File photo by Delwyn Verasamy/M&G
When people consider the unconstitutionality of Acts of Parliament, they usually have discrete provisions in mind that conflict with provisions of the Constitution.
The new Expropriation Act has plenty of that, but this Act is also necessarily unconstitutional given its conceptual approach to the domain of expropriation law per se.
Let us start with the low-hanging fruit, however: the incongruence between the Expropriation Act and the Constitution.
The Act provides that, when certain conditions are met, the government may “expropriate” private property for “nil compensation.”
The particulars are interesting, but irrelevant in this context, because the Constitution provides, in section 25, unambiguously and clearly that when there is an expropriation of property, there must be “payment” of an “amount” of “just and equitable” compensation.
This is basic unconstitutionality.
The argument that many in the legal fraternity are trying to submit, that “nil compensation” is an “amount” of compensation that can be “paid,” are engaged in what jurisprudence knows as fraus legis.
Know how, if you try to dress up income as donations, the South African Revenue Service will prosecute you for tax evasion? This is the same principle: you may not set up a legalistic and formalistic “simulation” to obscure and hide the substance or reality of what you are doing.
“Nil compensation” is a formalistic and euphemistic way of saying “without compensation.” Obviously no constitutional right – such as the clear right to compensation – may be interpreted in a way that saps it of its constitutional substance.
Various other provisions in the Act are similarly unconstitutional.
One example is that even where (actual) compensation is to be paid, the Act keeps the door open to the state receiving possession of the expropriated property before the full compensation package has arrived in the expropriated owner’s bank account.
The Act allows a court to order otherwise, but the number of South Africans who have just had to forcibly part with their income-generating property and now have to start the process of litigation is extremely small.
It is beyond disputing that the provisions of the Act render it unconstitutional, in other words. But there is another aspect to note before we arrive at its “necessary” unconstitutionality.
Between 2017 and 2021, the South African government and in particular the African National Congress (ANC) embarked on a process to amend section 25 of the Constitution.
This period was complex and multifaceted, but to simplify it: the state wanted, in essence, the Constitution to be compatible with what at the time was the Expropriation Bill as far as “nil compensation” was concerned.
Whereas the Constitution unequivocally mandates compensation, government wanted to amend that to allow cases where “nil” compensation may be “paid.”
Due to a dispute between the ANC and the Economic Freedom Fighters, the proposed amendment failed to acquire the necessary votes to pass into law, and it was abandoned.
Section 25 of the Constitution today remains, mercifully, unamended.
And yet, the Expropriation Bill was adopted and signed into law despite the constitutional change never having taken place.
The government and the sophists in the legal fraternity who support jurisprudential decadence argue that this is no factor. To them, the Constitution allowed and allows “nil compensation” expropriations to take place anyway, because in their feverish minds, “nil” could be “just and equitable” compensation.
They of course pay no mind to the words “amount” and “payment” (neither of which the plain meaning of “nil compensation” can ever be construed to be) but more importantly, the government through its own attempt to amend the Constitution – so as to allow congruence between section 25 and the Expropriation Bill – manifested that a constitutional amendment was necessary.
The failure to amend the Constitution therefore must be regarded as a failure to bring about congruence between the highest law, and this piece of Zimbabwefication legislation.
But, putting all of this aside, the Expropriation Act is necessarily – that is, by its very nature – unconstitutional, because it misconceives of expropriation law.
Expropriation is an old and normal legal institution present in every country in the world. The state has always had the extralegal power to “confiscate” (that is, dispossess or steal) property, but when the phenomenon of constitutionalism came about it was clear that all state power had to be brought under the rubric of law.
Since Hugo Grotius first elaborated the legal institution – that is, expropriation – that had to replace naked state property grabs, this institution had been irrevocably tied to compensation. There is, in other words, no such thing as “expropriation without compensation”. It is a contradiction in terms.
For the state to legally seize property, it must pay compensation, and that payment makes of the act an expropriation. If the state does not pay compensation, it has simply confiscated the property outside the bounds and control of law.
The state may not do this – and outside of the failed socialist states of the world, does not do this – because expropriation law is not part of either the criminal law or the law of delict.
Under criminal law or delict, someone has done something wrong, and the state (or another legal subject) are seeking to right this wrong or seek some kind of reparation. Crucially, under both criminal law and delict, a case must be made before an impartial court, to convince the court – according to the rules of evidence and due process – that someone has committed a crime or delict.
Only if the court is convinced, is the guilty or liable party punished.
Unlike criminal law or delict, expropriation law is not a tool of punishment or reparation. It is not a method of seeking justice or curing harms done. It is a tool of social improvement that the state may only utilise under exceptional circumstances when it has need of someone’s property for some reason of public interest.
The key here is that the owner whose property is being threatened has not done anything wrong: they are necessarily innocent.
Their innocence is why compensation must be paid – not merely market compensation, but above market compensation, given the disruption and inconvenience of the whole affair. If society or the state believe these owners have done wrong – that they have some sin, “original” or otherwise, to atone for – criminal charges or delictual claims must be brought against them, and some kind of guilt or negligence proven.
But the state has elected to utilise expropriation law, because it is easy. It has swept what politicians regularly parade as a matter of justice into a domain of law where it does not belong. The result is that innocent owners – black and white – could see their property forcibly taken from them without payment of any compensation and without having done anything wrong.
This is not only unconstitutional, as no constitution – and certainly not the South African Constitution – may be interpreted as allowing such a basic and depraved extinguishing of civilian liberty, but also anti-constitutionalist. Constitutionalism is about restraining state power in favour of the autonomy of society, so that state power may serve, not harm, that autonomy.
Nobody, not even the Expropriation Act’s most vitriolic and vocal supporters, can claim that the Act serves that constitutionalist purpose. And therefore, no proper court – certainly not the constitutional court – could ever uphold this law as passing constitutional muster.
Martin van Staden LL.M. (cum laude) is Head of Policy at the Free Market Foundation and is pursuing a doctorate in law at the University of Pretoria.
