South Africa: Legalised Plunder and the Land of Wrongs

Posted 08 August 2013 Written by Ciaran Ryan
Category Constitution

Given a free hand, attorney SA Watson would abolish a slew of acts that do the exact opposite of what they promise: the Competition Act for destroying competition, the Reserve Bank Act for impoverishing the country, the Labour Relations Act for killing jobs, the National Energy Act for causing energy supply disruptions.

Government has become a statute factory, churning out new laws with fantastic aplomb, but with little regard to the negative or unintended consequences of its actions.

SA Watson is a practising attorney and associate of the Ludwig Von Mises Institute South Africa. He scrutinises proposed new laws as they are shoved down the pipe, and subjects them to the liberty test: do these laws enhance or detract from individual liberty?

It is, he says, a challenging task. South Africa is on a dangerous path. Based on his views it appears the ANC government has donned the cloak of liberators but has in effect merely assumed the levers of state control inherited from the apartheid government. It has done a fine job of improving and strengthening the apparatus of state control.

In this interview, we asked Simon for his state of the nation assessment from a legal point of view. As you will see, it is not a pretty picture.

Acts: You are involved with the Von Mises Institute South Africa. Please explain briefly what that is and how you got involved. Also, tell us a little bit about yourself.

Thank you for the interest. South African society is on a dangerous path and the Ludwig Von Mises Institute South Africa (LVMSA) aims to educate people why this is so. 

LVMSA is a group of individuals who promote Austrian Economics and by extension libertarian ideals.  Austrian Economics involves studying how individuals make decisions and a conclusion inevitably reached is that a person needs to make voluntary choices in order to experience being human, in a similar way a plant needs light in order to photosynthesize and be a plant.

At the moment we operate a website and blog where articles, social commentary and objections to legislation are published. We are in the process of setting up a non-profit education trust with four trustees consisting of three economists, namely Chris Becker and Russell Lamberti (ETM Analytics), Piet Le Roux (Solidarity) and one attorney (myself).

The main Mises Institute is based in Alabama USA and is the “philosophical home” of former US Congressman Ron Paul who was a presidential candidate in 2008 and 2012. The Mises Institute and LVMSA defends the market economy, sound money and peaceful international relations while opposing government intervention in the market as economically and socially destructive.

I got involved in LVMSA after discovering Chris Becker had started the non-affiliated branch in South Africa. I am a 31 year old Christian and legal advisor for the LVMSA. I grew up in Zimbabwe so have experienced what it is like for a country to collapse. I think this ultimately led me to LVMSA.
 
Acts: SA is regarded as having a model Constitution that protects individuals, through the Bill of Rights, from tyranny and the predations of the state. Would you agree with this assessment, particularly in light of this country's history of racial abuse?

I disagree with the assessment. It is important to understand that in a free society rights do not create positive obligations, they only entitle a person to be left alone to pursue life and happiness.

Absent a contract, anything which presents itself as a right but which creates positive obligations is the opposite of a right because it is a wrong.  It is a wrong because it forces a person against his will to use his mind, energy and time for an objective that is not his own. This is the whole reason slavery, in its traditional form, was abolished – because it is unnatural and therefore wrong. It is also part of the reason good people leave South Africa - they do not want their children to be slaves.
 
You cannot achieve a "right" through action, it is a logical impossibility because what is right already exists as part of man’s natural state – it is natural and right for him to be left alone to pursue his life, it is natural and right for him to enjoy the fruits of his ingenuity and work. All these rights require to exist is for other people to respect them and otherwise do nothing. On the other hand you can disrupt nature by damaging a person’s property (including his body), by robbing him or indirectly forcing him to pay for someone else’s life - and this is wrong no matter how it is camouflaged.
 
The Constitution is full of wrongs such as the wrong to housing, the wrong to water and the wrong to education, all of which create positive obligations on some people to provide entitlements disguised as rights. This is why it now takes a husband and wife to work full time to look after themselves let alone children, compared to a generation ago when a working man could feed, house and educate his whole family.
 
Wrongs are justified using emotional arguments but they are incompatible with a free or prosperous society. There is an economic principle called Gresham’s Law in terms of which bad money drives out good money. The same applies with rights as bad rights (wrongs) drive out legitimate rights, being the rights to life and property.

Assuming the protection of rights properly understood as an objective, the only purpose of a Constitution is to limit the power of government. In South Africa the Constitution does the exact opposite. The South African Constitution expands the power of government by adding to its primary mandate, being the protection of rights, the obligation to implement wrongs. The protection of rights and implementation of wrongs conflict and this results in a schizophrenic, tyrannical government, an unpredictable legal system as well as a society where nobody trusts each other.

Insofar as the reference to racial abuse is concerned, the legal system in South Africa today is arguably more racially-orientated than pre-1996. Race is a criteria for everything from educational enrolment, job opportunities, tenders, grants, water and mining rights, sporting representation, the allocation of pension funds, even charities. All businesses today have to be graded based on their racial profile and are penalised or rewarded according to who they contract with. Every day you will see businesses bragging about how well they have implemented these racial laws.
 
Acts: "Libertarian" has become a loosely defined term for those who believe in small government, low taxes, and removing the state from the affairs of citizens (as far as possible). One should also add to this the pursuit of a peaceful and non-interventionist foreign policy, and the freedom to make individual choices on matters such as health, education and commerce. How does South Africa rate, in your opinion, on such measures of liberty?

South Africans have a distinct disadvantage when it comes to liberty because the government makes use of the Constitution as a moral basis for infringing rights. Contrast this to the United States of America where the government has to disregard the Constitution when infringing rights, which at least results in it losing credibility.

When the South African government implements wrongs its destructive actions, thanks to the Constitution, are cloaked with a veneer of legitimacy. South Africa rates poorly on the measures of liberty in your question. I say this because:
 
  1. Its military is oversized, over equipped and interferes in Africa.
  2. The health care industry is excessively regulated. A doctor for example cannot even qualify without doing at least two years labour for the state.
  3. All educational institutions in South Africa are controlled in some way by the government and there are no significant private universities in South Africa.
  4. The Government controls every conceivable aspect of commerce through permits, labour laws, competition laws, reporting laws, pricing laws, numerous racial laws and taxes. A Business Licensing Bill has recently been published which envisages the mandatory licensing of every single business in the country before trade is permitted. The LVMSA objection to this Bill is available on our website.

Again, all of the above is justified using emotional arguments but the fact is their effects are destructive. Take Competition Law for example. The Government by its very nature cannot create anything but somehow thinks it is qualified to determine when private businesses should be allowed to merge. At the same time the government sets up actual monopolies through legislation such as the Reserve Bank (money), Eskom (power), Transnet (ports) and hundreds of Municipalities (electricity, water, road repairs and waste collection), all of which are dismal failures.

This is not to say other countries are much better when it comes to liberty which should not be confused with material well-being. Many countries which are materially well off as a result of previous eras of freedom are at the moment regressing away from a culture of rights towards a culture of wrongs.
 
Acts: As a practising attorney, you are obliged to operate within the boundaries of the law, even though you may find many of these laws disagreeable. Does that create a crisis of conscience?

Yes, every day.
 
Acts: Are law firms doing well?

I do not have any figures but look around any major city and you get the idea law firms are doing ok.  

I must though defend my colleagues because almost everyone is guilty of using the government as a means to feed off the system -  construction companies, accountants, engineers, medical suppliers, telecommunication companies, car manufacturers, chicken breeders to name a few and last but not least banks.

Attorneys and advocates in my experience do not generally encourage government to create laws, they simply deal with what they are presented with. Other professions and businessmen on the other hand actively campaign so that the government will select their project, product or service which would otherwise not be paid for on the free market.

Banks create and loan huge amounts of money to municipalities throughout the country to build infrastructure used to supply people with wrongs - water and electricity in particular. The banks know they will ultimately recoup their loans with interest from ratepayers who are ironically their most important depositors. The ratepayers target their frustrations on Municipalities but they should also be looking at the banks. It is a vicious system.

Lawyers should though be playing a more active role in exposing the system.
 
Acts: Given a free hand, what laws would you reform or abolish as a matter of urgency, and why?

There are too many laws in South Africa which should be abolished urgently to list. Some of the important ones are:

1.      The Municipal Systems Act because it has created mini mafias throughout the country;
2.      The Competition Act because it is destroying competition;
3.      The Labour Relations Act because it creates unemployment;
4.      The Prevention of Illegal Eviction Act (PIE Act) because it punishes the homeless;
5.      The National Energy Act because it is causing disruptions in the supply of energy.

Other laws which should be scrapped include the Reserve Bank Act because it monopolises money and is responsible for incalculable poverty, the Income Tax Act because is taxes productivity, the Value Added Tax Act because it adds no value and all racial laws including BEE and the Preferential Procurement Act because they prejudice everyone including black people.

A simple rule of thumb – read the objectives or purpose section of any piece of legislation and there is a good chance its outcome will be the exact opposite of what it is meant to achieve - the Reserve Bank is meant to protect the value of currency, the National Energy Regulator is meant to ensure the supply of energy, the Competition Commission is supposed to promote competition etc.
 
Acts: South Africa has a long history of submission to the power of the state. We had ID books long before many Western countries, and we accept this as a part of life. Then we had the RICA and FICA laws that passed with barely a whimper of protest. One could go on: labour laws, for example, that entrench and fortify the position of those with jobs, but not those without. Is there a flickering of hope that South Africans are beginning to realise that the huge number of laws passed since the ANC came to power has come, in many instances, at the expense of individual liberty?

Unfortunately, because the moral compass in South Africa is so corrupted people do not realise how drastic the situation is.

I am concerned that most people have given up trying to understand and instead choose to participate in the plunder. This is why there are hardly any meaningful objections to the National Development Plan (NDP) which is the government’s official policy document for the next few decades. Needless to say, the plan is full of immense wrongs. Piet Le Roux has been doing an excellent job exposing the inherent flaws in the NDP.

I check for new legislation every day and it is not slowing down. The government is growing and the productive base which pays for it is shrinking. It is not a good combination.

It is ironic because the reason many peoples’ ancestors moved to or around South Africa, whether they be British, French Huguenots, Dutch, German, from North of the Limpopo or escaping Shaka, was to be free from government control.

On the positive side it does appear the government is becoming desperate to cling to its legitimacy which is why the tax collection department (SARS) has started advertising itself and why previous struggle heroes are being turned into larger-than-life characters. I think this might backfire badly one day.

Many people are waking up, all they need is momentum and it is possible this will be provided thanks to the internet.    
 
Acts: How can South Africans start to participate more effectively in the democratic process? One example we have in mind is to offer critical insights into proposed new laws, and then invite comment from the public which we would then send on to the relevant law makers. We have a suspicion, though, that many of these comments serve to authenticate a flawed process where the substance of the proposed law remains unchanged. In essence, you often feel your comments are used as padding by the vested interests that craft these laws. How do you feel about this process?

I agree with your concern and would add that the same applies to voting. In the future I would hope for all working citizens to register on a Facebook or similar social network site and refuse to vote. All that is required for the system of wrongs to change is for good people to do nothing - literally.  

Objections to legislation are rarely taken seriously. At best they delay a process or result in laws which can be interpreted in many ways. It is important though to have a record of objections for future purposes.

In the meantime the only hope South Africa has is for all people, but especially working people and their children, to educate themselves carefully.  
 
Acts: What plans do you have to expand the reach and relevance of the Von Mises Institute?

I am hoping LVMSA will soon team up with a friend of mine whose business it is to teach children and adults to use their memory. He teaches about 2000 people a year from high schools and businesses.

The idea would be to include in the course content some fresh ideas on how an economy actually becomes productive. It is an up-hill battle.

What we need is for businesses and individuals, in their own interest, to get involved and sponsor the LVMSA on a large scale. 
 
Acts: Those in the legal profession in SA are often seen as technicians, interpreting the law as it is on behalf of clients and attempting to navigate a path through this miasma. You, as a libertarian, seem to have a political underpinning to the law. How does this colour your interaction with clients? Is this an advantage or a disadvantage since you are dealing with what must surely seem like a fatally flawed process to begin with? 

The law has been designed to make everyone a criminal. With this in mind it is very important to have a good attorney these days.

Practising law is entertaining and depressing in South Africa because you experience the bizarre consequences of a culture of entitlements. This year a client of mine had to stop renovating a police station because local people were threatening violence unless they were given jobs. The police would not help unless a court ordered them to. We got the court order which basically told the police to do their jobs (at their own offices).  There are so many things wrong with this situation.

I am motivated to build up a client base of good honest businesses. My interactions with clients are otherwise unaffected. Each matter is a new opportunity to learn how the law is impacting South Africa.

I do think Austrian Economics and related literature helps a person learn problem solving and to this extent it is an advantage.

Acts: Thank you.

The Von Mises Institute SA can be reached at simon@mises.co.za

 

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