Expropriation without compensation undermines constitutional legitimacy

Any amendment to the Constitution of South Africa, whether in text or by way of interpretation, to facilitate expropriation without compensation, would seriously undermine the Constitution’s constitutional legitimacy. So says Piet le Roux, CEO of AfriBusiness.

Business organisation, AfriBusiness, today submitted its comments on the proposed amendment of the Constitution to the Constitutional Review Committee. In the executive summary, AfriBusiness states that it opposes the proposed amendment, and says that:

1. Expropriation of property without compensation is an act of confiscation.

2. A constitutional dispensation that allows for the confiscation of property or a constitution which in its text allows for the confiscation of property ceases to be a real constitution because it reneges on the very notion of constitutionalism. This implies that both an amendment to the text of the Constitution and an amended interpretation of the current text of the Constitution to the effect of legitimising confiscation would be equally unacceptable.

3.  The denial of compensation for expropriated property amounts to a denial of a remedy, which constitutes a violation of the South African constitution as well as of international law.

4. An amendment to the constitution to facilitate expropriation without compensation, read together with other interventions such as BEE, the Mining Charter and central bank nationalisation, would signal to investors that South Africa is on a Zimbabwe trajectory.

5. The motion by the EFF and ANC for expropriation without compensation rests on statistical fiction about land ownership patterns in South Africa, and neglects to acknowledge the extensive and extending spread in land ownership across race groups in South Africa.

6. AfriBusiness will provide free legal aid to the first of its members who becomes a victim of expropriation without compensation due to an amendment of the property rights clause in the Constitution. All members of AfriBusiness, both individuals and companies, will enjoy this protection.

AfriBusiness’s submission is compiled by Piet le Roux, CEO of AfriBusiness, with special contributions by

- Prof. Koos Malan, Professor of Public Law, University of Pretoria;

- Prof. Hennie Strydom, South African Research Chair in International Law, University of Johannesburg; and

- Russell Lamberti, Strategist, ETM Macro Advisers; as well as

- an earlier analysis of factual problems in the parliamentary motion by Johann Bornman of AgriDevelopment Solutions.

For the complete document as submitted to the Constitutional Review Committee, click here.

AfriBusiness’s submission follows extensive consultations with business, academics, practitioners and other organisations in recent months. AfriBusiness actions in this regard included a summit on 6 March for several of the most influential civil society organisations against expropriation without compensation, as well as the majority of political parties that voted against the motion. AfriBusiness has since then also hosted more than a dozen information sessions country-wide.

About AfriBusiness

AfriBusiness is an independent business community with more than 12 000 members countrywide. Its mission is to promote and create – in the interest of its members and in the common interest wherever its members do business – a constitutional order, free markets, property rights, prosperity and a favourable business environment. The organisation was founded in 2011.

Statement issued by Piet le Roux, AfriBusiness CEO, 15 June 2018