South Africans need time to de­bate is­sue of ex­pro­pri­a­tion with­out com­pen­sa­tion

The Witness - - INSIGHT - MARTIN VAN STADEN

SOUTH Africans will have only one month to sub­mit com­ments on the gov­ern­ment’s plan to amend the Con­sti­tu­tion to pro­vide for ex­pro­pri­a­tion with­out com­pen­sa­tion be­fore the Con­sti­tu­tional Re­view Com­mit­tee will be­gin pub­lic hear­ings.

Re­gard­less of the ar­bi­trary dead­lines set by the Na­tional As­sem­bly for the com­mit­tee, this al­lot­ted time is in­ad­e­quate and con­sti­tu­tion­ally sus­pect.

The Con­sti­tu­tion has been amended many times. This is not a new process. But the pro­posed amend­ment will change Sec­tion 25 — the prop­erty rights pro­vi­sion — which is part of the Bill of Rights. This will be the first time a sub­stan­tive, rather than a tech­ni­cal amend­ment, is made to our high­est law. The first time the Bill of Rights will be amended.

A bill of rights for South Africa had been con­sid­ered in 1910. It was given se­ri­ous con­sid­er­a­tion again in the six­ties and be­yond; and, even­tu­ally, af­ter the 1987 Dakar Con­fer­ence, a process was fol­lowed which led to the en­act­ment of our Con­sti­tu­tion. The process re­quired to bring our Con­sti­tu­tion and Bill of Rights into be­ing there­fore took many years. Yet, Par­lia­ment pro­poses amend­ing the Bill of Rights within one year, if not less.

Sec­tion 7 of the Con­sti­tu­tion pro­vides that the Bill of Rights is “a cor­ner­stone of democ­racy in South Africa”. For this rea­son, we must un­der­stand the im­pli­ca­tions of amend­ing the Bill of Rights. Bills of rights, wher­ever they ap­ply, do not cre­ate rights — they merely recog­nise pre-ex­ist­ing rights that ac­crue to all peo­ple by virtue of our hu­man­ity; hence “hu­man” rights. For a bill of rights to be amended, the gov­ern­ment is pur­port­ing to have the power to change the con­tent of rights; a ver­i­ta­ble can of worms read­ily opened in tyran­nies and dic­ta­tor­ships, but less so in con­sti­tu­tional democ­ra­cies.

Changes like this re­quire, at the very least, a broad pub­lic con­sen­sus and sound con­sti­tu­tional un­der­pin­nings, such as pro­ce­dural re­spect for the rule of law and a com­mit­ment not to de­tract from the in­her­ent na­ture of rights.

Few peo­ple are aware that the gov­ern­ment is con­sid­er­ing an­other con­sti­tu­tional amend­ment: a bound­ary change be­tween the prov­inces of the North West and North­ern Cape, and be­tween KwaZulu-Na­tal and the East­ern Cape. This amend­ment has been open to pub­lic com­ment since mid-Jan­uary un­til the end of March — al­most three months. But this is a tech­ni­cal amend­ment and does not in­ter­fere with the sub­stance of the Con­sti­tu­tion.

How can it be that a tech­ni­cal amend­ment in­vites three months of com­ment, whereas a sub­stan­tive amend­ment to the Bill of Rights — a cor­ner­stone of our democ­racy — in­vites merely one month?

Sev­eral weeks ago, I e-mailed Par­lia­ment out­lin­ing the Free Mar­ket Foun­da­tion’s con­cerns about the one-week com­ment pe­riod on the Car­bon Tax Bill. A par­lia­men­tary sec­re­tary called me and said that this was the time that her com­mit­tee was al­lot­ted by the Na­tional As­sem­bly and that the com­mit­tee could do noth­ing about it. I sus­pect this ex­cuse will be in­voked with re­gard to ex­pro­pri­a­tion with­out com­pen­sa­tion as well — the Na­tional As­sem­bly has told the Con­sti­tu­tional Re­view Com­mit­tee to re­port back by the end of Au­gust, so it can­not al­low for a longer com­ment pe­riod.

This nar­ra­tive, how­ever, is premised not on con­sti­tu­tional, but on par­lia­men­tary supremacy. The mem­bers of the Na­tional As­sem­bly are not our rulers. Ac­cord­ing to the frame­work pro­vided by the Con­sti­tu­tion and the val­ues that un­der­pin it, Par­lia­ment is sup­posed to rep­re­sent and serve the peo­ple of South Africa. For­get Au­gust — South Africans need far more time to en­gage with the pro­posal to amend the Con­sti­tu­tion and the rul­ing party’s ide­o­log­i­cal im­per­a­tives must not be al­lowed to stand in the way of that.

The Latin maxim “Ni­hil de no­bis, sine no­bis” trans­lates into “Noth­ing about us, with­out us”. This was the phi­los­o­phy un­der­ly­ing the strug­gle against apartheid. Dur­ing this pe­riod, the pop­u­la­tion had de­ci­sions made on their be­half by a supreme par­lia­ment with­out the peo­ple be­ing al­lowed any real par­tic­i­pa­tion or their con­sent re­quired. Wars have been fought over this ba­sic prin­ci­ple.

As of now, there is no broad con­sen­sus among South Africans on what must be done with the prop­erty rights pro­vi­sion. Few peo­ple seem to un­der­stand the dif­fer­ence and im­pli­ca­tions be­tween state cus­to­di­an­ship of all land and in­di­vid­ual own­er­ship, for in­stance. South Africa needs time for thor­ough dis­course to be held on this topic.

If the process con­tin­ues with such a short time al­lowed for pub­lic par­tic­i­pa­tion, the con­sti­tu­tional le­git­i­macy of the process will be called into ques­tion. If the amend­ment is adopted, the le­git­i­macy of South Africa’s con­sti­tu­tional or­der will start show­ing cracks.

Ide­ally, plans for an amend­ment to the Con­sti­tu­tion must be aban­doned for the im­me­di­ate fu­ture. At the very least, the one-month com­ment pe­riod must be ex­tended to a min­i­mum of three months. — FMF.

• Martin van Staden is a lawyer work­ing as the le­gal re­searcher for the Free Mar­ket Foun­da­tion.

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