Martin van Staden

Libertarian Jurisprudence & Free Market Policy

Research

Research papers, academic articles, and submissions to government which Martin has authored or co-authored will appear on this list. The latest publication appears first.

ORCID: 0000-0002-4612-5250

Contents:

The Potential for Constitutional Devolution in South Africa
The Dangers of South Africa’s Proposed Policy of Confiscating Property
Fraus legis in constitutional law: The case of expropriation “without” or for “nil” compensation
Private Property, Public Interest: Alternatives to Confiscation and Nationalisation
Spontaneous order or central planning? A brief overview of the libertarian approach to law
A critical appraisal of the COVID-19 lockdown in South Africa
Undoing 26 Years of Progress: Property Rights in South Africa
Property rights and the basic structure of the Constitution
Civil Liberty During a State of Disaster or Emergency in SA
Deceiving the Public: A critical analysis of the NHI impact assessment
The Liberal Tradition in South Africa: 1910-2019
The Basic Structure Doctrine: A challenge to EWC?
Navigating the Digital Divide: Internet access a human right?
Have We Been Underemphasising Public Participation?
Regulation of Agricultural Land Holdings Bill
Public Participation in Policy-Making in South Africa
Pardoning Power of the President of South Africa
Prevention and Combating of Hate Crimes and Hate Speech Bill
South African Law and Social Engineering
Assorted Fallacies and Institutionalized Hypocrisy

The Potential for Constitutional Devolution in South Africa

Article in the Cato Journal, 14 October 2021

In this double-blind peer-reviewed journal article, Martin briefly explains the recent history of federal advocacy in South Africa in the context of increasing agitation in favour of secession of the Western Cape province. Martin argues that there exists ample room for unitary devolution of power to lower levels of government — particularly to municipalities, uniquely in South Africa — and this should be attempted before any attempt is made to achieve sovereign independence.

The Dangers of South Africa’s Proposed Policy of Confiscating Property

Chapter in the Economic Freedom of the World Annual Report, 14 September 2021

In this chapter, Martin discusses the dangers of the South African government’s proposed confiscation (or “expropriation without compensation”) regime. Secondly, it is explained why secure, entrenched rights to private property serve, rather than undermine or hamstring, the public interest. Thirdly, some alternatives to expropriation without compensation are briefly considered. Fourthly, a viable, pro-property rights alternative to the government’s proposed legislation is outlined.

Fraus legis in constitutional law: The case of expropriation “without” or for “nil” compensation

Article in the Potchefstroom Electronic Law Journal, 28 June 2021

Fraus legis – defrauding or evading the application of law – is a phenomenon well-known to students of private law, but its application in public law, including constitutional law, remains largely unconsidered. To consider whether a transaction, or, it is submitted, an enactment, is an instance of fraus legis, an interpreter must have regard to the substance and not merely the form of an enactment. In 2018 Parliament resolved to amend section 25 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to allow government to expropriate property without being required to pay compensation. While the public and legal debate has since before that time been concerned with “expropriation without compensation”, the draft Constitution Eighteenth Amendment Bill, 2019 provides instead for expropriation where “the amount of compensation is nil”. By the admission of Parliament’s legal services unit, this is a distinction without a difference. But compensation and expropriation are legally and conceptually married, and as a result, it would be impermissible to expropriate without compensation – instead, nil compensation will be “paid”. How does this current legal affair comport with the substance over form principle, and is fraus legis at play? This article considers the application of the fraus legis phenomenon to public law, utilising the contemporary case study of the Constitution Eighteenth Amendment Bill.

Private Property, Public Interest: Alternatives to Confiscation and Nationalisation

FMF Legal Policy Brief, 25 June 2021

This paper discusses the dangers of government’s proposed confiscation regime. Secondly, it explains why secure, entrenched private property rights serve, rather than undermine or hamstring, the public interest. Thirdly, the alternatives to confiscation and nationalisation will be discussed. These include the fact that government is financially capable of providing market-related compensation for expropriations; that restitution of land and property is achievable (indeed imperative) without destroying property rights; that urban land reform success is within grasp but underappreciated; and that much can be done about rural
reform without threatening the economy or food security. Fourthly, a viable, pro-property rights alternative to government’s proposed legislation is outlined.

Spontaneous order or central planning? A brief overview of the libertarian approach to law

Article in the Journal for Contemporary Roman-Dutch Law, 13 February 2021

In this double-blind peer-reviewed journal article based on his master’s dissertation, Martin briefly summarises the libertarian approach to legal philosophy, legal theory, rights, law-making, and crime. From the abstract: “Libertarian theory is seldom represented in legal discourse, particularly that of South Africa. This contribution aims therefore to provide a brief overview of the jurisprudential work of libertarian thinkers, and in so doing discusses the libertarian approach to legal philosophy with the focus on general conceptions about the nature of the (objective) law, (subjective) rights, and legislation. The libertarian approach is then also briefly contrasted with contemporary conceptions about the law and legislation, with reference to crimes and delicts.”

Constitutional rights and their limitations: A critical appraisal of the COVID-19 lockdown in South Africa

Article in the African Human Rights Law Journal, 2 December 2020

In this double-blind peer-reviewed journal article, Martin considers the constitutionality of South Africa’s COVID-19 lockdown against the backdrop of the constitutional rights limitation regime within the broader theoretical framework of constitutionalism and the rule of law. This analysis is conducted in the context of some early challenges brought against the lockdown in four High Court cases. The article concludes that the South African government, with the partial endorsement of the courts, has strayed beyond the bounds of the Constitution and engaged in unjustified violations of constitutional rights.

Undoing 26 Years of Progress: Property Rights in South Africa

Case study in the 2020 International Property Rights Index, 24 November 2020

In this case study, Martin and colleague Jacques Jonker summarise and attempt to quantify the threats to private property rights — expropriation without compensation and the new intellectual property rights regime — in South Africa. The case study was featured in, and Martin presented it during the global launch of, the Property Rights Alliance’s 2020 International Property Rights Index.

Property rights and the basic structure of the Constitution: The case of the Constitution Eighteenth Amendment Bill

Article in Pretoria Student Law Review, 12 October 2020

In this double-blind peer-reviewed journal article, Martin summarises the procedure to amend the South African Constitution as set forth in section 74 of the Constitution, and the process that has taken place between February 2018 and June 2020 to amend the Constitution to provide for expropriation without compensation. Martin discusses the basic structure doctrine and its potential application in South Africa, and whether it could be employed as a viable challenge to the draft Constitution Eighteenth Amendment Bill.

Civil Liberty During a State of Disaster or Emergency in SA: The case of COVID-19

FMF Legal Policy Brief, 9 April 2020

In this legal policy brief, Martin reviews the legal paradigm of states of disaster and of emergency, and how they interact with South Africans’ civil liberties. This is done within the context of the regulations proclaimed to combat the spread of the coronavirus (COVID-19). The paper sets out the legal basis for encroaching on civil liberties as recognised by the Constitution, particularly sections 36 and 37. Alongside this approach, the paper considers the Rule of Law standard set in section 1(c) of the Constitution and how this standard interacts with civil liberty. The coronavirus regulations themselves, issued under the Disaster Management Act, are considered within the paradigm of the Rule of Law and the provisions of the Constitution, as is the State of Emergency Act.

Deceiving the Public: A critical analysis of the impact assessment on the National Health Insurance White Paper

AfriForum Research Report, 18 November 2019

In this comprehensive analysis of the socio-economic impact assessment conducted on the Department of Health’s 2017 National Health Insurance White Paper, Martin measures the quality of the assessment against international impact assessment standards and the criteria of impartiality, balance, and intellectual honesty. It is concluded that the impact assessment fails to live up to the characteristics of a good impact assessment, and that its flawed nature undermines the whole structure of the NHI scheme, including the NHI Bill, built atop it.

The Liberal Tradition in South Africa: 1910-2019

Article in Econ Journal Watch, 1 October 2019

In this peer-reviewed paper for the Fraser Institute’s Econ Journal Watch, Martin details the history of classical liberalism in South Africa from the founding of the Union in 1910 up to the present day. The first half of the paper provides a unified historical narrative describing the role of liberals, while the second half is more episodic, treating persons, organizations, and liberals in politics.

The basic structure doctrine: A challenge to expropriation without compensation?

Article in De Rebus, 1 February 2019

Martin submitted an article about challenging expropriation without compensation according to the basic structure doctrine to the periodical attorneys’ magazine De Rebus.

Navigating the digital divide: Internet access a human right?

Article in De Rebus1 March 2018

Martin submitted an article about Internet access as a human right to the periodical attorneys’ magazine De Rebus.

Have we been underemphasising public participation?

Article in De Rebus, 1 July 2017

Martin submitted an article about public participation in law- and policy-making to the periodical attorneys’ magazine De Rebus.

Regulation of Agricultural Land Holdings Bill

FMF Submission to the Department of Rural Development and Land Reform

The Regulation of Agricultural Land Holdings Bill, 2017 violates the Constitution and signifies government’s erroneous understanding of property rights.

It seeks to disallow foreigners ownership of agricultural land in South Africa, seeks to establish an Apartheidesque national registry of the races and sexes of land owners, and seeks to inter alia give government the right of first refusal in the alienation of foreign-owned agricultural land.

In this submission Martin sets out the theory of property rights and considers the property rights provision in the South African Constitution, and analyzes the Bill’s shortcomings in that light.

Public Participation in Policy-Making in South Africa

FMF Research Paper, 10 March 2017

Martin wrote a research paper on public participation in the context of policy-making (as opposed to law-making), which was divided into two parts.

The first part of the paper serves as an analysis of the principle of public participation as a part of the Constitution, and as a part of the Rule of Law. Martin also considers and discusses socio-economic impact assessments (SEIAs) as a potential part of the constitutional requirement of transparency and evidence-based policy-making. The focus is on public involvement in the policy-making process at national level, rather than involvement in law-making, i.e. the legislative process, or involvement in provincial or municipal policy-decisions.

It is, however, apt to note that the Constitution does oblige Parliament, as well as the provincial and municipal legislative bodies, to engage the public when laws are made.

In the second part of the paper, the principles, rules, and considerations outlined in the first part are applied to the introduction of the Information and Communication Technologies Policy White Paper, that was published by the Department of Telecommunications and Postal Services and which was approved by Cabinet in late September 2016.

Pardoning Power of the President of South Africa

FMF Research Paper, 24 March 2017

With many in South Africa wondering about whether a president can pardon or give clemency to her predecessor for his potential criminal wrongdoing, Martin penned a research paper considering this question.

Firstly, he considers the current constitutional provision and compares it with the four constitutions South Africa has had since the Union was formed in 1910; namely, the South Africa Act, the 1961 (republican) Constitution, the 1983 (tricameral) Constitution, and the 1993 (interim) Constitution.

Secondly, he considers the pardoning power within South Africa’s historical context, by looking at the pardoning power as it existed in the Transvaal Republic, the Orange Free State, the Cape Colony, and the Natal Colony.

Thirdly, he compares South Africa’s constitutional pardoning power with that of certain foreign jurisdictions.

Fourthly, he analyses the nature and extent of the constitutional pardoning provision.

And finally, he considers the pardoning provision within the context of the Rule of Law.

Prevention and Combating of Hate Crimes and Hate Speech Bill

FMF Submission to the Department of Justice and Constitutional Development

The Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016 violates the Constitution of South Africa and the doctrine of the Rule of Law in several respects:

  1. It is theoretically possible to convict a person on a charge of ‘hate crime’ even if they are acquitted of the offence which gave rise to the charge.
  2. The definition of ‘hate crime’ overlaps to such a significant extent with the definition of ‘hate speech’ that anyone who is charged with hate speech must also as a necessary consequence be charged with hate crime.
  3. The grounds giving rise to hate speech (“insult” with the intention to “bring into contempt or ridicule”) are overly-broad and inconsistent with the Constitution (“advocacy of hatred that constitutes incitement to cause harm”).
  4. The protected characteristics are more numerous (17 characteristics, including “belief” and “occupation or trade”) than what the Constitution allows for (race, ethnicity, religion, and gender).
  5. The Bill provides for no defences or exemptions, which effectively means most normal human expression will be deemed hate speech.

Martin authored this submission which was sent to the Department of Justice and Constitutional Development in late January 2017.

South African Law and Social Engineering

Senior Thesis at the University of Pretoria

Apartheid was, in its essence, a state-enforced system of social engineering based on various legal assumptions; most importantly, the apparent ‘right’ of the State to compel individual persons to adhere to the system. Since Apartheid has ended, it’s important to ask whether or not this has changed.

Certainly, if one only seeks to scratch the surface of inquiry, much has, indeed changed. However, is ‘Transformation’ as we know it today, not also a state-enforced system of social engineering; and is it too not based on that very same legal assumption?

This paper considers and attempts to answer these questions.

Assorted Fallacies and Institutionalized Hypocrisy

Legal Philosophy Paper at the University of Pretoria

The post-Apartheid legal intelligentsia in South Africa have much to say about redressing the legacy of the former regime’s social engineering. It does this, however, by relying on the same tools and philosophy which enabled the Apartheid regime to do what it did in the first place.

In this paper, Martin analyzes and exposes the force (coercion) underlying South Africa’s ‘Transformation’ project and the general leftward inclination of contemporary intellectuals. Martin’s senior thesis built upon the groundwork laid in this essay.