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By Martin van Staden

In February 2018, Parliament adopted a resolution in support of the concept of expropriation of private property without compensation. The resolution, among other things, directed the Parliamentary Constitutional Review Committee to review various provisions, including s 25 of the Constitution – the right to property – to determine how to make expropriation without compensation possible.

Since then, there has been much discourse on, especially, the morality and the economics of such an amendment to the Constitution. While the legality and legal implications of such an amendment have been analysed, there has been little engagement on how, or whether such an amendment could be challenged on constitutional grounds if it should pass through both houses of Parliament and be signed into law by the President.

If the amendment process falls foul of the provisions of s 74 of the Constitution, which determines how an amendment of the Constitution should be processed, it should quickly be declared invalid by the Constitutional Court (CC). However, other than the ordinary procedural arguments that could, and probably will come up – which includes questions about whether the public participation process was adequate – is there a substantive argument to challenge the legality of the amendment? The prima facie answer is ‘no’. If a constitutional amendment is procedurally sound, a superior court will have no grounds on which to declare the amendment unconstitutional.

But the richness of constitutional theory may provide an alternative answer. It has happened in other jurisdictions, and it may happen in South Africa (SA), that an otherwise procedurally-valid constitutional amendment is in substance unconstitutional, and, therefore, void. One of the ways this could come to pass is by application of the so-called ‘basic structure’ doctrine.

Overview of the basic structure doctrine

The immensely valuable doctoral thesis of Dr Yaniv Roznai on unconstitutional constitutional amendments was my point of departure for this article (Y Roznai Unconstitutional constitutional amendments: A study of the nature and limits of Constitutional amendment powers (PHD thesis, London School of Economics and Political Science, 2014) (http://etheses.lse.ac.uk, accessed 16-8-2018)). This thesis has since been developed into a book by the same author, published by Oxford University Press, and has inspired central arguments in legal challenges to constitutional amendments around the world, most recently in the CC of Uganda’s Constitutional Petitions Nos. 49/2017 et al.

In brief, the basic structure doctrine posits that there are certain features or principles so engrained in the fabric of the Constitution that even if a supermajority, or indeed, every member of Parliament, were to decide to interfere with that feature or principle, it would be unconstitutional. This is because the Constitution merely gives a power of amendment to Parliament (a constituted power), and not a power of replacement (a constituent power). Thus, to validly ‘amend’ the Constitution in terms of s 74, Parliament’s proposals must still operate within the logic and framework of the Constitution and not attempt to replace it. If Parliament were to adopt something, which is an amendment in name only, but in fact is a ‘replacement’ of the Constitution with what, effectively, would be a 2018 Constitution, the courts would be justified in setting that ‘amendment’ aside.

Chandrachud CJ, in the Indian Supreme Court case of Minerva Mills Ltd and Ors v Union of India and Ors AIR 1980 SC 1789 said at para 21:

‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity.’

The basic structure doctrine has received the most fleshing out in Indian jurisprudence and is most closely associated with the above court. But, the doctrine has been considered in the jurisprudence of courts as far afield as Kenya, Uganda, Thailand, Argentina and Peru.

At the time of writing this article, the doctrine had not been adopted into or recognised in South African law, but given the relative youth of our constitutional order, it is not surprising that there may be many doctrines and theories yet to be discovered and developed by the superior courts. The CC has, however, in passing, recognised that the basic structure doctrine could be applicable in SA, but declined to decide the issue.

In Premier, KwaZulu-Natal, and Others v President of the Republic of South Africa and Others 1996 (1) SA 769 (CC), Mahomed DP remarked at para 47 that: ‘It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, might not qualify as an “amendment” at all’. Sachs J posed a similar question at para 204 in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995 (10) BCLR 1289 (CC) noting, inter alia, that: ‘There are certain fundamental features of parliamentary democracy, which are not spelt out in the Constitution but which are inherent in its very nature, design and purpose’. The basic structure doctrine was again noted in United Democratic Movement v President of the RSA and Others 2002 (11) BCLR 1179 (CC), where, in contrast to the prior two judgments, it appears the court is moving away from the doctrine. But, it is clear, our superior courts are not completely closed to the notion that the doctrine may find application in SA.

Celine van Schalkwyk of Stellenbosch University argues that the basic structure doctrine would likely not find application in SA, inter alia, because the Constitution allows for amending any provision of the Constitution, even s 1 – the Founding Provisions, said to be a surrogate for the basic structure doctrine – for which the National Assembly requires a 75% majority to do, and because the CC will likely regard using the basic structure doctrine as a violation of the separation of powers (C van Schalkwyk ‘Die basiese-struktuur-leerstuk: ’n Basis vir die toepassing in Suid-Afrika, of ’n skending van die skeiding van magte?’ (2015) 12(2) LitNet Akademies 347 (www.litnet.co.za, accessed 16-8-2018)). Although it is outside of the scope of this article, it is useful to note that one of the other potential avenues of challenging the constitutionality of an expropriation without compensation amendment, is a s 1 review.

I submit, however, that the doctrine should be recognised as applicable in SA.

Not all of the basic structure of the Constitution is encapsulated in s 1. Section 1 does not, for instance, speak of the separation of powers and, particularly, of judicial review, which are two of the features that have appeared almost universally in existing global jurisprudence on the basic structure doctrine. Section 1, however, does provide assistance in identifying what could be the features of the basic structure of the Constitution.

Property rights and the Constitution

If we assume the doctrine will find application in South African constitutional law, the pertinent question to ask is whether the s 25 right to property, and its associated and inseverable right to compensation, forms part of the basic structure of the Constitution. If it does not, even if the doctrine is recognised, it will not succeed in hindering expropriation without compensation.

There is no prescribed method in the basic structure doctrine of determining what is the basic structure of a Constitution. Indeed, with some significant overlap, every Constitution will have a different basic structure. Federalism, for instance, is certainly part of the basic structure of the Constitution of the United States, but the same would not be true for SA; whereas universal franchise is likely a part of the inherent identity of both.

To determine whether something features as a part of a Constitution’s basic structure, one would need to ask the following question: If the feature in question is removed from the Constitution, will the Constitution still retain its identity?

The Constitution is not a formalistic statute. It is internationally renowned for being very concerned with values, and, particularly, the values of justice, fairness, human dignity, equality, and respect for fundamental rights. Indeed, s 1(a) of the Constitution specifically says SA is founded on, inter alia, the protection of dignity and the advancement of human rights and freedoms.

Paying compensation for expropriated property is more than ‘international best practice’. In open and democratic societies, it is the only practice. The notion of not providing compensation for expropriated property is alien to constitutional democracies and is known only in repressive nations, such as Venezuela and Zimbabwe. As the economic discourse on expropriation without compensation  has gone to great lengths to show, every country in history that has ventured down this path has only created for itself destitution and pariah status and eventually had to roll it back; something Zimbabwe is starting to do.

The right to security of property is also deeply embedded in South African history, and something the Constitution takes very seriously. Apartheid was characterised by its denial of tenure security to black South Africans. Section 25(6) specifically enjoins government to bring about security of tenure to those who were denied it in the past. It could be argued that the Constitution represents a securing of property rights to a people who, up to at least 1990, had no secure private property rights to speak of. Section 25 is not a run-of-the-mill property provision but is very involved with South African history and redressing the consequences of racial discrimination.

Even during Apartheid, the notion of expropriation was wedded irrevocably to compensation. Thus, writing in 1955, AV Dickinson, QC wrote that ‘expropriation may be described as a compulsory sale, because provision is made to pay a price, i.e. compensation’ (AV Dickinson ‘The Freedoms of the Individual’ in HJ May 3ed The South African Constitution (Cape Town: Juta, 1955)). Of course, this meant nothing to the disenfranchised majority who were not regarded as ‘owners’ of their property in ‘white South Africa’, and who could thus lose that property without being entitled to a cent of compensation. But ‘expropriation without compensation’ can be regarded as an oxymoron, at least as far as constitutional law, if not politics, is concerned.

Private property as a concept is intimately related to the very notion of constitutionalism, according to Prof Koos Malan of the University of Pretoria, because it is the only vehicle by which the people and civil society can exercise autonomy from the state and cause a balance to be struck in society between the powers of government and of the people (K Malan ‘The totalitarianism of transformationism’ Politicsweb 11 March 2018 (www.politicsweb.co.za, accessed 16-8-2018)). Furthermore, the most progressive nations today that have vast systems of welfare, have strong protections for private property. The Scandinavian countries of Finland, Norway and Sweden consistently rank in the first quartile of protecting property rights, according to both the International Property Rights Index and the Economic Freedom of the World.

A strong argument, thus, can be made that private property rights, and, specifically, the right to compensation when property is expropriated by the state, is an imperative of constitutionalism and part and parcel of the basic structure of the Constitution. Doing away with the right to compensation would thus, it may be argued, not amount to an amendment of the Constitution, but an attempt to change the very identity of the Constitution and replace it with another: A power not granted to Parliament.

Conclusion

Much of the above arguments will depend on the text of the eventual amendment. If it is a complete repeal of the right to compensation, I argue that the basic structure doctrine could be employed to have the amendment set aside. If, however, the amendment is framed in strict and narrow language that would allow for expropriation without compensation in specific, clearly-defined instances that would appear fair to a reasonable person, I do not believe it would amount to a change in the identity of the Constitution and thus the doctrine would provide no such assistance.

Making use of the doctrine would signal a radical move by the otherwise conservative CC, which has repeatedly indicated an aversion to interfering with what it considers political or legislative questions. Section 1(c) of the Constitution,  however, declares the Constitution and the rule of law to be supreme, meaning that the court does not truly have a discretion to remain uninvolved when Parliament has somehow made itself guilty of contravening the rule of law.

Martin van Staden LLB (UP) is Legal Researcher at the Free Market Foundation in Johannesburg.

This article was first published in De Rebus in 2019 (JanFeb) DR 26.