After President Cyril Ramaphosa’s recent late-night announcement that the ANC would press on with amending section 25 of the Constitution to allow for expropriation of land without compensation, many have said the die has been cast and the ANC is inexorably on the path to populism, and South Africa, economic ruin.

Since then confusion has mostly been the order of the day. We are told that the state will now bring test cases before the Land Claims Court in respect of 139 earmarked farms in order that they may be expropriated without compensation. ANC NEC member, Zizi Kodwa, has said that this will bring “political certainty”.

No one quite knows which farms have been earmarked and why. AfriForum recklessly released a list of farms allegedly earmarked for expropriation but there was no truth in the names on the list. In an environment of uncertainty, fake news has cachet. For his part, ANC chairman Gwede Mantashe has added to the confusion by saying that the ownership of farmland should be capped at 12,000 hectares and anything above that should be expropriated or “given away”. Mantashe’s comments seemed to be free of the logic one would hope Ramaphosa has been calling for. Mantashe, famous for “Mantashe-ing”, or bluster, did not make clear whether these were his own views or those of the party. Yet, as chairman of the ANC his words carry weight.

The salient question of course is why the ANC has waited 24 years to test s25, which in Ramaphosa’s own view does not preclude expropriation without compensation as an option. And it also begs the question as to why has there not been a discussion about the redistribution of state-owned land. The state is by far the largest owner of unused land in the country, after all. But in the way the current debate is being driven, facts can often become a casualty.

The challenge now is that the debate has not been holistic and focused on what has stymied land reform since 1994, which reasons include the state’s hopeless ineptitude and corruption related to the redistribution of land. Instead the debate is now unhelpfully stuck in the mode of the sloganeering where all that we hear is “expropriation without compensation”. It has become the only option, not one of an array of options. It is unfortunate because it provides grist to the mill of those who have been saying South Africa is “another Zimbabwe”. It also encourages fear-mongering when the state speaks with the proverbial forked tongue.

AgriSA has rightly called for calm heads as the land issue is dealt with but has also said that it will challenge the matter in the Constitutional Court if needs be. It is almost certain that one of these test cases will end up in the ConCourt eventually. And this now becomes the next frontier – the judiciary. It is certain that the ANC will make up the two-thirds majority it needs to amend s25 by garnering EFF votes.

Whoever therefore brings a ConCourt challenge will be bringing it against the ANC-led government and also its maverick “partner”, the EFF. They will also be doing so in a political atmosphere that is highly charged. Our country remains locked in protest on a daily basis as citizens clamour for rights to be fulfilled. After 24 years of desperate poverty and deepening levels of inequality many have had enough.

The state for its part is at sixes and sevens as to how to deal with this protest gridlock affecting communities. It is into this social context that any ConCourt decision will have to be made. During the Zuma years our courts were tested to their limit. Yet, they prevailed, safe-guarding the Constitution against some of the worst excesses of the Zuma years.

The Nkandla judgment saw the ConCourt coming up directly against the most powerful political office-bearer, the president of the republic, Jacob Zuma, and his obligations in terms of s83 of the Constitution. That judgment went to the heart of power. Then Mogoeng Mogoeng said powerfully about the president:

“He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project. The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.”

That was March 2016. Since then the courts have continued to be at the centre of holding Zuma and his corrupt associates to account. We need only think of the “Spy Tapes” judgment and the related Supreme Court of Appeal judgment in which the court dismissed Zuma and the National Prosecuting Authority’s appeal and found that the decision not to prosecute Zuma in 2008 was “irrational”.

Given the weakness of many of South Africa’s democratic institutions, such as Parliament for instance, the Zuma years saw a glut of court cases simply to hold Zuma and his ministers to account where Parliament would not or could not. It repeatedly placed the courts, in particular the ConCourt, in the midst of the political arena. Whereas legal action to bring about political accountability should be a last resort, it became the norm during the Zuma years.

The courts therefore by implication became political actors, albeit often quite obviously reluctantly. Recently we keenly felt the detritus of the Zuma years when the ConCourt found that Shaun Abrahams’ appointment at the NPA was invalid. Once more the ConCourt delivered a scathing judgment on governance processes under Zuma. The judgment sought to underscore the importance of the rule of law. One cannot help but think however that the courts ought really not to be repeatedly dragged into political battles.

Over the years, the EFF has used the courts to its advantage. In the Nkandla matter it was the first applicant. It cheered the judiciary’s independence when that judgment went its way. Yet, it is also clear that Julius Malema has a fraught relationship with the Constitution – he has invoked it opportunistically and has not for instance hesitated to call for land grabs, “If you see a beautiful piece of land, take it” being but one example of inflammatory unconstitutional rhetoric. In addition, Malema has found himself embroiled in an array of court cases relating to hate speech and was an early defender of Zuma until his own expulsion from the ANC.

Elements within the ANC itself have criticised the courts as the ANC struggled to defend itself in the face of repeated corruption scandals. When government, in 2015, failed to adhere to Judge President Dunstan Mlambo’s order that it detain Sudanese President Omar al-Bashir, who is wanted by the International Criminal Court (ICC) for mass killings and rape against civilians in Darfur, there was resistance from the ANC.

South Africa is a signatory to the Rome Statute, the treaty that established the ICC. Tensions may have reached a high point with the al-Bashir matter, but it is worth remembering that various ministers and senior members of the ANC have attacked the judiciary consistently in the past few years.

After the Mlambo judgment, former ANC Secretary-General Gwede Mantashe launched a scathing attack on the courts, labelling them as “problematic” and saying that “some sections” of the court system are driven by a desire to “create chaos for governance” in South Africa.

His then deputy, Jessie Duarte, followed suit with similar criticisms. In 2012, Ngoako Ramatlhodi – senior ANC member and currently the minister of mineral resources – also lashed out at the judiciary while delivering a lecture in honour of ANC President AB Xuma. Ramatlhodi accused the judiciary of seeking to undermine the executive.

But the tension went further than criticising the judiciary. As the Nkandla matter unfolded, we saw successive ministers and Zuma himself undermine the Public Protector’s Office, which is a constitutionally mandated body charged with ensuring that there is no impropriety in public administration. When the previous public protector, Thuli Madonsela, released her report into the corruption within the Passenger Rail Agency of South Africa in 2015, the ANC’s lukewarm response was to call her findings and recommendations “allegations”.

So, while our courts have done a sterling job of undergirding the rule of law and the Constitution, what might the alternative situation be if the ConCourt hands down a judgment in a test case on land which is perhaps unfavourable to the likes of Malema, his red berets and the populist faction of the ANC? Who will then protect and defend the Constitution in that politically fraught context? Can these unsteady political actors be trusted to accept any judgment of the ConCourt?

This is the real danger in a democracy as fragile as ours, with deep inequality and poverty where populism and not reason wins the day. It is also the danger of stymieing democratic debate based on rationality and facts and then having to test policy in a judicial context.

It could thus be that not everyone accepts the final word of the courts on contentious issues and the judiciary itself becomes a branch of government which is even more deeply contested. Some parts of the ANC certainly would not be averse to seeking to undermine the judiciary if past conduct is a predictor or future conduct.

The Ramaphosa-led government has therefore erred in now limiting the land debate to a “do-or-die” amendment of the Constitution. It has raised the temperature in an already volatile discourse. And it is likely to place unnecessary pressure on our courts when democratic deliberation would have been the preferred route. DM

Judith February’s book, Turning and Turning: exploring the complexities of South Africa’s democracy (Pan MacMillan), is now available. Its Johannesburg launch will be at Love Books, Melville on Tuesday 21 August at 18.30. RSVP: [email protected]