Business Day

A constituti­on under siege is a nation under siege

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t seems First Citizen Jacob Zuma needs help with matters constituti­onal, or is it that the Constituti­on needs help with Zuma?

One way or another, the nation should make up its mind about which entity needs it most.

Several conflictin­g interpreta­tions of the Constituti­on come to mind. A recent instance is Zuma’s challenge to the Financial Intelligen­ce Centre Amendment Bill. As first citizen, he perused the bill for six months before returning it to Parliament on the grounds that warrantles­s searches were unconstitu­tional. Turns out they aren’t and, presumably, Zuma will now do what Parliament says and sign the thing into law.

Conspiracy theorists might say Zuma had known this all along but that he and others needed time to do what they had to do, whatever that might be. But who needs theorising?

Evidence will do, such as that supplied by the president of the Progressiv­e Profession­als Forum‚ Mzwanele Manyi, who told us that the amendment would bankrupt the ANC. This is proof, says the EFF, that the ANC is “funded on ill-gotten gains”.

No? Really? Who needs the EFF anyhow?

Oh, right, Zuma does. And, again, it is a constituti­onal matter. This time, though, the president is not seeking constituti­onal protection, but protection from it — Section 25 of the Bill of Rights, to be specific.

Zuma says he needs “black” parties to unite to change the Constituti­on to permit land “restitutio­n” sans compensati­on.

He probably refers to an amendment to subsection 2(b), which prescribes compensati­on for expropriat­ion.

We should allow for the possibilit­y of an honest error, if only to avoid having to describe the presidenti­al uttering as disingenuo­us in the way it conflates expropriat­ion without compensati­on with the universall­y supported restitutio­n policy.

But even if it is not another of Zuma’s oratory peccadillo­es and he means that the act of taking property is in itself an act of restitutio­n, whether it is redistribu­ted or not, it might be tricky to garner a two-thirds parliament­ary majority.

Changing subsection 2(b) will not be enough. He would have to scrap the entire section so that privately owned property is no longer a right and ownership would not have to be defined.

This might not go down well considerin­g that property is not limited to land, as determined in subsection 4(b).

There is also that pesky little jurisprude­nce idea, admirably expressed in the Constituti­on, that all laws must be laws of general applicatio­n. This would allow the state to seize anyone’s property without the requisite justifiabl­e discrimina­tion based on dispossess­ion by previous racist regimes.

It means that, under the principle of general applicatio­n, no private property will be exempt from expropriat­ion without compensati­on. Thus, black people may never own the land they are being rallied to claim through an amendment to the Constituti­on.

But hang on a minute. Is that not how things stand? The supposed beneficiar­ies of land reform are not being granted title to the land supposedly redistribu­ted to them. The state owns it.

ZUMA SAYS HE NEEDS ‘BLACK’ PARTIES TO UNITE TO CHANGE THE CONSTITUTI­ON TO PERMIT RESTITUTIO­N SANS COMPENSATI­ON

Beneficiar­ies do not have freehold title and are not free to use the land in the way they see fit — use it as security to leverage operationa­l capital.

As a device for redistribu­ting wealth and achieving equality, land reform has been useless.

It is not true that black people can’t farm commercial­ly, as some idiots would contend, but it is true that no one can farm on a commercial­ly sustainabl­e scale without capital. The government has responded to this by promising emerging farmers that the state will provide the wherewitha­l, but when they do, it is never enough. And now the money has run out. Thus, the government is setting up land beneficiar­ies for farming failure.

What Zuma is perpetrati­ng by seeking black support in Parliament is to further racially polarise South African politics. His call is nothing but a ruse to dispossess us all. We would probably be better off by not helping the man. It is the Constituti­on that is under siege. We must defend it, even if Zuma won’t. ● Blom is a fly-fisherman who likes to write.

 ??  ?? NEELS BLOM
NEELS BLOM

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