Most commentary on the proposed amendment to s25 of the constitution seems to suggest that, following the recent parliamentary committee resolution, expropriation of land without compensation is a done deal. This will be far from that simple as there are many obstacles to overcome. In particular what exactly is the deal?

But let me first dispense with the litigation to date. Both the failed attempt by AfriForum and the proposed one by the DA to interdict or set aside the resolution of the Joint Constitutional Review Committee on the basis that there were procedural flaws in the process are misplaced and premature.

The court so found in the case of AfriForum, and the same applies to the one contemplated by the DA at this stage of the procedures. The constitution sets out the legislative procedure for passing any bill in s73 and the special procedures for a bill to amend the constitution in s74. In that regard, s74(5) states:

"At least 30 days before a Bill amending the Constitution is introduced in terms of section 73(2), the person or committee intending to introduce the Bill must—

(a) publish in the national Government Gazette, and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment".

There is no provision for public comment before the publication of the particulars are published and as far as I know there has been no publication and certainly not of the particulars of the bill, since particulars have not yet been determined. The process to date therefore of public meetings, submissions and debates have had no legislative imperative, and were not even the beginning of the process never mind the end. Setting it aside is both premature and moot.

EWC has remarkable similarities with Brexit: it is an act of economic self-harm; it is a red herring to cover the deficiencies of government; it will not achieve its intended results or cure the identified decease, and even amongst its supporters, it means different things to different people. Nevertheless, it is with us and has to be managed.

So, the first step , which has yet to start, is to prepare the wording of the bill in a committee which will consist of the larger parties in parliament; all with different views.

Firstly, the DA and most opposition parties are opposed to the amendment but may and should give support to wording that merely confirms what is already implied in s25; subject to the provisions contained in s25, being inter alia:

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

(2) Property may be expropriated only in terms of law of general application—

(a) for a public purpose or in the public interest; and

(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”

For instance, the words which could include zero could be added to 25(2)(b).

Secondly ,the EFF insists on expropriation of all land ( or is it all white owned land ) without compensation which should be nationalised, not redistributed.

Thirdly, the ANC to date has said that EWC is but one of the tools available for land redistribution and that it would apply to inter alia; government land, underutilized land, and abandoned land, but that neither the economy or food security will be prejudiced The ANC has a majority on the committee and whichever view it settles on will prevail and be published for public comment and will eventually be before the National Assembly to be voted upon. 

Any chance of achieving 66.6% or 266 votes in the obvious circumstance will require at least the ANC and EFF voting together. However, since the vote will be in the next parliament it remains to be seen whether their total percentage including the odd vote from a small party will get to 265. In any event, assuming they would have the votes if they vote together, would the EFF support the ANC version considering Malema's line that he will never accept a mixed solution and would only endorse a total nationalisation of all land, or would he humiliate himself and U-turn by supporting a lesser fudged version with the ANC?

Without the EFF (or the DA if it is mature enough to support an acceptable amendment) the ANC cannot get the bill passed.

Up to now we have been looking at a 66.6% requirement, but there is a good argument that 75% may be necessary, although this had been discounted by some lawyers and has not been well ventilated in the media. If the amendment introduces specific circumstances where EWC is permitted and each case is individually justiciable in terms of s25 as it stands, the 66.6% will apply, but if there is any hint of arbitrariness or irrational administrative action, there could be a case that the rule of law had been contravened and that the founding value of rule of law stated in 1(c) is deemed to require amendment, in which case a 75% votes could be required.

The rule of law is a nebulous concept but generally means that there is a natural universal law superseding national or constitutional law, which guarantees an independent judiciary, equality (including officials and institutions) under the law, and constrains the state from arbitrary or irrational acts. 

Finally, the question of whether an amendment, even after achieving the necessary votes can be rejected as illegal or unconstitutional by the ConCourt. Lawyers who have discounted this have relied on United Democratic Movement v President of the Republic of South Africa (the floor crossing case) where the court said:

“Amendments to the Constitution passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.”

However, I would suggest "other provisions" does not include the founding provisions of chapter one, and that should the amendment be so inconsistent with a founding provision that the “constitutionality” of our constitution is prejudiced, the amendment would have to be rejected by the constitutional court. The very essence of our constitution is the protection of the individual or group from majoritarianism and from arbitrary or irrational behaviour of the state.

To illustrate by utilizing an in extremis example, imagine a new clause.

25(10) "notwithstanding anything aforesaid, the Minister may in his sole discretion identify a property belonging to a white person as being suitable for expropriation and that such expropriation shall be without compensation. ".

Consider, in the unlikely event of such an amendment, where that would leave our much-praised Constitutional Democracy.