ANC plan to change Constitution is very dangerous; won’t help landless – Paul Hoffman

Sometimes you have to wonder whether the ANC decision-makers ever think beyond their noses. The plans to change the Constitution in order to facilitate land redistribution is a case in point. ANC leaders know that the slippery slope to mass wealth destruction in Zimbabwe all started with tinkering to that country’s Constitution. It’s a bit like introducing a new tax; start off with a small percentage and nobody is likely to complain about the extra charge. Then, when the tax is legislation, it becomes easy to change the scale of the fees. Paul Hoffman of Accountability Now warns of the dangers of amending the property clause in the Bill of Rights. The Constitution already enables the redistribution of land; the move to change the Constitution appears to be a sinister one to facilitate the introduction of unjust laws. Hoffman’s article is essential reading. Then look north of the border to see why the proposed changes should be stopped. – Jackie Cameron

Wrong procedure proposed for ‘EWC’

By Paul Hoffman*

Paul Hoffman Accountability Now
Paul Hoffman

It seems a long time ago that Accountability Now set out its stall in relation to what is euphemistically called the introduction of “Expropriation Without Compensation” or EWC – actually, the confiscation of land. Ours was the first submission made to the parliamentary committee initially seized with the task of creating a constitutionally compliant amendment to the property clause in the Bill of Rights.

We stressed that:

“It is prudent to draw the attention of the Committee to a provision of the Constitution that is implicated in the move as it has to prepare a report back and conduct a public participation process before the end of August 2018.

Section 74(1) of the Constitution is not often referred to in the daily lives of South Africans. In essence, it provides that the foundational values of the new order cannot be amended unless the proposed amendment enjoys the support of 75% of the National Assembly and six of the provinces in the National Council of Provinces.

The calculatedly opaque or somewhat vague resolution of the ANC at Nasrec to support expropriation without compensation is going to bring the foundational values of the Constitution into sharp focus in the deliberations around the legality and wisdom of giving legislative effect to the ANC’s resolution. This attention to section 74(1) is because the rule of law is a foundational value.

It is a primary element of the rule of law that the system in place in any given constitutional democracy should include respect for property rights. The SA Constitution regards the rule of law as “supreme”. The National Accord, which preceded the adoption of the Constitution, was premised upon upholding the rule of law, not “rule by law” which is what was in place under apartheid. Respecting the rule of law is the right way in which to aspire to a society in which the inherent human dignity of all is respected, the achievement of equality is promoted and guaranteed human rights are enjoyed by all.

The rule of law is regarded as sacrosanct in our constitutional dispensation. This high status is also compliant with the internationally accepted definition of the rule of law which the World Justice Project has devised and refined as the basis for its most useful “Rule of Law Index”. In the definition of the rule of law the following words appear:

‘The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property’

In short, security of property rights is a basic tenet of the rule of law everywhere on the planet where the rule of law holds sway.”

It would appear that the ad hoc Committee now seized with the proposed amendment to introduce EWC has lost sight of the memorandum submitted to it and of the legal obstacles to its passage that are sketched in the words in italics, above, which were part of the first submission to its predecessor committee in the Fifth Parliament.

In the invitation, dated 6 December 2019, to interested parties to make written submissions on the Draft Constitution Eighteenth Amendment Bill published by Dr Mathole Motshekga, current chair of the ad hoc Committee tasked with finding a legal way to give expression to an idea first adopted by the ANC at its December 2017 Nasrec conference, a note on parliamentary procedure appears. It is to the effect that the Committee proposes that the Bill must be dealt with “in accordance with the procedure established by section 74(2) of the Constitution since its object is to amend a section within Chapter Two of the Constitution”

Section 74(2) does deal with procedures for amending the Bill of Rights, which is Chapter Two of the Constitution, however, when any contemplated amendment affects the rule of law, then the procedure set out in section 74(1) is applicable, whether or not the proposed amendment is to Chapter Two.

That the proposed amendment does affect the rule of law, as it is understood and applied in SA law, is beyond question. In essence the current protection of property rights (part of the rule of law) and the commitment to “just laws” are watered down by giving courts a discretion “where land and any improvements thereon are expropriated for the purposes of land reform, to determine that the amount of compensation is nil”. This discretion comes into play because “National legislation must … set out specific circumstances where a court may determine that the amount of compensation is nil”.

Read also: Law scholar Pierre de Vos explains what’s involved in changing South Africa’s Constitution

If parliament seeks to amend the Constitution in a way in which the rule of law is implicated, then it can only do so with a 75% majority, because the supremacy of the rule of law is foundational to our new order and is specially protected by section 74(1) (arguably even trumping dignity, promotion of equality and enjoyment of freedom because of its “supremacy”). The indignity of having one’s land expropriated, even with compensation, is well known in SA history.

The very idea of leaving the ‘nuts and bolts’ of the operative effect of the amendment to national legislation, which the sponsors no doubt intend be passed by a simple majority, is a serious dilution of the respect accorded security of property rights as it stands in the Constitution. An amendment or any new law (as contemplated by the Bill) which affects the rule of law requires 75% support on any proper interpretation of section 74(1).

The stratagem contemplated in the Bill is accordingly to give parliament the power, by a simple majority vote, to dilute the protection of land rights (including improvements thereon) which the Constitution affords the protection of a 75% majority vote. Attaining the special majority is necessary before any adjustments to the rule of law of the kind contemplated in the Bill can be made. Any purposive reading of sections 1(c), 7(2) and 25 of the Constitution, subject to the limitations set out in section 36, reveals that the rule of law is supreme in our dispensation, one which requires the state to “respect, protect, promote and fulfil” the right not to be deprived of property, except in terms of a law of general application, and then not arbitrarily so.

The stratagem proposed by the Committee is unconstitutional and invalid, will give rise to manifestly unjust laws and will end, at least in part, the protection of private property contained in section 25 of the Bill of Rights insofar as land and improvements to land are concerned.

Read also: Think again, ANC, before you give up your secure property rights protection!

The procedure proposed by the Committee is the wrong one; actually, the procedure requiring a 75% majority as set out in section 74(1) of the Constitution more properly applies. All the more so because parliament is being given untrammelled power to make the rules of the game of EWC or, more accurately, the confiscation of land and improvements thereon needed for “land reform” purposes.

The procedure proposed by the Committee is accordingly “conduct inconsistent with the Constitution” and is invalid as set out in section 2 of the Constitution.

The Committee should revert to its drawing board and clean up its procedural proposal summarised above. It fails to do so at its peril.

In the current parliament, those parties which favour the idea of confiscating land and improvements thereon, including the EFF, which would nationalise all land if it could, do not command a 75% majority, which means that the Bill, in its current configuration, is bound to be stillborn for want of the necessary 75% majority.

The issues of food security and of not damaging the economy, so prominent in the 2017 Nasrec debate of the ANC, do not appear to have been considered properly or at all by the Committee and are not addressed in any way in Dr Motshekga’s statement of 6 December 2019.

Justice for the landless is necessary and is better achieved by utilising section 25, as it stands, properly than by introducing manifestly unconstitutional and unjust new laws in a procedurally cack-handed way that cannot possibly pass constitutional muster and will, in its implementation, impact negatively on food security and the health of the economy of SA. No prudent new investor will risk having land and improvements on land expropriated without compensation. Without new investments the perennial lack of jobs in SA’s economy will be exacerbated.

It is also more than strange that the Expropriation Bill does not feature as a part of the note issued on 6 December by Dr Motshekga. Perhaps the left hand in parliament does not know what the right hand is doing? The Expropriation Bill, a topic brought forward from the fifth parliament, proposes that the conditions under which expropriation may take place include:

  • Where the land is occupied or used by a labour tenant, as defined in the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996);
  • Where the land is held for purely speculative purposes;
  • Where the land is owned by a state-owned corporation or other state-owned entity;
  • Where the land owner has abandoned the land; and
  • Where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land.

During the first week of December 2019, after consultations with Nedlac, this list was increased by one; a point which underscores the nature of the moving target contemplated by the Bill.

Whether these are to become the criteria for expropriation without compensation is not clear. It is not even clear that the “national legislation” mentioned in the proposed constitutional amendment is in any way a reference to the Expropriation Bill that will come under discussion next year.

This note will be made available to the Committee. It is urged to reconsider its position. Any failure to do so is likely to be successfully impugned for want of compliance with the values of the Constitution, the supremacy of the rule of law and the procedural requirements of section 74(1).

  • Paul Hoffman is a director of Accountability Now. 
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