The ink has scarcely dried on the Constitution Eighteenth Amendment Bill, 2019, up for public comment by Friday, and the ANC wants to change it so the executive, rather than the courts, decides when nil compensation on expropriation should apply.
If the change is made, courts will be able to review the administrative decisions made by the executive and set them aside if administrative justice norms as set out in section 33 of the Constitution and the Promotion of Administrative Justice Act, 2000 have not been met.
But the courts will not be able to replace flawed administrative decisions with their own rulings regarding what compensation should be paid. This will take us back to what the 2008 Expropriation Bill tried to provide.
The bill was withdrawn because ousting the jurisdiction of the courts was contrary to section 25 of the Constitution. The ANC's plan is to change section 25 so that the objection can no longer be raised. Though judicial review will be available, expropriated home and other owners will find it harder and costly to challenge executive decisions.
If the change is made, it will under mine the doctrine of the separation of powers. It will also confirm the ANC's determination to chip away at property rights until it has secured state control over land, and other means of production.
Anthea Jeffery
Head of policy research,
SA Institute of Race Relations
