Politicians are fighting about the property clause in =20 the Bill of Rights — unnecessarily, argues Etienne =20 Mureinik =20
LAST week the draft Bill of Rights for the final =20 Constitution was debated in the Constitutional =20 Assembly. As it did when the Interim Constitution was =20 negotiated at Kempton Park, the property clause once =20 again claimed an undue share of the limelight.=20
This clause which protects property rights and requires =20 compensation on expropriation consistently gets undue =20 attention largely because it is a focus of fear. The =20 propertied fear that it will protect them =20 insufficiently. The dispossessed fear that it will =20 impede their just claims to redress of past wrongs.=20
Because the representatives of the dispossessed fear =20 that it will impede equitable land restitution and =20 reform, they project their worst nightmares onto the =20
Many of the attacks from those representatives on the =20 existing property clause in the Interim Constitution =20 rest on anxieties that it does not fully authorise =20 expropriation for the purpose of land reform, or that =20 it requires market value compensation.=20
These anxieties generated a recent effort, in the =20 Constitutional Assembly, to override the property =20 clause altogether when the government’s project is land =20 reform. The effect might have been to eliminate the =20 guarantee of any compensation at all when land is =20 expropriated for restitution, or even just for =20
In fact the anxieties are not well founded, and the =20 text of the existing clause, read properly, is most =20 probably adequate to meet them.=20
But that fact does not end the matter. If one side is =20 worried about whether proposed constitutional words are =20 clear enough to achieve a desired effect, and the other =20 side concedes that the effect is desirable but claims =20 that the words already have that effect, there is =20 obviously little reason to resist including extra words =20 to reflect the common intention. Why not make it =20 absolutely plain that the desired effect is there?=20
In practice, our constitution-makers often avoid doing =20 that. A persistent weakness of our constitutional =20 process, since Kempton Park, has been a propensity for =20 the parties, when they agree about the desired effect, =20 but disagree about whether broad and general wording =20 achieves it, to do battle about the meaning, armed with =20 competing legal opinions.=20
Often the issue is referred to legal advisers to =20 resolve by giving an assurance that the wording does or =20 does not have the desired effect. The advisers tend to =20 give these assurances much too promiscuously. The truth =20 is that the question is very often one which cannot be =20 answered with confidence.=20
Sometimes the extra words necessary to resolve the =20 doubt are resisted on the fatuous ground that that =20 would ”save trees”. The reality, of course, is that the =20 benefits of clarity hugely outweigh the cost of the =20 additional paper.=20
And so the property clause should be changed to spell =20 out that it does authorise expropriation for land =20 reform, and the compensation requirement should be =20 expanded to make entirely sure that all the =20 considerations of equity and redress which arise during =20 land reform are taken into account.=20
This is far better than creating a set of property =20 rights which fall away altogether the moment the =20 government declares that it is about the business of =20 land reform.=20
And in fact the property clause has been sent for =20 reformulation along these lines. But this is the =20 simpler part of the problem, and it is cured easily =20 enough by careful drafting.=20
The harder part is to overcome the basic difference =20 between the parties about how far property deserves =20 constitutional protection.=20
To do that, propertied interests have to recognise that =20 the right to property is profoundly different from the =20 other rights in the Constitution. Unlike privacy or =20 dignity or free speech, it is inherently incapable of =20 being enjoyed equally by all to whom it is given. To =20 make existing property rights sacrosanct would violate =20 a foundation of all democratic constitutions, the idea =20 of equality.=20
But the unpropertied also have to recognise that unless =20 the law acknowledges, as a fundamental, that people are =20 entitled to retain a substantial proportion of the =20 fruits of their efforts, the prosperity and stability =20 essential to achieve true democracy cannot be attained.=20
If both these things, and all their ramifications, were =20 fully acknowledged, we might be able to converge on a =20 common understanding of constitutional property =20
If we accept that existing property rights are not =20 sacrosanct, but also cannot be left entirely at the =20 mercy of governmental whim, then perhaps what we want =20 is no more and no less than to bring the rule of law to =20
Perhaps what we really want by way of property =20 protection is simply the principle that government can =20 interfere with property only to the extent that it has =20 a good justification, articulated explicitly and =20 reviewable in court, for doing so.=20
The effect of that principle would be to protect =20 property owners from capricious expropriation. It would =20 also bring substantial certainty and predictability to =20 property relations. It would require as much =20 compensation as is justified, all things considered. =20 And it would confer benefits which all would enjoy.=20
Under that principle, it would be open to the =20 government to argue, in a particular case, that a land =20 restitution measure was so urgently required to reverse =20 an historical injustice, and caused such little =20 prejudice to anyone with a fair legal stake in the =20 land, that little or no compensation should be paid. =20 And if government is confident of that argument, it =20 should be willing to stand or fall by it before an =20 independent court.=20
There are many ways of attaining the rule of law in a =20 property clause. You can make it say, as does the =20 Universal Declaration of Human Rights, that no one =20 should be deprived of property arbitrarily. Or that the =20 government can interfere with property only when it =20 acts fairly and reasonably. Or that all takings of =20 property have to be justifiable.=20
The essence would be the same. A property clause like =20 that would state a principle that few would oppose. And =20 few would ask for more.=20
The final Bill of Rights is being written over the next =20 few weeks. Legal experts Etienne Mureinik and Dennis =20 Davis will write a series dealing with all the major =20 issues for the Mail & Guardian. =20
Mureinik is professor of law at Wits University and =20 Davis is head of the Centre for Applied Legal Studies=20