By Mark Oppenheimer and Cecilia Kok
Land dispossession was commonplace in pre-democratic South Africa. People were kicked off their land because past regimes had no regard for individual property rights. With such dispossession came humiliation and a stripping of individual agency.
Individuals lost their homes, their livelihoods; many lost land that had been painstakingly acquired and cultivated. Many lost their dignity.
The ANC is harking back to our pre-democratic era by publicly declaring its intention to amend the Constitution, the agreement on which our democratic society rests, to enable expropriation without compensation (EWC).
The Constitution currently empowers the state to expropriate land for the public benefit provided that just and equitable compensation is paid. In rare cases, no compensation will be payable because the land has no value, the state had granted the owner a subsidy equivalent to the value of the land, or because the owner acquired the land unjustly.
Although historical land dispossession clearly violated individuals’ dignity, there was no right to dignity to which one could appeal.
Our Constitution not only has enshrined the right to dignity in the Bill of Rights, South Africa’s ‘cornerstone of democracy’, it emphasises the foundational importance of dignity as a value that permeates the entire Constitution.
Changing the Bill of Rights to allow the state to seize land without paying compensation could be deemed unconstitutional because it infringes the foundational value (and right) of dignity.
In India, the Supreme Court has relied on the “basic structure doctrine” to prevent parliament from amending the Constitution in a way that alters its basic features. Such a principle could be used by our Constitutional Court to prevent a broader EWC regime than the existing one.
It may be objected that those who are landless have no dignity, and that landowners should part with some of their land to give those who have nothing some dignity.
However, this objection fails to account for the distinction between positive and negative rights. Negative rights create duties on the state and other citizens to refrain from certain actions.
For example, the right to freedom of expression stops the state from censoring speech or banning books. The right to property entails not having your property taken away from you. The right to dignity means that others cannot deprive you of your rights and resources.
Positive rights make the State responsible for providing basic services like housing, health care, food, water, social security, and education.
However, it is not permissible to violate a negative right to carry out a positive right. Respecting a land owner’s right to property is compatible with fulfilling the landless’s right to housing.
Another objection may be to claim that there would be no loss of dignity in cases where only a portion of a person’s land is taken from them.
For example, Gwede Mantashe briefly proposed expropriating portions of farms owned by white landowners that exceed 12,000 hectares.
However, many successful farms that ensure our food security already operate in a hostile environment. Farming at scale helps mitigate against variable weather conditions, fluctuating food prices and foreign competition. Capping the amount of land that a farmer can own would ruin the viability of these farms and endanger food security.
Not only would this place the greatest strain on the poor who would not be able to afford imports, but it is the very opposite of what Ramaphosa claims the EWC route would bring about, namely, greater food security.
It would also significantly affect the dignity of the farmers concerned, given that many may need to give up their farms after they become unprofitable.
We need only look north to Zimbabwe to see the devastating consequences of seizing farms. EWC is a dangerous and regressive path, likely to be economically ruinous and unlikely to be of real value to the very individuals it is intended to uplift and, thus, unlikely to restore their dignity.
Instead of giving hand-outs in the form of rural land in far-flung parts of the country, the best way to improve the dignity of the poor would be to grow the economy, fix the broken education system, increase employment, and enable people to buy homes which they themselves choose and in places that suit them.
A growing economy requires strong institutions and investment certainty. When a government toys with the idea of taking away land over 12,000 hectares, what is left to stop it from taking more?
Mark Oppenheimer is a practicing advocate and member of the Johannesburg Bar and Cecelia Kok is Head of Research and Advocacy Projects at the Friedrich Naumann Foundation for Freedom
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