Defeat of 8th Amendment only first step in stopping EWC

8 December 2021

Sakeliga recognises and welcomes the outcome of the parliamentary vote on the Constitution Eighteenth Amendment Bill (Eighteenth Amendment) today. The Eighteenth Amendment was defeated after its sponsors failed to secure the requisite two-thirds majority of National Assembly votes necessary to affect an amendment of section 25 of the Constitution, which protects the right to property and the right to compensation upon expropriation. 

We nonetheless remain vigilant to the risk of a Constitutional amendment remaining on Parliament’s agenda, and that Parliament could still persevere in its attempt to adopt the Expropriation Bill. The mere possibility of both of these will continue to undermine legal certainty and constitutional legitimacy, and disincentivise investment and economic development. 

Sakeliga opposes property confiscation – commonly called “expropriation without compensation” – and has done since early 2018, when the idea was first mooted and placed on Parliament’s agenda.  

The defeat of the Eighteenth Amendment in Parliament is a necessary but insufficient step in the direction of restoring constitutional normalcy on property rights. The immediate next step is for Parliament to take any further discussion of property confiscation off its agenda, and for it to refuse to adopt the Expropriation Bill. 

The proposed Expropriation Bill (not to be confused with the just-defeated Eighteenth Amendment) includes provisions operationalising property confiscation without compensation. It cannot lawfully be adopted as long as section 25 of the Constitution mandates that government provide compensation when it – under limited, clearly-defined circumstances – expropriates private property. 

We went on record in March 2021, during the final hearings in the National Assembly on the Eighteenth Amendment, to say that, 

“we can never accept the proposed changes to the South African Constitution, no matter how many parliamentarians vote for it, no matter how well they are formalistically and procedurally followed through. The Constitution cannot be amended to facilitate confiscation as contemplated, and remain a legitimate constitution. It will lose its legitimacy insofar as it is so amended, and it will regain legitimacy only after such an amendment is undone.” 

Sakeliga stands firmly by this statement. We will continue to oppose efforts to undermine constitutionalism and we will fight for the property rights of all current and prospective owners, without which there can be no commercial flourishing in South Africa. 

Issued by Piet le Roux, CEO, Sakeliga, 7 December 2021