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As the draft Constitution Eighteenth Amendment Bill, 2019 is currently worded, Section 25(2)(b) would be changed to provide that:
a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.
In addition, a new section 25(3A) would be inserted authorising parliament to set out the circumstances in which such an order could be made, subject to the Constitution.
Existing commentary on this proposal has tended to split into two camps.
On one view, expressed by the Constitutional Review Committee responsible for the draft Bill, the new section 25(2)(b) merely makes
explicit that which is implicit in the Constitution.
Since any legislation enacted under the amended provision would be subject to the rest of the Constitution, all that the draft Bill does is clear the way for the long-awaited (and necessary) change to the ANC’s willing buyer, willing seller approach to land reform.
On another view, the proposed amendment sends needlessly worrying signals to an already jittery market. If the property clause as it stands provides for the payment of nil compensation, why gratuitously stoke local and foreign investor fears by amending it?
This second view has some merit. But the impact of the proposed amendment on investor confidence is not what should truly worry friends of liberal constitutionalism in South Africa. Improved prospects for liberal democracy depend on the relegitimation of the country’s racially skewed economic system. Redistributive land reform clearly has an important role to play in that.
Instead, friends of liberal constitutionalism should be worried about what the proposed amendment reveals about the fragility of the support for this form of government within the ANC.
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