Sout African Constitution
stands firm against amendment to allow expropriation of private property at
‘nil’ compensation, but risks remain
– IRR
(Institute for Race Relations)
The proposed amendment formed part of a larger
agenda to expand the latitude of the state to seize privately-owned assets.
The failure of the African National Congress to muster a two
thirds majority support in Parliament on 7 December, even of all its own
members, in its attempt to amend Section 25 of the Constitution is a
significant development, but is far from the end of the process or the risks it
entails.
“The outcome of the division is as follows: There was no
abstentions, 145 Members voted against, and 204 voted in support of Bill”,
according to the National Assembly House Chairperson, Cedric Frolick. The ANC
has 230 Members of Parliament.
Commenting on the vote, Terence Corrigan, IRR project manager said
the outcome was to be welcomed, and that some comments – especially Minister
Lamola’s comments on the undesirability of custodianship of land – deserve
‘praise and encouragement’. However, South Africa should be under no illusions
that threats to property rights remain.
‘This has been an issue in
various forms for well over a decade and has a been a seminal investment
deterrent since it was pushed with renewed energy onto the policy agenda at the
end of 2017. In the context of the pandemic and lockdowns – and their
associated costs – it has done enormous damage, undermining prospects of an
economic rebound,’ Corrigan said.
In addition, this process
represented the first attempt to tamper with the Bill of Rights, safeguards
against state encroachment, at a time when government credibility and the ANC’s
popularity waning.
Corrigan added: ‘We have seen a great deal of hostility to the
constitution and to constitutional governance in recent years. The attempt to
pass this amendment represents a disturbing precedent for the future, where
other constitutional provisions might opportunistically be seized upon as a
hindrance to particular policy outcomes.’
The IRR also cautions that the amendment’s halt is not the end of
the matter. A great deal of political capital has been invested in expropriating
private property without compensation. It is quite conceivable that
constitutional amendment to this end will return in a revised form, possibly
one designed as the basis for a deal between the ANC and EFF, which both argue
for dispossessing private owners.
In addition, the Expropriation Bill – which would establish the
mechanisms for such takings – is returning to centre stage, and indications are
that attempts will be made to push it through the legislative processes next
year.
All of this means that the ‘Expropriation Without Compensation’ agenda,
with the economic and constitutional risks it embodies, remains very much
alive. South Africa’s people would be well advised to recognise the seriousness
of this.
‘Properly handled,’ Corrigan said, ‘this could be a moment to
reorient the conversation to real solutions for the country’s ailing land
reform efforts, and for its developmental aspirations, with an eye of expanding
property rights and the ownership of property.’
Issued by Gabriel Crous on behalf of IRR, 7
December 2021
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