The issue

In a brilliant political move, the Economic Freedom Fighters exposed divisions and contradictions within the ANC last week. It put to the National Assembly a motion pushing for the amendment of the Constitution to allow for the expropriation of land without compensation. The ANC rejected the chance to work with the EFF to fundamentally alter the country’s policies on land reform.

President Jacob Zuma on Friday suggested that “black parties” should have united to pass the motion and create “the legal institutions to address the problems we have of inequality, poverty and unemployment”. In a February speech, Zuma suggested that expropriation without compensation is constitutionally acceptable. “How are we going to achieve all the goals mentioned in the State of the Nation Address and all the laws and policies that we are busy amending to enable faster land reform, including land expropriation without compensation, as provided for in the Constitution?” he asked.

Zuma’s Friday comments went directly against those of the ANC caucus in Parliament. “The ANC does not agree with any notion of the country expropriating land without compensation,” said the ANC Chief Whip’s office after the debate. Chief Whip Jackson Mthembu on Twitter said, “Blaming the Constitution for the embarrassingly slow pace of land reform is both disingenous and scapegoating. We failed, finish en klaar.”

In a statement following the debate, the ANC Women’s League said it “believes that there should not be any iota of incoherence between ANC resolutions and ANC-led government programmes. Land redistribution is an ANC programme and must be implemented as such without fear or favour.”

“In principle we should have used that opportunity,” ANC spokesperson Zizi Kodwa was quoted as saying on Sunday. “The point is that there would have been nothing wrong to say we present an alternative motion. Or we could have said the EFF motion is in line with our thinking and articulation of land restitution and then speak to our positions.”

The policy

Was the ANC’s decision to vote against the EFF’s motion against party policy? The party has used 2017 to push “radical economic transformation”, responding to pressure from the EFF and groups like #FeesMustFall who have transformed discourse and prioritised radical transformation in the face of slow reform.

During the ANC’s January 8th statement, Zuma, reading the National Executive Committee statement, said, “The Constitution allows for the expropriation of land for a public purpose and in the public interest. This year, we shall begin to utilise the Expropriation of Land Act to pursue land reform and land redistribution, with greater speed and urgency, following the prescripts of our Constitution.”

He added, “It is vitally important that we carefully plan the utilisation of land in urban areas and rural communities. Haphazard land grabs will have a negative effect on our ability to plan for the productive use of the land.”

In the State of the Nation Address, Zuma said, “It will be difficult if not impossible to achieve true reconciliation until the land question is resolved.” He pointed to the 9.8% of land transferred to black people through redistribution and pointed to the Expropriation Act, as well as other reforms, to fast-track reform.

Zuma’s comments on radical economic transformation and the use of the planned amendments to the Expropriation Act seem to be behind sections of the ANC claiming the party should have supported the EFF’s motion to move towards expropriating land without compensation.

However, neither official ANC policy nor the amendments to the Expropriation Act, which Zuma has sent back to Parliament after it was found not to have included sufficient consultation, suggests the party is committed to expropriation without compensation. Recent ANC decisions on land reform and expropriation have committed to replacing the “willing buyer, willing” seller policy with “just and equitable compensation”.

“We should discard the market-driven land reform and immediately review the principle of willing-seller, willing-buyer so as to accelerate equitable distribution of land,” resolved the ANC in Polokwane at its national elective congress in 2007. “The state and mandated entities must exercise their legal right to expropriate property in the public interest for public purpose. Compensation shall be awarded in accordance with the Constitution with special emphasis on equity, redress and social justice. All legislation pertaining to expropriation must be aligned with the Constitution.”

The ANC’s 2012 Mangaung conference said land reform must be prioritised, recognising the upcoming 100-year anniversary of the 1913 Natives Land Act. Its resolutions supported:

“Replace willing buyer willing seller with the ‘just and equitable’ principle in the Constitution immediately where the state is acquiring land for land reform purposes; expropriation without compensation on land acquired through unlawful means or used for illegal purposes having due regard to Section 25 of the Constitution; expedite the promulgation of the new Expropriation Act.”

The key question for the ANC is what does the Expropriation Act say. The main amendment is replacing the “willing buyer, willing seller” policy. Government’s implementation of its own land reform and redistribution policies has largely been a disaster; the “willing buyer, willing seller” issue has made it more difficult. It means those the state is buying land off for redistribution might be able to charge inflated rates, slowing the process and potentially enriching white farmers. The new law proposes that land the state intends to purchase would be valued by experts, with a number of considerations taken into account. A fair value is paid.

In the context of expropriation and ANC policies, the amendments to the Act show the ANC doesn’t support current proposals on expropriation; it supports expropriation with compensation. The party wants a different valuation of compensation.

The discussion

There is conversation within the ANC of expropriation without compensation and the issues have long been debated within the party. In government, the party has always been careful not to scare investors or land owners by testing state’s abilities on expropriation or change the Constitution on the matter. But there appears to be rising sentiment within the ANC to push more radical land policies.

The ANC claims to still be guided by the Freedom Charter, which states, “The land shall be shared among those who work it!” It can mean a lot of things to a lot of people and has been criticised as both too radical and too accommodating of the status quo.

There are two issues defining the current divide in the ANC on land expropriation. The party is in decline, as seen by the 2016 municipal elections. It has not been able to confront its leadership problems, particularly regarding Zuma, and appears incapable of self-correction. To woo the public, certain leaders have turned to populist policies that are often ill-defined, and in the case of land reform, against party policy.

Such leaders are, however, rightly or wrongly, responding to a growing demand for accelerated change. Current policy has been implemented poorly and inevitably there’s a call for more radical policies. It’s a crucial year for the ANC. There’s a policy conference coming up soon and an elective conference in December. The EFF’s proposals on expropriation without compensation go against ANC policy, despite what certain leaders say, but there will probably be calls for the ANC to adopt a new position this year. DM

Photo: A photograph made available on 06 June 2013 shows a tractor delivering grain to a grain storage site near Johannesburg, South Africa, 06 June 2013. It was a grain harvesting season and the grain was transported to the major cities after being stored in the site. EPA/KIM LUDBROOK