File picture: David Ritchie/African News Agency (ANA)

In a late night SABC announcement at the end of an ANC National Executive Committee Meeting on July 31, President Cyril Ramaphosa stated that his party would amend section 25 of the Constitution, dealing with property to provide unequivocally for expropriation of land without compensation in certain clearly defined circumstances.

In so doing he pre-empted the discussions and debates occurring in the country as a whole and the relevant Parliamentary review process.

Section 2 declares our Constitution unequivocally the supreme law of the country and all law or conduct inconsistent with it is invalid and obligations imposed by it must be fulfilled. In legal terms this means that the Constitution is a rigid one and it requires special procedures for its amendment, which are set out in section 74 of it.

The exact procedure will depend on what provision of the Constitution is to be amended. There are different categories of amendment, only two of which are relevant for amending a provision in the bill of rights, like section 25.

These are explained below.

First, section 1 which defines the values on which the Constitution is premised and section 74(1) the basic entrenching provision itself may only be amended by a bill passed by National Assembly (NA), with the supporting vote of at least 75 % of its members and by the National Council of Provinces (NCOP) with the supporting vote of at least six out of the nine provinces.

The implications of this special entrenchment are far-reaching because the values encapsulated in section 1 are universal values to which the individual provisions of the Bill of Rights set out in chapter 2 give specific effect. Of great importance they include the Rule of Law and non-racialism.

It is therefore, it is submitted, not legally permissible to amend such provision in chapter 2, dealing with individual rights in a manner that restricts or impacts on the values embodied in section 1. So, not only the values on which the Constitution is founded are affected but the provisions of the Constitution which gives effect to those values.

Second, chapter 2 of the Constitution, which incorporates the provisions of the Bill of Rights, may be amended by a bill passed by the NA, supported by a vote of at least two-thirds of its members, and by the National Council of Provinces (NCOP) with the supporting vote of at least six provinces.

The actual wording of the amendment will be of crucial importance. In this regard Professor Pierre De Vos points out in his article in The Star (August 4 “Changing South Africa’s Constitution”) as long as the interpretation of the amendment doesn’t affect the values in Section 1, and particularly the Rule of Law, category 2 above, does not apply. This means using a mere two thirds majority would suffice and a 75% majority is not necessary.

However, any arbitrary expropriation of property would impact on the Rule of Law. The amendment would have to be specific and state exactly what land could be expropriated, such as land used for financial speculation.

Ramaphosa and others have taken the view that the property clause set out in section 25 enables expropriation of land without compensation in the public interest and that the amendment would be aimed at clarification and stating this beyond reasonable doubt.

Such an amendment it is submitted would not impact on the values, and in particular the Rule of Law and the category 2 procedure would suffice. Prof Steven Friedman in an article in the Star (August 8) makes the insightful observation that changing section 25’s wording would bring much-needed clarity to property owners. On the other hand should the amendment to 25 be of a radical, arbitrary nature and quasi-Marxist character, as suggested by the EFF and Julius Malema to provide for all land or land to vest in title in the state, which would then be leased out at its discretion. This would impact on the Rule of Law as a value requiring the category 1 procedure, ie a 75% majority.

South Africa has probably the most interesting constitutional jurisprudence in the world. The proposed amendment of section 25 is a controversial and jurisprudentially fascinating exercise.

* Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.

Sunday Independent