After the ANC used its numbers to ensure adoption of its proposals to amend Section 25 to its views, EFF chief whip Floyd Shivambu rejected the changes, saying the party would not support them.

“You have adopted a reactionary amendment of the Constitution. When tabled in Parliament, we’ll vote against each other, and we’ll proceed from there,” said Shivambu.

This effective withdrawal of the EFF’s 44 votes in the National Assembly means the ANC will not reach even a two-thirds majority, or 267 votes, in the House. 

The governing ANC holds 230 seats and even if all the smaller opposition parties were to support it, the adoption would still fall short. That’s more so if, as many argue, a 75% threshold is required because of the amendment of the Bill of Rights.

Because it is about the numbers. The DA, with its 84 seats in the House, is opposed to any constitutional changes to Section 25, or the property clause, as is the IFP (14), Freedom Front Plus (10) and African Christian Democratic Party (4). 

That it could get to this stalemate became apparent late in June, when the EFF dug in over state custodianship of land and removing the 1913 Natives Land Act cut-off date. This push exposed the earlier toenadering on state custodianship of land as one in name only, not substance. 

It was all a step too far for the ANC because its 2017 Nasrec conference resolution qualifies compensationless expropriation with considerations of food security and no negative impacts on other sectors.

Ultimately, the ANC seemed resigned to running the risk of being unable to push through an amendment of Section 25 of the Constitution to make explicit the expropriation without compensation that’s already implicit.

But this is politics, and nothing is final, until it is. Right now, the Constitution’s 18th Amendment Bill, as revised with the ANC proposals on Friday, still has some way to go.

What unfolded on Friday in Parliament’s ad hoc committee on amending Section 25 of the Constitution highlights what happens when political considerations and majoritarianism dominate lawmaking in the absence of legislative institutional memory and experience.

It got murkier when the ANC MPs insisted on an unprecedented re-advertising of the revised Bill for three weeks for public written comment.

Parliament’s legal services had advised the committee that it must return to the House for a fresh mandate. Others also pointed out the constitutionally stipulated 30-day deadlines. Or as Shivambu put it, “Nowhere have we ever republished a Bill after we deliberated… What you are doing is an innovation that is inconsistent with the rules and the prescripts of the rules of the National Assembly and the Constitution.”

The EFF, DA and Freedom Front Plus all rejected this ANC move, and the earlier amendments. But the ANC dismissed this – “If we are wrong, Parliament will tell us we’re wrong,” said ANC MP Cyril Xaba – and the Section 25 amendment ad hoc committee meeting was closed with talk of the “majority decision to move on”.

Friday had been meant to be a consensus-seeking meeting to “find each other” as put by ANC MP Mathole Motshekga, the chairperson of Parliament’s Ad Hoc Committee to Initiate and Introduce Legislation to Amend Section 25 of the Constitution.

“I think we have really made real progress. And we are all backed by our principals. What we have before us no longer needs political guidance…” 

But lawmakers’ patience quickly ran short amid the resurgence of political discussions previously held. And ANC MP Mina Lesoma proposed, “the text presented by ANC be published for comment”, effectively triggering a series of votes on different political parties’ proposals in a revised Constitution 18th Amendment Bill.

ANC numerical dominance ensured the governing party got its way.

This includes retaining the Section 25 sub-section 3A of the original Bill that reads, “For the furtherance of land reform, national legislation must… set out circumstances where the amount of compensation is nil”.

The possibility of “nil compensation” was also extended to improvements on land expropriated for land reform.

Instead of the EFF’s proposal that land “belongs to the people as a whole, under the custodianship of the democratic state”, the ANC carried the day instead with its take on state custodianship.

“The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.’’

This follows a new sub-section, 4A: “The land is the common heritage of all citizens that the state must safeguard for future generations”.

The EFF proposal to remove the 1913 Natives Land Act cut-off date for land claims was defeated for lack of a seconder, but not after Motshekga opened up political debate, possibly pushing his own views having studied the matter which, as he put it, “can come back to bite us”. 

Freedom Front Plus Chief Whip Corné Mulder picked up on this. “I’m confused now. There is no proposal from the ANC on this in front of us.” The ANC MPs seemed to concur; when Motshekga asked his ANC colleagues for comment, their response was to stick to just voting.

Finish and klaar.

“The ANC proposal carries…” wrapped up every vote in what was a technical process. But it did not cover up the tensions.

“We have already voted against the reactionary ANC proposal,” said Shivambu at one stage, soliciting a quick retort from Lesoma, “Do not provoke us!” The EFF chief whip’s “What will you do when provoked?”, got a reply of “wait and see”.

While an isolated exchange, it underscores how deeply fraught the process has been. And continues to be. Because until the amendment of Section 25 of the Constitution is decided in the House, it’s not over. DM