Beyond acceptable limits and beyond the pale- South Africa

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Public discussion around the proposed amendment to Section 25 of the Constitution – in pursuit of Expropriation without Compensation (EWC) – has not been limited to the substance of the changes, or to their probable impact. 

A significant volume of commentary has examined the deficiencies of processes undertaken to bring us to this point. Casual observers might see this as a secondary concern. After all, we will live with the consequences of the amendment no matter how it comes about.

This is mistaken.

Processes set out how governance is to be conducted. Most importantly, procedures guard against arbitrariness. Where politicians and officials wield power, abuse is always a danger. Procedures offer predictability, which is essential for any transparency and accountability worthy of the name. 

Stray from the prescribed procedures, ignore the limits that they impose, and the predictable outcome is that the inclination of office holders – be they elected or unelected, for reasons idealistic, ideological or venal – to accrue more discretion, to push the envelope, to go a little further is broadened.

Procedures cannot be divorced from outcomes, certainly not in a constitutional democracy.

And it is this – granted, among many other things – that has made the tortuous path that the constitutional amendment has travelled so troubling.

Deficiencies manifested from the outset. The committee established after the parliamentary debate in 2018 was mandated to investigate whether an amendment to the constitution was necessary to enable the state to expropriate land without compensation. Its task was to evaluate this question with a fair and open mind.

It’s debateable whether this injunction was ever taken seriously or implemented sincerely. The hearings were indifferently managed, and the whole process appeared infused with a strong strain of prejudgement in favour of pushing the amendment through. Indeed, President Ramaphosa announced on 31 July that notwithstanding the fact that the hearings were ongoing, the constitution would be changed. (Incongruously, he also said that the Constitution in its current form already allowed EWC, which suggested that this amendment was being undertaken to make a political point – hardly a reassuring position.)

Unsurprisingly the committee’s report, published in November 2018, recommended an amendment. It’s remit, though, was limited. ‘Section 25 of the Constitution,’ it said, ‘must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without Compensation, as a legitimate option for Land Reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs.’

Whether it would be prudent or advisable to tamper with the Bill of Rights to achieve something that was already (implicitly) permissible is debateable. One of the dangers was that having opened the door to a constitutional amendment, those pushing for it might assume they had carte blanche to recast Section 25 as they saw fit. And this is what happened.

   Expropriation without compensation (EWC)- JP Landman

The first attempt at a bill, in 2019, stepped outside the mandate. It did not effectively ‘balance’ the public interest in land reform and the rights of affected owners, and it also extended the state’s latitude in taking property at ‘nil’ compensation by specifying that this might also apply to ‘any improvements thereon’.

This was followed (until the COVID pandemic disrupted things) by musings on the part of the ANC about changing the amendment to exclude the courts from a role in determining compensation, vesting it rather in the executive. This would have represented another undue expansion of the reach of the process.

The EFF, meanwhile, never seemed to consider itself bound by any limitations, as it pushed for the complete nationalisation of all land.

The bill now to be put before Parliament, meanwhile, continues and compounds this overreach, egregiously so. 

Courts retain a role in expropriation, but a change between the 2019 and 2021 versions of the amendment change this from being mandatory to being discretionary. Whether ‘nil’ compensation should be paid will no longer have to be decided by the courts in every instance and generally before expropriation proceeds. Instead (taking into account the provisions of the Expropriation Bill) property owners who find their assets targeted for compensation-free expropriation will be able to approach the courts for a decision on compensation – but will often find it difficult in practice to afford such litigation. 

Still more significantly, the amendment establishes a constitutional provision for custodianship of land. This idea has loomed large over the entire process, endorsed by the EFF and by many within the ANC; and would mirror the existing arrangements for mineral and water resources. It would amount to an effective nationalisation of land as the Minister of Justice and Correctional Services recently noted.

The proposed amendment calls for ‘certain’ land to be held in custodianship by the state. Exactly what ‘certain’ land would entail is not clear, but it is a broad enough idea that it could mean something very extensive indeed – perhaps asserting ‘custodianship’ over all land not owned by the state. 

This is also well beyond the committee’s mandate; it was never instructed to consider this issue.

This matters. It matters because a parliamentary process that ignored its inherent limits has succeeded in producing a bill that has no legitimate business for existing. It matters because the outcome of this deficient process is aimed squarely at the heart of the Bill of Rights, the mainstay of citizens’ constitutional protections. It matters because, if it succeeds in being enacted, it will have set a precedent that will inevitably come to be repeated.

Processes matter. If their abuse is allowed to stand in this instance, South Africa will pay a steep price in future.