Article for Dia LOGOS
By Cheryllyn Dudley
The ability to own and control property is understood universally and biblically to be a fundamental human ‘right’ and when security of tenure and property ownership are removed, quality of life and income levels decline regardless of race and economic standing.
In December 2018, the National Assembly established the ad hoc committee to amend Section 25 of the Constitution to make expropriation of land without compensation, more explicitly, a legitimate option for land reform, in order to address the historic wrongs caused by the arbitrary dispossession of land and to ensure equitable access to land to empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes.
The Draft Constitution Eighteenth Amendment Bill (Section 25 Amendment) which is presently before Parliament also provides that legislation must be enacted to stipulate circumstances under which compensation paid may be ‘nil’ (this has already been done in the Expropriation Bill) and that a competent court should decide on equitable remuneration where no agreement can be reached between the parties.
WILL PROPOSED CONSTITUTIONAL AMENDMENTS RESOLVE SA’S LAND DISPOSSESSION AND ECONOMIC WOES?
While the motivation and objectives expressed here are rational and even laudable we know that a more radical agenda for confiscation and nationalisation exists and is being articulated and forcefully argued by the EFF and RET faction of the ANC.
The Free Market Foundation (FMF) continues to warn that confiscating and nationalising of land, amounts to stripping away the property rights of ALL South African’s. Rather than resolving the country’s land dispossession legacy. It will disadvantage all except for an elite few and others who can afford to relocate.
DOES SA HAVE OPTIONS?
In a paper titled Private Property, Public Interest: Alternatives to Confiscation and Nationalisation, Martin van Staden, for one, suggests we do.
He points out that Property rights are a vital ingredient for countries that wish to achieve a high level of economic prosperity for the majority of their citizens. And that the poorest 10% of people in countries in the top quarter of economic freedom had incomes nearly eight times higher than their counterparts in the lowest quarter of economically free nations over the 2000-2018 period. The higher ranking countries being those where stronger property rights and state respect of property rights exist.
As President Ramaphosa, has stated repeatedly that government will ensure any amendment to the Constitution will not be harmful to investment potential, economic growth, or food security van Staden makes the following suggestions:
- remove the provision in the The Amendment Bill for parliament to determine in ordinary legislation under which circumstances government may confiscate property must be removed and
- replace it with a closed list of circumstances under which government may confiscate property.
He proposes that this closed list provide:
- that property may only be confiscated for the purpose of restitution, and restitution must be defined as it presently is in section 25(7) of the Constitution: “A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices”.
- that such property may only be confiscated without compensation if it is, 1) State-owned land, 2) abandoned land, 3) the confiscation strictly complies with all the requirements of section 36(1) of the Constitution, which contains a formula for how government may lawfully limit rights.
- that under all other circumstances, compensation must be paid.
Section 36(1) of the Constitution provides that a right in the Bill of Rights, for instance the right to property and associated right to compensation upon expropriation, may be limited only if that limitation is reasonable and justifiable (determined by a court of law) in an open and democratic society that is founded on freedom, dignity, and equality.
To determine whether this is the case, a court must inquire, inter alia,
- into the nature and importance of the right being limited,
- the purpose for which government seeks to limit that right,
- the nature and extent of the invasiveness of the limitation,
- the relationship between the limitation and that purpose government seeks to achieve, and
- whether there are any less restrictive means available to government to achieve that purpose without limiting the right.
If government cannot provide a good reason for expropriation without compensation… then the court would have to make a finding for compensation to be paid.
THE EXPROPRIATION BILL
The Expropriation Bill, would then have to be amended to:
- remove the open list of circumstances it contains for expropriation without compensation and
- no list must appear in this bill which will then rely on the proposed list suggested for inclusion in the constitution.
Finally, the bill must:
- make clear provision for how property that has been expropriated, with or without compensation, for land reform purposes, will become the property in title (ownership) of beneficiaries and
- the possibility of the State expropriating private property and becoming a landlord-owner in its own right for future tenants must be excluded.
These changes, could make privately-owned property, at least constitutionally safe, while answering the necessity of just restitution, and the redistribution of State property could be used for more general redistribution purposes.
Our prayers for:
- hearts to be softened,
- minds to be changed,
- ears to be opened,
- for wise counsel to be considered and
- wise decisions to be taken
are much needed at this time.
In recognising that a denial of human rights including ‘land ownership’ to the majority of South Africans during apartheid, it is unthinkable that our relatively new democracy would knowingly subject that same majority to such a fate. The protection of property rights is not about maintaining ‘white privilege’ and must be about ensuring that the benefits of property ownership that ‘whites’ enjoyed be extended to everyone.
“White South Africans, for the most part, will survive expropriation without compensation. The fact that there are no majority-white shanty towns in Zimbabwe testifies to this. Farmers either left Zimbabwe to farm in neighbouring states, moved to England, or moved into the cities where they are still, by far, more prosperous than the black Zimbabwean majority. Expropriation without compensation would be a significant inconvenience for white South Africans, but completely disastrous for most black South Africans, in particular, the poor. This not because black people cannot farm, but because, as tenants on State-owned land, they will have no security of tenure or guaranteed entitlement to the land’s produce.” (Van Staden)
When people of all races have the security that ‘white’ people had, we will see more widespread prosperity, self esteem and business confidence at all levels.
Restitution of property is an imperative recognised by South Africa’s common law, and is a principle deeply entwined with property rights. It has a simple meaning: If one takes property without the consent of the owner, they are obliged to give that property back, and if that is physically impossible, pay compensation.
When people of all races have the security that ‘white’ people had, we will see more widespread prosperity, self esteem and business confidence at all levels. “Every tyranny in the world today is noted for the absence of property rights. The Rule of Law, freedom, and property rights… do not exist in isolation from one another. None of the rights in the Bill of Rights exist without property rights. There is no freedom of expression without the ability to own one’s cell phones and their art and clothing. There is no right to privacy when people live in State housing. And there is no right to human dignity without having a place to call one’s own.”
Transformation must empower people and taking away people’s right to own property is NOT empowering.