What it would take to change the constitution’s property clause

Threats of nationalising productive land have lead to concerns in the agricultural industry. But at present, Section 25 of the constitution guarantees the property rights of all.

Property may only be expropriated subject to the payment of a just and equitable amount agreed to by the parties or – in the absence of such an agreement – as ordered by a court. The current nationalisation proposal is therefore unconstitutional, according to constitutional law expert Prof Pierre de Vos. It would require an amendment of Section 25 to be valid – and that’s no easy task, he said.

“Any proposed amendment to the Bill of Rights must be published for comment 30 days before it’s introduced in parliament. There’s no way such a Bill could not be put to a vote within 30 days after being introduced in parliament.”

Prof de Vos said that in general, the court wouldn’t intervene in the law-making process before a law was passed. “Once a law is passed, National Assembly members may apply within 30 days after it was signed into law by the president to the Constitutional Court to have parts of a law declared unconstitutional.

But only if at least one-third of the National Assembly members support this. In this case, it can prohibit the Act from coming into force until the court has decided the issue, if it’s in the interest of justice to do so and if the application has a reasonable prospect of success.”

Once introduced in parliament, a proposed amendment can only be passed if two thirds of the National Assembly members and six of the nine provincial delegations in the National Council of Provinces vote for the amendment.

Currently the ANC doesn’t have a two-thirds majority in the National Assembly, and a Bill amending the constitution could therefore only be passed with the help of smaller parties.

“The ANC could obtain a two-thirds majority with support of the National Assembly members of the Minority Front (MF), the Pan Africanist Congress (PAC) and the Azanian People’s Organisation (AZAPO),” said Prof de Vos.

“The latter two organisations support an amendment of the property clause. Whether the ANC would be able to obtain a two-thirds majority will therefore depend on Amichand Rajbansi’s Minority Front.”

Chances of this happening seem to be slim, though.

“I call that the Mugabe paper, the Malema paper,” Rajbansi told Farmer’s Weekly. “Will the Minority Front join the ANC in voting for nationalisation of land? Never.”

Once a Bill amending the constitution is passed though, it becomes part of the constitution and the amendments can’t be tested against other sections of the constitution.