Terence Corrigan
Melanie Verwoerd's call on the Democratic Alliance (DA) to support the African National Congress (ANC) in amending Section 25 of the Constitution is an example of the unreality and confusion that defines so much thinking around the push for expropriation without compensation.
Her view seems to be that the DA should help give the ANC a win on property rights, in hopes that this will keep the amendment "moderate" and fortify President Cyril Ramaphosa's position. By doing so - perversely, by supporting the expansion of state latitude to seize property - the DA will protect property rights.
"This," she avers, "would be good for the country, race relations, economy, and even possibly the DA".
Whether it would be "good" for the DA (the party can make of Verwoerd's interventions what it will, but one can't help thinking that Verwoerd's sensitivities to its well-being have very tight limits and strict conditions) is of no concern here. What the amendment would mean for the country, however, is.
It's not clear whether Verwoerd agrees that the Constitution is a hindrance to land reform. She suggests at one point that failing to pass the amendment will send a "terrible message" about land reform, and elsewhere that her solution would "safeguard property rights while speeding up the corrections of historical wrongs" - so presumably, she sees at least some merit in this argument.
This is the problem, of course. There is very little evidence that the constitutional protection of property - which was conceived with redress measures in mind - has undermined land reform.
The 2017 Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change argued that property rights protections were not the problem, and that "other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity have proved more serious stumbling blocks to land reform".
Diverting attention
Changing the Constitution will do nothing to deal with these problems. The "debate" around the amendment has, however, done much to divert attention away from these issues and has framed land reform as a mono-dimensional matter of the availability of land and whether the state has enough power to seize it. Forget "messages"; this policy drive has undermined the prospects for successful land reform. This has been a challenging course to take, and Verwoerd's argument seems to be that the DA should make itself complicit in it.
Besides, this is not merely a matter of "sending a message". Amending the Bill of Rights is no small thing. The amendment's impact will be to gift more power to a state whose record strongly speaks against any expectation that it will be used with probity.
Dysfunctionality and outright corruption are now an intrinsic part of the system. Land matters have not been excluded from this; it has been borne out by bitter experience and even conceded by the Minister of Agriculture, Land Reform and Rural Development Thoko Didiza. She recently told Parliament that "it's clear what we have in large measure are individuals who may not have the requisite skills to undertake this task".
One would also need to ask exactly what the DA should agree to. Whatever "moderation" the initial amendment embodied has by now been superseded and by no means as a result of pressure from the EFF. Before the pandemic struck, the ANC indicated that it was rejecting the amendment's text in favour of another that would sideline the courts. Now its position is to incorporate custodianship into the amendment.
This comes as no surprise to us at the Institute of Race Relations. We have warned for years that custodianship of land has long been the ANC's objective. Remember that in 2014, an early version of the Preservation and Development of Agricultural Land Framework Bill proposed precisely this, albeit in respect of "agricultural" land.
Verwoerd rightly notes that the EFF's position would have dire consequences, but it's hard to see how the ANC's position at the moment would produce anything different. The two parties are hardly that far apart on the substance of the matter.
Is the goal to hand the ANC and President Ramaphosa a victory and hope for the best?
Consequences
If the present policy course is maintained, it is highly unlikely to be confined to land. Neither will its consequences. There are simply too many lucrative resources that the statist economic agenda and raw corruption will covet. Indeed, the Public Works Department recently recommended that the committee include provisions in the constitutional amendment making explicit that the state could take property other than land at "nil" compensation.
So, watch not only land ("and improvements thereon"), but such assets as pension funds and medical aid reserves. This is not scaremongering, but an informed analysis based on past and existing conduct, and an understanding of the ideological underpinnings of what is happening.
Finally, Verwoerd concedes that it is not the responsibility of an opposition party to rescue a governing one from a malaise of its own making. But she says: "There comes a time when for the sake of the country, a political party should think beyond small victories. I would argue that this is one of those times."
Deadlock is providing some protection
Here she is quite correct. South Africa needs to raise GDP growth to 5% and more. It needs to create 10 million jobs, and more over time. This will, in turn, require an unprecedented acceleration of investment. It's hard to think of anything more detrimental to this than the threat to the security of assets than this amendment - in the hands of the state - would represent.
At present, the deadlock between the ANC and EFF is providing some (momentary?) protection.
So, if this is indeed one of those times in which political parties should think of the greater good, perhaps this injunction could be directed at the ANC. For the country's sake, the ANC and the president need to step away from this measure. There is a need to recognise the damage to South Africa's prospects that it will do and rethink action that will address the failings of land reform - indeed, that will do so while extending property rights.
But as Verwoerd says, I'm not holding my breath.
Terence Corrigan is a project manager at the Institute of Race Relations.
