Jan-Jan Joubert
4 minute read
5 Jun 2021
12:03 pm

Why the expropriation change to the Constitution is increasingly unlikely to pass

Jan-Jan Joubert

President Cyril Ramaphosa has drawn a line in the sand against blanket state custodianship of land in South Africa.

President Cyril Ramaphosa.Image: Elmond Jiyane, GCIS

Over the last week, the ANC and the EFF’s members of the parliamentary Ad Hoc Committee to amend Section 25 (the property clause) of the Constitution have become locked in negotiations on an EFF proposal to allow state custodianship of all land, with citizens granted land-use rights for limited periods.

This has caused much unease in many circles in South Africa – not least among property owners – but on Thursday, during a press conference in Cape Town, Ramaphosa came out firmly against the proposal.

He said that the negotiations between the ANC and the EFF were not exclusive and that the ANC remained open to negotiating with other parties.

According to Ramaphosa, state custodianship equals nationalisation, and that is not what the dispossessed want.

“Because of the dispossession of the past, there is a hunger for land. It is a need to have a title deed, to own land, not just to be granted use of the land by the state. Farmers want to be able to use the land as collateral to borrow money from banks, and they want access to water rights,” he said.

The president referred to discussions he has had with farmers in the remote rural area of Tafelkop in Limpopo Province, who recently obtained title deed to the state-owned land they have farmed upon for a decade and their explanations of how state custodianship had throttled their ability to succeed financially.

Ramaphosa also reiterated that the mandate of the Ad Hoc Committee is limited to making explicit what is already implicit in the current Constitution.

Upon being asked directly whether state custodianship of land was currently implicit to the Constitution, Ramaphosa did not give a “yes” or “no” answer. He reiterated his view that custodianship equals nationalisation.

He said such nationalisation would dampen or even kill off people’s entrepreneurial abilities, as is clear from the experiences from people on the ground.

Ramaphosa also rallied against the option of granting tenure to communities rather than individuals, saying that no one took responsibility for decisions in such a case. He said South Africa required a hybrid system of property rights to allow, for example, communal property rights in areas under traditional leadership such as the Ingonyama Trust.

Reiterating the importance of title deed and ownership, he said the politicians had to listen to the preference of the people, not the other way around.

Regarding efforts to remove the courts as an arbiter on property rights (and locating those powers in the executive) Ramaphosa said South Africa is a constitutional democracy, and no one can gainsay the role of the courts.

In reaction, the EFF issued a statement late on Thursday night saying it “strongly condemns Cyril Ramaphosa’s deliberate and malicious misrepresentation of the EFF position on land and state custodianship”.

The EFF said he “maliciously indicated that the EFF position on land custodianship is equal to the nationalisation of land. This is part of a coordinated and desperate attempt to mislead people and downplay the significance of the process in its final stages in Parliament to amend Section 25 of the Constitution to allow for expropriation of all land without compensation into the custodianship of the state.”

According to the EFF “[it] has firmly articulated its position to the Ad Hoc Committee tasked with amending Section 25 of the Constitution and the members of the ANC delegation during bilateral meetings. We are not going to compromise and vote for a sellout amendment that still speaks of compensation. Ramaphosa thinks he can implement a successful land redistribution programme that will address historical injustices through land donated by beneficiaries of land obtained through theft and genocide. This is a sign of how little Ramaphosa thinks of land hunger amongst black people and the need for restorative justice.”

Ramaphosa’s position and the EFF’s reaction to it make for interesting days ahead, given the situation within the Ad Hoc Committee, where the six largest political parties hold vastly different positions on the issue. Whereas the EFF has been consistent in its preference for state custodianship, the other three large opposition parties (DA, IFP, Freedom Front Plus and ACDP) have been consistent in their views that no change to the Constitution is required.

The ANC holds 57.5% of the seats, the DA 21%, the EFF 11%, the IFP 3.5%, the Freedom Front Plus 2.5% and the ACDP 1%. Eight smaller parties jointly have 3.5% of the vote.

Therefore, it seems that a stalemate is developing if Ramaphosa’s view holds true in the ANC, if the EFF is consistent in its unwillingness to compromise and if the DA persists in its refusal to negotiate with the ANC. In such a case, it will be practically impossible for the ruling party to get to the two-thirds of votes in the National Assembly required to change the Constitution.

But it is early days yet. The Ad Hoc Committee has until August 30 to finalise its proposal on the constitutional change, and all eyes will be on the negotiations to determine what is placed before Parliament.

Republished with permission from Moneyweb