Amending the Constitution and Expropriation without Compensation

15 December 2020

The ANC government’s intention to expropriate property without compensation involves at least three closely related things. 1, to take private property, 2 not to pay compensation;  and 3 to do so  arbitrarily.  The only barrier which stands between those who consequently will lose their property and government achieving its goals is the SA Constitution. This is thus a constitutional matter. It is much simpler than generally understood and more so when history is understood. The constitutional barrier protecting individuals came at the end of a long process which had a simple goal to achieve; the protection of the individual’s ancient unalienable rights.

The starting point is to understand that everyone has things, even if this is only one’s life, liberty and bodily integrity. Liberty includes for example freedom to work and thereby acquire property. Property ownership is thus a product of liberty. When people have things, it is said, they have rights to these things. So, we can and do talk about the right to life, liberty, bodily integrity, to property and so on.  Collectively these rights are unalienable rights; they belong to individuals. The moment someone has things, there will be someone else who will want to take those things. And so we witness the reality of murder,  rape, slavery, theft and so. The question then became how can individuals protect these rights from others? This is where the constitution comes in. The first line of defence was, and remains, self-defence. An extension of self-defence is assistance from others; a militia can be formed; international treaties can be entered into and so on. Self-defence is somewhat limited. So John Locke, the English philosopher pointed out individuals collectively form a state for the purpose of protecting these rights. The state would protect each individual against murder, rape, theft, etc. All these acts are prohibited as the became Natural Law, common-law crimes. But it soon became clear that the state itself, in any shape and form, including state officials, could violate these unalienable rights.  Kings, governments and parliaments could and did steal, murder and so on. Parliaments could pass laws which violate these unalienable rights and claim these “laws” are legitimate. At the end of a long process the American Experiment proposed these rights be protected in terms of a constitution; constitutional democracy.  The final experiment was that the constitution would protect these rights. The constitution is a declaration that no possible institution exists which can violate these rights; no king, no state official and above no parliament could do so. A constitution is a declaration that between these ancient rights of the induvial and those who wish to violate these rights now stands the impenetrable constitution. That is the American constitutional experiment.

The constitutional experiment started in 1215 in England. King John tried to arbitrarily to take property through taxation. He thought, since he was the king, he could just decree that his Barons and other subjects must pay taxes. That was not the historical position. Taking property without consent was theft. Calling theft taxation did not change that. The Barons would have none of that and England moved to a state of civil war. In the end King John had to accept there was no taxation without consent. The position was formally set-out in the Magna Carta; the Great Charter of Liberties. It was the forerunner of the modern constitution. Magna Carta did not deny taxation but made it clear the king had no arbitrary ability to impose taxes; the common-law position. The restoration of the ancient rights of the individual.

A new struggle then started as parliament started to violate these ancient rights. Just as the king had proclaimed he was the law  so did parliament. Could parliament override the common-law and authorize the arbitrary taking of property? And so, the long debate about the legislative sovereignty of parliament began. Increasingly arguments were being made that parliament was sovereign. This notion was succinctly and famously stated by Sir Leslie Stephen. He argued, if parliament was sovereign  it could pass a “law” to murder blue-eyed babies. He argued the good graces of parliament would not do that. The Americans were unconvinced. A declaration that the power of parliament to make “laws” which violated the ancient unalienable rights was needed; a constitutional state was brought into being.

Meanwhile, at the same time the English Common Law also continued to develop to protect unalienable rights. And so to the British increasingly even the very possibility of violating these ancient rights seemed so remote they could see no need for a formal constitution.

The American witnessed how the British parliament had violated Magna Carta when it imposed taxation on the Americans people without their consent. They, “we the people” decided to adopt a constitution which made it clear that parliament was not a sovereign law-making body. The basis of this formal system of protection was set-out in their Declaration of Independence; a Declaration of War.

“We [the people] hold these truths to be self-evident, that all men are … endowed … with … unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men … . That, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it  … “

The ancient common law position is the formal basis of constitutional democracy. The purpose of the government was to protect the historical unalienable rights and if it did not do so, then “we the people” would once again rise up and overthrow that failed government and replace it with one which will do so. Constitutional democracy signaled that not even parliament could pass a law which violated any unalienable right. The protection of blue-eyed babies against murder. from parliament, was now cast in stone.

When the American constitution was passed, it did not contain a Bill of Rights since unalienable rights are not derived from the constitution. The Bill of Rights was subsequently introduced through amendments. The Bill of Rights codified the Common Law position. Regarding property, it declared no-one, arbitrarily. could be deprived of his life, liberty, or property without the due process of law. Property could only be taken for public use on the payment of due compensation.

The three things the ANC government has decided to do cannot be done in a constitutional democracy. Firstly property cannot be arbitrarily taken by the government. It could only be taken for public use. Secondly it could only be taken upon the payment of due compensation. And thirdly it can only be taken in terms of the due process of law. The courts will rule against the taking of private property if it not taken for public use and due compensation is not paid. Between the government and individual stands the constitution and the Rule of Law. This is the position which is in place after nearly two thousand years of historical development protecting the ancient rights and liberties of the individual.

It should, therefore, be clear the SA government’s plan constitutes the very basis of a constitutional democracy. 

Specifically in terms of the SA Constitution it violated three fundamental aspects:

Firstly it violates the Rule of Law. Taking private property other than for public use, without paying compensation is the arbitrary depravation of property, theft, and as such a violation of the Rule of Law. As the former judge Rex van Schalkwyk has remined everyone. “The Rule of Law is the barrier that the law sets against tyranny”

Secondly it is a violation of first generation human rights since rights to life, liberty and property are first generation Human Rights. Thirdly as has been widely published by the EFF and ANC the purpose of amending the Constitution is specifically to take property from whites. This also makes the proposals racist.
These three aspects the Rule of Law, the protection of Human Rights and non-racialism in terms of s1 of the SA Constitution constitute the bedrock on which our constitution rests. This is very important since, when it comes to amending the Constitution, any amendment which runs contrary to s1 the Constitution requires a 75% vote. So, the first challenge facing parliament is it will have to secure 75% of vote to carry the amendment. If it does not meet the 75% hurdle, the vote does not result in the constitution being amended.

And if it does, that of course, is not the end of the matter.

Robert W Vivian, Professor of Finance & Insurance at the School of Business Sciences, University of the Witwatersrand