Submission to the Department of Rural Development and Land Reform on the Communal Land Tenure Bill

Contents

           1.         Executive Summary                                                                                        2

           2.         The Free Market Foundation & Rule of Law Project                                       3

           3.         Introduction                                                                                                     3

           4.         The Nature of Property Rights                                                                        5

           5.         The Constitutional Right to Property                                                               8

           6.         The Rule of Law, Discretionary Power & Good Law                                     12

           7.         Communal Land Tenure Bill                                                                          17

           8.         Conclusion                                                                                                     22

1.         Executive Summary

On 7 July 2017, the Minister of Rural Development and Land Reform published the Communal Land Tenure Bill in the Government Gazette. The Bill’s stated purpose is to transfer communal land from government to communities by giving ownership of communal land or land that has been acquired by the State to the communities which occupy the land.

The Free Market Foundation (FMF) has long supported the right of collective ownership of property by communities. The Apartheid era was characterised by its denial of property rights to black South Africans and only after South Africa entered the era of constitutional supremacy did ownership of private property – by individuals or communities – become a reality for the majority of people.

We thus welcome this Bill as a necessary intervention to ensure all South Africans enjoy the benefits of the property rights dispensation heralded by the Constitution. The Bill is not flawless, however, which will be addressed in this submission and indicated how problematic provisions may be rectified.

Some have voiced concern that the Bill will effectively expropriate property from individuals for transfer to communities. From our reading, the Bill does not propose to convert already-existing individual ownership into community ownership. Indeed, the Bill provides that the Minister must render insecure tenure secure in cases where communal land is occupied and where the State owns the land. It goes without saying that if the practical consequence of this Bill is effective expropriation of existing ownership, such a measure would be unlawful and not enjoy the support of this submission.

Section 1(c) of the Constitution, which is part of the Founding Provisions, states that South Africa is founded on the supremacy of the Constitution and the Rule of Law. The principles of the Rule of Law must be observed by all law – meaning no legal provision can be arbitrary or vest unrestrained discretionary power in politicians or officials.

A serious flaw in the Bill is the grave amount of discretionary power it vests in the Minister. At various junctures, this makes the actual provisions in the law redundant, and places the Minister’s discretion above the law. This creates uncertainty and unpredictability in the law and opens the door to arbitrariness. This, as well as several other issues in the Bill should be rectified before the final draft of the legislation is tabled before Parliament.

Compiled by:

Martin van Staden
Legal Researcher
Free Market Foundation

2.         The Free Market Foundation and Rule of Law Project

The Free Market Foundation (FMF)^[1] is an independent public benefit organisation founded in 1975 to promote and foster an open society, the Rule of Law, personal liberty, and economic and press freedom as fundamental components of its advocacy of human rights and democracy based on classical liberal principles. It is financed by membership subscriptions, donations, and sponsorships.

Most of the work of the FMF is devoted to promoting economic freedom as the empirically best policy for bringing about economic growth, wealth creation, employment, poverty reduction, and greater human welfare.

The FMF’s Rule of Law Project is dedicated to promoting a climate of appreciation throughout South Africa, among the public and government, for the Rule of Law; continually improving the quality of South African law; identifying problematic provisions in existing and proposed laws and, where feasible, advocating rectification.

3.         Introduction

The Constitution of the Republic of South Africa, 1996,^[2] and the interim Constitution^[3] before it, was a departure from the previous constitutional dispensation wherein the legislature – Parliament – was sovereign, and could pass whatever laws it deemed appropriate.^[4] Indeed, in the case of Sachs v Minister of Justice^[5] the Appellate Division of the Supreme Court said “Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and… it is the function of courts of law to enforce its will”.^[6] This was the bedrock upon which the previous regime was able to construct Apartheid as no court of law or civil rights association could challenge the rightfulness or legality of that system according to a set of principles that regulate governance.

The characterising feature of Apartheid was its denial of property rights to black South Africans. Property rights have been widely recognised as prerequisites for material prosperity. Without secure property rights, most people would not invest in, expand, or maintain the things they possess because, at any time, those things could be taken away from them without their consent. History has consistently shown this to be true. Monarchs lived in grand palaces and castles surrounded by walls and soldiers, whereas ordinary plebeians lived quite exposed to the realities of pre-property rights societies. The monarchs knew they could invest in, expand, and maintain their residences because they knew it was unlikely that they would be robbed of it. Ordinary people did not have this security and peace of mind. Only when property rights were conceived of and found expression in the Industrial Revolution, did the visible decline of poverty start on a global scale, expanding to each new society that chose to recognise the value of protecting private property.

In South Africa, for the vast majority of the population, the necessity of protecting private property was not recognised during the colonial era and the Apartheid years. Justly-acquired property of Black South Africans was never secure, and, to a lesser extent, the same applied to white South Africans who had to submit to the National Party’s grand experiment of social engineering. Both the 1993 (interim) and 1996 (current) constitutions were a significant departure from this era of tyranny, in that both recognised private property rights for all South Africans, regardless of race. These constitutions brought an end to parliamentary sovereignty and introduced constitutional supremacy. All law and legal conduct, was, henceforward, to accord with the text, spirit, and purport of the Constitution, and especially the Bill of Rights.^[7]

Section 1(c) of the Constitution provides that the Constitution itself, as well as the Rule of Law, is what the non-racial and non-sexist South African state shall be founded upon. The Rule of Law comprehends a society governed according to legal principles instead of arbitrary political considerations, and excludes law that is ambiguous, arbitrary, retrospective, unpredictable, value-subjective, applies unequally, violates the separation of powers, or violates basic human rights.

On 7 July 2017, the Minister of Rural Development and Land Reform published the Communal Land Tenure Bill, 2017[8] in the Government Gazette.[9] The Bill’s stated purpose is, inter alia, to provide for the transfer of communal land from government to communities, and to give ownership of communal land (acquired by the State) to the communities which occupy the land.

The right of collective ownership of property by communities is an imperative in post-Apartheid South Africa. This Bill should be welcomed as a necessary intervention to ensure all South Africans enjoy the benefits of the property rights dispensation heralded in the Constitution. The Bill is not flawless, however, and these shortcomings will be addressed in this submission with indications of how they could be rectified.

 

4.         The Nature of Property Rights

4.1       Elementary principles of property rights

Much emphasis in constitutional discourse is placed on freedom of expression, so much so that it is often regarded as the basic right which makes all other rights possible. The property right, on the other hand, is oftentimes seen as clinical or merely ancillary. Indeed, the property right of individuals is arguably the most disregarded right,^[10] and the right treated with the most scorn.^[11]

Property rights are often misconstrued as the protection of ‘white privilege’. They should rather be appreciated as one of the rights for which the struggle was fought, as something black people lived and died for, as a fundamental right for black South Africans that should never again be compromised. The FMF is proud that this has been our position for 45 years. We are surprised how the legal means by which black land rights were violated can be so easily forgotten and Apartheid-style legislation be reconsidered.

The property right of the individual is not merely a superficial medium by which an individual is able to exercise control over objects. Instead, the property right is a right foundational to various other rights, such as human dignity,^[12] life,^[13] trade,^[14] and housing.^[15]

The essence of ‘property’ lies in ownership. Ownership is what makes an ‘object’ or a ‘thing’ into property. When something is unowned or cannot be owned – like the Sun and Moon – we would have no reason to conceive of it as anything other than a thing or object. Therefore, in a world where only one person lives, without the possibility of there being others, the concept of ‘property’ will not exist, because there is nobody to challenge this person’s exercising of the entitlements of ownership.

Various entitlements flow from ownership, some of which will be listed below. However, the essence of all of them is that the owner has the right to decide what to do or not to do with their property. This is why deprivation of ownership is treated as a serious matter; indeed, the deprivation of black South Africans of their property by the Apartheid government was widely condemned, and, to this day, is a painful reminder of an oppressive past. Some entitlements of ownership are:^[16]

• The entitlement of control
• The entitlement of use
• The entitlement of enjoyment of the fruits of the property
• The entitlement of encumbrance^[17]
• The entitlement of alienation^[18]
• The entitlement of vindication^[19]
• The entitlement of defence^[20]

These entitlements are the vehicles by which property rights can emancipate the poor and give them dignity in their ownership.

4.2       Conflict avoidance

The most crucial function of the property right is to avoid conflict. Once a property right over a thing is established, there can be no question about that individual or community’s rightful use, enjoyment, and alienation of the thing. In times past, this guarded against self-help whereby individuals would simply take what they wanted from each other, even if hurting one another was necessary. The property right was an inevitable consequence of human nature.

The French assemblyman and political and economic philosopher, Frederic Bastiat, considered the nature of law and property in his 1850 text, The Law.^[21] According to Bastiat, the law came about as a consequence of human nature. Writes Bastiat:^[22]

“Existence, faculties, assimilation — in other words, personality, liberty, property — this is man.

It is of these three things that it may be said, apart from all demagogic subtlety, that they are anterior and superior to all human legislation.

It is not because men have made laws, that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. What, then, is law? As I have said elsewhere, it is the collective organization of the individual right to lawful defense.”

In other words, positive law – what Bastiat calls “human legislation” – is a result of the pre-existing attributes of humanity, as a mechanism to protect those attributes and their exercise. Bastiat further discusses the origin of the property right:^[23]

“Man can only derive life and enjoyment from a perpetual search and appropriation; that is, from a perpetual application of his faculties to objects, or from labor. This is the origin of property.

But also he may live and enjoy, by seizing and appropriating the productions of the faculties of his fellow men. This is the origin of plunder.”

The people enter into an ‘agreement’ with the state to avoid this ‘plunder’. In exchange for protection of their persons and property, the people agree to adhere to the law which does the protecting, and, therefore, not resort to self-help. This agreement is known as the ‘social contract’, and the social contract is the framework within which governance must take place. Bastiat sets out this framework thus:^[24]

“When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm. They violate neither his personality, his liberty, nor his property. They only guard the personality, the liberty, the property of others. They hold themselves on the defensive; they defend the equal right of all.”

This social contract, however, has not been adhered to, according to Bastiat. He writes:^[25]

“[The law] has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst Rights, that limit which it was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it.”

What Bastiat is referring to here is the law being used as a tool for ‘redistribution’ of property, which evidently violates private property.

‘Redistribution’, in this context, is a rejection of the social contract. ‘Restitution’, however, is not. This submission should therefore not be construed as an argument against restitution. Where a true owner has had his property deprived from him by someone else, be it a criminal or government, he does not lose ownership.^[26] Government must restore the property to its rightful owner. This principle applies to the descendants of true owners as well, which is a relevant consideration in post-colonial and post-Apartheid South Africa.

5.         The Constitutional Right to Property

Item 1.3 of the “Memorandum on the Objects of the Communal Land Tenure Bill, 2017” states that the Tenure Bill is intended to give effect to section 25(6) of the Constitution. This section provides:

“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”

In the case of S v Makwanyane,^[27] Chaskalson J held^[28] for a majority of the Constitutional Court, that a provision of the Constitution “must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular” other provisions in the chapter of which it is a part. This supports the construction that the Constitution must be read holistically, bearing in mind the values and purpose of the entire text as well as the particular provisions.

Section 25 – the property rights provision – must therefore be construed holistically. Section 25(1), which provides that no person’s property will be unreasonably deprived without compensation, cannot therefore be disregarded or treated as an afterthought.

Section 25(1) provides:

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

This is a ‘negative’ right in that it protects the people from government interference in their proprietary affairs. Sections 25(2) to 25(9) are mostly ‘positive’ in nature, meaning that they oblige the government to do something, rather than refrain from doing something. By these latter sections’ nature, however, they depend upon section 25(1). Without the first subsection, none of the others would make sense or be enforceable. Thus, 25(1) cannot be extinguished by the application of 25(2) to 25(9).

The ‘general limitations’ provision found in section 36 empowers the state to limit any right in the Bill of Rights if the limitation adheres to the criteria set out in that section. Section 36 provides as follows:

“36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including —

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

While the courts may take into account factors other than those listed in section 36(1)(a) to 36(1)(e), it has been customary for the courts to limit themselves to these five factors which appear in the text.

Laws which limit rights must be “reasonable and justifiable in an open and democratic society”.

The FMF was instrumental in having this portion of section 36 added to the Constitution, and thus we write with confidence when we say that the ‘open society’ is a concept developed by Karl Popper in his work The Open Society and Its Enemies.^[29] The ‘open society’, according to Dr Alan Haworth, “is a society characterised by institutions which make it possible to exercise the same virtues in the pragmatic pursuit of solutions to social and political problems”. These ‘virtues’ which must be possible to exercise are “creativity and imagination in the formulation of theories and hypotheses, as well as in devising experiments with which to test them; critical rationality in the assessment of theories and other claims; the toleration required to recognise that other peoples’ theories could be rivals to your own”.^[30] The FMF’s Michael O’Dowd wrote that the essence of the open society concept “is that each individual should to the greatest extent possible be free to make his or her own decision on the basis of his or her own judgement”.[31]

Therefore, for a limitation to be justifiable in an open society, the limitation must still allow individuals to exercise these aforementioned virtues in their daily lives. In other words, they must have the freedom to express themselves and manifest their own ‘experiments’ to arrive at certain conclusions.

The Constitution’s provision could have stopped at “open and democratic society”, but it goes further, and says “an open and democratic society based on human dignity, equality and freedom”. These values of dignity, equality, and freedom also appear in section 1 of the Constitution, meaning these are founding values for South Africa, and not simply filler text. These values also complement one another, in that no individual’s dignity is truly being respected if he has no substantive freedom. A dignified existence implies enjoying the fruits of one’s labour and being able to leave a proprietary legacy for one’s descendants, without the state micromanaging one’s affairs as if one were a perpetual child.

Furthermore, the factors listed in section 36(1)(a) to 36(1)(e) further narrow the scope of the limitation of rights and allow the courts to take other, unlisted factors into account, to decide whether or not the limitation is justifiable in an open and democratic society which is committed to the values of human dignity, equality, and freedom.

We will briefly discuss this right in relation to each of the factors listed in section 36(1)(a) to 36(1)(e):

(a) The nature of right.

The various elements of property rights constitute its nature. These elements were briefly considered above. Ownership and conflict avoidance form the basis of property rights, but these have various implications. One of these implications is that property rights are exclusionary, i.e. in its effort to avoid conflict between individuals and groups, it must, of necessity, exclude non-owners from the use, enjoyment, and alienation of the property without the wilful consent of the owner.

(b) The importance of the purpose of the limitation.

This question relates directly to the notion of a legitimate government purpose. This means “that there must be a rational relationship between the scheme [government] adopts and the achievement of a legitimate governmental purpose” and that schemes cannot be “capriciously or arbitrarily”.[32] Legitimate government purposes are determined by the mandate of government as specified within the various provisions of the Constitution, especially those of the Bill of Rights.

The limitation of a right in the Bill of Rights must thus be justified by some other thing that government is obliged to do in the Constitution. And courts will then consider the importance of that particular government purpose as compared to the importance of the right to be limited. Where there is no discernible constitutional basis for the government purpose being exercised, or that the government conduct in question is too far removed from the legitimate government purpose found in the Constitution, this leg of the test would be failed, and the limitation of the right would not be justified.

(c) The nature and extent of the limitation.

The extent of the limitation has an undeniable effect on its justifiability. Limitations that, in reality, extinguish, rather than limit, the right, are never justified. The more severe the nature and extent of the limitation, the greater the chances of it being unjustifiable.

(d) The relation between the limitation and its purpose.^[33]

This is simply the requirement of rationality restated in constitutional terms.

Rationality is one of the two legs of reasonableness. Reasonableness, in this context, means that a reasonable person will come to the conclusion that the limitation will achieve its purpose. As we already know, a limitation must be “reasonable and justifiable” to persist, in terms of the Constitution.

For the limitation to be justifiable, thus, it must be rational, meaning the limitation must be objectively capable of achieving the purpose. In other words, evidence must support the notion that the limitation will effectively combat the problem identified. The limitation cannot be a ‘shot in the dark’ or capricious.

(e) Less restrictive means to achieve the purpose.

This is the second leg of reasonableness and is a constitutional restatement of the requirement of proportionality. In S v Manamela^[34] the Constitutional Court described proportionality as the notion that one ought not to use a sledgehammer to crack a nut.

If less restrictive means are available to the government to achieve the purpose, then it must exhaust those means before resorting to harsh action. In other words, the government intervention (i.e. the limitation of the right) must only solve the problem government has identified – it must do no more.

6.         The Rule of Law, Discretionary Power and Good Law

6.1       The Rule of Law

Chapter 1 of the Constitution is known as the Founding Provisions. It can be considered the very basis upon which this nation is founded. Indeed, section 1 is entitled ‘Republic of South Africa’, and what follows under that section is what the Constitution envisages will characterise this state.

Section 1 reads as follows:

“1. The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

This section explicitly states that the Republic per se, i.e. by virtue of its existence, by default, is founded on the values that are listed. Unlike other provisions that are found in the Bill of Rights, which obligate the state to ‘progressively realise’ the content of the provision, the state has no choice or discretion vis-à-vis these values.

Section 1(a) says that the state is founded on “the advancement of human rights and freedoms”; section 1(c) says the state is founded on the “Supremacy of the constitution and the rule of law”; and section 1(d) says the state is founded on “a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

It would be improper to overlook section 2 of the Constitution. On the face of it, this might appear to be a redundant provision because, essentially, it repeats what has already been said in section 1(c) above. However, that this repetition does appear in the constitutional text, it stands to reason that the constitutional drafters considered this to be a provision of paramount importance.

Section 2 of the Constitution, entitled ‘Supremacy of Constitution’, reads as follows:

“2. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.

This section has the effect of strengthening not only section 1 above, but the Constitution as a whole. Laws that are passed by any level of government which are inconsistent with the constitutional text are invalid by default.^[35] Any law thus that violates the Rule of Law is, by virtue of its inclusion in the constitutional text in section 1(c), invalid.

Section 1(c) of the Constitution provides that the supremacy of the Constitution, as well as the Rule of Law, are what the South African state is founded upon. This provision elevates the principles of the Rule of Law to a status higher than any statutory law, secondary only to the text of the Constitution itself.

In light of this constitutional provision, it is pertinent to ask “what is the Rule of Law?”

The Free Market Foundation’s Rule of Law Project Board of Advisors formulated several ‘Commands’ of the Rule of Law, which highlight the essence of the concept as developed over centuries of scholarship and human experience. These ten Commands are as follows:

1.         All law must be clear, predictable, accessible, not contradictory, and may not have retrospective effect.

2.         All legislation that makes provision for discretionary powers must also incorporate the objective criteria by which those powers are to be exercised.

3.         All law must apply the principle of equality before the law.

4.         All law must be applied fairly, impartially, and without fear, favour or prejudice.

5.         The sole legitimate authority for making substantive law rests with the legislature, which authority shall not be delegated to any other entity.

6.         No law shall have the effect of circumventing the authority of the courts.

7.         No one may be deprived of or have their property expropriated, except if done with due process for public use or in the public interest, with fair and just compensation.

8.         The law shall afford adequate protection of core human rights.

9.         All law must comply with the overriding principle of reasonableness, which comprehends rationality, proportionality, and effectiveness.

10.       The legislature and organs of state shall observe due process in rational exercise of their authority.

Let us further consider the jurisprudence surrounding the concept of the Rule of Law.

In the Constitutional Court case of Van der Walt v Metcash Trading Ltd^[36] Madala J said^[37] the following, echoing in large part what the Commands of the Rule of Law above provide:

“[65] The doctrine of the rule of law is a fundamental postulate of our constitutional structure. This is not only explicitly stated in section 1 of the Constitution but it permeates the entire Constitution. The rule of law has as some of its basic tenets:

1. the absence of arbitrary power – which encompasses the view that no person in authority enjoys wide unlimited discretionary or arbitrary powers;

2. equality before the law – which means that every person, whatever his/her station in life is subject to the ordinary law and jurisdiction of the ordinary courts.

3. the legal protection of certain basic human rights.

[66] The concept of the rule of law has no fixed connotation but its broad sweep and emphasis is on the absence of arbitrary power. In the Indian context Justice Bhagwati stated that:

‘the rule of law excludes arbitrariness and unreasonableness.’

I would also add that it excludes unpredictability. In the present case that unpredictability shows clearly in the fact that different outcomes resulted from an equal application of the law.”

It is important to note the following observations made by the honourable judge. The Rule of Law:

• Permeates the entire Constitution
• Prohibits unlimited arbitrary or discretionary powers
• Requires equality before the law
• Excludes arbitrariness and unreasonableness
• Excludes unpredictability

The Good Law Project’s Principles of Good Law report, too, largely echoes this, saying:^[38]

“The rule of law requires that laws should be certain, ascertainable in advance, predictable, unambiguous, not retrospective, not subject to constant change, and applied equally without unjustified differentiation.”

The report also identifies four threats to the Rule of Law,^[39] the most relevant of which for purposes of this submission, is the following:

            “[The Rule of Law is threatened] when laws are such that it is impossible to comply with them, and so are applied by arbitrary discretion […]”

Albert Venn Dicey, known for his Introduction to the Study of the Law of the Constitution, and considered a father of the concept of the Rule of Law, wrote that the Rule of Law is “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government”.^[40]

Friedrich August von Hayek wrote:^[41]

“The ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal.”

What is profound in Von Hayek’s quote is that he points out that the Rule of Law is not the same as a rule of the law. Indeed, any new Act of Parliament or municipal by-law creates and repeals multiple ‘rules of law’ on a regular basis. The Rule of Law is a doctrine, which, as the Constitutional Court implied in Van der Walt, permeates all law, including the very Constitution itself.

6.2       Discretionary Power

Dicey writes “the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”.^[42] He continues, saying the Rule of Law means “the absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government”.^[43]

The opposition to arbitrary power should not be construed as opposition to discretion in and of itself. Officials use discretion to determine which rules to apply to which situation, and thus some discretionary power is a natural consequence of any system of legal rules. However, the discretion must be exercised per criteria which accord with the principles of the Rule of Law, and the decision itself must also accord with those principles.

A common example of arbitrary discretion is when a statute or regulation empowers an official to make a decision “in the public interest.” What is and what is not “in the public interest” is a topic of much debate, and empowering officials to apply the force of law in such a manner bestows upon them near-absolute room for arbitrariness. The “public interest”, however, can be one criterion among other, more specific and unambiguous criteria.

The fact that some discretion should be allowed is a truism; however, the principle that officials may not make decisions of a substantive nature still applies. Any decision by an official must be of an enforcement nature, i.e. they must do what the legislation substantively requires. For instance, an official cannot impose a sectoral minimum wage. The determination of a minimum wage is properly a legislative responsibility, because it is of a substantive nature rather than mere enforcement. Unfortunately, the Basic Conditions of Employment Act^[44] gives the Minister of Labour the authority to make “sectoral determinations” – which includes determining a minimum wage – which is a clear violation of the Rule of Law and the separation of powers.^[45]

6.3       Good Law

The Rule of Law is a non-negotiable, prerequisite characteristic of any state which purports to call itself a constitutional democracy founded on values such as equality, freedom, and justice. In South Africa, the principles of the Rule of Law were explicitly adopted into our law by the constitutional drafters in section 1(c), and this provision, due to its inclusion in the Constitution, cannot be limited,^[46] modified, or abridged, by virtue of section 2 of the Constitution.

The concept of Good Law is wider than the concept of the Rule of Law, and is not a rigid rule. Rather, it is a guideline which a state can adhere to, to various extents, if it wishes to be a prosperous, successful, and free society. A law must certainly adhere to the Constitution and the Rule of Law in the first place in order to be a good law; but what makes good law broader than the Rule of Law is the inquiry into whether or not a particular law is both feasible and desirable.

The goal of the law, as well as the textual provisions in the law, must plausibly be achievable for the law to be feasible.

The movement control laws of the Apartheid era, for instance, were certainly not feasible. The desire of the people to move into urban areas and earn a living was too great for the law to ever hope to control. This is why the Apartheid government, almost immediately after enacting those laws, started chipping away and relaxing them, to the extent of their being virtually repealed in many cases, by the late 1980s.

A law must, furthermore, be desirable. This does not mean that bureaucrats and Members of Parliament desire a law, but rather, it is an inquiry into whether something is jurisprudentially desirable.

For instance; passing a law that creates three new government agencies which do exactly the same thing, would not pass the desirability test, even if it is feasible and constitutionally permissible. Laws must be aimed at addressing an actual, not imaginary or fanciful, problem evident in society.

If the goal of government is to encourage legislation that advances transformation and makes South Africa a prosperous society for all to live in, then it will be wise for it to adhere to the principles of Good Law, and not only those of constitutionality or the Rule of Law.

7.         Communal Land Tenure Bill, 2017

7.1       A Necessary Intervention

The ill-fated Communal Land Rights Act[47], the predecessor of the present Bill, was constitutionally deficient.[48] Nonetheless, that Act, and the present Bill, attempted to set right the unfortunate legacy of Apartheid which denied ownership of property to communities.

Section 25(6) of the Constitution obliges government to do this and consequently recognises the central importance of property rights to the prosperity of a nation. The FMF, therefore, in general, welcomes the Bill and considers it a vindication of decades’ work advocating the restoration of property rights to the communities of South Africa.

The Bill, however, does contain several problematic provisions, which will be addressed below.

7.2       What the Bill Gets Right

(a) Conversion of Legally Insecure Land Tenure to Ownership

Section 5(1)(a) and (b) and section 9(1)(b) provide that the Minister must secure tenure for those communities which have up to now suffered under insecure tenure. While language which deems insecure property to be secure by default (except where there is a dispute) would be preferred over having an official inquiry into every case and a determination made, this provision as the base provision of the Bill is a welcome intervention.

(b) Caution in Cases of Dispute

Section 8(1) provides that no section 5 determination may be made until disputes relating to the property in question have been resolved. Given that property rights exist for the purpose of avoiding conflict and disputes, this provision is necessary to ensure the private property interests of whomever is the true owner or owners of the land is protected.

(c) Unequivocal Ownership

Section 18(1) provides that the community in whose name property has been registered, is the owner of such property. This unequivocal statement of ownership is admirable, and it is our hope that the below changes are effected in the final draft of the Bill to make this statement of ownership a reality, instead of mere rhetoric.

7.3       Problems in the Bill

(a) Expropriation of Existing Ownership

Some[49] have raised concerns that the Bill will effectively expropriate property from individuals and transfer them to communities. From our reading, the Bill does not propose to convert already-existing individual ownership into community ownership. The Bill provides that the Minister must render insecure tenure secure in cases where communal land is occupied and where the State owns the land.

It goes without saying, however, that if the practical consequence of this Bill is effective expropriation of existing ownership, such a measure must be. Government must apply this law in such a way that it does not render previously-secure tenure unsecure, or vest ownership of property in the incorrect person or community. If an individual, and not the community, was the de facto owner of a portion of property under insecure tenure, it is that individual, not the community, which must receive secure tenure.

(b) Discretionary Power for the Minister

The good provisions in the Bill, unfortunately, are tainted by vesting excessive amounts of discretionary power in the hands of the Minister, to the point of making those good provisions largely redundant. The law must be certain, but with the kinds of discretion vested in the Minister in terms of this Bill, the text of the law itself appears to be merely complementary to the Minister’s whim.

Section 7(i) provides that in making a section 5 determination (to turn insecure tenure into secure tenure) the Minister must take into account “any matter” which they “may deem necessary”, which includes “the interests of the State”.

This, combined with the fact that the Minister need not consider all of the factors listed in section 7, in light of the “or” found between subsections (k) and (l), means the Minister has virtually unbridled discretion in making his determinations. Section 5(1), in turn, provides that determinations must be made if the Minister “is satisfied” that the appropriate requirements have been met. If section 7(i) is such a requirement, it stands to render section 5 entirely redundant.

We recommend that section 7(i) be removed entirely.

Section 18(4), without any criteria, vests in the Minister the power to “prescribe general conditions for the registration of communal land.” This is undue and excessive discretion.

We recommend section 18(4) be removed entirely.

Section 19(1) provides that the Minister may conclude that insecure tenure cannot “for any reason” be made secure, and thus may award comparable redress rather than the property itself. This is excessive discretion as the section gives the Minister the power to consider “any reason” as sufficient for the inability of the tenure to be rendered secure.

We recommend that “for any reason” in section 19(1) be replaced with a circumscribed list of acceptable reasons. Alternatively, the section must be amended to allow communities to request “comparable redress” rather than the property if they so wish.

Section 50, which provides for the Minister’s power of regulation, contains no criteria or guiding principles, and empowers the Minister to regulate a multitude of substantive legal concerns.

We recommend that section 50 provide for criteria and principles which the Minister must bear in mind when making regulations.

(c) Reservation of Communal Land for the State

Section 6 provides that the Minister may reserve parts of communal land for the State. This is provided without any further ado, and contains no criteria for how the Minister can come to such a conclusion other than “public use” or “public benefit”. The Minister is also obliged to consult with the community, another minister, and the municipality in question. Consultation, however, does not bind the Minister, meaning that, as a constraining criterion, this provision is ineffective.

We recommend that section 6 be removed entirely from the Bill, unless more specific criteria are added for why land might be reserved for the State (e.g. military use).

(d) Right to Use Land Owned by the State

Section 10 gives the Minister the power to grant communities the right to use land owned by the State. This, read with the worrying power of the Minister to reserve land for use by the State in section 6, creates the impression that this Bill is not a substantive granting of secure tenure from the State to the people. Instead, it would appear that the State has created a loophole for itself to exploit to ensure it keeps substantial amounts of land which should properly be vested in the people who live on it.

We recommend that section 10 be removed entirely.

(e) Only 60% Required to Endorse Alienation of Communal Land

Section 13(a) provides that if 60% of the households in a community agree, the community property can be sold, donated, leased, encumbered or disposed of. This is repeated in essence in section 30. This is problematic in light of the nature of ownership.

With one owner, they alone can decide whether or not to alienate. With two owners, there need usually be a consensus. By only requiring 60% of a community to agree, 40% of the community, which could be hundreds of people, might lose their security of tenure and thus be left without a home or workplace.

We recommend that a provision be inserted entitling community members who do not agree with alienation to opt-out of community ownership and acquire individual ownership of the portion of the property they occupy. Alternatively, we recommend a 75% majority be required to endorse alienation, as well as entitle those who voted against the alienation to market-value compensation (in their individual capacity) for loss of utility and co-ownership.

(f) Property Cannot be Alienated Without Restrictive First Option Offering

Section 13(b) provides that a subdivided portion of the communal land cannot be alienated without offering the first option to acquire the property to members of the owner’s family, members of the community, or the State.

This error strikes at the very heart of the owner’s entitlement to alienate their property to whomever they wish.

If the aim of the Bill is to make communal property part of the broader South African economy and consequently contribute to the economic emancipation of the rural poor, the State cannot continuously try to ensure it draws some benefit. There is no objective reason, no economic reason, and no communitarian reason why the State should be given a first option to acquire the property after the owner has acquired legally-secure tenure. Indeed, once the owner has legally secure tenure, the property in question should be subject to alienation according to the owner’s preference, just like any other productive property in South Africa.

We recommend that section 13(b) be removed entirely. Alternatively, we recommend that section 13(b)(iii) be removed.

(g) Owners of Subdivided Property Subject to Oppressive Meddling

Section 18(2) empowers communities to “impose conditions” or “reserve any right in its favour” against owners of subdivided portions of the communal property. This defeats the notion that the owners of the subdivided property are truly owners.

We recommend that section 18(2) be removed entirely. Alternatively, we recommend that the conditions the community may impose on the subdivided portion be spelled out in the section; in other words, that it not be a general entitlement but a list of items the community may choose from.

(h) State Ownership after Occupation

If the intention of this Bill is to vest ownership in communities – and not the State – then section 18(3)’s provision that the State may become owner of property after uninterrupted occupation for a period determined by the Minister, should be removed.

We recommend that the words “or the State” as well as “or prescribed by the Minister” be removed.

(i) Elaborate Dispute Resolution Scheme

Section 45 provides for the mechanisms by which disputes arising from the Bill are to be settled.

Parties must first attempt to mutually resolve the issue. If that is unsuccessful, the dispute may be referred to a traditional council, communal property association, or a household forum. If the dispute could still not be resolved, it may be referred to a mediator appointed by the Director-General. If this is unsuccessful, the dispute may be referred to the Minister who must appoint an adjudicator or an adjudication committee. Only if a person is not satisfied with the finding of the adjudication committee, may a person approach the courts for relief.

The judiciary exists to solve disputes. It functions according to principles and procedures which have developed over millennia. Since this section relates to disputes arising from the application of the Bill, and because the judiciary is the interpreter of law in South Africa, it should be responsible for deciding these disputes.

We recommend that section 45 be amended to provide that the judiciary is responsible for the interpretation of the Bill and the adjudication of disputes which arise out of it. Only where the parties in each case have voluntarily agreed to submit themselves to alternative dispute resolution mechanisms should these be allowed.

8.         Conclusion

The Free Market Foundation has consistently advocated for the restitution of property and property rights to all South Africans. The Bill has various shortcomings, which must be resolved before it is tabled before Parliament, and certainly before it is passed into law.

Despite these shortcomings, however, the Bill is a necessary measure in light of South Africa’s history of property-deprivation.

 

Compiled by:

Martin van Staden
Legal Researcher
Free Market Foundation