Prop­erty rights threat­ened

The South African govern­ment is us­ing le­gal sophistry to by­pass the Con­sti­tu­tion and ex­pro­pri­ate land

The Witness - - OPINION - Martin van Staden • Martin van Staden is a third-year LL.B law stu­dent at the Univer­sity of Pre­to­ria, the south­ern African re­gional di­rec­tor of African Stu­dents for Lib­erty and an in­tern at the FMF.

CHIEF Jus­tice Mo­go­eng Mo­go­eng set a very dan­ger­ous prece­dent when he held, on be­half of the ma­jor­ity of the Con­sti­tu­tional Court, that by be­com­ing the “cus­to­dian” of prop­erty the state does not ac­quire “own­er­ship” and there­fore such an ac­tion does not amount to ex­pro­pri­a­tion.

In the case of Agri SA vs Min­is­ter of Min­er­als and En­ergy, at­ten­tion is be­ing drawn to the Min­eral and Pe­tro­leum Re­sources De­vel­op­ment Act which pro­vides that all min­eral and pe­tro­leum re­sources be­neath the South African soil are the “com­mon her­itage” of all cit­i­zens with the state the “cus­to­dian” thereof.

As could be ex­pected, the adop­tion of this act led to many own­ers of pri­vate prop­erty through­out the coun­try los­ing their en­ti­tle­ments, with­out re­ceiv­ing a cent in com­pen­sa­tion. The court was un­will­ing to rule that the lan­guage in the act in­ferred ex­pro­pri­a­tion — for which com­pen­sa­tion must be paid in ac­cor­dance with sec­tion 25(2) of the Con­sti­tu­tion — sim­ply be­cause the state did not “ac­quire” the prop­erty, i.e. own­er­ship.

Jus­tices Jo­han Frone­man and Jo­hann van der Westhuizen re­alised this er­ror and pointed out that the ma­jor­ity’s ar­gu­ment was un­con­vinc­ing: rights to the min­er­als have been forcibly trans­ferred from the pre­vi­ous own­ers to the state. They be­lieve, cor­rectly so, that ex­pro­pri­a­tion has taken place. Con­sid­er­ing this kind of le­gal sophistry, both by Par­lia­ment and the ma­jor­ity of the bench, they asked: “What pre­vents the abo­li­tion of pri­vate own­er­ship of any, or all, prop­erty in the same way?”

If the state can say, in leg­is­la­tion, that it does not ac­quire own­er­ship but sim­ply be­comes “cus­to­dian”, then sec­tion 25(1) of the Con­sti­tu­tion will be cir­cum­vented, and ef­fec­tively re­pealed.

In Novem­ber 2015, the so­called Pro­mo­tion and Pro­tec­tion of In­vest­ment Bill pro­posed by the Depart­ment of Trade and In­dus­try (Com­mu­nist Party mem­ber Rob Davies’s port­fo­lio) in Par­lia­ment in 2013 was voted into law. Es­pe­cially wor­ry­ing to the min­ing in­dus­try is that this bill has a sim­i­lar pro­vi­sion of “cus­to­di­an­ship” in the state’s favour.

Dr Anthea Jef­frey of the In­sti­tute of Race Re­la­tions said: “This Con­sti­tu­tional Court judg­ment is now be­ing writ­ten into what is ef­fec­tively a new ex­pro­pri­a­tion bill. The mea­sure might speak of ‘pro­mot­ing’ and ‘pro­tect­ing’ in­vest­ment in its ti­tle, but its real im­pact is likely to be quite the op­po­site.”

As the Good Law Pro­ject notes in its Good Law, Guide­lines, Prin­ci­ples and Val­ues Re­port, “metic­u­lous and un­am­bigu­ous crafts­man­ship, when it comes to spell­ing out the rights and du­ties of those to whom the leg­is­la­tion is ap­pli­ca­ble, is the first prin­ci­ple of leg­isla­tive draft­ing.” It con­tin­ues: “… un­cer­tainty creates real or sus­pected in­jus­tice.”

How­ever, the in­jus­tice in this in­stance is not per­ceived. It is ac­tual. The lin­guis­tic ex­per­i­ment of the state to use words in a clever man­ner in or­der to cir­cum­vent that an­noy­ing old Con­sti­tu­tion has paid off. The Con­sti­tu­tional Court, our high­est court of prece­dence, has ef­fec­tively de­stroyed the no­tion of se­cure prop­erty rights in South Africa and em­pow­ered the state to ex­pro­pri­ate any prop­erty by sim­ply say­ing that it has not ac­quired own­er­ship.

This le­gal sophistry re­minds one of the con­sti­tu­tional cri­sis of the early fifties, when the apartheid regime at­tempted to pass a law called the High Court of Par­lia­ment Act, which, ef­fec­tively, would have made all mem­bers of Par­lia­ment ju­di­cial of­fi­cers with the power to over­rule judg­ments of the then Ap­pel­late Divi­sion of the Supreme Court. The Na­tional Party did this to curb the very lim­ited pow­ers of re­view that the ju­di­ciary had in those days. The cri­sis started when the Ap­pel­late Divi­sion de­clared the bill re­peal­ing the coloured com­mu­nity’s qual­i­fied fran­chise in­valid. In those days, how­ever, we had par­lia­men­tary sovereignt­y. To­day we have a jus­ti­cia­ble Con­sti­tu­tion, which has as its pri­mary func­tion the pro­tec­tion of South Africans’ rights against in­fringe­ment, es­pe­cially by the state.

The prop­erty rights pro­vi­sion in the Con­sti­tu­tion was un­prece­dented in South Africa’s con­sti­tu­tional his­tory, where the abil­ity to own legally se­cure prop­erty was al­ways “up for de­bate” by the political class. It was a gi­ant leap to­wards true trans­for­ma­tion where pre­vi­ously dis­ad­van­taged South Africans could utilise prop­erty in pur­suance of their eco­nomic in­ter­ests, reap­ing the re­wards of their pro­duc­tiv­ity that had been de­nied to them for so long.

No so­ci­ety with­out se­cure prop­erty rights has achieved free­dom and the re­sult­ing pros­per­ity. Where prop­erty rights are un­cer­tain, in­vest­ment is at risk, which pro­vides a def­i­nite in­cen­tive for South Africans to se­cure their eco­nomic in­ter­ests abroad.

This wor­ry­ing trend in South Africa can­not be re­versed un­til the peo­ple at­tain a level of un­der­stand­ing and re­spect for the con­cept of prop­erty rights.

— Free Mar­ket Foun­da­tion.


A walker braves the weather in a park as snow falls in the Be­larus cap­i­tal of Minsk. Win­ter tem­per­a­tures and snow con­tinue to pre­vail in Be­larus.

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