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Many South Africans seem to be overjoyed that the constitution might not be amended after all to allow for so-called “expropriation without compensation” (in fact “confiscation”) and state custodianship of land. But South Africans should not be complacent — constitutional property rights are still under threat, and the discourse is getting more ridiculous by the day.

The Constitution Eighteenth Amendment Bill was most recently revised by the ad hoc committee responsible for the enterprise, to exempt communal land from confiscation and move the cut-off date for land restitution claims from 1913 (the commencement of the Native Land Act) to 1800 (a thumb-sucked year).

The proposed constitutional amendment is now more arbitrary and convoluted than before. There have been many media reports that the ANC and EFF will not work together to adopt the amendment bill, which was intended to make the two phenomena of confiscation and state custodianship of land lawful under the constitution. At present both of these concepts are antithetical to the constitution as written, and the ANC would need the EFF’s votes to amend the constitution.

However, there are various things to consider before constitutionalists rejoice and let their guards down. The first is that the ANC and EFF’s versions of the amendment bill are not too dissimilar. The ANC is giving the EFF almost exactly what it wants, just packaged somewhat differently. In fact, it will be difficult for the committed authoritarian socialists in the EFF not to vote in favour of the ANC’s amendment bill.

But perhaps the EFF is playing a party political game and it is willing to suspend its commitment to socialist ideology for the briefest of moments, and therefore will not support the ANC’s proposal. Constitutionalists still cannot be complacent. 

The second thing to consider is the Expropriation Bill — the ordinary piece of legislation meant to operationalise and make practical the broad and general provisions of the amendment bill. There is a high likelihood that government will still enact the Expropriation Bill, even if the amendment bill fails to be adopted.

It can (attempt to) do this because misguided legal academics have convinced the ANC that confiscation is “implicit” in the constitution anyway, so amending the text is simply an exercise in formality. Armed with this nonsensical argument the ANC can claim that the Expropriation Bill, which sets out the circumstances under which government may confiscate property without paying compensation, is constitutionally sound.

A further threat is that the idea of amending the constitution or otherwise achieving expropriation without compensation could be kept on the political agenda for years to come, particularly by the EFF. Even if the constitution is not amended and the Expropriation Bill is not adopted, or it is set aside by the Constitutional Court, SA has now come so close to bringing this unacceptable legal device into our constitutional law that investors will always be concerned when prominent politicians or groups in SA talk about expropriation without compensation again in future.

In other words, confiscation will hang like a sword over the neck of the economy, and the rights and interests of every individual South African, for the foreseeable future. The third largest party represented in parliament basing its political programme on the destruction of important constitutional infrastructure is not something that ordinarily keeps a constitutional democracy healthy.

The addition of the new 1800 cut-off date for restitution claims, and the exemption of traditional land from confiscation and custodianship just as the committee received the umpteenth extension of its life from the National Assembly, is a perfect illustration of the circus the political discourse around the amendment bill has become.

In principle there should be no cut-off date for a restitution claim. While SA law recognises the phenomenon of prescription of civil claims, a just society does not invalidate property rights simply because of the passage of time. If property is taken from you, you or your descendants must be legally entitled to claim that property back, with due justice also being accorded to the innocent third party who might have come into possession of that property later on.

However, to simply pull a random year from a hat and try to incorporate that into our highest law is reckless. A preferable avenue would simply be to entrench the principle of restitution without reference to any year.

Finally, before the latest revision there were only whispers that the new law the amendment bill creates could be applied in a discriminatory manner, but now the committee has made it explicit. If this version of the constitutional amendment is adopted, traditional leaders will receive more property protection than those who own property outside communal areas. A traditional leader would have to be compensated when their property was seized, but a spaza shop owner would have to be fine with “R0 compensation”.

The idea that “nothing” could qualify as “compensation” is another nonsensical phenomenon that many misguided legal academics have convinced government is valid.

The discourse around what is errantly referred to as expropriation without compensation has become so convoluted and confused that it is no longer clear how much of a threat is truly being posed to our constitutional order.

But that there is a threat is clear. The government wants to amend the highest law in the land, meant to protect ordinary people and enterprises precisely from government predation, in the midst of all this confusion and nonsense.

The better idea is to leave the constitution alone and simply do what it currently requires as far as land reform is concerned.  

• Van Staden, a legal fellow at Sakeliga, is pursuing a doctorate in law at the University of Pretoria. 

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