Section 25 of the Constitution of the Republic of South Africa is constantly under attack.
Coming off a vote in parliament where its proposed amendment failed. The section specifically is under attack again. The Constitution in general was critiqued by the Minister of Tourism, Lindiwe Sisulu. Yet, property rights specifically are singled out, citing Professor Ramose who called it (s25) the ‘longest clause’. The right to private title, is attacked as being representative of colonialism. Is this true?
Firstly, any and every individual who thinks the idea of owning landed property to the exclusion of another person is propagating colonialism. This is the position of the group of people in South African society, who have made themselves the sole representatives of ‘the downtrodden’. The monopolisers of blackness as I call them.
They posit that anyone, who has private title, who deems it right to use landed property to the exclusion of others, having exclusive rights established through action; is but a ‘house negro’ to use the terminology of Malcolm X. They say the clause which guarantees the protection of private property, is an impediment to addressing the undermining of these rights by the colonialists who established the South African Westphalian state. Since by protecting that which was acquired through force, the clause perpetuates an injustice. This is their position as best can be summed by the author.
In retort to this position, I posit without the protection of section 25, the remedies sought by those who were dispossessed or their descendants as is most likely the case now, would be less secure. Those remedies being their enjoying just private property rights.
A right to private property, does not inhibit the challenging of the title or ‘belonging’ of that right. As most of this camp will say, they were unjustly acquired the property rights. Yet, having a general protection for property rights, does not preclude one from challenging rights that were not properly obtained.
From a legal philosophical perspective, it is this right in property that will inform the remedy of the party which is challenging the validity of any title to property. Let us think of s25 as saying, private property is protected. It does not preclude one from challenging these rights insofar as them unjustly or wrongly belonging to one person or the other, since after all, rights are enjoyed by individuals.
The alternative proposed by these proponents of the ‘people’ is the scrapping of private property protection and the institution of a collective landed property regime. Basically, having the entirety of the population, tenants of the men in power administering the state at that time.
The major parties who propagate this ideal in South Africa, may differ on the technicalities and degrees, but one thing brings them together. Abantu must not have private property rights. For after all, abantu also enjoy protection from s25 and we have already established if anything logically, that a right to property does not bar any act of justice against unjustly acquired or transferred property.
The issue is one of will, of capacitating the institutions, including the much-hated judiciary, to handle the matter of restitution and justice. A protection of the right to private property guarantees that after the contestation of title in whatever property is settled and the rights belonging to the rightful owners, these rights, will still be protected.
The recent KZN Division of the High Court of South Africa ruling in the matter of Council for the Advancement of the South African Constitution v Ingonyama Trust (11 June 2021), highlights how the right to property cannot be undermined by claims to ‘African culture’ which is said to have no latitude for private property rights. When those who are against a right to private property argue against it, they must do so without their usual appeals about it representing a betrayal of African culture or the African way of life. When political parties, claim that the Westphalian state ought to be custodian of all property, they must do so without saying it was the ‘African way’.
Their ambitions to control people’s lives by denying them rights to private property must not be couched in cultural rhetoric.
The right to property, in a legal sense, is integral to any functional society. It does not inhibit the restitution of property that was unjustly acquired or unjustly transferred, and currently is used by an unjust ‘owner’. The right to property does not inhibit justice. As we argued and will continue to do so, justice, understood properly is restoring the previous status quo prior to injury. In the specific case of property ownership, it would simply be transferring title to the rightful owner.
The tirades against the right to property for purposes of justice against past property dispossession are misguided. For sound justice, property rights and their protection, ought to be central. Rather than eliminating them, finding ways to make their protection stronger ought to be the focus.
Zakhele Mthembu BA Law (Wits) LLB (Wits) is a legal researcher at the Free Market Foundation.