Never again – property rights must be protected

The Free Market Foundation’s (FMF) Rule of Law Project has responded to the Constitutional review committee and made a submission on the resolution for Expropriation Without Compensation (EWC) 2018, which seeks to change Section 25 of the Constitution to remove property rights.

Without property rights, South Africa has no future in the global economy. EWC is a betrayal of the struggle and never again should a government be entitled by law to remove individual property without fair compensation. EWC is a return to apartheid and yet again black citizens will be the main victims. There are ways of achieving transformation in South Africa without sacrificing property rights in the process.

The FMF opposes the resolution on three grounds:

  1. Property rights are a hard-won victory after apartheid.
  2. Constitutionalism and the Rule of Law.
  3. There are far superior and existing methods of land reform.

Restitution and redistribution are distinctly different. Restitution is necessary and those dispossessed of their property under apartheid must and do have the right to claim back that property. Redistribution is arbitrary and most redistributed land remains in the hands of government and is often leased, with no transfer of ownership, to black farmers.

Individuals and communities can claim back property which was taken from them, but government must not be allowed to arbitrarily pick and choose property, often on a racial basis, and expropriate it to hold or to lease, often to connected individuals.

Land reform occupies the majority of section 25 and the clause makes transformation an imperative. Constitutionalism and the Rule of Law require that the process to amend the Constitution should be rational, evidence-based, well-considered and not rushed through for political expediency.

Under apartheid, statutes like the Natives Land Act and the Group Areas Acts dictated where people could and could not own or use their property. Fundamentally, the struggle against apartheid was about recognising property rights for all South Africans. EWC would undermine this hard-won victory over racist statism by removing the significant barrier of an obligation to pay. All South Africans, especially black citizens now and for future generations, would in practice be deprived of property rights entirely.

The FMF has recommended quick, substantive, and inexpensive methods by which land reform can be undertaken. The FMF’s Khaya Lam (My Home) Land Reform Project has developed a model of low cost transfer of title deeds. Thousands have received or are in the process of receiving their deed and are on the first rung of real economic transformation.

Still today, millions of South Africans live with leasehold tenure on municipal land. The FMF advocates that:

  1. They should be given full and unambiguous ownership, accompanied by a title deed.
  2. Laws and regulations that hinder equitable access to land should be abolished. For Example:
    • Town-planning laws frequently make it difficult for informal settlements to eventually become suburban townships;
    • The Subdivision of Agricultural Land Act makes it onerous for farmers to subdivide their land and sell those divisions at a competitive price to smaller farmers or communities;
    • All spheres of government own vast amounts of land, which is “reserved” and this is recorded on deeds registries as private property. It is not. It is state property and should be transferred to poor South Africans at minimum cost.

The Constitution is a timeless statute meant to last. Changes to any constitutional instrument should be rare and narrow. EWC would be the first substantive amendment to the Constitution and requires lengthy deliberation and debate, not a hasty resolution and a few months of rushed “consultation”.

The Bill of Rights does not give us rights, but instead recognises and protects already-existing human rights, and it is for this reason that any amendment must respect the core essence of the right in question. So far government has not provided a sound reason or rational explanation.

Never again. EWC must not be allowed to happen. Ever.

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