I have been saying all along that the #ANC #Expropriation policy will be mild. This looks VERY open-ended, and I am convinced that it creates conflicts with other provisions of the Constitution.
news24.com/SouthAfrica/Ne… via @News24
news24.com/SouthAfrica/Ne… via @News24
@News24 The proposed text includes, "Provided that a court may determine that no compensation is payable in the event of expropriation of land for the purposes of land reform…". This is fatally flawed - one cannot have a guaranteed wrong EFFECT merely because the MOTIVE might seem good.
@News24 Although an #Expropriation Act might set out the necessary protections (this is much more complex than most realise or admit), there is no guarantee that it would. And even a good Act can be re-written with a simple majority. The key logical problem is arbitrariness.
@News24 There is no criterion as to WHICH land might be so appropriated without compensation (this complication has been glossed over all along). There is NO REQUIREMENT that the absence of compensation must be just. The rule of law has just been discarded.
@News24 And no, one cannot just pass any amendment one likes, even with correct procedures, and the requisite votes. For example, it could not happen that the right to life is removed. If there is one constraint on what amendment is permissible, then there can be others.
@News24 The first thing that falls is equality before the law. If ANY land can be taken, then those whose land is taken (without objective criteria in place) are being treated differently by the law from others. And, the limitation of this right will not prove to be justified.
@News24 And in any event, even if criteria are specified, then that will prove to be a logical morass, with too many conditions or exceptions to be workable. Either the discrimination must be shown to be fair, or there must be justifiable grounds for a limitation of rights. It won't work
@News24 Having said all of this, the focus might shift to the #Expropriation law itself. S 25(1) does say that, "no law may permit arbitrary deprivation of property", and getting around this might prove to be very difficult.
@News24 Logically, there might also be an issue where land, as one class of asset, or property, is removed from the protections that other classes of property continue to enjoy.
