Section 25: not the end of a long game, but the beginning of a tough one - Go South

30 July 2021 - The failure of the ANC and EFF to agree on the form of the proposed amendment to Section 25 of the Constitution has led some optimists to conclude that this is the moment in which the EFF is isolated and abandoned.

Terence Corrigan

The failure of the ANC and EFF to agree on the form of the proposed amendment to Section 25 of the Constitution has led some optimists to conclude that this is the moment in which the EFF is isolated and abandoned.

The ANC under President Ramaphosa, so the argument goes, has chosen the path of prudence. While he is committed to a constitutional amendment and to the use of EWC, these changes are said to be largely symbolic; in refusing to back the EFF in its demands for full and unambiguous custodianship of land it has demonstrated a praiseworthy prudence. Some might say that this refusal augurs well for the country’s future, and that it may be evidence of the ‘long game’ that the president’s supporters have insisted he is playing. Some might even suggest that the ANC should be supported by others (chiefly the Democratic Alliance) and handed a victory in the form of the constitutional amendment being proposed. The subtext to this is that it will give momentum to a ‘reformist’ movement in the country.

This is highly questionable.

The positions of the ANC and EFF have never been that far apart. Both are driven by ideology, and both have advanced a fundamentally statist approach to land management, even if the EFF has been more aggressive and absolutist about doing so. There are any number of reasons why parties might clash over seemingly trivial issues. It could be a matter of simple perception, wanting to own the process, in other words.

It is a mistake to think that this is about irreconcilable principles. The EFF may well come around to supporting the ANC’s position.

But what would the ANC’s proposed formulation mean?

There are four important points to note.

The first is that the amendment would give explicit constitutional sanction to EWC: ‘Where land and any improvements thereon are expropriated for purposes of land reform … the amount of compensation may be nil.’ This might be seen as a provision making ‘explicit that which is implicit’. However, it is interesting that it includes (unspecified) improvements as being subject to compensation-free seizures. And by linking this to land reform, rather than to the value of a piece of land, it signals that EWC is an integral part of land reform.

Watch for subsequent legislation 

The second is that legislation must be instituted to define the conditions under which ‘nil compensation’ will be paid, ‘for the furtherance of land reform’. Watch for subsequent legislation – which will require only a simple majority – to take EWC from policy to legislation.

The third is that the amendment would introduce a provision that ‘the land is the common heritage of all citizens that the state must safeguard for future generations.’ This establishes the principle of land being an asset class that demands special state attention, and over which the state has particular latitude.

The fourth is the most important: the state must take measures to ‘enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.’ That this does not demand the outright nationalisation of land has been held up as proof of the ANC’s turn to prudence. But pause for a moment to think about the word ‘certain’.

This is a big, nebulous concept. It would establish an imperative to use custodianship as a tool for land management (and land reform), but give wide leeway to policy-makers and legislators to decide what it means.

For the most part, commentators have avoided this question. Cyril Xaba, ANC member of the ad hoc committee, suggested that this would mean the period between land acquisition and its handover to its ultimate beneficiaries. This is unconvincing.

It seems absurd to amend the Constitution in this way to mandate doing something that would be wholly uncontroversial and fundamentally administrative in nature. Besides, this is not, as far as anyone can tell, an official proposal. Indeed, it remains official policy not to transfer land to beneficiaries who receive it through land redistribution schemes. The ANC government went to great effort and expense to fight one successful black farmer – David Rakgase – who demanded that the state honour an agreement to sell him his farm.

‘Certain’ land will in all probability mean something altogether more extensive. It could, for example, mean all agricultural land, as was mooted in an early iteration of the Preservation and Development of Agricultural Land Framework Bill. It could mean all privately owned land – excluding state-owned land and that held by traditional leaders, the latter being an influential constituency who have been assured that their land would not be taken from them. Or it could, in principle, refer to all land.

Reckless and perilous policy

If the amendment put forward by the ANC is more subtle than the EFF may have liked, it nevertheless pushes forward a very reckless and perilous policy. Altogether, it removes significant constitutional protections against the confiscation of land (and ‘improvements’), while mandating the state to take proactive measures in this direction. It sets South Africa’s land up for a custodial taking.

South Africans should understand that this amendment constitutes a very real threat to the country’s future. It does nothing to advance land reform, only the reach of the state. And as events – recent and distant – have shown, this is a state badly compromised and typically ineffective. We should not accept this as a workable compromise or a matter of political symbolism; even more, we dare not tell ourselves that all will be well, and that the amendment that could result in widespread land seizures will never be used. The amendment sets up a system that South Africa’s political overlords will be unable to resist.

Chair of the ad hoc committee, Mathole Motshekga, has called for the public to help ‘break the deadlock’. Until 13 August, comment can be made on the Bill and the ANC’s formulation. 

This article was first published on the IRR's online platform, the Daily Friend

Terence Corrigan is a project manager at the Institute of Race Relations 

https://gosouth.co.za/section-25-not-the-end-of-a-long-game-but-the-beginning-of-a-tough-one/

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