OPINION

Property a basic right, not a sunset clause - Dene Smuts

DA says ANC clearly spoiling for wholesale amendment of constitution

The ANC is contemplating dramatic changes to the country's Constitution, including scrapping so-called "sunset clauses", according to the City Press today (see here).

The Democratic Alliance (DA) expresses its shock and extreme concern at the description of the property clause in the Bill of Rights as a "sunset clause" in the Constitution. Section 25 is no such thing. It represents the full, final and exhaustively negotiated right of all South Africans not to be arbitrarily deprived of property - as so many were in the apartheid era.

The ANC is clearly spoiling for wholesale amendment of key provisions of the Constitution in the name of a so-called second transition. It claims the Constitution was appropriate for a political transition, but is inappropriate for a so-called social and economic transformation phase. The ANC is either trying to mask its own ineptitude or embarking on a phase which threatens the very foundation of our constitutional state.

Section 25(8) of the Constitution already empowers government to embark on an extensive programme of land reform. It was the Trojan Horse built into the property clause until the Democratic Party (DP) in direct, bilateral negotiation with the ANC's lead negotiators safeguarded the subsection by agreeing on the proviso that "any departure from the provisions of this section is in accordance with the provisions of section 36(1)". Section 36 is the limitations clause which stipulates that any limitation of a right in the Bill of Rights must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. 

It is notable that social and economic transformation is consistently cited as the justification for the proposed review of the Constitutional Court decisions and for the transformation of the judicial system as well. It is becoming clearer by the day that the ANC is contemplating a fundamental ideological shift. The Democratic Alliance will at all times act in defence of the constitutional state.

Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, March 4 2012

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