verwoerd claims this is “utter nonsense”. One can forgive Verwoerd, as she is not a property law expert, but the DA is entirely correct on this point. According to South African law, anything that is built upon land, becomes part of that land through accessio. If “land” is expropriated, the house that sits atop it is similarly expropriated unless for some reason or another it is specifically and explicitly excluded from the expropriation action. Neither the Amendment Bill nor the proposed Expropriation Bill excludes homes or businesses — quite the contrary, it is clear that any “improvements” on the land are also part of the confiscation package.
Where Verwoerd might have a point, is that neither the Amendment Bill nor the Expropriation Bill necessarily allow intellectual or financial property to be confiscated. Bank accounts, pension funds, trademarks, and patents, for now, remain as nominally safe as the remainder of South African law keeps them. However, government has now signalled its despicable opposition to property rights per se, so it should not surprise anyone if the ANC-EFF coalition in the near future brings financial and intellectual property within its crosshairs (as it has alluded to with prescribed assets, for instance).
In the fifth and final place, and most importantly and shockingly, Verwoerd argues:
“If the DA has any sense they would make a deal with the ANC and vote for the (moderate) proposed amendment. If they do, it would send a strong message to African voters (who they desperately need) about their commitment to land reform, whilst still protecting private property rights – thus appeasing their white voters.”Melanie Verwoerd
Do you see it?
Melanie Verwoerd is pitting blacks (who want land reform) against whites (who want property rights).
After more than a century of being denied private property rights, Verwoerd thinks, black South Africans do not care much for the institution. They are happy being perpetual tenants of the State. Only those whites over there care about ownership, security of tenure, and the ability to say “no” to predation. Shocking.
Government’s confiscation plans have the potential to destroy private property rights, which will be worst for the poor. While wealthier South Africans, which includes a great proportion of whites, can fight confiscation in court for years, or even immigrate if they lose those battles, only a negligible proportion of black South Africans can. Any confiscation (“expropriation without compensation”) order will simply have to be accepted, particularly if no inundated university legal clinic or pro bono legal services are available. They certainly will not be able to immigrate away from the banana republic that will result.
The Constitution Eighteenth Amendment Bill is anything but “measured and moderate”. It might have been part of the ANC’s plan all along to have the EFF radicalise the process so that its (the ANC’s) proposal appear benign by comparison. One cannot have a constitutional society if, each time government proposes a bad idea, but someone else proposes a worse idea, our only option is to go with the initial bad idea. A constitutional society is only possible if the answer can be “no”. And, in this case, the answer should be “no” — there ought to be no damage done to our constitutional property rights, whether it is through a less-bad ANC amendment or a worse-bad EFF amendment. All South Africans benefit from the institution of private property rights, even if they own none of it themselves.