Section 25: Ramaphosa in unconvincing reassurance mode - News24

Jun 07, 2021
7 June 2021 - President Cyril Ramaphosa was in full but unconvincing reassurance mode at a media briefing last Thursday. The president told journalists the ANC differs from the EFF and does not want the pending constitutional amendment bill (the expropriation without compensation – EWC bill) to include state custodianship of all land.

Anthea Jeffery

President Cyril Ramaphosa was in full but unconvincing reassurance mode at a media briefing last Thursday. The president told journalists the ANC differs from the EFF and does not want the pending constitutional amendment bill (the expropriation without compensation – EWC bill) to include state custodianship of all land.

Yet, just three days before the president tried to distance his party from the custodianship idea, his ANC colleagues on the ad hoc committee responsible for drafting the EWC bill put forward two clauses on state custodianship that differ very little from those suggested by the EFF.

At the committee's last meeting on 31 May, the ANC proposed a new subsection 25(5), which read: "The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship and for citizens to gain access to land on an equitable basis."

The EFF's proposal was very much the same, though it wanted the italicised words deleted. In practice, this change would mean little.

The ANC also proposed a new subsection 25(4A), stating that "the land belongs to and is the common heritage of all South Africans".

The EFF's preferred wording was essentially the same, though it also urged a further reference to state custodianship. Hence, its proposed subsection 25(4A) read: 

Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state.
Both versions of subsection 25(4A), if inserted, would point to the supposed rationale for land custodianship. But the keywording is that contained in subsection 25(5) – and this would suffice to require new legislation that "enables state custodianship" and gives people equitable "access to land". "Access," however, is different from ownership.

Ramaphosa fudged this issue, too, telling the media that the ANC wanted black South Africans to have "tenure" or "title" to land but failing to spell out what this would mean. He also talked about the widespread desire for ownership among ordinary people – but avoided any clear statement about whether this was what the ANC will provide.

"The resolution we took was about ownership of land," he said. But the critical question of who was to have that ownership – the state or individual South Africans – was left hanging.

Issue of private ownership

The answer, of course, is to be found in the ANC's State Land Lease and Disposal Policy (SLLDP) of 2013. This made it crystal clear that the state's policy was to retain all land acquired for redistribution for half a century before any transfer into private ownership can even be considered.

This policy explained why the government reneged on its 2002 contract to sell successful Limpopo farmer David Rakgase the state land he had been leasing for decades. It also explained why the ANC was so determined to resist Mr Rakgase when, in 2018, he finally sought the help of the courts in holding the government to its earlier agreement.

According to the government's papers in the Rakgase case, the SLLDP policy was based on the "principle that black farming households and communities may obtain 30-year leases, renewable for a further 20 years before the state will consider transferring ownership to them". No exception was allowed for Mr Rakgase, despite both the 2002 agreement and the fact that he was already 77 years old and likely to die long before the expiry of a 50-year lease period.

As part of his attempt at damage control, Ramaphosa also told the media "the notion of custodianship is to me like you're nationalising everything". The ANC was concerned, he added, that this would "blunt… entrepreneurial initiatives… and could even kill [them]".

But the ANC, of course, has been more than willing to blunt entrepreneurship through its dirigiste regulations over many years. In 2014, moreover, the ruling party showed no concern about undermining farming entrepreneurship when it proposed to vest all non-urban land in the custodianship of the Department of Agriculture, Forestry and Fisheries (DAFF) via the Preservation and Development of Agricultural Land Framework Bill. On the contrary, it was only in the face of strong resistance that the ANC drew back and removed the custodianship clause from the next version of that bill, as tabled in 2016.

Despite this tactical step backwards, the ANC remained committed to the land custodianship idea. In 2017, its national land audit report suggested that all land should be vested in the state's custodianship. In 2019, a senior land department manager Masiphula Mbongwa told a World Economic Forum meeting in Davos, Switzerland, that the government planned to amend Section 25 of the Constitution to vest all land "in the people of South Africa".

Thereafter, Mbongwa went on, the government would enact a National Land Act similar to both the National Water Act of 1998 – which vests all water resources in the state as "public trustee" – and the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, which vests all mineral resources in the state as "custodian".

The ANC's 31 May proposals to the ad hoc committee were precisely aligned with what Mbongwa said. And the National Land Act he mooted will surely follow once the EWC bill has been enacted.

Also relevant was the ANC's 2002 decision, taken at its Stellenbosch national conference, to "eliminate" existing "property relations". Inevitable resistance, it went on, would need to be countered by "dexterity in tact" (soothing platitudes) coupled with "firmness in principle" (a determination to persist with the "elimination" process in any event).

Ramaphosa's address to the media was a classic example of "dexterity in tact". It seemed convincing at first glance but disintegrated into a meaningless mush on closer analysis.

"Firmness in principle" is, of course, what really matters. And the ANC's actions in pushing over many years towards state custodianship of all land speak far louder than the president's unconvincing reassurances.

Dr Anthea Jeffery is the head of policy research at the Institute of Race Relations.

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