June 22, 2021

Has the EFF been had?

Land expropriation without compensation, increasingly colloquially known as EWC, may be the ANC’s winning card in its 2019 electioneering pack, but in time could prove to be the joker in the deck. Passed by Parliament just days before the House rose for the December recess, with 209 MPs voting in favour of a change to the Constitution to allow for land expropriation without compensation, against only 91 nays, it was billed as a victory for the ANC and for EWC as a whole.

But not so fast. Despite DA and Agriforum racing off immediately to launch court battles, it would be wise to read the motion passed by Parliament slowly and carefully. Whites are not about to lose their land to the historically dispossessed any time soon.

Launched by the EFF back in February as an early salvo in its election battle, and probably as an attempt to trip up the ANC, the Red Berets threw down the gauntlet by declaring that it would propose a motion for debate in the House on one of its favourite party policies, the nationalisation of all land with the state as sole custodian.

It may look like a done deal, but the fact remains that ANC and EFF land redistribution policies simply 'don’t align'.

It’s not the first time the EFF has done this. A year back it also opened the parliamentary season with the same proposed motion, and it was roundly defeated with 261 votes against and 33 in favour.

The EFF’s long-term plan may have been to regularly launch the parliamentary year with its top of the list policy that is guaranteed to make everyone, including investors, very nervous.

It is very likely that the red party didn’t expect the ANC to take up the challenge. After all, even former president Jacob Zuma was wary of land redistribution. South Africa’s long-running Expropriation Bill, which provides for government expropriation of land “in the public interest” and “for public purpose”, has been around for years, and so far has been returned by the President twice and rejected a third time, most recently in September this year when it did not get further than the National Assembly.

Or those in the red berets knew the ANC could not make any other decision after passing a resolution at its brusing December conference to back EWC.

Whether or not it came as a surprise, on 27 February 2018, after a day behind closed doors, the ANC and the EFF emerged with an shared agreement on a constitutional amendment to allow land expropriation without compensation. When the National Assembly voted on amending the Constitution to make this possible it was passed by 209 MPs voting in favour and 91 against. There were no abstentions.

It may look like a done deal, but the fact remains that, as Lawson Naidoo of the Council for the Advancement of the South African Constitution (CASAC), succinctly put it, the ANC and EFF land redistribution policies simply “don’t align”.

The EFF is talking about total state nationalisation, while the ANC has in mind something quite different. It proposes a three-pronged policy based on security of tenure, land restitution and land redistribution, and its policy is to provide land reform in a way that “does not undermine future investment in the economy, or damage agricultural production and food security or cause harm to other sectors of the economy” using “vacant, unused and under-utilised state land, as well as land held for speculation and hopelessly indebted land”.

These two policies don’t even talk to each other, let alone overlap in any way.

But the deeply divided ANC managed to reach agreement on this emotive issue at its fraught 2017 December conference so it probably wasn’t all that difficult to get the EFF to support the motion, especially with elections six months away and both parties vying to have land reform on top of their list of party promises.

As Naidoo put it, it is in the interests of the EFF to keep the land issue alive. Although the greatest need for land is in the urban areas, the appeal for the return of land that was stolen during colonialism and white monopoly capitalism, without venturing into details about exactly how that will be accomplished, does resonate with a lot of South Africans.

They are not likely to look too closely at the House Assembly minutes which state: “1. [14:01] The Chief Whip of the Majority Party moved, that the House (1)  notes that the report of the Constitutional Review Committee on Review of section 25 of the Constitution, 1996 was adopted by the Assembly and the Council on 4 and 5 December 2018 respectively, recommending that Parliament

  • amends section 25 of the Constitution to make explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform ”

There is more in the minutes, but parliamentary minutes aren't commonely read by farmers – those in possession of land who face losing it, or those who for generations have been unable to farm successfully, beyond tenancy on someone else’s land or small-scale farming mostly by those too old to work in the urban economy, or those who have mustered a herd of cattle or goats but cannot increase it beyond the size of the plot of land available to it.

But those with easier lives than farmers and aspirant farmers, or with nothing better to do with their time, may think that the phrase "to make explicit that which is implicit in the Constitution" confirms what we have suspected all along ‑ that the Constitution has always made provision for EWC and this is nothing new.

“A legitimate option for land reform" may unnerve those who don’t believe that history permits the consideration of any alternative options for land reform other than EWC, although this phrase clearly suggests so. Even restricting the recipients of land to “productive participants in ownership, food security and agricultural reform programs" could ring alarm bells. Who decides who are, or will be, the "productive participants”, and how will anyone know who will contribute to “food security and agricultural reform"?

It is unlike the sharp, young minds in the EFF to let such potential inconsistencies slip through. And surely they did their sums: the Ad Hoc Committee that has already been appointed and is busy getting on with drawing up the legislation that will need to be passed through Parliament to amend the Constitution has a guaranteed ANC majority of six members, while all other parties together only have five votes.

Much has already been made of how long it will take for a Committee to prepare this legislation, allowing for the legally required public participation followed by debate and a vote in Parliament, with a two-thirds majority win. That doesn’t take account of delays caused by the inevitable pending multiple litigation.

There are already murmurs in the parliamentary corridors that procedure were not properly followed in the requisite Committee vote before the motion could be tabled for the vote by Parliament, or that 449,552 “authentic” written submissions received by the Committee showed 65% opposed the proposed constitutional amendment.

It’s even been suggested that there are those in the ANC who don’t really want to see this constitutional change. Some are worried about disruptions to the fragile but crucial agricultural sector. Others are doing everything they can to not scare off international funding, now much needed to stem the fiscal crisis created by state capture. And, seriously, would anybody want to be voted into South Africa’s sixth democratic Parliament (2019 -2024) which would inherit the actual responsibility of implementing EWC, assuming the motion to amend the Constitution is passed. Who would want the job of explaining to farmers that it could mean another 20 years of uncertainty?

Moira Levy

Last modified on Sunday, 09 December 2018 13:39

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Notes from the House is an independent online publication that tracks and monitors Parliament’s role in fulfilling its constitutional responsibilities to improve the lives of South African citizens. Published by Moira Levy with the support of the Claude Leon Foundation.

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