At the moment, the current draft amendment to Section 25 of the Constitution says that the value of the land being expropriated will be determined by a court (the value of that land, or transaction itself, can be deemed as “nil” which would then become expropriation without compensation).
The ANC is planning to have that determination made by “the executive”, in other words, the Minister of Rural Development and Land Reform.
The Chair of Parliament’s ad hoc committee dealing with the amendment, ANC NEC member Mathole Motshekga, is quoted as saying that the courts will not be removed from the process, but that:
“Aggrieved parties may go to the courts afterwards and, I am not satisfied with this.”
In essence, it would appear to mean that that minister would thus have Tsar powers. It would take immense resources to challenge a minister’s decisions in court, especially if someone has just had their land, presumably their main asset, removed from their hands.
The most pertinent criticism of this move is around the potential for corruption. The ANC has itself said many times that it is battling to stop corruption by its deployees in the government.
That very same government has for decades been hit by scandal after scandal involving ministers and other people in positions of power (the City Press had a story this weekend about a deputy minister accused of abusing state resources to help a person marrying a relative to gather lobola… another minister had to deny that a computer company is going bust because it refused to give her husband a leading role in the firm). Already there is strong evidence that the current land reform system has already been abused to the benefit of elites. The Special Investigating Unit has recommended that 42 people, including government officials, be prosecuted for giving land to people who did not qualify.
The fact that judges would be removed from the process may strengthen the legal case against such a bill. It was already likely that any legal bid to stop the bill from becoming law would be well-resourced (the DA, Afriforum, the FF+ and many other organisations oppose any land expropriation without compensation, and a successful legal bid would probably be a major victory guaranteed to grow their support). Now, it might well be on firmer ground as it would give them more opportunity to argue their case.
That, in turn, may mean that this proposal turns out to be to the benefit of those who oppose land expropriation. It may mean that they are able to delay enactment of the bill for a longer period and hope that the political wind turns.
In some ways, the biggest threat to landowners might be a properly united ANC, which drafts a bill that is perfectly constitutional and is guaranteed to get the support of other political parties, particularly the EFF.
That is not the case with this proposal.
The ANC also appears to be some way from a proposal that the EFF would support (they want the state to own all of the land in the country – ie: for it to be nationalised in effect). And it would be hard to trust EFF leader Julius Malema not to change his mind at the last moment to embarrass Ramaphosa and the ANC in some way just ahead of a vote.
Another series of political complications might also be important.
One of the least examined dynamics of the last 18 months has been how the political temperature on the land issue has dramatically decreased. This is possibly President Cyril Ramaphosa’s biggest political achievement since taking office as president.
The land issue was used against him by his detractors. The fact that white people took land from black people through force and violence in our past is the foundation stone of the continued economic apartheid we have now. Despite that, the ANC gave the impression of not making this a key issue until the end of former president Jacob Zuma’s term in office. It then became a lightning rod to define the two camps at the ANC (as they were at the time).
While Ramaphosa won at Nasrec, this issue led to serious tensions within the main hall. It is known that at least one delegate had to be forcibly removed while some people in the room at the time say the conference nearly collapsed while debating this issue.
Through clever politics, Ramaphosa was able to take charge of the issue. He himself issued a late-night statement after an NEC meeting explaining that the Constitution would be changed. Public hearings followed that saw emotional stories being told of the pain that dispossession had caused.
But in the months afterwards, the issue appeared to fade. This may be because other issues came to the fore, or because politics simply moved on. At the same time, Ramaphosa was able to keep it from being a major issue in the election.
It may be that the relative power of those against Ramaphosa who supported expropriation without compensation also appeared to lose some political power.
Now, the issue appears to be back and gaining renewed momentum. The timing may not be accidental.
It has been claimed many times that the ANC’s NGC in June 2020 may be used to try to weaken Ramaphosa. Certainly, an event like this leads to an opportunity for people to organise themselves. And Ramaphosa’s foes may well have spent the December 2019 respite doing just that (during this time, the Zondo Commission was in recess, which meant the drip-drip of implicating testimony was temporarily halted).
While it still seems unlikely that he could be removed at the NGC (those opposing him still have no viable candidate and only Bongani Bongo and Mosebenzi Zwane recently spoke against Public Enterprises Minister Pravin Gordhan during the last NEC meeting), it could still weaken him. And that may be enough to encourage his foes ahead of the next ANC conference due in 2022.
But none of this gives many clues as to how the entire process will end and what will eventually become law.
That also means that the longer this goes on, and the more dramatic the proposals become, the more damage can be done to the economy. Proposals like this are likely to scare investors and the continued uncertainty could end up damaging sentiment. This means that Ramaphosa and others are likely to try to bottle up this debate in the months to come. DM
