The stalling of land reform over the last 24 years does not derive from the Constitution. In fact, it does allow expropriation without compensation. The ANC decision to initiate a constitutional amendment on expropriation, does not reveal a serious plan to address and remedy the blockages in the way of addressing land reform. It is hype without a plan.
First published by polity.org.za
Democratic and ethical leadership depends, in the first place, on trust. People need to believe and trust what a leader or organisation says before they can rely on them to safeguard their present and future conditions.
It has been remarked before that the Jacob Zuma era manifested a serious leadership crisis related partly to shredding of any semblance of trust. There was cynicism over whatever Zuma said. Even if what he said seemed to be true, coming from a person suspected of invariable dishonesty, people would believe there was something else at play besides whatever Zuma said.
This was the context within which Cyril Ramaphosa, who had been Zuma’s deputy, was elected president of the ANC and later the country. He and the ANC faced a massive crisis of credibility and ethics.
There was a time when many people had a cultural or familial relationship with the ANC, where people more or less inherited a link with the ANC. They would say “we are ANC”, sometimes not feeling the need to affirm that bond by actually taking out membership of the organisation. Families used to pray at night for the leaders in prison and in exile.
It was an organisation which they felt belonged to them, whose leaders had proved themselves and which drew support from a broad range of oppressed people as well as some democratic whites. There may have been some romanticism about the qualities that were attributed to the ANC, but this trust was based, fundamentally, on the record of some of its leaders and what people knew about others who served the organisation selflessly in difficult times.
There had to be a large element of selflessness before 1990 because joining and serving the ANC and its allies then, in conditions of illegality, did not appear to offer rewards, certainly not financial ones (though there were some who did cream off resources of the organisation). What most cadres and activists could anticipate was being arrested and tortured or killed.
Let us be clear about the notion of “selflessness”. For the cadre, dedicated to the revolution, serving the struggle was a form of self-realisation that was not open in apartheid South Africa outside of the struggle and that was seen as rewarding in itself.
There was a sense of “connection” between the ANC and its base, a bond, whereby very many of the leaders and cadres embraced the pain of the oppressed, took it on as their lifelong vocation, to remedy the sense and reality of oppression, remove apartheid and build democracy. That anguish experienced by the oppressed and the need to have it remedied was clearly embodied in the lives of people like Chief Albert Luthuli, Bram Fischer, Albertina and Walter Sisulu, Lilian Ngoyi, Nelson Mandela, Yusuf Dadoo, Ruth First and Chris Hani – among others.
The Ramaphosa-led presidency had to remedy the inherited trust deficit in a context where his election as ANC president was by a very narrow margin. Despite this ambiguous support, it has been repeatedly remarked that some important steps have been taken to regularise state functioning and to bring those who committed misdeeds to book. There has been a great deal of “shaking up” of state owned entities to restore governance.
But the law enforcement agencies have not yet secured convictions of very many who have been alleged to have acted corruptly or with involvement in state capture. In the case of the National Prosecuting Authority and the Hawks, there has been a deskilling with regard to enforcing legality and policing methods and securing convictions. Their capacity has been run down, over the last 10 years of state capture.
In the fragile context of his election, it is unsurprising that a priority for Ramaphosa has been to strengthen his base and he has shown generosity towards those who have been identified as part of the Zuma camp. That explains why some who had not supported his election have been appointed to cabinet. That one has incompetent or allegedly corrupt people in key positions is however an illusory way of strengthening his base, since people with a record of malperformance will impede processes of social redress and ultimately discredit the Ramaphosa era.
From the time of Ramaphosa’s election as ANC president there have been ideological trade-offs, disguised as embracing of coherent programmes. As a parting shot, Jacob Zuma announced the implementation of free higher education at the ANC December conference. There was no budget for this, so that he saddled the incoming administration with an increase in the already high level of indebtedness.
Part of the conflict at the level of discourse (I use the word “discourse” because translation of various demands or slogans into programmes is unclear) was between those advocating Radical Economic Transformation (RET) and those allegedly defending White Monopoly Capital (WMC). In reality, there was no clear programme for advancing radical economic transformation, amongst its current adherents, a goal which has long been part of the ANC and even the constitutional promise of 1994. (See the socio-economic commitments of the Constitution, in chapter 2.) Those who advocated RET now, fastened amongst other things onto the issue of expropriation without compensation as a mechanism that would signal serious intent with regard to redressing the wrongs of colonial and apartheid dispossession and providing the landless with land or tenants with ownership and a range of other permutations required to address the inequalities that are at the centre of the land question.
Those advocating expropriation without compensation argued that the Constitution was a barrier to land redistribution and that this would only be addressed through a constitutional amendment providing for expropriation without compensation. Those supporting the candidature of Ramaphosa were not keen on changing the property clause of the Constitution, knowing that the clause itself presented no barrier to expropriation with or without compensation in conditions where that would be equitable. (See Section 25 of the Constitution which is capable of meaning that expropriation may, under equitable circumstances be compatible with no compensation at all.)
They nevertheless supported a resolution calling for expropriation without compensation but linked it with the need to ensure that such expropriation would not endanger investment, food security and agricultural production. In other words, the Ramaphosa camp sought to qualify the commitment to expropriation without compensation in a way that would make it justifiable or not on a case by case basis. Although many or most of them did not see a Constitutional amendment as necessary they opened a process whereby that could be discussed.
On returning to parliament, the ANC feared being outflanked by the EFF and agreed to a resolution on expropriation without compensation, subject to a series of consultations with the public.
Before that process of consultation was over, its result was pre-empted by Ramaphosa announcing last week that the ANC would initiate a constitutional amendment for expropriation without compensation, but with some obfuscation, saying that it would also clarify the conditions under which expropriation would take place.
Let us try to make sense of these developments, beneath the rhetoric. Very little land distribution has taken place in the 24 years of democracy and the budget for land distribution has decreased. There are many outstanding claims that have not been addressed and the question of land claims or restitution or redistribution affects a wide range of people -the dispossessed, land tenants, workers on the land of white farmers and other categories. In each case the remedy could well differ.
The call for expropriation without compensation does not address the outstanding claims and how these will be finalised. The call for expropriation without compensation does not in itself present a programme for unfolding of land reform. It is well known that failure to take active steps to remedy landlessness or other land claims has not resulted from barriers in the Constitution. The Constitution does not demand that market value is paid for property in every case. The phrase “willing buyer, willing seller” has been the policy framework adopted by government, not required by the Constitution. The acquisition of property through expropriation without compensation has just not been attempted, as one of the policy vehicles for addressing the land question.
Even if there is a determination to use the expropriation weapon more frequently, is this a programme for land reform? What else is required for ensuring that landless or land hungry people or those who have insecure tenure set off on the road to secure tenure and productive use of their land? What land will be identified for expropriation? To whom will it be given? And what assistance will be provided to ensure that they farm or use the land in the cities in a manner that is productive or meaningful?
What is to happen to communal land? What is the role of Traditional leaders, given the effusive praise that the Ramaphosa-led government and ANC has heaped on King Goodwill Zwelethini and other Traditional leaders? Given that Ramaphosa and the ANC in general have been very deferential towards Traditional Leaders, does that mean that land reform with or without an expropriation element will continue to allow a veto right or overriding power to the Traditional Leaders? What does this mean for the Ingonyama trust, or to the multiple cases of communal land being part of deals with mining companies? What does this mean for Traditional Leaders’ custodianship being used to conclude deals with mining companies to their benefit and without consent of or benefit to communities?
The emphasis on agriculture and rural land tends to blur the crisis of land hunger in the cities. How is urban land to be addressed? At the very moment when the president was announcing bypassing of parliamentary processes, there were people living under the skies, having been removed from informal shelters. It may not have been reported on that day, but it happens almost every day and night.
At the very moment when the president was making this announcement there were people who have waited over 20 years for a place to live, sometimes occupying land illegally. There are said to have been some 400 such illegal occupations last year and the trend may have intensified this year.
The focus on expropriation without compensation is immediately also an absence of focus on what have been the areas of crisis in land reform since 1994. The fixation on expropriation does not constitute a commitment to land restitution any more than the vague plans that preceded this moment. There is no sense of a plan beyond the slogan, no sense of disaggregating the range of claimants to land and how each such claim can be addressed.
There is no sign that there is any attempt to remedy the stalling of processes for addressing reform, whether with existing opportunities or possibly heightened possibilities for expropriation without compensation. Even if the latter were to happen, where is the political will to make it happen? Who will be the beneficiaries?
The Ramaphosa statement on expropriation without compensation raises a range of questions that point to the level of emptiness in the commitment of the ANC in relation to the landless poor. It is populist and represents a diversion from the hard thinking and planning that is necessary to address the dire plight of the landless and others who have claims to land. DM
Raymond Suttner is a scholar and political analyst. He is a visiting professor and strategic advisor to the Dean of the Faculty of Humanities, University of Johannesburg and emeritus professor at Unisa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His prison memoir Inside Apartheid’s prison was reissued with a new introduction in 2017. He blogs at raymondsuttner.com and his Twitter handle is @raymondsuttner
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