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Expropriation: We have to be careful
Martin van Staden.

Land expropriation: We should be vigilant

The discourse around expropriation is totally confused.The Constitutional Review Committee has recommended that Parliament adopt expropriation without compensation as a constitutional amendment.

The confused, and often outright deceitful, discourse around this policy, now more than ever, is of serious concern.

Pres. Cyril Ramaphosa has gone around South Africa and the world selling the benefits of expropriation without compensation (EWC).

Among his assurances are that EWC is about land and that it is about addressing the ‘original sin’ of land dispossessions throughout South Africa’s history. The president either sincerely believes what he is saying, or he is being deceptive. This is why:

Assurances are not law. Ramaphosa himself, lawyers, ordinary South Africans, and foreign heads of state like Theresa May and her predecessor David Cameron, have all made much ado about government’s – and particularly the President’s – assurances about EWC. Among these assurances are that EWC will not harm the economy; that the EWC constitutional amendment will simply ‘clarify’ what the Constitution already says (that is, not introduce anything new); that tribal land will not be targeted; and that only land which is underutilised or otherwise improperly (according to government) used will be targeted.

The confused, and often outright deceitful, discourse around this policy, now more than ever, is of serious concern.

What these people fail to realise is that none of this is enforceable at law. Assurances from politicians and officials are, in the world of statecraft and jurisprudence completely irrelevant. Only what is written into the law itself is enforceable.

Therefore, if your home in Mkuze on Ingonyama Trust land is taken forcibly by government without compensation, you will be unable to go to court and say, “The President said only land tainted by Apartheid dispossession will be targeted!” Similarly, if Parliament ends up introducing a wide-ranging constitutional amendment that does not simply ‘clarify’, but introduce (invariably detrimental) new doctrines and principles into the Constitution, one would be unable to tell the Constitutional Court that the President assured the country that the amendment would only amount to a clarification.

Finally, if EWC does end up harming the economy – and it certainly will – nobody will be able to go to court to set aside the constitutional amendment on that basis. Courts are averse and unqualified to inquire into the economic consequences of political decisions. Of all the President’s assurances, this is the one that must be treated with the most circumspection.

It is incredibly naïve to take the word of politicians – who have a clear vested interest in having you acquiesce to their intentions – as being indicative of reality.

The Constitution does not only refer to ‘land’

Section 25 of the Constitution is the “property” – not “land” – provision. Subsection (4)(b) explicitly provides that “property is not limited to land”. Subsection (3), which is likely going to be the subject of the constitutional amendment to enable EWC, deals with compensation when property in general is expropriated. In other words, all the talk of “land expropriation without compensation” is a sophisticated narrative trick that diverts public attention away from the real consequences of this policy, and will eventually allow government to acquire far more power than it is openly admitting to.

“Property” means land, residences, vehicles, businesses, heirlooms, pension funds, bank accounts, intellectual property like trademarks and patents, and the money under your mattress.

Once EWC is part of the Constitution, government will be able to take whatever it wants from you without being required to pay you.

It will only be if Parliament explicitly says in the constitutional amendment that it applies only to land used for agricultural purposes, that government’s assurance might prove true, but this is exceedingly unlikely to happen.

The Constitution does not distinguish between ‘white’ and ‘non-white’ land or property

It has often been implied, and sometimes stated explicitly (by the President himself to King Goodwill Zwelithini), that land owned by black people will not be subject to EWC: only that land tainted by the ‘original sin’ of colonialist or apartheid dispossession will be.

The Constitution does not function in this manner. If it is amended to allow EWC, as I indicated above, all property will be subject to it. It is inconceivable that the amendment will say that only land or property held by whites will be eligible for EWC, since this would conflict directly with the Founding Provisions of equality (in section 1(a)) and non-racialism (in section 1(b)). Parliament can amend the Founding Provisions, but would require a 75%, rather than a two-thirds, majority to do so.

If EWC is adopted, property belonging to anyone will be under threat.

Ramaphosa is not President-for-Life

Finally, neither President Ramaphosa, his Cabinet, nor his party, will not always be in government. Constitutions are meant to be fixtures in society; not temporary. Adopting EWC into the Constitution means any new government can use it for its own, nefarious purposes.

The discourse around EWC has been confused, deceptive, and legally incorrect. Now that Parliament seems intent on adopting it into the Constitution, it is time for South Africans to be vigilant and extremely circumspect, and not allow the powers that be to whisper deceiving sweet nothings in our ears.

  • Martin van Staden (24) is busy with his LLM at the University of Pretoria. He originally came from Vereeniging, but became largely in Pretoria.
  • This article was originally written in English and also translated into Afrikaans. Click here to read the Afrikaans version

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