Corrigan on EWC: For a good law, get the facts right first - Biznews

Terence Corrigan

I experienced some profound instances of déjà vu over the past week or so. When I returned to the Institute of Race Relations in 2018, the issue that loomed over South Africa was that of property rights, specifically the ANC’s commitment to Expropriation without Compensation. This returned with a vengeance on 23 January 2025, when President Ramaphosa signed the Expropriation Bill into law.

We now have the Expropriation Act, and with it, a powerful tool in the hands of the state to confiscate property. This is the culmination of a process that has been ongoing for close to two decades. It is a highly consequential moment, and one that I’d expected for some considerable time.

As my regular readers would know, I’d opened the year with a two-part reflection on the idea of Truth. I had been moved to write it because I think that for all that has been said in recent years about the dangers of fake news and misinformation, and the consequent imperative of propounding and defending “the truth”, we all too often don’t quite know what “the truth” is – and often it is disregarded in the interests of a favourable narrative. Poor journalism, often itself responding to slanted fact-lite narratives, compounds this problem.

When the last iteration of the EWC “debate” was prominent, I spent many hours and many more column inches (literal and proverbial) arguing about supposed factual claims – pointing out that particular assertions are simply inaccurate. Like the EWC debate, this is back.

“Land” measure
One is the presentation of the Act as a “land” measure. Ferial Haffajee – whom I regard as one of the country’s best journalists – referred to it explicitly in these terms: “Steenhuisen also revealed that he had only read on social media about Ramaphosa signing off on the land expropriation law when he touched down from Davos last week, even though the two had been in the same delegation.”

A Bloomberg piece adopted a similar approach, presenting the Act entirely as a land reform measure.

The Act is about expropriation of any property, and not only land. The Act’s own summary description doesn’t mention the word land (in contrast, ironically, to its 1975 predecessor). The Bloomberg contribution doesn’t mention the word property.

But in fact, the Act is the legislation that would be invoked should the government attempt to take any form of property – whether that is land, a mine or factory, or a classic artwork. In 2021, the president of the Health Professions Council of South Africa, Professor Simon Nemutandani, recommended to Parliament that the reserves of medical aids should be nationalised to fund the National Health Insurance scheme. I have no idea how widespread or viable this idea is, but if attempted, the Expropriation Act would be the most obvious legislation to use.

Nevertheless, it is accurate to say that the weight of public debate has fallen on the issue of land. This is unsurprising, since land is a politically loaded issue, and therefore a politically useful one. It is entirely correct to point to the history behind this issue, and to discuss expropriation in relation to it. After all, the ANC’s statement welcoming the Act focused on land and the Act’s utility in land reform. But here again the framing of the issue was narrative-driven, rather than factual.

For example, a BBC report said: “Black people only own a small fraction of farmland nationwide more than 30 years after the end of the racist system of apartheid – the majority remains with the white minority.” A Fox News report used an almost identical formulation.

Both of these outlets might be able to quibble about the definition of “small fraction”, although since the Act is not limited to farmland, they are on weak ground there. Still, although somewhat misleading, these articles were still within the realm of information.

Claims
The website Explain – which bills itself as providing “rigorously-checked, independent and easy-to-understand news” – cannot make that claim.

Its Explainer was full-throttle narrative, with a title to set the scene: “Swart gevaar and the Expropriation Bill: Why you shouldn’t panic”. Its focus too was entirely on land, with no mention being made of its implications for or application to any other form of property. This was quite an omission for an “explanation” of the Act that was unconstrained by conventional word limits (the article came in at 1 481 words).

And while it mentioned constitutionality concerns, these were reduced to a brief nod (“The FF Plus went as far as declaring it unconstitutional”), without favouring the reader with any details of what these might entail. Not much of an explanation there.

More seriously, it misrepresented hard information. “Here’s the reality: Land ownership in South Africa remains starkly unequal. According to the Department of Rural Development and Land Reform’s 2017 audit, 72% of private farmland is owned by white South Africans, while Black South Africans – who make up over 80% of the population – own a mere 4%.”

Here I feel another bout of déjà vu. Although this claim has been widely repeated since 2018, it is incorrect. The audit – whose results were not uncontentious – nevertheless did not make this claim. This 72%-4% split (land in the hands of coloured and Indian landowners is absent from Explain’s Explainer) refers to land owned in freehold by individuals and registered at the deeds office. This amounts to about 38m hectares, or a third of the total land in the country. It is also the only land in respect of which the race of the owner could be identified.

Privately owned
Indeed, another 56m hectares is privately owned, by companies, trusts, community property associations, and other institutions. Large parts of this are “farmland”. In a deeply ironic twist, it is among these properties that most land restored as a result of restitution claims is to be found, since these were frequently done on behalf of communities, not individuals. (The CPA model has been a deeply controversial and to my mind damaging strategy for land reform.)  

Doubly ironic is that by focusing on privately and individually owned land, the modest successes of land reform are effectively discounted from consideration.

The remainder of South Africa’s land is in the hands of the state, some 28m hectares, or just under a quarter of the total. Notably, this includes most of the land that African people historically had access to, particularly in the erstwhile homelands. The largest single land holding in South Africa, the Ingonyama Trust, is included here. The lack of freehold title reflected a colonial belief that Africans required their own, culturally specific, system of land holding (although pockets of exceptions, such as in the Edendale valley near Pietermaritzburg, did develop). Post-1994, not a great deal has changed.

Back in 2018, responding to precisely this sort of misinformation, I wrote: “For decades a lack of evidence has been a central hindrance to land policy. As the government contemplates the introduction of a regime of expropriation without compensation, and quite possibly other changes to the nature of property rights in SA, it is more important now than ever that policy is undergirded by an appropriate evidentiary base. It is therefore profoundly distressing to see that, just as attempts to place such evidence on the table are being made, the evidence we have is being misrepresented.”

Déjà vu indeed. Discussion around the Expropriation Act is not only poor reporting and unreliable analysis but represents a danger to the country. It leads to misinformed and inadequate conclusions, founded on a misappreciation of what has brought us to this point, Above all, it draws attention away from the fact that what this new law has done is to introduce a new factor in the country’s property rights regime as a whole – and not just its land rights regime.

And given that property rights are indispensable for investment and economic growth – here I’m talking as much about local businesspeople as I am about the fabled foreign investors – a skewed understanding of this matter has large implications for South Africa’s future prospects.

Falsehoods presented as fact may be the product of mendacity or laziness, but they are always damaging. Public debate conducted on false premises carries an outsized risk of reaching for misdirected solutions.

Terence Corrigan is the Project Manager at the Institute, where he specialises in work on property rights, as well as land and mining policy

https://www.biznews.com/thought-leaders/2025/02/03/corrigan-ewc-law-facts

This article was first published on the Daily Friend.