The Constitution survives for now. Parliament has confirmed that amending Section 25 of South Africa’s founding document to facilitate land expropriation without compensation will not be completed by the May elections.
So what next? As some commentators have pointed out, this pushes responsibility for making this change on to the Parliament that will be elected on 8 May 2019. And while that introduces some administrative complexities, it essentially changes nothing. With the African National Congress and Economic Freedom Fighters likely to muster the two-thirds majority to carry a vote on amending the Bill of Rights, the current policy drive will continue. That is a near certainty.
Also unchanged is a widespread misreading of the dynamics at hand. Most particularly, the refrain that this is about “land” or “land reform” still dominates commentary on that matter.
This is not the case. That land reform has not achieved its objectives is a common cause — but nowhere has this failure been attributable to the compensation requirements. The High Level Panel, chaired by former president Kgalema Motlanthe, appointed to investigate the impact of “transformative” legislation commented sharply:
“Experts advise that the need to pay compensation has not been the most serious constraint on land reform in South Africa to date — other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity have proved more serious stumbling blocks to land reform.”
In brief, land reform has never been a priority. Measured by 2019’s Budget allocation — and projections for future years — it is not one now.
Rather, what is underway is a move on private property rights, an extension of the discretion of the state, and a shift in the balance of power between the state and those under its jurisdiction. As we at the Institute of Race Relations have consistently argued, to meddle with Section 25 of the Constitution is to alter the protections accorded to all property, not just to land.
It is also important to remember that while the ruling party’s push for a constitutional amendment was the most prominent element of this policy trajectory over the past year, it is by no means the only one. Already, regulations under the Property Valuation Act have quietly come into effect, granting the state huge discounts when it takes property for land reform purposes.
And currently, a draft Expropriation Bill has begun to wind its way through the legislative process. Quite remarkably, journalist Jan Gerber recently remarked (Amending Section 25 of the Constitution: Five questions answered, News24, 14 March) that this was “good news”, as it would provide the necessary framework for the government to start seizing land.
This is far from good news. The Bill envisages a system of relatively little liability on the part of the state if it confiscates property. No expropriation will be deemed to have taken place if the state does not itself take ownership of the assets. For the state to take assets and to hold them in “custodianship”, for example, will not count as expropriation. And where no expropriation is regarded as having taken place, no compensation will be payable. The loss to the former owner does not appear to be a major consideration.
This is not mere conjecture. Such uncompensated takings have already been achieved in respect of water and mineral rights — and a senior official at the Department of Rural Development and Land Reform, Masiphula Mbongwa, said at Davos that this was what was envisioned for land. Given the audience he was speaking to, we’d do well to take that seriously. (And it is instructive to remember that what he is proposing is essentially the ending of private property in land.)
Moreover, as my colleague Anthea Jeffery has perceptibly argued, the Expropriation Bill would make it possible for a slate of uncompensated takings throughout the economy to be imposed, for example, via the ceding of equity in firms under expanded empowerment regulations, price controls and patent rights.
The ANC’s commitment to exploring the introduction of prescribed assets raises uncomfortable questions about the state’s designs on South Africa’s R4-trillion pension pot. This is all the more so today, given the parlous, cash-hungry state of the country’s state-owned enterprises — and their dysfunctionality.
So, after the elections, what comes next? By all accounts, more of the same.
And that is a blinding tragedy. For more of the same means a refusal to deal with the real problems confronting land reform in favour of politically satisfying illusions. It implies policies committed to ideology rather than pragmatism. It promises more squandered opportunities and foregone investment. It offers — as we see now — blackouts and dark nights and an indefinite postponement of any hope of a new dawn. DM
Terence Corrigan is a project manager at the Institute of Race Relations.
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