Reflecting on the Expropriation Hearings


If there are two testimonies that stood out to me during the parliamentary committee hearings on land reform, it was those by AfriForum and Sakeliga.

AfriForum’s testimony pointed out how the South African media are more obsessed with their own image and self-guilt than standing up for constitutional principles. This could not be made clearer than by Peter du Toit’s or Melanie Verwoerd’s attack on Ernst Roets. News24 seems to be adept at making up stories that simply did not happen, but unfortunately for them, we all can see the full hearing for ourselves on YouTube and come to our own conclusions.

The media is being exposed as nothing more than a strawman journal. This has put their credibility at risk. If our columnists are going to become apologists for the EFF, then they will have to face that same problem that all masochists eventually have to deal with – a real sadist.

Ernst Roets might have been a bit crass in his approach, but this is understandable given that the parliamentarians openly insulted previous presenters and acted as if they somehow are deserving of respect. The mere fact that they entertained the possibility of expropriation without compensation shows that they are not respectful. It is time that the media stops sucking up to them.

During the Sakeliga testimony, the EFF members on the committee made a statement that made me cringe. The honourable member asked that if we accept the process of ‘constitutionality’, and amend the Constitution, then land could in theory be expropriated? This question shows a deep philosophical ignorance on two aspects: What the rule of law actually is, and from where constitutions derive their power.

The rule law is not a set of words written in the Constitution that we all simply follow like blind zombies. It instead derives its origins from the separation of powers. The executive executes, the legislative legislates, and the judiciary adjudicates. Our political parties misunderstand these basic pre-conditions for a democratic society. Any breakdown in the rule of law in South Africa can be traced back to when these lines became skewed and authorities overstepped the boundaries of their responsibility; be it in the days of Apartheid or in the new South Africa.

If we allow the government to be the custodian and arbiter of land, then these distinctions will be obsolete. They will become fussed into one powerful entity which can act with discretion on any who dissent from their doctrine. I, for one, do not look forward to such a day.

Land reform simply cannot be allowed to happen without accepting the principle of land restitution. No white farmer today stole their land; land itself was stolen by the South African state when the rule of law broke down in 1913 or various other acts during our long and complex history. It is therefore the responsibility of the South African government and not the white farmers to offer restitution to those who were deprived of their dignity. They cannot do so by violating the fruits and labour of the current land owners. The truth is that South Africa is no longer an agrarian society and a future model that will try to resettle the masses of people on the countryside will result in a Pol Pot-esque society.

If the government ignores this as the process unfolds, then they are going to find themselves up against the basic notion that human beings do not like their property being stolen be the state; and this includes black South Africans. The Constitution will become nothing more than a piece of toilet paper; it will no longer be able to guarantee us security and property owners will be forced to fend for themselves. The rule of law simply breaks down when power is centralized.

The second false assumption that the EFF made during Sakeliga’s testimony is that the Constitution gives people power. It is rather the people that give the Constitution power. Laws are in a sense the history of our actions of yesterday. To put this simply: people do not follow laws that are against their ordinary nature. The only way to enforce unnatural laws is by use of force, which is why all utopia-driven states in the past could only govern under tyrannical conditions.

It is a shame that the EFF did not know that they were posing the question to Professor Koos Malan who is one of our most distinguished scholars on constitutional law. Professor Malan often makes the point that the Constitution cannot guarantee and rights before it sufficiently divides power. These divisions alone must be kept intact if this process is ever going to find legitimacy in the eyes of the public and if our constitutional order is to survive for another generation.

If the next election is going to be run on land, then it will be a fight for the continuation of South Africa as a constitutional order and free and open society.

Hügo Krüger