Jeffery misses a point

DEAR SIR — Dr Anthea Jeffery asserts (Cronin offers a school of red herrings, Letters, May 23) that the Expropriation Bill is unconstitutional because it permits expropriation without a court order confirming, in advance, that the requirements of the constitution have been met.

She does not explain why the constitution requires a prior court order for expropriation. She asserts this as if it were self-evident. It is not.

There are many provisions of the constitution that stipulate conditions that must be fulfilled before a power is exercised. I am not aware of any judgment in which it has ever been held that this means that the power may not be exercised unless a court has certified in advance that the conditions in the constitution have been met. There is no general requirement of prior authorisation by a court. That would be a farreaching principle. The only exception is section 26, dealing with evictions, which explicitly requires a court order in advance.

One would hope for an explanation as to why this principle applies to section 25 of our constitution, and not to the rest of it, or for that matter to our common law. We have had constitutional protection of property rights since 1994. This principle has not been discovered by any of the courts which have decided expropriation cases.

It has also not been discovered by any of the recognised writers on constitutional property law. They have all accepted that the usual rule applies: when a power is exercised, anyone claiming that the prescribed conditions have not been met, may ask a court to declare the exercise of the power unlawful and invalid.

The point is simply this: Dr Jeffery is of course entitled to her opinion that in SA, contrary to the practice in other democratic countries, expropriation should be prohibited unless it has been authorised in advance by a court. That contention needs to be justified by reasoned argument, not by a somewhat ritualistic and unexplained reference to the constitution.