Author: Martin van Staden
Date: 11 December 2019
The nature of constitutionalism lies in its checks and balances – limitations – on government power. Prior to the advent of constitutionalism, governments, in the form of kings, dictators, and popular democracies, could do whatever they wished. The common law presumption princeps legibus solutus est went as far as to declare that the State was not bound by the law. Constitutionalism, however, cannot be seen as limited only to the text of the Constitution itself. Some aspects of constitutionalism are implied. For example, there is no provision in the Constitution that disallows a statute from re-defining the phrase “freedom of expression” in section 16(1) in a restrictive sense, thereby making it possible for government to prohibit more speech than what the Constitution allows. But we know this cannot be done, because it would amount to a fraud of law, and betray the spirit of the Constitution.
Civil society is as much a check and balance on government power as the trias politica. This is not stated explicitly in the Constitution, but can be deduced from the various provisions in the Bill of Rights that empower civil society. One of these provisions is section 25, the right to property.
The small infractions of Apartheid on the dignity of the usually black individual are too many to count, and cumulatively, these amounted to a wound that will take years to heal, and a scar that will always remain visible. But one major infraction, which Apartheid depended upon to be successful, was the denial of private property rights to black South Africans. This wound has only very recently begun to heal. The issuing of title deeds to new property owners in townships has been unduly delayed for decades. It is also now known that government continues to hoard thousands of farms that it was supposed to transfer in title to new, usually black farmers. The moral of the story is that blacks, at least since 1912, but almost certainly before that, have been denied the right to ownership, and to enjoy the entitlements of ownership, on equal grounds with their white counterparts. Slowly but surely, however, this is changing. Projects like Khaya Lam are entirely dedicated to facilitating the titling of the urban poor’s property.
In a case that will be heard by the Constitutional Court in 2020, the question of the constitutionality of the Riotous Assemblies Act, and other arguments such as the apparent right to trespass or squat, will be addressed.
It would be a grave injustice for the case to succeed in convincing the highest court of these arguments, as it would undo the little progress that has been made since Apartheid ended. If anything, private property rights must be strengthened, not weakened. The indignity blacks suffered under was also largely due to the arbitrary power officials had over them and their proprietary affairs. It can therefore be said that the Rule of Law was largely absent during Apartheid, as decisions were made based on political expediency at best, and racist prejudice at worst. The Committee on Administrative Tribunals and Enquiries aptly conceived of the Ruel of Law as follows in its 1957 report:
“The Rule of Law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will know where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law.”
This arbitrariness that is warned against is regrettably exactly what the applicant is asking the Constitutional Court to condone: That politicians or popular figures should be allowed to decide at a whim whose rights will and will not be respected, usually based on their own passing political interests.
But not only will the applicant’s position undermine the hard-won rights that the Constitution recognised after the end of Apartheid, but it would undermine the fabric of constitutionalism itself. If civil society is no longer protected in their property – particularly when that protection is against political figures who incite followers to engage in destructive behaviour – civil society itself could be weakened, if not entirely destroyed. One need only look at societies like North Korea and Venezuela, where the consistent undermining of private property, among other rights, has led to civil society being driven underground, if it exists at all.
There is a presumption that Parliament does not intend to oust vested rights unless it does so expressly and unambiguously. Legislation must be interpreted as compliant with existing law, including the common law. Only where this is impossible can deviation be construed, but even then, the deviation must be minimal – only to the extent that there is inconsistency between existing law and new legislation. Neither the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (19 of 1998), the PIE Act, nor the Extension of Security of Tenure Act (62 of 1997), the ESTA Act, conflict with the common law prohibition on incitement, as neither legislation condones, much less requests, squatting or unlawful occupation of land. These laws deal with people who are already occupying or squatting. There is no manifest intention on the part of Parliament to deviate from existing law in this regard, to encourage squatting and land-grabbing.
Four further presumptions of interpretation are relevant:
i) Legislation must be construed in favorem libertatis where such a construction would not stretch the meaning of the text unduly. Thus, in cases where more than one interpretation of a provision is possible, the just, equitable, and reasonable interpretation must be preferred.
ii) Legislation must be construed to avoid absurdities, even to the extent that the “court’s obligation to the text ceases”.
iii) Legislation must be presumed constitutional. If it could be interpreted constitutionally without unduly stretching the meaning of the text, it must be so interpreted.
iv) “References in legislation to acts and conduct are references to legally valid acts and conduct.”
The first three apply in the present matter, and an argument for the fourth might apply.
If any provision of the PIE Act or ESTA Act seems to allow trespassing (de novo squatting as opposed to pre-existing squatters protected by eviction law), then these provisions should be reconstrued to apply only where there’s a reasonable time gap between the squatting and the eviction. It would be absurd for the Constitutional Court to construe either Act as allowing trespassing for “private” land reform/land-grabbing purposes, as this would practically render the protections in section 25 redundant.
Finally, the Riotous Assemblies Act can (and must) absolutely be construed as constitutional, at least insofar as the prohibition on incitement is concerned. It would be ridiculous to presume that the Constitution, particularly section 25, entertains the possibility that prohibiting incitement to commit an offence is unconstitutional. More particularly, section 205(3) obliges the South African Police Service to “prevent […] crime, […], to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law” (my emphasis). Should the court regard incitement to land-grab as constitutionally-protected speech, it is effectively rendering not only section 25 redundant, but also, partly, section 205.
The principle of equality before the law might also feature prominently as an argument. Equality is not only protected by section 9 of the Constitution, but is an imperative of the Rule of Law, a doctrine entrenched in section 1(c) of the Constitution as a founding value. Albert Venn Dicey, the jurist most associated with the concept of the Rule of Law, wrote:
“[The Rule of Law] means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens […]”
That equality before the law is an imperative of the Rule of Law was noted obiter by Madala J in Van der Walt v Metcash:
“[…] further postulate of the rule of law is the guarantee of equality before the law which is designed to advance the value that all persons be subject to equal demands and equal burdens of the law, and not to suffer any greater disability in the substance and application of the law than others. This to me is one of the basic precepts of the rule of law, so that no individual or group of individuals is to be treated more harshly than another under the law.”
It is self-evident that if the applicant’s arguments are to be accepted, property owners will be made to suffer a greater disability than others in the protection and application of law.
The courts are expected to balance competing interests that emanate from the Bill of Rights. The rights of property owners, who are not necessarily wealthy land barons, but includes new title deed holders in townships, must be protected and respected, and so must the rights of tenants and bona fide squatters. Legislation intended to give effect to the rights of tenants and protect them against eviction never meant to destroy the rights of owners.
Indeed, it cannot be that owners of property are presumed to be guilty of some metaphysical offence, and therefore may not enjoy the usual entitlements of ownership, that includes vindication and defence. Protection against eviction around the world is for those cases where people who rooted themselves on property without disturbance for an extended period of time, usually because they have nowhere else to go. Even in those circumstances, the rights of owners are recognised, as a duty is usually created for government to find alternative accommodation for the squatters. The applicant appears to argue, on the other hand, that there is a right to squat, totally disregarding the rights of owners.
The applicant would need to show, and I think that they have failed to do so, that property owners’ right to security against deprivation of their property is limited by section 36(1) of the Constitution in this respect. The conduct the applicant incited is not reasonable or justifiable in an open and democratic society founded on freedom, equality, and human dignity. Any section 36 analysis on this matter should make it evident that a limitation of the right to property cannot be justified to allow for arbitrary land-grabbing. This is particularly true in light of the fact that government is under a constitutional obligation to promote access to housing and engage in appropriate land reform. In other words, processes are already in place, and persons like the applicant who are not authorised government officials fulfilling a constitutional duty that might involve the balancing or limiting of rights, have no standing to engage in this kind of behaviour, much less incite harmful conduct. The applicant acted as a private citizen and incited their followers to commit an offence that involves the infringement of a vested constitutional right. There was no other right to balance against, as their followers were not pre-existing squatters with a legally recognised interest in being protected against eviction.
Finally, the case against the Riotous Assemblies Act is redundant. Incitement is a crime at common law (R v Nlhovo 1921 AD at page 489). But it is a crime not only in South Africa, but in every other open and democratic society around the world. It would be absurd for the Constitutional Court to decriminalise incitement to commit an offence.
 Van Staden M. “A comparative analysis of common-law presumptions of statutory interpretation”. (2015). 26 Stellenbosch Law Review. 561.
 Franks O. “Report of the Committee on Administrative Tribunals and Enquiries”. (1957). Command Paper 218. 29.
 Van Staden (footnote 1 above) 558.
 Van Staden (footnote 1 above) 573-578.
 Dicey AV. Introduction to the Study of the Law of the Constitution. LibertyClassics reprint of 1915 edition. 120.
 Van der Walt v Metcash Trading Limited 2002 (4) SA 317 (CC) at para 65.
 R v Nlhovo 1921 AD at page 489. See also the brief discussion in Van der Merwe HJ. “The prosecution of incitement to genocide in South Africa”. (2013). 16(5) Potchefstroom Electronic Law Journal. 334-335.