Successive South African governments have been hacking away at the rights enshrined in the constitution. Not the least of this constant hacking is the new Protection of Investments Bill. The bill supposedly seeks to present a uniform protection for foreign investors equal to that enjoyed by local investors but coincidentally attacks protection of property rights granted by the constitution, and thus seeks to circumvent South Africa’s constitution.
The ANC are playing with semantics. ‘Semantics is the study of meaning. It focuses on the relation between signifiers, like words, phrases, signs, and symbols (eg expropriation) and what they stand for, their denotation (eg separation from one’s property)’.
This is how the game is played: Expropriation ‘occurs when a public agency …. takes private property for a purpose deemed to be in the public interest’. The constitution clearly lays out the manner and consequences of expropriation (basically there must be exchange of value).
The protection of investment bill, however, sets out that property may be taken by the state provided the state does so, not as owner, but rather as ‘ custodian ’ for the disadvantaged (IRR @Liberty on Protection Of Investment Bill) and that people who’s property is taken in this manner could end up receiving zero compensation on the loss of their property, first because the state can determine the amount and manner and timing of any compensation, grounds for a sort of never-never compensation system, and second, because the constitutional court has already ruled that where ownership has not changed hands (viz the original owner is not deprived of ownership even when deprived of access or control) there is no expropriation (IRR @Liberty on Protection Of Investment Bill).
If depriving people of the rights of ownership with or without a change of ownership is not expropriation, then what is expropriation? This has to be playing with semantics. It is obfuscation, prevarication and spurious – in short it is plain dishonest and amounts to little more than legalised theft – and that the constitutional court should find in that manner raises a serious question mark on their own honesty, integrity and impartiality.
Non expropriation removal of access to one’s property means that such deprivation does not enjoy the protection of the constitution regarding expropriation. So, the state could move 20 vagrants into your home (say designed for 4 people) and say it is for the public good. So you are deprived of the right to use your home as you see fit, a home you may still be paying for, and the state will not be obliged to compensate you because no expropriation has occurred.
This sort of duplicity by the ANC-led government is not unusual. They did it with the state secrecy act, the general intelligence laws amendment bill and the Protection of State Information Bill to mention a few statutes that come to mind. Clearly the ANC view the constitution as a hindrance to their ambitions and are doing all they can to circumvent the constitution.
The slippery slopes for property rights has just got steeper and more slippery.
By contrast, a Direct Democracy Forum (DDF) administration would view property rights as a cornerstone of the state and its obligation to all South Africans. A DDF approach to all South Africans who were not enjoying property ownership would be to engage them in property ownership and protect that ownership unambiguously and with fervour, through the rights enshrined in the constitution. This would involve empowerment through education, training, employment and wealth creation, in a state whose duty is to serve its citizens, not feed off them.