Advocate Wim Trengove SC proposals on EWC are particularly damaging and politically naive. They are often also mistaken on the law.

For many months now, as we in the IRR have noted, President Cyril Ramaphosa has been in full reassurance mode on property rights. He no longer sings the praises of expropriation without compensation (EWC), but rather talks about a necessary process of constructive land reform. This, he suggests, will be carried out wisely and well – and with due regard for food production, investment, growth, and jobs.

Meanwhile, however, the ad hoc committee established in December 2018 to examine how best to craft an EWC amendment to the Constitution is busy hearing the views of a narrow group of experts on what should be done.

Up before the committee last week was Advocate Wim Trengove SC, whose proposals are particularly damaging and politically naive. They are often also mistaken on the law.

According to a Business Day report, Trengove proposes the adoption of new legislation stipulating that ‘the ownership of all white-owned land will be presumed to be historically the result of privilege – and therefore liable for redistribution – unless the owner can prove otherwise’. He also suggests that EWC should be confined to farmland, leaving residential property, pensions, and other property rights untouched.

But most farmers have bought their land, paying market prices for it and financing their purchases through mortgage loans. Many of them, moreover, have acquired their farms since the political transition in 1994, for about 5% of farms on average change hands annually through sales on the open market. 

In every year, moreover, most farmers plough significant amounts of working capital into their land and the broader economy, thereby contributing to upstream and downstream economic activity, sustaining jobs, adding to export earnings, maintaining food security, and helping feed the burgeoning cities.

It is absurd to assume that all white farmers have acquired their farms via ‘privilege’; that depriving this particular group of their land and livelihoods is an appropriate response to past societal injustice; or that this erosion of vital property rights will benefit black South Africans.

Trengove also seems politically naive in assuming that EWC, once mandated by the Constitution or other legislation, would be confined to farming land, leaving residential and other property rights intact. The new rules would soon be far more widely deployed: partly to advance the ANC’s determined pursuit of a socialist future, and partly to help meet its pressing need for more money – much of which is to be found in pension funds now worth R4 trillion in total. 

Trengove also told the committee that white-owned farming land can be redistributed without any compensation having to be paid – and without an EWC amendment to the Constitution having to be made – provided the state does not ‘take possession for itself’ but passes the land directly to beneficiaries.

This notion is based on a misreading of the Constitutional Court’s majority judgment in the Agri SA case in 2013. Here, Chief Justice Mogoeng Mogoeng indicated that the state’s acquisition of ‘ownership’ (not ‘possession’, as Trengove says) is the hallmark of expropriation. On this basis, Mogoeng ruled that the state’s ‘assumption of custodianship’ over an unused coal mining right did not amount to an expropriation.

However, Mogoeng also stressed that he was dealing solely with the facts before him, not laying down a general rule, as Trengove assumes. Three of the judges in the case took pains to caution against any such new rule. Two of them also warned that Mogoeng’s approach was inconsistent with international law and could lead to the uncompensated ‘abolition’ of all private property rights.

Trengove’s idea that ‘white’-owned property can be singled out for uncompensated takings overlooks the Constitution’s strong commitment to non-racialism and the rule of law. It also disregards the careful wording of Section 25, which mandates the government to proceed with land reform – but stipulates that this must be done through ‘reasonable’ measures and within the limits of the state’s ‘available resources’. Some departure from these principles may be justified, as Trengove asserts, but this is only where ‘less restrictive means’ of achieving land reform cannot be found. 

Trengove overlooks the massive failure rate (at least 70%) of land reform projects, the low demand (less than 10%) for farmland among rapidly urbanising black South Africans, and the upsurge in poverty and hunger that followed land redistribution in both Zimbabwe and Venezuela. Triggering an equivalent economic meltdown in South Africa will do nothing to overcome past injustice or help the poor. 

South Africans must not be lulled into a sense of false security. The ANC is now intent on pretending that its EWC proposal is no cause for concern. However, Trengove’s suggestions to the ad hoc committee underscore the need for constant vigilance – and a strong determination to stand up for the property rights on which the prosperity of all South Africans critically depend. 

Dr Jeffery is the Head of Policy Research at the IRR.

Dr Anthea Jeffery holds law degrees from Wits, Cambridge and London universities, and is the Head of Policy Research at the IRR. She has authored 12 books, including Countdown to Socialism - The National Democratic Revolution in South Africa since 1994, People’s War: New Light on the Struggle for South Africa and BEE: Helping or Hurting? She has also written extensively on property rights, land reform, the mining sector, the proposed National Health Insurance (NHI) system, and a growth-focused alternative to BEE.