Koos Malan explains why property rights are essential to true constitutionalism
CONFISCATION (EXPROPRIATION WITHOUT COMPENSATION) OF PROPERTY – AN ASSAULT ON FREEDOM AND CONSTITUTIONALISM
The EFF and ANC sponsored a resolution of the National Assembly on 27 February 2018 aimed at the eventual amendment of section 25 of the Constitution, with a view towards constitutionalising the confiscation (inappropriately called the expropriation without compensation) of property. Property, however, is not only a private matter. It is not only an individual rights question.
Property is also the bulwark for the true separation, more correctly the dispersal of power. The dispersal of power, along with its concomitant checks and balances, are indispensable prerequisites for constitutionalism and the guarantor of all rights and freedoms. On close analysis, the campaign against private property constitutes, therefore, a full-scale assault on constitutionalism and a free society.
According to the basic tenets of modern-day liberal constitutional law, the trias politica (the separation of powers between the legislature, executive and the judiciary) represents an adequate limitation of state power, especially when supported by so-called independent state organs, such as the public protector. More specifically, the courts are purported to serve as a sufficient check on, and balance against, a potentially rights-infringing legislature, executive and ruling party.
Important as the courts and independent constitutional bodies may be, it is crucial to understand that they are but one mechanism for guarding against rights-violations, specifically rights-violations committed by the ruling party in the legislature and the executive. Courts, furthermore, are ill positioned and incapable of serving as a counter-balance against the legislature, executive and ruling party.
This also applies to present-day South Africa, where the Constitutional Court (CC), instead of serving as a check and balance against the other two branches of governmental power, has proven itself to be precisely the opposite. The Court is a separate institution with its own personnel and functions, but unified in one dominant power elite, together with the ruling party in the legislature and the executive; it is an integral segment of the same dominant political leadership, informed by the same ideological assumptions, committed to achieving the same goals – yet organised on the basis of a division of labour.
The Constitutional Court is as committed as the ANC towards the achievement of the ideological goals of the ruling elite under the leadership of the ANC, namely the ideology of transformationism (also called the national democratic revolution), which includes typical extreme leftist characteristics such as the drive towards centralisation, the suppression of cultural diversity in favour of an craving for cultural homogenisation, the achievement of racial representivity (as a strategy to achieve a homogeneous national culture) and the weakening of private property rights.
The jurisprudential record of the Constitutional Court overwhelmingly proves its active participation in the achievement of the ideology of transformationism.
A series of five prominent judgments of the Court incontrovertibly shows this to be the case.
In the Renate Barnard-judgment, the Court endorsed the representivity principle, in addition to trampling on the individual rights in question, namely those of a top-performing white female police officer. In the Lesufi-judgment, the Court endorsed centralisation in education administration, thus allowing the MEC for education in Gauteng, Panyasa Lesufi (an irascible transformationism ideologue) to execute his overtly declared drive against Afrikaans-medium schools in the province. In die Pretoria street name-caseChief Justice Mogoeng, supported by the majority of his colleagues on the CC-bench, emotionally attacked Afrikaners, holding that Afrikaners do not deserve cultural protection, since their history is shrouded in racial discrimination.
In the recent judgment of the Constitutional Court on the language of instruction policy of the Free State University, Mogoeng was on the war path once again against Afrikaans and Afrikaners, holding that there was no place for Afrikaans as a language of instruction since Afrikaans is racially discriminatory and contaminated with racial supremacy.
The Chief Justice’s (and his followers’) findings were made in the absence of any evidence, and their argumentation unequivocally attests to their partiality and bias against Afrikaners and Afrikaans. The minority judgment of Froneman, supported by Cameron, graphically brought to light this bias on the part of Mogoeng and his supporters.
Lastly, and very pertinent to the present discussion, there is the CC judgment in the AgriSA-case five years ago already in which the Court endorsed the legislative deprivation of mineral rights without compensation of the erstwhile holders of these rights. The deprivation in question was held not to constitute expropriation, thus denying the erstwhile holders any compensation for their loss.
Some observers were excited by another series of judgments by the CC in which it scolded former president, Jacob Zuma, individual ministers in Zuma’s cabinet and the parliamentary caucus of the ANC. They view these to be evidence of the CC’s bold impartiality. Relevant here are the Nkandla-judgment, the SASSA-judgment (concerning minister Bathabile Dlamini’s botching up of the payment of social grants), the judgment on the unlawful appointment of Shaun Abrahams and a host of cases pertaining to administrative failures in government.
This latter series of judgments are, ideologically of no moment. They do not attest to the courts’ (ideological) impartiality. All were delivered within the ideological parameters of the ruling elite; none of the features of transformationism were at stake. All of them, in essence, involved quarrels within the dominant elite. What is even more important is that these judgments in the last phases of the Zuma government, basically assisted – eventually successfully – the ANC to retain its balance, which was increasingly disrupted under Zuma’s rule.
These cases, amounting to internal ANC squabbles, stand in stark contrast to the first set of judgments. In each of the first set of cases, basic features of the ANC’s ideology of transformationism were challenged. Here, the CC was unequivocally (and predictable) consistent in siding with transformationism – and in dishing out blows to any ideological challenges and challengers. The Court was patently partial in protecting and promoting transformationism. The Court showed itself to be the trustworthy, (partial) ally and vindicator of government, the ANC and transformationism.
This shows that the Court was no real power edifice, balancing and controlling the legislature and the executive (under the control of the ANC). It was no check & balance. On the contrary, it weighed in with the legislature, the executive – and the ANC. In practical terms, there was no separation of governmental power in these cases; rather the opposite: unification of power.
Important as the courts may (sometimes) be, separation – dispersal – of power and genuine power balances against a rights-infringing strongman government must therefore be sought elsewhere. Constitutionalism and freedom must be guaranteed by better mechanisms – and in different ways.
The bottom line is that checks and balances and the dispersal of power must not be limited to the trias politica and the courts. They have to run through society in its entirety. This is the only real way in which a potentially rights-infringing central government can be kept in its place, and in which constitutionalism and freedom can be safeguarded. As one of the famous founding fathers of the US constitution, John Adams, once put it:
“Power must be opposed to power, force to force, strength to strength, interest to interest, as well as reason to reason.”
An individual on her or his own cannot, however, constitute a power-base capable of enforcing her or his interests, and cannot serve as a force capable of effectively counter-balancing a potentially rights-infringing government. Individual rights alone cannot guarantee that governments refrain from violating rights. Only communities of people, effectively organised in autonomous non-statist institutions of civil society, can constitute such counter-balance.
Several of the most astute political observers, going back to Alexis de Tocqueville, emphasised the need for strong communities and institutions of civil society – intermediary formations between the individual and the state – as the indispensable guarantee for constitutionalism and bulwark for freedom. Accordingly, pluralist theorists of politics emphasized that as important as individual rights are for freedom, dispersal of power is really the main guarantee. Thus Andrew Vincent noted:
“Liberty was not primarily the result of the establishment of constitutional rights, but rather the dispersal of power among natural groups… All the pluralists were agreed on one crucial point namely that liberty could only exist in the context of a multiplicity of groups.”
Centralising ideologues and governments know this – hence, they have always been willing to recognise individual rights alongside the state. Yet, knowing full well that intermediary communities and institutions, unlike individuals, are potent counter-balances against centralisation, ideologues, (such as our transformationists), have always been hostile to and sharply dismissive of these intermediary formations.
“Individualism and monistic Statism in fact were seen as two sides of the same coin. The monistic Statist preferred the notion of separate individuals since they were easier to control. It was groups that resisted. On the other hand, a society constituted by atomised individuals is more easily coerced into a free market order. Ultimately, the imposition of such an order will lead paradoxically to a monastically powerful State.”
Genuine guarantees for constitutionalism and mechanisms for checks and balances are therefore not only located in the seemingly impartial courts and in individual rights. Instead, they have to be cultivated in the sphere of a broadly defined civil society. These mechanisms must coexist with a wide variety of potent non-statist institutions – business organisations, civil rights movements, trade unions, media houses, institutions for language and cultural communities, churches, autonomous educational institutions, autonomous professional organisations and many others.
These (must) represent a dense network of the widest range of potent institutions of civil society, which have the intellectual and proprietary (financial and general patrimonial) means to represent the interests of constituencies, and, above all, to protect them against a power-gluttonous and potentially rights-infringing centralising government, bent on destroying diversity.
The present ANC government (and its allies in the dominant political elite) is a power-covetous government of this kind. By virtue of its ideology of transformationism, its passion is to place everything under statist control; to liquidate autonomy, that is, the autonomy of institutions of civil society and to state-departmentalise them instead, changing them into essentially obedient servants of transformationism.
This process has, in fact, already gone a long way. Universities are changing into state departments, and university principals and management are metamorphosing into state officials in the service of government and the ruling party. The aim is also to change professions, including the legal profession, essentially into departments of state, under the control of government-appointed functionaries, who act as officials of the state and of transformationism.
In this way, diversity and the dispersal of power – which is the cornerstone of constitutionalism – are stifled. As a result of state-departmentalisation, the dismantling of constitutionalism has already gone a long way in South Africa – more than we might realise. Since many of us have erroneously laboured under the misconception that individual rights and the courts are the primary, if not the only, guarantee of constitutionalism and freedom, this deterioration has mainly gone unnoticed.
Where do property rights fit into all this? The answer is that the right to private property serves as the guarantee for the autonomy both of individuals, as well as for civil society and private institutions. A(n) (individual) man of straw without property – without the ability of affording a life – and who has to look someone else in the eye to survive, also does not have the freedom of his / her own views, or, at least, does not have the freedom to openly express their own views. The Afrikaans / Dutch expression says it all: “Wiens brood men eet, diens woord men spreek.” You cannot bite the hand of those who feed you.
Without their own property, institutions of civil society can also not act autonomously. Lacking material means, they are not able to discharge their main responsibility to act as a check and balance against a rights-infringing and power hungry government – and thus, in this way, to act as a guarantee for freedom and constitutionalism. Without their own property, state-dependent individuals also lack the necessary freedom-mindedness to join and strengthen these institutions.
Socialist movements and governments are keenly aware of this. They know that autonomous institutions are the only real checks and balances on government and are the chief guarantee for constitutionalism and freedom. Moreover, they know that personal economic assets are the essential basis of autonomy for communities, institutions and individuals.
The combination of autonomous institutions of civil society and private property are, therefore, the main defence against rights-threatening centralised governments and movements, especially socialist governments and movements. Socialist governments, therefore, have a very special preference for an aggregate of atomised individuals who are state dependent. They are equally averse to materially well-sourced autonomous institutions of civil society.
Socialist governments are never content only to be governments; they are inherently hell-bent on also being proprietors. They are programmed to confiscate economic assets, ensuring that individuals are deprived of the sense of independence and ensuring that there are organisations of civil society to serve as a check on their power. In short, socialist governments confiscate property so as to secure, for themselves, the power to make and break as they wish without the annoyance of countervailing checks and balances.
Socialist governments, such as the ANC (and its allies), are fundamentally anti-constitutionalism because they do not tolerate opposition – no divergent power and no checks and balances. Therefore, they are hostile towards property-owners and well-sourced (non-statist) institutions of civil society, because these are – in the final analysis –checks and balances weighing in against these governments and, ultimately, the only real guarantee of civic freedom and constitutionalism.
It is not true that the South African constitution (more specifically, section 25) allows for the transfer of property solely on the basis of willing seller / willing buyer. On the contrary, as it now stands, it also permits the deprivation and expropriation of assets – farm land, urban land, movable assets and other assets (claims, etc.) – without compensation, or with compensation below market value. Many commentators have noted this lamentable fact, and this is also what the Constitutional Court held in the abovementioned AgriSA-case.
The EFF / ANC consortium, therefore, need not amend the Constitution to that end. The EFF’s amendment initiative has nothing to do with a material change to the constitutional position. It is rather a transparent and dangerous propaganda ploy to keep itself relevant and on the front pages.
Precisely for this reason, section 25 will either not be amended at all, or only be subject to cosmetic changes – all as a means of saving face for those who have set the process into motion: the EFF and the ANC. This, however, does not necessarily bode well for the struggle to protect property, freedom and constitutionalism, as the Constitution already permits for their violation.
The only guarantee for property, freedom and constitutionalism is not the Constitution, but the means described above: a wide plurality of autonomous communities with potent institutions of civil society as bulwark against power centralisation and abuse and in defence of civic liberty.
Koos Malan is a Professor ofconstitutional law at the University of Pretoria.
 Quoted by Lounghlin M “What is constitutionalism?” in Dobner P en Loughlin M 2007 The twilight of constitutionalism Oxford: Oxford University Press 46-69 at 57.
 Vincent A 1987 Theories of the state Oxford: Blackwell 192.
 Vincent A 1987 Theories of the state Oxford: Blackwell 186.
 See for example the observations by Van Hayek F 1960 The constitution of liberty Routledge 123-124.
 See for example the observations made by retired Constitutional Court justice Albie Sachs “No willing buyer, willing seller in the Constitution – Albie Sachs” Media 24 31 Mei 2017; See also the views of adv. Tembeka Ngcukaitobi, who has acted as counsel for the EEF on various occasions “Privaat eiendom kan net so bly: Grondwet hoef nie te verander – artikel 25 net begin gebruik sê EFF-segsman: Rapport 4 Maart 2018.