One tribe cannot build a nation

Damon Leff

 

A recent proposal by members of Parliament to amend section 25 of South Africa’s Constitution to enable expropriation of land without compensation has resulted in irrational fear and panic on many sides of the political divide.

The general tenor of discussion and argument on social media amongst Pagans and non-Pagans alike has been counterproductive. Many are responding to the Economic Freedom Fighters proposal to expropriate all land and vest it in the sole possession of the State, and to the African National Congress’s tacit support for some form of land expropriation without compensation, as if these proposals are already a fait accompli.

Incendiary racist political rhetoric from the EFF and several opposition civil society organisations calling for international sanction against the South African government for even suggesting a radical correction for past injustices perpetrated against a majority of citizens in our country, has left many South Africans of all ethnicities anticipating disaster.

The truth is, these political proposals are far from a done deal. Nothing has been decided yet. Parliament’s Constitutional Review Committee is due to deliver its suggested recommendations on expropriation for discussion in August. Civil society organisations and individuals will have ample time to submit their comments, suggestions and objections to the draft proposal.

I think it is important to remember that South Africa’s democratic Parliament no longer has singular sovereignty as it did under the former nationalist government. The Legislature no longer governs independently of the rule of law or justice. Before 1996, our courts did not have a right of automatic review of any law passed by the Legislature. Under the former Union and Nationalist apartheid governments, Parliament was supreme, and often acted arbitrarily and unfairly. This can no longer happen. The Judiciary is now an equal branch of government, and it has the right to review and set aside any decision taken by the Legislature (or the Executive) if that decision is inconsistent with law or the Constitution. This provides ordinary citizens with the right to challenge the other two branches of our government if they act capriciously or unjustly.

While section 25 currently does permit expropriation of land under certain conditions, South Africa is a signatory to several international instruments that protect personal property rights – we have the right not to be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property. The Constitutional Court is, in my opinion, unlikely to permit any amendment to section 25 which is grossly inconsistent with the Bill of Rights – which removes the right of all citizens to own personal property.

 

The real tragedy of the consequential war-rhetoric resulting from expressed political ideology on this subject, is that many South Africans are beginning to lose sight of the transformative opportunity before us. We have forgotten where we come from.

 

South Africa’s history has been a tragic and painful one of dispossession and oppression of non-Europeans by Europeans. As an African of European ancestry, I cannot ignore that, even though my own parents were not the architects of “racism” in my country, they and I benefited from our status as “white” South Africans. Many opportunities automatically granted to me, because of the colour of my skin, were not granted to my fellow South Africans, simply because their skin colour differed from mine. This inherited status of ethnic privilege – called “white” privilege – was, in hindsight, not a blessing, but a mark of shame.

The consequences of centuries of ethnic subjugation of a majority of South Africans did not suddenly disappear in the 1990’s. I cannot pretend that the harm done to millions of people was suddenly undone in 1996 when our new Constitution declared that all South Africans were now equal before the law. We were not all equal. We remain unequal.

In Soobramoney v Minister of Health [1997], the Constitutional Court (Chaskalson P) held:

[8] We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.

[9] The constitutional commitment to address these conditions is expressed in the preamble which, after giving recognition to the injustices of the past, states:
“We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to –
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Improve the quality of life of all citizens and free the potential of each person”.
1998 (1) SA 765 (CC)

 

Each of us has a responsibility towards manifesting this constitutional commitment, for all South Africans. To refuse, or ignore this responsibility, is a denial of our own inheritance as South Africans. Edward Bulwer-Lytton once wrote “A man’s ancestry is a positive property to him. To forget one’s ancestors is to be a brook without a source, a tree without a root.”

The best thing we can do now is offer the light of reason and peace to everyone around us. Trust in our Democracy. Engage constructively in the democratic process. Engage constructively with each other, and work for a more just and equal society for all South Africans.

 

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