Sunset clauses have lapsed

Talk of doing away with the Constitution's "sunset clauses" is outdated, a constitutional law expert said on Tuesday.

"They are confusing sunset clauses with the clauses they don't like," Pierre de Vos said.

In the lead-up to the ANC policy conference in June, draft documents leaked to City Press showed the ANC calling for the scrapping of the "sunset clauses".

However, the version of the ANC strategy and tactics document "The Second Transition" officially released to the public did not contain the phrase.

De Vos said the sunset clauses built into the Constitution had expired in 1999.

"The sunset clauses were built into the Constitution to deal with the first five years of the transition," he said.

They provided for a government of national unity for five years, protected the pensions of civil servants, ensured representation of the National Party in Cabinet, and guaranteed that a National Party member would be deputy president until 1999.

The Congress of SA Trade Unions, in its June 24 response to the ANC policy documents, reiterated a previous call that the "sunset clause entered into with the National Party should be reviewed".

It also repeated a call for a review of the Constitution to "incorporate systematically the economic clauses of the Freedom Charter and deal systematically with the property clause".

Cosatu economist Christopher Malikane said the trade union federation viewed sunset clauses as those relating to the protection of private property rights.

"By sunset clauses we mean the package of compromises that were entered into pre-1994, at the centre of which is the protection of private property rights, which limits the democratic state from decisively dealing with the legacy of colonialism in terms of property ownership."

This included land, mines, banks, and monopoly industries, he said.

"Cosatu is of the view that section 25 of the Constitution needs to be amended, to make expropriation along the Freedom Charter lines easy and not be subject to such conditionalities (sic) as currently is the case in the Constitution," Malikane said.

De Vos said if people were referring to sunset clauses in the Constitution now, "they are using it in a different context".

Any changes to the Constitution would only be possible through a two-thirds majority in the National Assembly.

The ANC received 65.9 percent of the vote in the 2009 general election.