For better or worse, there is no government in the world that does not possess the power to expropriate the private property of its subjects. Compensation, however, since the dawn of constitutionalism around the world, has always been an inherent requirement. To propose something like expropriation ‘without compensation’ is absurd; indeed, to ‘expropriate’ something without paying compensation is just plain ordinary, everyday robbery.
In precolonial Southern Africa, all governmental decisions were taken by way of community consensus, according to deputy labour minister, Nkosi Patekile Holomisa MP. Holomisa writes that “decision by consensus, whereby everybody agrees on an issue by issue basis, makes for more peaceful and happier communities.” No general power to simply seize property from families or communities existed unless the community agreed by consensus, and only then on a case by case basis. South Africa’s Roman-Dutch common law, furthermore, has an inherent streak in favour of individual and community rights, and, according to the late Professor AJ van der Walt in Property and Constitution, “there is no common law authority for expropriation in South African law”. In Roman-Dutch law, and thus in our current law, expropriation exists only in legislation (law imposed by political elites) and not in common law (law developed from the ground-up by custom).
It is mostly the British influence on our law that gave us the notion that government can seize property from someone who has hypothetically done no wrong, for its own purposes. But even according to the British jurists, compensation is always required. In describing expropriation, the jurist Sir William Blackstone wrote that all Parliament does when it provides for expropriation is “oblige the owner to alienate his possessions for a reasonable price”. Indeed, another way to think about expropriation is ‘compulsory sale’, which implies an exchange rather than mere taking. Under this concept, it is clear that expropriation without compensation is a contradiction in terms. A sale without payment, whether compulsory or not, is robbery.
We must also note the nature of constitutionalism.
A constitution, and especially a government, does not bestow rights, like gifts, on the people. The very notion of human rights means that rights accrue to us by our nature as human beings. If governments ‘gave’ rights, then one cannot find any reason to fault the Apartheid government, since, according to Apartheid law, black South Africans simply did not have political, civil, or economic rights in ‘white’ areas. This would, of course, be a ridiculous position to hold. Nelson Mandela, a jurist by training, and other anti-Apartheid lawyers, understood that we have rights that exist above the authority of government. Governments, indeed, exist to protect these pre-existing rights, and if they become aggressors against these rights, they lose their legitimacy. To take property without providing compensation is a clear attack on the private property rights of the people.
Jurisprudentially, expropriation ‘without compensation’ does not exist. It is a creation of political expediency and electioneering that must be resisted. The institution of the Rule of Law exists precisely to protect citizens against such arbitrary conduct by government, which is why it is important to appreciate the faux-legal-philosophical nature of expropriation without compensation. Not appreciating this fact leads to practical, unintended consequences.
For example, it was recently reported that the affordable housing market is threatened because many believe that they need not purchase affordable homes for themselves and their families. Instead, they now think that government will be expropriating property without compensation in the future and that they will receive that property for free. It is beyond heart-breaking that vulnerable South Africans are basing their future plans on lies and rhetoric that have no hope of being realised in practice.
It is also now well-known that agricultural production in South Africa in the last quarter is down almost 30%, which no doubt contributed a significant share to the recession we find ourselves in today.
Instead of pursuing the devastating policy of expropriation without compensation, government must, instead, make use of the reasonable tools at its disposal to realise the obligation of land reform. It can sell the vast swathes of State-owned or reserved land across the country; it can expedite the transferring of title deeds to leaseholders on municipal land; and it can stop treating RDP beneficiaries like perpetual children, by giving them real title, not restricted title. All of these avenues are at government’s immediate disposal and will benefit South Africans at large, unlike the fantasy of expropriation without compensation.
Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.