AfriForum today submitted commentary by hand at Parliament against the Constitution Eighteenth Amendment Bill (Section 25 amendment). This bill intends on amending Section 25 of the Constitution (which deals with property rights) to enable the expropriation of private property without compensation. The closing date for the submission of commentary is 31 January 2020.

AfriForum’s commentary was drafted by Adv. Mark Oppenheimer, an expert in constitutional law and member of the Johannesburg Bar Council.

The ad hoc committee to initiate and introduce legislation amending Section 25 of the Constitution has been tasked with handling the process of implementing the Amendment Bill. AfriForum, in its submission, points out that the proposed amendment exceeds the scope of the recommendations made by the committee and is therefore unlawful.

“The Committee invited the public to make submissions regarding the expropriation of land without compensation and the recommendations by the committee also particularly referred to land, while the amendment goes beyond this by referring not only to land, but also to improvements on land,” says Ernst Roets, Head of Policy and Action at AfriForum.

Considering that Section 39(1)(b) of the Constitution requires that when interpreting the Bill of Rights, a court, tribunal or forum must consider international law, AfriForum contends that the amendment would also result in a violation of international law. The Resolution on Permanent Sovereignty over Natural Resources 1803 (XVII) of 1962 (of the United Nations, of which South Africa is a founding member and has been since 1945), as well as Section 2(2)(c) of The Charter of Economic Rights and Duties of States Resolution 3281 (XXIX) of 1974 state that owners should be paid the appropriate compensation if a state expropriates their property.

The European Court of Human Rights (ECHR) in 2002 further determined that expropriation without market-related compensation would fall foul of international human rights standards. The Court has also found that the appropriate balance of rights and interests was generally achieved where the compensation paid to the person whose property had been taken was reasonably related to its market value as determined at the time of the expropriation. A 2012 study of state practice by the United Nations Conference on Trade and Development stated the following about the requirements of international law: “Failure by a State to pay any compensation for a direct expropriation can be seen as rendering such an expropriation unlawful …”

AfriForum has also expressed its concern that the amendment would lead to the exclusion of South Africa from the United States Trade Act – the African Growth and Opportunity Act (AGOA). South Africa remains eligible to benefit from AGOA, provided that it established, or is making continual progress to establishing, a market-based economy that protects private property rights, incorporates an open rules-based trading system and minimises government interference in the economy through measures such as price controls, subsidies and government ownership of economic assets.

“Empowering the state to expropriate private property without compensation would amount to a violation of this section of AGOA, which would have negative consequences for the South African economy. As a beneficiary of AGOA, South Africa exported over R100 billion worth of goods to the United States in 2018,” says Roets.

AfriForum also regards the amendment as a violation of Section 2 of the Constitution, given that Section 2 states that the Constitution is the supreme law of the Republic and that any law or conduct inconsistent with the Constitution is invalid. This, while the amendment effectively takes power away from the Constitution and gives it to Parliament, by bypassing the circumstances set out in Section 25 of the Constitution to be considered when determining how much compensation will be paid when land is expropriated and referring these factors to national legislation to determine when compensation would not be payable. The Constitution would thus be made subservient to national legislation as a result of the amendment.

“The Amendment Bill is misleading in the sense that opinion surveys repeatedly show that the vast majority of people in South Africa regard land distribution as a low priority and that over 1,8 million individuals have already been compensated for historic injustices with regard to land ownership. Of these beneficiaries, more than 90% opted for financial compensation as opposed to taking the land,” Roets states.

“It seems that the ruling party is using the law as a weapon to further its political goals and that the implementation of the constitutional amendment could have devastating consequences for the South African economy.”

AfriForum has therefore also filed for a court order that the constitutional review committee’s report – which recommends that the South African Constitution be amended to make expropriation without compensation possible – be set aside as a result of various irregularities in the drafting of the report. The application will be heard this year. AfriForum will soon announce further steps regarding its campaign against expropriation without compensation and legal actions resulting from it.