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DA supporters. Picture: REUTERS/IHSAAN HAFFAJEE
DA supporters. Picture: REUTERS/IHSAAN HAFFAJEE

The DA, as SA’s (now former) foremost liberal party, had only one role to play regarding the new Expropriation Act: unconditional and unrelenting opposition. 

Instead, the party has charted a different course, skirting around the fundamental constitutional, economic and moral deficiencies of the act and focusing instead on some peripheral formalities.  

This is clearly a weak — and failed — attempt to show its constituency that it is still “against” the Expropriation Act, while protecting its position in the government of national unity (GNU). 

Among many other problems, the act purports to introduce the phenomenon of “nil compensation” expropriations into SA law. This is brazenly and clearly unconstitutional if tested against section 25 of the constitution, which requires the “payment” of an “amount” of compensation that is also “just and equitable”.

No reasonable person, certainly not when reading a constitutional bill of rights, will ever conclude that “nil” could be an “amount” that could be “paid” when property is seized by government. 

Legal takings of property by the state are “expropriations”, and thus always involve compensation. When the state does not pay compensation it is “confiscation”, and this is thoroughly illegal outside the confines of asset forfeiture in criminal law. This is basic constitutional and property law. 

Liberalism’s value proposition is simple: individuals and communities — society — must chart their own course. The state must secure society against coercion directed at people or their property. Beyond this, the state must be severely limited by constitutional law so that it cannot utilise its awesome power to deprive society of civil liberty or property.

Since the establishment of the Progressive Party in 1959, followed by the Progressive Reform Party, Progressive Federal Party, the Democratic Party and finally the Democratic Alliance, the DA has been the foremost representative of this political ideology in SA. However, with the formation of the GNU the party has allowed itself to be ideologically co-opted. 

Co-option does not always mean sharing the precise philosophical imperatives of the co-opter. The DA is not — yet — a Marxist-Leninist party such as the ANC. But co-option could include simply abandoning one’s own imperatives, such as liberalism’s strict insistence on property rights. 

US President Donald Trump, in his usual unrefined fashion, did SA a great service by speaking out in favour of property ownership. He pointed out that property confiscation is now law in SA, that a class of people in SA — property owners — is being badly mistreated, and that this amounts to a human rights violation. On all counts, like him or not, Trump is right. 

And yet the DA, among the regime’s usual cheerleaders in the media and academia, felt compelled to condemn Trump for speaking the truth, rather than condemn parliament and President Cyril Ramaphosa for adopting the kinds of policies that have turned relatively prosperous societies such as Zimbabwe and Venezuela into humanitarian disasters and basket cases. The “sequencing requirement” deficiencies of the act are the most the DA could muster in opposition to the death-cult legislation. 

Insufficient guarantees

That the DA naïvely believes the “public interest” safeguards in the act, or the judiciary, are sufficient guarantees against arbitrariness and abuse, is preposterous for a party that has spent three decades laser-focused on how the SA government abuses “public interest” powers.  

Every time some official or minister is implicated for corruption, that official has acted in terms of an act of parliament that requires him or her to act in the “public interest”. The public interest criterion is a throat-clearing exercise. It is not real. 

The DA knows, or should know, that the SA judiciary has a bad track record of safeguarding private property rights against state overreach. The Constitutional Court’s terrible twins — the 2002 case of FNB v Sars and the 2013 case of Agri SA v Minister for Minerals and Energy — are pseudo-jurisprudential blights in SA case law, amounting to allowing the state under cover of “deprivation” to sidestep the strict requirements laid out for expropriation. These are just two examples. 

This does not even begin to address the so-called Land Court parliament is in the process of creating that will be the court of first instance for expropriation cases. The ordinary rules of evidence and procedure in this “court” are lax and its enabling legislation allows for activists to be deployed as assessors onto the bench to “assist” judges in determinations of fact. 

The DA has been advised repeatedly and in excruciating detail about the constitutional and constitutionalist errors in the Expropriation Act, and in the courts’ approach to property cases. But because the DA — admittedly, like myself — does not like Trump’s “vibes”, it has decided to abandon any substantive opposition to the act. Truth be told, this should have been the final “red line” for the GNU.  

It is a betrayal that liberals and those who understand the key role property rights play in safeguarding freedom and democracy, and creating the conditions for prosperity, should not soon forgive the party for. The DA was supposed to be part of the solution, not part of the problem. 

• Van Staden is head of policy at the Free Market Foundation. 

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