South Africa’s S25 Amendment Bill must not Proceed

Blaming the Constitution for government failure to act on land reform is absurd, yet, this is exactly what the Section 25 Amendment Bill is doing. Government has failed – not the Constitution. Until this is recognised, no Amendment Bill will solve the land problem. At a joint Webinar briefing on 30 September 2020, Business Leadership SA (BLSA) and the Free Market Foundation (FMF) made it clear that the government’s rhetoric must match its actual intentions, otherwise, the public is being deceived. The draft Constitution Eighteenth Amendment Bill, 2019, is problematic in its intentions and unconstitutional in its effect.

Astoundingly, the ad hoc committee notes that the financial consequences for the State of adopting the Amendment Bill will be “none”. This is a profound and shocking statement. And, despite being required to do so, the ad hoc committee did not publish a socio-economic impact assessment (SEIA).

The intention of the Bill is to amend section 25 of the Constitution to allow the government to expropriate private property without being required to pay compensation. Section 25 deals mainly with land reform and obliges the government to take positive action in expanding and entrenching property ownership for the previously disadvantaged. But, the government is planning to do the opposite and take away these rights.

Van Staden said, “The preamble to the Amendment Bill emphasises the fundamental importance of property ownership, but the amendment itself undermines the institution of ownership. The requirement to pay compensation when property is expropriated is an essential safeguard for the human dignity, economic interests, and personal liberty of property owners, and underpins the entire economy. If this is removed, then the security of ownership is lost, and, with it, foreign and local investment confidence. As a democratic nation founded on the rule of law, we should strengthen ownership, not weaken it.”

In the foreword to the second edition of the FMF’s Security of Property Rights in South Africa, FMF director Temba A Nolutshungu, writes that if EWC becomes reality, “All and any land will be vulnerable to confiscation by government without compensation. The country risks repeating the mistakes of the past – and not alleviating any economic problems.”

The FMF submission on this matter (here) is founded on the premise that South Africa’s Constitution was written specifically to prevent the government from ever again depriving citizens of their rights. It is deeply regrettable that the government has consciously decided not only to invade constitutional rights but to change the Constitution itself to remove the protections for those rights.

Nolutshungu continued, “Compensation without compensation is unheard of among the open and democratic societies around the world, and every country that has attempted this, has become a poor, repressive society. This is especially apparent in our own continent of Africa and on our doorstep in Zimbabwe.”

The public participation process required by the Constitution is flawed both in substance and procedure and inadequate time was allowed. Good faith public consultation is a prerequisite for any new legislation, policy, or regulation and without this, the government lacks a mandate. Since no national consensus has been reached, the mandate is absent. More insidiously, there were foregone conclusions reached by the Constitutional Review Committee before any public comment was invited.

Van Staden, “The Constitution already makes ample provision for substantive land reform and amending the Bill of Rights to satisfy a current political agenda sets a dangerous precedent for future generations. The notion of expropriation without compensation offends the doctrine of constitutionalism.”

Under the leadership of FMF CEO Leon Louw, and lately, with its flagship program Khaya Lam (My Home), the FMF has championed the property rights of all South Africans since its inception over 45 years ago and, in particular, that the property injustices committed against black South Africans in the past must be rectified. This Amendment Bill will do the opposite. This Bill must not proceed and any proposed changes to South Africa’s constitutional law should be abandoned.

Speakers at the event included BLSA’s CEO, Busiswe Mavuso, BLSA Director of Policy and Legislation, Tebele Luthuli, the FMF’s Head of Legal Policy and Research, Martin van Staden, and FMF Director, Temba Nolutshungu.

The FMF is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for a non-racial, free and prosperous South Africa. As a policy organisation it promotes sound economic policies and the principles of good law.

Photo Credit: Constitution Hill.