TLU SA officially objected to the amendment of Section 25 of the Constitution (nr. 108 of 1996) concerning expropriation without compensation.
The deadline for comment was extended to 29 February 2020, after various roleplayers objected to the deadline since the time framework was made public.
“We still recommend that the wording of Section 25 of the Constitution stays as it is without any amendments at all,” says Mr Louis Meintjes, the president of TLU SA. “Agriculture is not the only issue of concern when it comes to expropriation without compensation. The right to private ownership – which is imperative for stability and investment – is an essential principle to the success of the economy.
“TLU SA’s vision for South Africa is that wealth is created by economic growth, which can only be attained in a free market environment where international investors want to invest, and there is no uncertainty regarding government policies.”
Apart from the threat to the economy, there are various principles of legitimacy applicable to the amendment of Section 25.
“There are constitutional and universal international legal principles to which any state must adhere and which are binding on a country irrespective of its constitution,” says Mr Meintjes. “These superior norms concern the treatment of minorities in a state, especially racial minorities.”
The South African government has acceded to various international treaties prohibiting racial discrimination as well as discrimination on the ground of property:
- The International Covenant on Civil and Political Rights which in Article 26 prohibits discrimination on the ground of race or property;
- The Southern African Development Community (SADC) Protocol on Trade and Investment of 2006, which states that all SADC countries must create a friendly environment for investors by “(a) not expropriating investments, except for public purpose against prompt, adequate and effective compensation”;
- The Rome Convention states that the Criminal Court must apply international customary and treaty law; and
- The International Convention on the Crime of Apartheid defines the crime of apartheid as any legislative measure by one racial group which expropriates the landed property belonging to another racial group.
The South African Constitution and Parliament are subject to the Constitutional Principles from which the Constitution derives its legitimacy in respect of the population of South Africa as a whole. Any legislation that changes the Constitution is still subject to the Constitutional Principles under which everyone enjoys all universally accepted fundamental rights.
“The right to not be discriminated against on racial grounds is a fundamental right,” says Mr Meintjes. “The right to property and that expropriation must be for public purposes and against compensation, are also protected by the Constitution. Any change to the Constitution that amounts to discrimination against property owned by whites will jeopardise the legitimacy of the Constitution.
“Constitutional changes that will allow a white-owned property to be confiscated by the state and transferred to a black person is internationally and constitutionally unlawful and even criminal,” says Mr Meintjes. “It will involve South Africa in countless court cases in both the national as well as the international sphere, which will have to be paid by the government and the taxpayers.”
TLU SA will regard any legislation designed to expropriate white-owned property without compensation as discriminatory racial confiscation and internationally unlawful.
If Parliament accepts the amendments to Section 25 of the Constitution, TLU SA will protect the property rights of its members and will pursue all constitutional and international law measures to do so.
These measures include taking legal action against any member of the government, the legislature or even the judiciary that supports, instigates, incites and participates in the illegal confiscation of white-owned property.
