The ANC is in a tight corner. To give effect to its 2017 Nasrec resolution that expropriation without compensation is a possibility, it needs the EFF support in the House. Changing the Bill of Rights — Section 25 is the property clause — must get 75% support in the National Assembly. With its 230 seats the governing ANC falls short — and without the 44 EFF seats not enough support can be garnered to reach the required 267 votes.

But the EFF, in line with its cardinal policy pillars, wants state ownership 0f land. That was the phrasing of the initial February 2018 motion to the House, before it was toned down in consultations with the ANC to get the governing party support. Ultimately, that motion led to the decision to amend Section 25 of the Constitution to make it explicit that expropriation without compensation is possible. 

Over the past three weeks or so the EFF has pushed hard to get more of its policy stance into the Constitution 18thAmendment Bill. Talking state custodianship, rather than ownership, is a neat political linguistic sleight.

 And it has allowed the ANC to get on board — and it did on Monday. Sort of.

“The state must take reasonable legislative and other measures, with its available resources, to foster conditions which enable state custodianship of land and for citizens to gain access to land on an equitable basis,” was the governing ANC’s proposal during the meeting of the ad hoc committee on legislation amending Section 25 of the Constitution.

It takes the EFF’s less qualified proposal — “The state must take reasonable legislative and other measures, which enable state custodianship and for citizens to gain access to land on an equitable basis” — back to the original Section 25(5) of the Constitution, with the addition of enabling state custodianship.

As always, the devil is in the detail — and the politicking. On Monday the ANC actually talked “temporary” state custodianship.

“As and when land is expropriated it will be in state custody. There’s a period between acquisition and redistribution. What do you call it? You call it state custodianship,” said ANC MP Cyril Xaba.

Talking such “temporary” state custodianship of land is a neat linguistic feign from the ANC to match the EFF’s. 

But crucially such “temporary” state custodianship would allow the governing ANC to still maintain face on its 2017 Nasrec resolution on expropriation without compensation — it clearly talks of a range of ownership options, alongside more financial support to black farmers, training and other initiatives.

“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 that Nasrec ANC conference resolution.

Monday’s ad hoc committee proceedings reflect how steeped in politics and politicking — the ANC’s expropriation without compensation Nasrec resolution was a win for the so-called radical economic transformation (RET) grouping.

The political machinations started as far back as February 2018, when the EFF agreed to a significantly softened motion, but promising it would push on to get its policy way.

The February 2018 motion established a constitutional review committee in whose unprecedented countrywide public hearings it emerged that expropriation without compensation was shorthand for social justice and redress. In November 2018 that committee agreed to amend Section 25 of the Constitution, and on 4 December 2018 the National Assembly agreed with a vote of 209 for and 91 against, no abstentions. 

Arising from this, the ad hoc committee on amending section 25 of the Constitution was established in February 2019. It has battled to get its work done — the 2020 Covid-19 lockdown effectively stalled public hearings for months — and it had one reestablishment after the May 2019 elections, and three extensions.

Monday was deadline day for the ad hoc committee, but more bilateral meetings among political parties were deemed necessary.

That it got to bilaterals to thrash out consensus is in no small way due to chairperson of Parliament’s ad hoc committee on legislation, Mathole Motshekga, amending Section 25 of the Constitution allowing the opening up the legislative process to amend all subsections of S25. His argument was that the input from the countrywide public hearings made it necessary to go beyond the tweak to make “nil compensation” possible in the Constitution 18thAmendment Bill.

Or as that Bill puts it, “A court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil”.

The EFF took advantage of the move to behind-closed-door political bilaterals — and already succeeded in removing a court’s determination of nil or other compensation. The ANC agreed already last week that it was judicial overreach for the courts to be involved at that stage. Courts could be approached if disagreement over compensation emerged.

Strictly speaking, the EFF picked up from Agriculture, Rural Development and Land Reform, which in March 2021 pushed for the removal of courts from determining compensation.

In officialdom’s lore, the courts are to blame for slow land restitution and redistribution rather than lack of political will. But for the longest time already academics, lawyers and the 2017 High Level Panel chaired by ex-president Kgalema Motlanthe have been critical of government’s performance. And the July 2019 Presidential Advisory Panel on Land Reform and Agriculture — it sees expropriation without compensation as one measure among many — also weighed in on political will 

“It is critical, however, for the panel to reiterate that constitutional amendments are not on their own, the only tools available in order to bring redress to the people. The panel, therefore, emphasises the critical importance of government’s political will and ability to implement policies for the benefit of the people.”

Monday 31 May was deadline day for the ad hoc committee on amending Section 25. But with a few minutes to spare before the cut-off to make the Announcements, Tablings and Committee Reports (ATC), a record of Parliament’s work, the ad hoc committee decided to request a 30-day extension of its lifespan — and a special sitting of the National Assembly to approve it’s report and redrafted constitutional amendment Bill. 

An extension to complete its work may well be granted later this week before the National Assembly rises for a 10-week recess ahead of the October local government elections. But it’s a tall order to ask for a special sitting; these do not happen often, if at all.

That further work would focus on the nature of state custodianship and also on whether or not to drop the 1913 Native Land Act cut-off for land claims, as the EFF has proposed. During last Friday’s ad hoc committee deliberations, the ANC indicated it had no position on this as yet.

The outcome of further bilaterals — and the finalisation of the agreed changes to the Constitution 18thAmendment Bill — will have consequences. Renewed consultation and public are required in line with lawmaking, as set out in the Constitution requires, as do the rules of Parliament.

It remains to be seen if the ANC talking “temporary” state custodianship, after agreeing to the removal of courts in determining also nil compensation, will be enough to secure the needed 44 EFF votes for the constitutional amendment to Section 25 to pass in the House.

It’s a high-risk political gamble whose outcome is by no means certain – and may well backfire. DM