Private property rights are often represented as being of secondary importance in modern democratic discourse. It is rare in polite company, even in the West, to see private property included in the list of so-called “basic rights”, which is usually limited to the right to privacy, freedom of expression, universal franchise, and a free press.
This is why, in the South African context, two of the largest political parties in the country, the African National Congress (ANC) and the Economic Freedom Fighters (EFF), can so casually talk about destroying the right to property entrenched in section 25 of the Constitution with very little media or popular condemnation. Imagine if the ANC and EFF proposed to remove the right to a free press in section 16 of the Constitution – the media and civil society would quickly draw parallels with the Apartheid regime. But the fact that the Apartheid regime engaged in the very same anti-property conduct that the ANC and EFF today propose draws little attention.
Each of the aforementioned basic rights – and indeed all our other rights – effectively take secure private property for granted. Without secure property rights, these rights lose a large chunk of their substance and simply become nice ideas on paper. Here are five ways in which all rights, and even so-called (that is, fake) “rights”, depend on private property rights.
Section 14 of the Constitution guarantees to everyone the right to privacy – otherwise known as the right for one or information about one to be left alone.
Any right to privacy, of the home or of information, assumes a proprietary basis. It is an accepted fact of law that in public, one’s legitimate expectation of privacy necessarily decreases. In a similar way, when one is in the company of others, the legitimate expectation of privacy is not the same as in one’s own residence.
In a communist or fascist society, where the State is the owner of all property or the custodian of the public’s interests across proprietary boundaries, the right to privacy does not exist in any meaningful way. On what basis are government agents to be kept out of one’s home, one’s business, or one’s information, when, in law, that property belongs to the government?
One’s home – in its proprietary sense – is one’s castle. It is the most intimate space for everyone. And as such it must be secure and fundamentally exclusionary. Only when there is a line dividing the private from the public – in other words, private property – can one coherently require a process that must be followed, including obtaining search warrants, before that private space may be invaded. The same principle extends to private information and private enterprise.
Section 16 of the Constitution guarantees to everyone the right to freedom of expression, which includes freedom of the press.
These rights, similarly, presuppose the existence of secure private property. Having freedom of expression would be dead-letter law if one were not allowed to (securely) freely own and enjoy the capabilities of a cellphone, a computer, a microphone, or a podium from which to express oneself. If the State owns all property, or controls it so rigidly that it may as well be the owner, its scope for unduly limiting expression, on or with, that property is increased by orders of magnitude.
“The press”, as referred to in section 16, also cannot be taken to mean simply the State press in the form of the South African Broadcasting Corporation. Freedom of the press by its nature deals with the private press, using their private property (broadcasting studios, television cameras, recording equipment, head offices, etc.), to freely report on and engage with current affairs.
The same applies to artistic creativity, the academy, and scientific inquiry, also protected by section 16. None of these institutions protected by the right to freedom of expression make sense without the presupposition that they are in large part independent of the State, making use of private property that does not have a constant threat of government seizure hanging over it.
Section 25, which is presently under threat by the confiscatory plans of the ANC and EFF, makes generous provision for land reform initiatives. The three kinds of land reform are 1) fostering conditions for access to land, 2) restitution, and 3) security of tenure. So-called “redistribution” is not sanctioned by the constitutional text.
Having regard to any of these types of land reform without a private proprietary foundation would be senseless. The greatest impediments to access to land are restrictive legislation and regulations that drive up land prices. Undermining property rights more would only make this worse. And as tenants on State land know, like David Rakgase, having government as owner does not exactly foster good conditions for land ownership.
Restitution, similarly, by its nature means that property that has been illegitimately acquired must be returned to its real owners. It is by its nature a private property institution. What passes for restitution according to the ANC and EFF, that is, making aspiring agriculturalists and even homeowners tenants of the State, is not even on the same paradigm as actual restitution.
Finally, one cannot talk of security of tenure when those whose tenure is supposed to be secured are not the owners of their property. Only a handful of countries around the world have succeeded in combining tenancy and secure tenure, and even there it is precariously dependent on the whims of the government of the day. Only the institution of secure property rights gives owners the peace of mind to utilise their property productively, and in so doing, serve the public interest.
Even welfare entitlements – often errantly also referred to as “rights” – assume secure property.
Experience in Western and Northern Europe has shown that the countries with the most generous welfare regimes can only provide those social services through high levels of taxation. Without safe property rights that are dependable and certain, there can be no wealth creation – as we know all too well in South Africa – and as a result significantly lower tax revenue for government. States like Germany, Norway, and Sweden, all have strong protections for property rights, which allow them to sustain their welfare frameworks.
The entitlements to have access to social security, healthcare, food and water, as contained in section 27 of the Constitution, are dead on arrival without an economy that produces enough wealth for government to tax. The entitlement to public schooling as found in section 29 and to have access to housing as contained in section 26, similarly, cannot be given effect to unless government has the necessary resources at its disposal. Short-term confiscatory and redistributionist answers that simply seek to take the wealth that already exists and dish that out, is unsustainable and a sure route to state collapse.
The very basis of our entire system of government – of any successful system of government, that is – is similarly predicated on the existence of private property, and its security from political predation.
Professor Koos Malan has explained this relatively simple fact at length.
A sound constitutional democracy can only function as intended if citizens and civil society engage in public affairs. If citizens only voted once every five years and left politicians to do whatever they wanted the rest of the time, and if civil society – the press, advocacy groups, think tanks, churches, community initiatives – did not concern itself with public policy and administration, South Africa would be a democracy on paper only, but a tin-pot dictatorship in all real respects. Corruption would run rampant without journalists drawing attention to it and groups like OUTA putting pressure on government to address it. Bad laws that could sink the economy or deprive the vulnerable of their rights would also be adopted and enforced without think tanks like the IRR and communities initiatives like Sakeliga or Solidarity providing resistance and alternatives.
Citizenship is supposed to be about more than just voting – it is essentially a public service. And civil society is not only about private charity or cooperation, but about providing a significant check and balance on government power.
Neither citizenship nor civil society would be able to function as they are supposed to in the absence of secure private property rights. Democracy, then, would also be merely a formality rather than a reality.
How are citizens and civil society expected to engage with government on equal terms, if government owns their homes – directly or by implication – and their places of work? If everyone is effectively dependent on government for their sustenance, why would they speak out against powerful politicians? With the amount of power government today has over commercial enterprises, we can already see this happening: Businesses in South Africa rarely speak out against political abuse and corruption, because those businesses depend entirely upon the favour of their politically appointed regulators for their existence and continued operation.
In this respect, private property rights have already been weakened to an unjustifiable extent in South Africa. We should be working toward reversing this trend, not worsening it. As such, any talk of weakening section 25 of the Constitution to allow confiscation of property without compensation or ridiculous notions of State custodianship, should be rejected with force. But we should not stop there; we should also positively insist, in the name of constitutional democracy, freedom, and justice, that secure private property rights be entrenched for everyone forevermore.
Martin van Staden is a legislative and policy consultant for Sakeliga and the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.
Cover photo source available here.
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