‘Never again’ until next time

In 1994, Nelson Mandela dedicated the day he was inaugurated as the first President of a free South Africa to those who sacrificed “and surrendered their lives so that we could be free”.

Freedom was the reward after the struggle against Apartheid was won. Mandela concluded with these famous words: “Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another and suffer the indignity of being the skunk of the world.”

Unfortunately, these words of the pioneer of democratic South Africa have not stood the test of time. The confidence with which he delivered his statement in 1994 was not enough to carry it three decades into the future, with South Africans again facing government tyranny.

The ruling party has decided that it is now a fait accompli that the Constitution will be amended to allow for expropriation of private property without paying compensation. This harkens back to the 1950s, shortly after the National Party came into power.

The NP sought to remove coloured voters, who were still enfranchised on the common voters’ roll in the Cape Province, from the roll. The Prime Minister, DF Malan, said on 20 October 1953 that the party had received a mandate to place Cape Coloured voters on a segregated roll, and the party was not going to ignore that mandate. Malan said this amidst a constitutional crisis, during which the Supreme Court invalidated various attempts by government to implement this aspect of Apartheid. The government would eventually beat the courts after loading the upper house of Parliament with loyalists and threatening to stack the court bench with more sympathetic judges.

The National Party had decided on something tyrannical, and they were not going to let considerations of freedom, constitutionality, evidence, and human dignity stand in the way of them getting what they want. This mentality has carried through to 2018, under an apparently different government.

In 1994, Apartheid officially ended. Its greatest crime – denying property rights on the basis of race – was finally put to an end. Section 25 of the Constitution was brought into operation to ensure that the arbitrary infringement of private property that was rampant under the previous regime would not happen again. And the section also obligated the new government, specifically, to bring about security of tenure; in other words, to strengthen property rights. Finally, black South Africans could own property wherever they wanted, and millions took advantage of this now-recognised right.

Millions more, unfortunately, have been waiting patiently for government to strengthen their property rights, mostly in urban townships. This has not happened. Instead, government now has the full intention to shove South Africa back at least three decades in time, but perhaps four, back into the Cold War era when the idea that the State is a custodian of property, or at least should have the authority to pick and choose which private property to use for what, was still in vogue. A forgotten era of absolute poverty made new again.

The moment expropriation without compensation becomes legalised and implemented in South Africa, we, like Zimbabwe before us, will again become “the skunk of the world”. If not sanctions, then surely no sustainable investment. Expatriates, of whom there will be millions, will go out into the world and tell of an African country that, after 1994, saw massive economic growth and an explosion in social welfare, but which then, on the altar of political ideology, threw it all away.

Tyranny is an inevitable consequence of a lack of property rights. When government has the power to take that which is yours without the most substantive check and balance – the requirement to pay you for it – then constitutionalism no longer exists. Without the section 25 right to compensation, the Constitution itself will immediately be reduced to a shadow of its former self, arguably not worth the paper it was signed on by President Mandela in 1996.

Of course, this state of dystopia will not be permanent. Eventually, sanity will return and South Africa will again pick itself up. Many will, at that time, declare, once again, “never again”, but that will only last until next time. However, one can hope, even if only naively, that South Africans will then have the fortitude and prudence to entrench institutions strong enough to truly ensure that secure property rights are a permanent fixture in our society. 

Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria

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