The President’s Human Rights Day hypocrisy on expropriation – Martin van Staden

25 March 2021  

In his recent Human Rights Day address, President Cyril Ramaphosa confidently stated that the principle that human rights are non-negotiable guides his government’s agenda. Everyone following government’s process to amend the Constitution to weaken a right in the Bill of Rights must have cringed when the President uttered such hollow words. South Africans deserve better than such hypocrisy from the head of state.

The President noted that government has striven “to meet [its] many obligations under the Constitution and the Bill of Rights that is the cornerstone of our democracy,” and that “we must strive to make the promise of the country’s Constitution a reality in the lives of our people.”

This is all, regrettably, lies and misdirection.

In reality, since February 2018, government has dedicated itself to watering down the very Constitution and Bill of Rights to which the President refers. It was agreed by a majority of our parliamentarians that section 25 of the Constitution, which entrenches perhaps the most basic human right -- to own and enjoy property -- should be weakened.

This weakening takes the form of the Constitution Eighteenth Amendment Bill, which was published in December 2019. According to the Amendment Bill, once the Constitution has been amended, government will no longer be required to pay compensation whenever it decides to seize private property. It will now be within government’s discretion whether any compensation needs be paid.

It is not arguable that this reality advances human rights in any way. There used to be an unqualified right to compensation; now, that right will be qualified. The government is engaged in actively undermining “the cornerstone of our democracy”, and thus “the promise of the country’s Constitution”.

That the President champions this process, and at the same time lies to our faces about how government wishes nothing more than to protect and advance the Constitution, is beyond insulting. He must think South Africans would not notice. But we are taking notice.

This week is Human Rights Week, and perhaps now more than ever before in the democratic era, we have no reason to celebrate. We remain in the grip of a government-enforced lockdown that has effectively suspended, or at best relegated, the civil liberties and economic freedoms of millions, often with no link to well-reasoned, objectively defined public health priority.

Additionally, government departments continue to announce new bills and regulations that further restrict the areas of free activity of South Africans, such as the Legal Sector Code. The Code effectively strips South Africans of the freedom to choose their legal representatives, whether for litigation or for simple jobs like transferring property or notarising documents. Instead, one will now have to choose a politically-favoured attorney or advocate.

But by far the most egregious deprivation of human rights is government’s plan for expropriation without compensation.

Legal systems around the world, including indigenious African ones, have recognised for millennia the importance of safe and secure private property rights. Without the right to own the scarce natural resources around us, human society will be engaged in endless conflict. With ownership, on the other hand, comes cooperation and commerce, and, as a direct result, unprecedented prosperity. Every country in the world with safe and secure private property rights, without exception, is prosperous compared to those which do not have such security.

A massive portion of South Africa’s population today finds itself in the midst of relative poverty for no reason other than the Apartheid government’s decision to deny them the same legal recognition and protection for property rights that was enjoyed by the favoured minority. When we adopted a constitutional dispensation undergirded by the entrenchment of private property rights, including the right to be paid compensation when property is taken for a public purpose, South Africa collectively decided to put this injustice to a stop.

The political elite, supported by a very loud minority of influencers in the academy and chattering classes, has decided to undo this momentous decision. It seeks to transfer back to the State the power to arbitrarily deprive property rights as and when it sees fit. Expropriation without compensation is, in many ways, a return to an Apartheid mentality.

The right to compensation upon expropriation is a basic human right recognised everywhere in open and democratic societies, from Kenya to Nigeria, Britain to South Korea, and Brazil to Scandinavia. The only exceptions are those societies the company of which we do not wish to keep.

The President’s Human Rights Day address is an outrage. It is a naked falsity. The South African government, as things stand, has no intention of honouring the rights in the Bill of Rights, and every intention of weakening them through legislative interventions. Whatever one’s perspective on private property rights, we should not condone such lies from a constitutionally accountable head of state.

Martin van Staden sits on the Executive Committee and Rule of Law Board of Advisors of the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria and is author of ‘The Constitution and the Rule of Law: An Introduction’ (2019).