Martin van Staden

Libertarian Jurisprudence & Free Market Policy

Basic structure doctrine

Since the Parliament of South Africa committed itself to a policy of expropriation without compensation (EWC) in February 2018, Martin has written widely on the so-called basic structure doctrine of constitutionalism. According to this doctrine, while a legislature usually does and may have the power to amend a constitution, it does not have the power to destroy it by changing its nature, logic, or foundational principles — its basic structure.

Martin has argued widely in the academia and popular media that amending the Constitution of South Africa to provide for EWC might amount to a breach of the Constitution’s basic structure, and is therefore outside of the power of Parliament.

In October 2018, Martin presented to the Libertarian Society of South Africa on the basic structure doctrine as applied to EWC:

In February 2019, the peer-reviewed attorneys’ journal, De Rebus, published a centrepiece article, “The basic structure doctrine: A challenge to expropriation without compensation?”, authored by Martin on the basic structure doctrine. This was followed in October 2020 by a longer paper, “Property rights and the basic structure of the Constitution: The case of the Constitution Eighteenth Amendment Bill”, published in the peer-reviewed Pretoria Student Law Review. Martin presented on the latter paper at a Free Market Foundation roundtable on expropriation without compensation in November 2020:

On 31 March 2021, during its presentation to the parliamentary ad hoc committee responsible for finalising the text of the amendment to section 25 the Constitution, the Constitutional and Legal Services Office, Parliament’s legal unit, conceded that:

  • the basic structure doctrine is applicable in South African law; and that
  • if Parliament were to provide for expropriation without compensation, that amendment to the Constitution would be unconstitutional.

While the Constitutional and Legal Services Office disputes that Parliament is providing for EWC (instead, it is providing for expropriation for “nil compensation”), these concessions will go a long way to strengthening the legal arguments against EWC.