It is necessary to understand the implications of having a constitution that includes expropriation without compensation
The ad hoc committee charged with dealing with the bill amending section 25 of the constitution has now completed its task. It is therefore necessary to consider the implications of having a constitution that includes expropriation without compensation, state custodianship of land and “protecting land for future generations”, and that abandons to parliament the power to determine when expropriation without compensation will apply.
This is, of course, unacceptable, but what is the solution? Stephen and his famous cousin, AV Dicey of constitutional law fame, were confident that the integrity of lawmakers meant they would never make bad laws, and if they did these would either not be obeyed or a revolt would take place. But this is surely not an acceptable solution to the problem of a sovereign lawmaking institution.
The US Bill of Rights was introduced at a later stage to indicate the limited circumstances where unalienable rights could be infringed. Thus, the fifth amendment reads: “No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” So private property can be taken for one and only one reason: public use, and then only upon the payment of just compensation and via the due process of law.
One such example is the Basic Structure Doctrine. Take, for example, where a political party patently rigs an election and the matter is taken to court, which nullifies the election. The political party then uses its majority to amend the constitution, declaring that the courts have no authority to adjudicate on the validity of elections. In this case the courts would have to declare the amendment to be of no force or effect by the application of the Basic Structure Doctrine.
First, let us apply the fifth amendment of the US constitution as quoted above. The soldiers would have no right to take over the farms. The constitution would stand between them and the farmers. That is its function. Rex van Schalkwyk, chairman of the Free Market Foundation’s rule of law board of advisers, has provided a very good definition of the rule of law - the barrier that the law sets against tyranny.
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