More time required to comment on expropriation without compensation amendment

South Africans will only have one month to submit comments on 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 1960s 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, 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 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 emailed 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 they cannot allow for a longer comment period.

This narrative, however, is premised not on constitutional, but on parliamentary supremacy. 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, such as the American Revolutionary War, and South Africa’s almost-civil war.

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.

Author Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.