Ob­serve prop­erty rights and pay for land

Pretoria News - - OPINION - Martin van Staden

ALL THE progress made since apartheid ended stands to be un­done un­less peo­ple recog­nise that a most fun­da­men­tal hu­man right is for peo­ple to have the abil­ity to own and con­trol prop­erty – this in­cludes the pro­duce of their own ef­forts and be­ing able to dis­pose of it as they see fit.

This im­plies a mar­ket econ­omy, where all peo­ple are at lib­erty to deal with their prop­erty and con­duct their af­fairs ac­cord­ing to their own needs and mo­ti­va­tions. Apartheid was a de­nial of this fun­da­men­tal hu­man right to the ma­jor­ity of South Africa’s cit­i­zens.

To be in favour of prop­erty rights today, there­fore, is not to main­tain “white priv­i­lege”, but to en­sure that the ben­e­fits of prop­erty own­er­ship that whites had en­joyed be ex­tended to ev­ery­one. If peo­ple of all races could have the se­cu­rity the white pop­u­la­tion had, we would see more sub­urbs and fewer town­ships, tar rather than dust, and pros­per­ity rather than des­ti­tu­tion.

When the con­sti­tu­tion came into op­er­a­tion in 1996 with a rel­a­tively strong prop­erty rights pro­vi­sion, ev­ery­one fi­nally had the right to prop­erty and black in­comes which had plateaued dur­ing apartheid, be­gan ris­ing steadily. Th­ese, of course, plateaued again around the time the gov­ern­ment started in­tro­duc­ing dra­co­nian labour legislatio­n.

Prop­erty rights are mean­ing­less if the state is not un­der an obli­ga­tion to pro­vide com­pen­sa­tion for ex­pro­pri­a­tion. If you are not en­ti­tled to com­pen­sa­tion, it means your pre­vi­ous le­git­i­mate own­er­ship is de­nied. Such a state of af­fairs will make the grant­ing of credit in re­spect of mostly agri­cul­tural prop­erty a thing of the past. This is what de­stroyed the Zim­bab­wean econ­omy.

White South Africans, for the most part, will sur­vive ex­pro­pri­a­tion with­out com­pen­sa­tion. There are no ma­jor­ity-white shanty towns in Zim­babwe. Farm­ers ei­ther left to farm in neigh­bour­ing states, re­turned to Eng­land, or moved into the cities where they are still, by far, more pros­per­ous than the black Zim­bab­wean ma­jor­ity.

Ex­pro­pri­a­tion with­out com­pen­sa­tion will be a sig­nif­i­cant in­con­ve­nience for white South Africans, but dis­as­trous for most black South Africans, par­tic­u­larly the poor. This not be­cause black peo­ple can­not farm, but be­cause, as ten­ants on state-owned land, they will have no se­cu­rity of ten­ure or guar­an­teed en­ti­tle­ment to the land’s pro­duce.

Also, peo­ple do not want to go out to ru­ral ar­eas where gov­ern­ment ap­pears in­tent on driv­ing them. They wish to live in the cities, as do peo­ple across the world. But they are not be­ing ac­com­mo­dated, be­cause many town­ship in­hab­i­tants con­tinue to live on mu­nic­i­pal land; a left­over of apartheid lease­hold ten­ure that this gov­ern­ment re­fuses to abol­ish.

Where gov­ern­ment does try em­pow­er­ment in the cities, it fails. RDP house ti­tle deeds come with pre-emp­tive clauses that, for the first eight years, pro­hibit own­ers from sell­ing their prop­erty to oth­ers, but stip­u­late that they sell to gov­ern­ment at cost. Th­ese own­ers are not given ti­tle deeds when they move in but of­ten only af­ter sev­eral years.

Resti­tu­tion is an im­per­a­tive recog­nised by South Africa’s Ro­manDutch com­mon law, and is a prin­ci­ple deeply en­twined with prop­erty rights. It has a sim­ple mean­ing: if you take prop­erty with­out the con­sent of the owner, whether through law or not, you are obliged to give that prop­erty back, and if that is im­pos­si­ble, pay com­pen­sa­tion.

In South Africa, wher­ever some­one can prove a claim to a piece of land that was taken from them or their an­ces­tors by the apartheid regime, they are en­ti­tled to that prop­erty. But the “cur­rent owner”, who will al­most uni­ver­sally be an in­no­cent party who bought the prop­erty in good faith, should be com­pen­sated and, at the very least, get back what they paid for it. They are blame­less and in no sys­tem ded­i­cated to con­sti­tu­tion­al­ism will in­no­cent par­ties be pun­ished in the way en­vi­sioned by those who favour ex­pro­pri­a­tion with­out com­pen­sa­tion.

To achieve a bet­ter life for all, free­doms and se­cu­rity of prop­erty must be re­spected and ex­panded. The Eco­nomic Free­dom of the World study, pub­lished an­nu­ally by the Fraser In­sti­tute, il­lus­trates this by show­ing a strong cor­re­la­tion be­tween GDP per capita and eco­nomic free­dom, of which prop­erty rights is a pre­con­di­tion.

Ev­ery tyranny in the world today is noted for the ab­sence of prop­erty rights. The Rule of Law, free­dom and prop­erty rights are a pack­age deal. They do not ex­ist in iso­la­tion from one an­other. None of the rights in the Bill of Rights ex­ist with­out prop­erty rights. There is no free­dom of ex­pres­sion with­out the abil­ity to own our cell­phones, our art and cloth­ing. There is no right to pri­vacy when we live in state hous­ing. And there is and no right to hu­man dig­nity with­out hav­ing a place to call our own.

• Martin van Staden is le­gal re­searcher at the Free Mar­ket Foun­da­tion.

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