Introduction
The South African Constitutional Court has ruled that the term “property” in the Section 25 of the Constitution covers not only land but also all forms of property including intellectual property (i.e. patents, designs, copyright trade marks and the like). In the event that, as proposed, this section is amended to allow property to be expropriated without compensation, it will mean that this principle will apply also to intellectual property. All and any patents, copyrights and trade marks etc., whether owned by South African or foreign nationals, will be subject to this extreme measure. There is no rational ground on which this form of intervention in individual property rights can be justified.
International Obligations
Article 27(2) of the Universal Declaration of Human Rights states that “Everyone has a right to the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he is the author” (i.e. his or her intellectual property). This declaration of the United Nations, dating from 1948, gave rise to an International Covenant, namely The International Covenant on Economics, Social and Cultural Rights, 1966. This Article of the Universal Declaration is echoed in Article 14 of the Covenant. South Africa is a member of this Covenant and is bound under international law by its terms. South Africa therefore has an international obligation, enforceable by the United Nations, to give everyone the right to own his/her intellectual property.
Constitutional Issues
The Constitutional Court has ruled that the right on the part of the individual to own his/her intellectual property is a fundamental right to which expression is given in Section 25 of the Constitution, which section is comprised in the Bill of Rights. In terms of the Constitution and the Bill of Rights, the Republic is enjoined to grant (and not abrogate or expropriate) all fundamental human rights to its subjects.
Section 231 of the Constitution requires South Africa to respect and give effect to all its obligations under international Agreements of which it is a signatory and member, including the International Covenant. Accordingly, if the Republic allows expropriation of the individual’s intellectual Property it will be acting in breach of Article 14 of the Covenant and it will offend against its own Constitution. This is untenable. Furthermore it is morally and ethically unconscionable for it to act contrary to the spirit and letter of the International Declaration of Human Rights. In the event that intellectual property rights in South Africa owned by foreign nationals were to be expropriated without compensation, the international opprobrium that would be visited on the Republic would be enormous, not to mention the likely repercussions.
Spurious Rationalisation
It is not a valid argument to say that, although the proposed amendment to the Constitution (including its impact on Intellectual Property) is wide reaching in its effect, it is not the intention of the Government to apply it to its fullest extent; the Government of the day may not propose to apply it to Intellectual Property and other forms of property that have nothing to do with land distribution. Consequently there is no need to postulate what effect it will have on Intellectual Property or these other forms of property . This is a spurious proposition. Legislation of this nature must be judged on what it empowers Government to do and not on what Government says it wants to do. Future Governments may take a different view and once Government is empowered to do something by legislation, there is always the risk that it may use these powers at any time. It is therefore important that Government should not be given powers by legislation beyond the scope of what is needed and what is reasonable and just. The proposed amendment is thus fatally flawed on this account.
Conclusion
In the premises, the proposed amendment to Section 25 of the Constitution is on the aforementioned grounds alone (apart from any other blemishes it might have) misguided and invalid in terms of the Constitution and its Bill of Rights. It cannot thus proceed.
Professor Owen Dean
Emeritus Professor of the University of Stellenbosch
Practising Attorney of the High Court of South Africa
Stellenbosch, 27 January, 2020.
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