Martin van Staden

Libertarian Jurisprudence & Free Market Policy

“Without” or “for nil” compensation? The semantic question that could make or break the South African Constitution

The following remarks were delivered by Martin van Staden, Legal Fellow at Sakeliga, at a real estate seminar hosted by STBB in Stellenbosch on 24 November 2021.

Imagine for a moment that it is the mid-1990s. You are an ordinary person who knows nothing about law or constitutions, as most South Africans did at the time, and this is probably still the case. There is much optimism in the air about the end of Apartheid and the establishment of a democratic order under a supreme constitution, although you are not entirely sure what the implications of this are.

You recently received a title deed to your property on the outskirts of Cape Town in terms of the Upgrading of Land Tenure Rights Act of 1991. Up to now, you, your parents, and grandparents have all lived on this property, but as tenants of the municipal council, not as owners. The so-called ULTRA law changed this, making you a first-time owner in your family since the early 1900s.

The new constitution is adopted, and you hear that it includes a provision that protects property rights. You have heard stories from your family about how the police evicted them from their properties decades ago across South Africa and moved them around like pawns on a chess board. Now, with the new constitution, you are told, property may only be expropriated upon the payment of an amount of compensation. That compensation must be just and equitable.

Do you walk away from this, having heard what the new democratic order constitution’s property provision does, thinking that your property may still be taken without compensation? Or do you understand, by what the text of the Constitution says, and what has been explained to you, that it is now legally impossible for property to be confiscated in this manner? There must always be a payment of an amount of compensation, according to sections 25(2) and (3). Do you understand this as including so-called “nil rands” compensation?

Surely not, ladies and gentlemen.

The Constitution was not written for people like me: law nerds who spend all their time with their noses in articles and books about jurisprudence and legal theory. No, the Constitution was written for ordinary people. It has been widely said that the Constitution was written in a way that is accessible to the layperson, and this is true. Do not get me wrong: the Constitution remains a legal instrument, not a political one. But its text was not written with high legal technicalities in mind.

So, yes, it might be correct that in ordinary private law matters of debt and contract, that such a phenomenon as the payment of “nil” exists, and that performance in terms of some agreement might well mean the so-called payment of a so-called amount of nil rands. I do not deny this. What I do deny is that this is a possibility in terms of a constitutional instrument, written with the layperson in mind, meant to protect the rights, moreover property rights, of such laypeople, from predation and abuse by government. I am saying that whatever section 25 of the Constitution might provide, it never included the implication that property could be confiscated without compensation, or for the payment of an amount of nil compensation.

An absurd situation has now arisen where various South African jurists in the academy and in practice have argued that the Constitution, as it stands today, before any amendment has been enacted, already allows government to confiscate property without paying compensation, or as they like to phrase it, where government pays “nil” compensation. To them, the Constitution Eighteenth Amendment Bill, which will allow government to “expropriate” property by the payment of “nil” compensation, is merely a formality.

The reality is, when we are dealing with property being taken and no money exchanges hands, we are not dealing with expropriation, but with confiscation. Expropriation, since it developed as a legal doctrine, has been inextricably tied to compensation. Without compensation, there is no expropriation, simply confiscation.

Let me be clear: The so-called payment of so-called compensation, to the so-called amount of nil, does not qualify as payment, does not qualify as an amount, and does not qualify as compensation, in the sense of the ordinarily understood meaning of sections 25(2) and (3). Payment, to Joe Everyman, means money, real money, exchanges hands or bank accounts. An amount, to Joe Everyman, means something other than nothing that can be measured in rands and cents. And compensation, to Joe Everyman, means that an imbalance or wrong, usually a monetary or financial imbalance or wrong, has been made right.

To “pay” someone “nil” does not satisfy the ordinary, textual meaning of any of these words.

There is, additionally, a basic canon of legal construction that tells us that where there is more than one reasonable meaning that can be given to a legal text, the one that is least absurd, that is least burdensome on legal subjects, that does not give rise to inequity, must be preferred over those that do. Ronald Dworkin’s theory of constructive interpretation is not dissimilar, wherein he tells us that once all the possible reasonable interpretations of a legislative text have been discovered, the one that is most morally appealing must be regarded as the correct interpretation.

What is less absurd or inequitable? The interpretation that section 25’s requirement of payment of an amount of compensation allows government to confiscate property for nothing, or the interpretation that it requires substantive — not merely formal — compensation? I think we can all agree that it is the latter.

But why am I saying that this semantic question is so important that it could make or break the entire Constitution? Indeed, why do I place so much emphasis on the Eighteenth Amendment, as opposed to any prior amendment of the Constitution?

There are, broadly, two reasons.

The first, is that this is the first time that the Bill of Rights, described by section 7 of the Constitution as the cornerstone of democracy in South Africa, is being fiddled with. Jurists have for centuries talked about the problem of messing with rights after they have vested. Chief Justice Stratford in 1937, albeit in a different context to our own, remarked quite aptly: “freedom, once conferred, cannot be revoked.”

The second reason I place so much emphasis on this amendment to the Constitution and the semantics it employs, is because it will be quite determinative of the extent of the supremacy of the language of the Constitution. It is true that constitutional texts and their meanings are always debated and arguably debatable, but at the very least there is a widespread recognition that the text of the Constitution must be taken seriously.

This is one of the major reasons why the recent Constitutional Court order against the Electoral Commission, when the latter tried to postpone the local elections of this year, is so important. The Constitution is clear that local elections had to be held within 90 days of the end of a municipal term. The Electoral Commission tried to argue that despite this clarity in the constitutional text, the Court still had a discretion to effectively set that provision aside for a good reason. The Court rejected this approach.

In the case of the Eighteenth Amendment, and in particular the word choice of expropriation “without”, or expropriation “for nil”, compensation, this is equally important.

If the Eighteenth Amendment is challenged in the Constitutional Court, as it no doubt will be, the Court will be faced with a choice. If the Court chooses to take the amendment at face value, and not pierce beneath the veil of the phrase, “for nil”, then the Court would effectively be signalling to Parliament that it may use clever wording to circumvent constitutional institutions and safeguards. Parliament has already done this when it used the phraseology of “custodianship” to, in practice, nationalise swathes of property in the past. The Constitutional Court, in those circumstances, signalled to Parliament that it may circumvent the property provision through such clever wording. The Court will be faced with the same choice for the Eighteenth Amendment.

But there is a real, albeit elusive, chance of the Eighteenth Amendment being successfully challenged in court. To my mind, there are two angles of attack that could prove successful, which must provide us with a great deal of hope. The first angle of attack is relatively simple, and goes as follows.

Section 1 of the Constitution has been described as the constitution of the Constitution. It contains the values and principles that are said to inform and underlie all the rest of the Constitution. It is also entrenched more deeply than any other part of the Constitution. Section 1 can only be amended with the support of 75% of the votes in the National Assembly, a majority that no political party has attained in South Africa’s history.

There are two important provisions in section 1 for our purposes. The first is section 1(a), which says South Africa is founded upon the advancement of human rights and freedoms. The second is section 1(c), which says South Africa is founded upon the supremacy of the Constitution and the Rule of Law.

The Eighteenth Amendment, quite obviously, does not advance human rights and freedoms. By all accounts, it is weakening an established human right, not merely a constitutional right, but a right that has been known to the common law for centuries. The right to compensation is about as non-debatable as the right to life, and the Eighteenth Amendment is clearly weakening, if not entirely extinguishing in practice, this right. In other words, the Eighteenth Amendment falls foul of section 1(a).

The Eighteenth Amendment also detracts from constitutional supremacy and the supremacy of the Rule of Law. At this stage, the Constitution spells out, in its own text, what circumstances may be factored in when determining the just and equitable amount of compensation. What the Eighteenth Amendment does is take this determination out of the Constitution, and turns it into a parliamentary discretion. Parliament may now decide on a whim, with a simple majority, under which circumstances the government may simply confiscate property without paying anything. The courts still have a constitutional role to play, to be sure, but there is a very clear move away from the certainty of the constitutional text, to the uncertainty and whimsicalness of parliamentary passions.

That brings us to the conclusion that the Eighteenth Amendment does not only propose to change section 25 of the Constitution, but in fact has a materially detrimental effect on the provisions of section 1, which you must remember are said to radiate throughout the whole Constitution.

There is a destruction, not an advancement, of human rights and freedoms, and there is a harking back to parliamentary supremacy, not constitutional supremacy. Therefore, if Parliament wants to proceed with the Eighteenth Amendment, it must first amend section 1 to get rid of these constitutional values. If it only enacts the Eighteenth Amendment without amending section 1, there will be an incongruence within the Constitution, with the resultant implication that section 1 is actually nothing more than a throat-clearing exercise and does not actually do much other than flatter the reader about the ostensible importance of the Constitution.

This is the one way to defeat the Eighteenth Amendment. The other one is a bit more intricate, but I think it is the more powerful argument, not least because Parliament’s own Constitutional and Legislative Services Office has acknowledged it as the greatest threat to the success of confiscation without compensation. It is known as the basic structure doctrine.

To those of you who already know about the doctrine, I am going to simplify it a lot in light of time constraints, but I do appreciate that there is more to it, and I have written extensively about it in De Rebus, the Pretoria Student Law Review, and the Potchefstroom Electronic Law Journal, for those interested.

Stripped to its essence, the basic structure doctrine maintains that every constitution has a basic structure, which comprises its internal logic — its most fundamental character. When a legislature attempts to change or compromise this logic or character — this basic structure — then the legislature is not engaged in the enterprise of constitutional amendment anymore, but constitutional replacement. The South African Constitution only allows Parliament to amend the Constitution, not to replace it. The Constitutional Court has on several occasions recognised the potential applicability of the basic structure doctrine in South African constitutional law.

I submit that the Eighteenth Amendment is an instance of constitutional replacement, not amendment, because it detracts substantially from the Constitution’s character. There are several reasons for why this is; for why section 25 and the protection of property form a part of the Constitution’s core essence.

The first reason is because there are various provisions throughout the Constitution that refer to property. The right to privacy in section 14 refers to property, assuming protection for that property. The provision governing the South African Police Service in section 205 says the police must protect property. And the provisions governing taxes and rates refer to property. All of these assume that South Africans may own property and that that property is legally secure.

The second reason, related to the first, is because almost all of the rest of the Constitution implicitly also assumes secure property rights.

Think, for example, of the right to human dignity in section 10. What is dignified about having your property seized from you without being compensated? Of having to live, day by day, unsure about whether you will still own your property tomorrow? This is exactly the indignity that millions of South Africans suffered under before we got a Constitution that clearly protected the property rights of all, regardless of race.

Think of the right to freedom of expression in section 16. Does that mean anything if press houses, corruption watchdogs, and private universities, cannot securely own their own premises and assets? Or freedom to trade, or freedom of association, or the right to access housing. The whole Bill of Rights fundamentally assumes secure property rights, and in its absence, the Bill of Rights loses much of its substantive content.

The third reason is because property rights are instrumental to democracy and constitutionalism. Events like this one are unheard of in countries with substantial corruption and overzealous government where the State owns all property. The organisers would have had to get permission from some minister, and if the minister saw someone like me on the list of speakers planning to say what I am saying now, they would not allow it. The freedom we are used to in democratic societies is entirely dependent upon the ability of civil society to act independently of the favour of the State.

A fourth reason, among potentially many more, is that the Constitution would never have been adopted if it did not contain a provision protecting private property rights, or a right to compensation. As I alluded to at the beginning of my remarks, ordinary South Africans took it as read that the end of Apartheid would mean the end of capricious and arbitrary actions in relation to property. For the first time in centuries, everyone was constitutionally entitled to receive compensation when government takes their property. How convinced are we that we could have come to a negotiated settlement if a far weaker section 25, perhaps without any right to compensation, was included in the draft constitution? I am not convinced at all.

These and other reasons, I submit, confirm property rights, moreover secure property rights, including the universally recognised right to compensation, as part of the basic structure of the South African Constitution.

In practice, this would mean that if the Eighteenth Amendment is adopted, and this argument succeeds in court, the Court will set the amendment aside because it is not an amendment as contemplated by section 74 of the Constitution, but something entirely different: a new constitutional order, which is impermissible.

I think both these arguments — the section 1 argument, and the basic structure doctrine argument — are strong, and could prove successful. I said they have an elusive chance of success because it is unclear what kind of Constitutional Court we will have when all of this happens. The Court is in a state of flux. If this came up during the late 1990s or early 2000s, I would be confident that these arguments would have won the day. But if it came up during the Mogoeng Mogoeng court, I think these arguments would probably have failed, given that court’s general disdain for liberal democratic rights like the right to property, despite its good record on corruption cases. At this stage we do not know, but whatever the case, these strong arguments are very likely to be put before the Court.

Am I saying that section 25 of the Constitution may not be amended? That the protection of property is such an elevated right that section 74, which allows Parliament to amend the Constitution, can never apply to it? No. Section 25 is not a special provision in the Constitution. It stands equal to every other right in the Bill of Rights. But just like in the case of any other right being amended, two things must hold true.

The first is that Parliament must, as a matter of course, be engaged in the promotion of human rights and freedoms. Section 1(a) of the Constitution requires this.

The second is that Parliament must be engaged in an amendment action. The word “amendment” has meaning. It does not mean destruction; it does not mean repeal. It means amendment — a modification, an improvement.

Only then can section 25, indeed any part of the Constitution, be amended.

Now, my remarks so far have been quite gloomy. What is the good news?

The first is that the right to compensation is not a new innovation that is being undone. The right to receive compensation when property is expropriated is a common law right that is as old as expropriation itself. Having the right guaranteed in section 25 of the Constitution certainly gave it a lot more bite, but even if this right is repealed as a constitutional right, it remains a firm, undislodgeable part of South African property law.

As it stands, the draconian new Expropriation Bill still recognises the right to compensation and does not purport to repeal it. We must however remain on guard about the further chipping away of the common law content of this right. As I have implied throughout my talk, one important place to start in this regard is to ask our academic and practicing lawyer friends what the Hell they are doing when they go around saying the Constitution already allows for property to simply be taken at so-called nil compensation.

The second reason for hope is that unlike all the other places where policies like confiscation without compensation were carried through and implemented, one thinks of the Soviet Union, Maoist China, North Korea, Zimbabwe, and Venezuela, there was very little civil society resistance. In South Africa, this is not and will not go down without a fight. I am a legal fellow with the business group Sakeliga, and we have gone on record, in front of Parliament, to say that we and our 12,000 members will not for one second accept the legitimacy of the Eighteenth Amendment.

It does not matter whether every member of Parliament votes in favour of the “amendment” or there is a referendum in which every South African voter favours the change. As far as we are concerned, the Eighteenth Amendment is in its very fabric unconstitutional, for the reasons I have outlined. There is no rescuing it. We will fight this constitutional change every step of the way, and even if it is enacted, we will fight for it to be undone, because it will be a stain on South Africa’s admirable Constitution.

I already alluded to the final reason for hope, and that is that there is a not too distant likelihood that the Eighteenth Amendment might be vanquished in court. For that to be successful, however, we need to change the legal discourse surrounding this phenomenon. That can only happen with the generous support of people such as those in this audience.

Ladies and gentlemen, South Africa’s Constitution is now properly under threat. In the past, it was threatened by non-compliance. Corruption and a lack of service delivery were thought to be the pinnacles of constitutional danger. But the Constitution is now also threatened by a very direct attack. It has been amended before, yes, but those amendments did not strike at the very values, principles, logic, and character of the Constitution, like the Eighteenth Amendment does. It is incumbent upon constitutionalists to rally to the defence of the Constitution, and if we fail to protect it today, we must be ready to reverse any damage that might be done to it should the Eighteenth Amendment be adopted.

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