The politics of land expropriation without compensation in the ANC constitutional review proposals

Politics trumps policy in the push for a constitutional amendment to expressly allow land expropriation without compensation. That much became clear at Thursday’s bruising and at times chaotic meeting of Parliament’s constitutional review committee. But in the world of politics it’s not necessarily what’s up front and visible that determines outcomes, particularly with the looming 2019 elections. 

The ANC’s recommendations to Parliament’s joint constitutional review committee, which Daily Maverick has seen, unsurprisingly support a constitutional amendment for land expropriation without compensation “to make explicit that which is implicit” already in the Constitution.

But the devil is in the detail.

The ANC’s committee recommendations are phrased to make compensationless expropriation one “legitimate option for land reform” in a system of “mixed ownership of land, which inter alia includes individual ownership (title deeds issued to beneficiaries), direct state ownership, trusts and communal land custodianship”.

And all land reform measures must consider “the impact on food security, stability in the agricultural sector and economy, investor confidence, financial exposure to banks and other financial institutions by commercial farmers, and result in adequate support for emerging farmers”, according to the ANC recommendations.

That is in line with how the ANC amended, and thus supported, the February 2018 EFF motion that established this review process. The original EFF motion by party leader Julius Malema talked of wholesale expropriation so that land is nationalised and brought into state ownership.

And these ANC committee recommendations fall in line with the December 2017 Nasrec national conference where in an 11^th hour push by the radical economic transformation grouping, quite literally, the ANC resolved to support land expropriation without compensation.

“Expropriation of land without compensation should be among the key mechanisms available to government to give effect to land reform and redistribution. In determining the mechanisms of implementation, we must ensure that we do not undermine future investment in the economy, or damage agricultural production and food security. Furthermore, our interventions must not cause harm to other sectors of the economy…” reads the resolution.

“Concrete interventions are required to improve the functioning of all three elements of land reform. These interventions should focus on government-owned land and should also be guided by the ANC’s Ready to Govern policy document which prioritised the redistribution of vacant, unused and under-utilised state land, as well as land held for speculation and hopelessly indebted land…”

Ditto what President Cyril Ramaphosa, speaking as ANC boss, outlined in a television broadcast on 31 July 2018 at the end of the governing party’s mid-year lekgotla.

“The ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be effected. The intention of this proposed amendment is to promote redress, advance economic development, increase agricultural production and food security. It will also transform the unjust spatial realities in urban areas.”

But the parliamentary process is not quite yet at the constitutional amendment drafting stage. After eight months and two extensions, Parliament’s joint constitutional review committee now is chasing its final deadline of end November, just before Parliament rises for 2018. Before then the national legislature must decide on the amendment of Section 25 of the Constitution, often dubbed the property clause. To do that the committee must finalise, adopt and table its report. Then it must be debated in the House – and voted on, given the deep political differences – before the next step can unfold.

Again, the devil is in the detail.

“Parliament must urgently establish a mechanism to effect the necessary amendment to the relevant part of Section 25 of the Constitution. Parliament and the executive must ensure that all legislation related to land reform, must be enacted as a matter of urgency.”

Effectively, with this committee recommendation the ANC leaves open the process of amending the Constitution both in terms of timelines and mechanisms. But it introduces the fundamental centrality of legislation, with the focus in this case on the Expropriation Bill, although other pending legislation on tenant security and communal land tenure is also relevant.

This is buying time for the governing party to get its ducks in a row in Cabinet where an inter-ministerial committee on land reform is chaired by Deputy President David “DD” Mabuza since July 2018, alongside a technical panel appointed by Ramaphosa.

That inter-ministerial committee, according to minutes of its October meeting that Daily Maverick has seen, is looking at speeding up getting the Expropriation Bill onto the statute books. According to the minutes, the expropriation draft law “must include provisions under which exproritate [sic] without compensation can be implemented” as an action point.

“It was indicated that what was required was test cases that are going to be used for development ‘on the national or public interest’,” according to the inter-ministerial committee minutes, which show discussions also noted none of the presentations to the inter-ministerial committee answered key questions, including “(i) given the current legislative framework can we proceed with expropriation (ii) what is the environment we are working within…”

“It was indicated that in future there should be a discussion as to why compensation is paid to people who had taken land that is rightfully owned by others as this implies that compensation is aid twice on the same piece of land,” said the minutes, before adding: “The meeting resolved that the Expropriation Bill be finalised, noting that we are working on tight deadlines.”

Thus, a real possibility exists that the focus would fall on an expropriation law. And an ANC proposed constitutional amendment would effectively be a minimal tweak of including in Section 25 a provision that compensation could be zero in the consideration of just and equitable expropriation for public purpose in the public interest, which includes “the nation’s commitment to land reform”, according to Section 25(4) of the Constitution.

But in the game of politics, the ANC recommendations to the parliamentary join constitutional review committee would still keep open the door of co-operation with the EFF which has successfully led the charge on land expropriation without compensation at the countrywide public hearings at 34 venues over six weeks where such expropriation emerged as shorthand for social and historical justice.

The EFF may well find itself outmanoeuvred if it believes its wholesale land nationalisation is even inching towards realisation. Unless, of course, the EFF wins the 2019 election and forms the next government, which at this point in time any poll indicates as a very remote possibility. But perhaps for the EFF the value lies in electioneering rhetoric – being able to say it has pushed the governing ANC from slumber into action on land.

On the sidelines of Thursday’s parliamentary joint constitutional review committee, co-operation between the ANC and EFF was clearly visible. Together they have the numbers both in committee to have the constitutional amendment adopted and then in the House to carry that committee decision.

If Thursday’s committee meeting is anything to go by, it will be a political push by a joint ANC-EFF line, with a supporting chorus from the United Democratic Movement (UDM) and National Freedom Party (NFP) against an opposition held by the DA, Freedom Front Plus and Cope with the occasional backing from the IFP and African Christian Democratic Party (ACDP).

As the DA, FF+ and others hammered home the need for procedural correctness – which included questioning the adoption of minutes of meetings weeks late and the whereabouts of the report on the written public submissions – from the ANC, EFF and UDM came dares of “let them go to court”.

Tempers flared. At times, again, the committee co-chairpersons battled to keep control of the meeting where MPs interrupted MPs and private dialogues were held directly across the room. The minutes were passed and opposition MPs were told by the co-chairpersons that the report on the written submissions had been emailed.

That was important, because while the public hearings came down in favour of compensationless expropriation, the more than 400,000 written submissions were firmly against, as were the first 40 oral presentations in Parliament that were followed by another round more favourable to a constitutional amendment. It’s all about ticking the boxes, and so there should be no surprise that the ANC recommendations to the joint constitutional review committee also said: “It was apparent that in many instances, written submissions were computer generated duplications with exactly the same content, and the only changes being to the name of the submitter and the contact details.”

Regardless of what happens at Parliament, or in the coming election campaigning and sloganeering, government appears to be behind the curve. That not only emerges from the land reform inter-ministerial committee minutes still talking about talk, not action, that Daily Maverick has seen, but also on public platforms like Wednesday’s ministerial Q&A in the House.

Rural Development Minister Maite Nkoana-Mashabane on that day deflected questions on expropriation, land reform and money.

“The constitutional review panel is still under way. We are not going to be budgeting with you here,” she told one DA MP, adding later that there would be “mechanisms protecting food security” and being “acutely aware of mixed ownership of land should be available”.

Intellidex analyst Peter Attard Montalto has pointed to a “data hole” on reliable information on land ownership transformation and redistribution, a clear lack of financial support for land reform that at best received 1.1% of the national coffers about a decade ago, and a “lack of deeper capacity in government”.

“The department that should be responsible – DRDLR (Rural Development) – has farmed a significant amount of policy development out to consultants as it has little internal capacity. It also has no policy or political oversight from the minister, who appears not to be taking any meaningful part in the land reform process,” wrote Attard Montalto.

“Maite Nkoana-Mashabane was responsible for the destruction of capacity in her previous role at Dirco… in our view, and is not the right sort of minister to have in this role. Someone with a deep understanding of policy and the specific issues is needed, as well as the ability to handle complex policy and interests trade-offs…”

And that has a real impact on economics and public finances. Ramaphosa, who has relentlessly pushed on in his drive for $100-billion investment in five years, faced questions over a constitutionally based, rule of law property rights framework.

Amid the often heated compensationless expropriation debate, he has on various public platforms domestically and internationally trodden a careful line: emphasising there would be “no land grabs”, while acknowledging South Africa’s “original sin” of land and property dispossession.

Policy is complex, must be decided, financed and implemented. But politics is easy, as is electioneering. With land expropriation without compensation undoubtedly one 2019 election issue, there’s a real risk the politicians will, again, let the voters down. DM