What are some of the problems with passing the 18th Constitutional Amendment?


Economic Collapse

South Africa’s economy is on life support. We suffered a “lost decade” of economic stagnation under the presidency of Jacob Zuma. We then suffered two recessions under the presidency of Cyril Ramaphosa before the pandemic and attendant lockdowns, which destroyed an estimated 1.4 million jobs. The central bank, all major private banks, and four metros, have been downgraded to sub-investment grade status. Food insecurity for the poorest has metastasised.

More than half the country already hangs over the brink of impecuniousness, meaning very little would be needed to tip the rest into economic collapse. Amending the Bill of Rights to enforce private dispossession would deliver the final push.

Constitutional Collapse

South Africa’s constitutional order depends on widespread respect for the law, which in turn depends on the law’s respectability. The Bill of Rights, as it stands, is a respectable framework for the defense of citizens and residents. Section 25 guarantees that expropriation is “subject to compensation”. No alteration of that protection can be rendered consistent with the Rule of Law. Once the government is empowered to dispossess the governed, the latter are transformed from citizens into puny vassals.

Whereas in a constitutional democracy citizens are incentivised to hold the government to account, in a regime empowered to dispossess its subjects ordinary people are incentivised to flatter their new overlords so that government’s dispossessive clutches reach elsewhere first. Those who cannot avoid being targeted are incentivised to fend off the state’s assaults on their livelihoods. This is inconsistent with political stability under a constitutional framework.

Custodial Collapse

The state already owns millions of hectares of what should be some of South Africa’s most productive land. By one estimate, 18 million South Africans live on state land under tribal authority, most in abject poverty absent the right to sell, inherit, or borrow against what should be their own homes. Instead it belongs to the state. The Bill would allow the state to take more land, completely undefined as “certain land”, into its “custodianship”, expanding the footprint of poverty.

Moreover, “custodianship” as a legal means of acquisition does not technically involve the transfer of property from a private owner to the state, and so does not manifest “expropriation”. Instead it practically vaporizes the existing owner’s private right in property. That this extreme power would be granted to the government by the Bill is some indication of the recklessness of its proponents.

Whereas millions of hectares of moribund government land should be privatised through the issuance of title deeds, and the power of title deeds should be protected, this Amendment Bill will do the opposite.

Moral Collapse

It is a truth simple enough for children to understand: two wrongs do not make a right. The injustices from the 1913 Land Act through apartheid are not rectified by a revanchist policy that turns private citizens into enemies of the state merely for protecting what is their own. Injustice is compounded by this Bill.

Breeding “responsible” looting

In light of the recent attacks on lives and livelihoods Duduzane Zuma called on looters to “please do so carefully and please do so responsibly”. The Bill would turn the oxymoron of “responsible looting” into a daily reality, by radically transforming the state into an organ of “legal” dispossession. Rather than the police and army being, as they currently all too often are, absent from protecting your property rights, they would be compelled to enforce your dispossession, sooner or later, should you find yourself out of favour of an “expropriating agent”.

What is the IRR doing about it?

With your support and that of the Friends of the IRR, the IRR fights to protect your property rights. Our arguments in opposition to the Bill are summarised in the following short document, which we will submit on your behalf. The IRR is also formulating a more comprehensive comment on the Bill, which we will submit to the committee before the deadline. For reference, a synopsis of our 2020 submission is linked below:

“Submission to the Joint Constitutional Review Committee regarding its ‘review of Section 25 of the Constitution and other sections where necessary, to make it possible for the state to expropriate land in the public interest without compensation’ Johannesburg, 14th June 2018”.

A recording of our oral presentation to the committee is available here:

Constitutional Review Committee: Oral Presentations 5 September 2018

Some of the many articles we have written on EWC and the Constitutional Amendment are shown below:

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