At the beginning of last year, I wrote that 2018 had – in movie terms – unfolded as a cliffhanger. In its plotline, the government was pushing to introduce a regime of Expropriation without Compensation.

Even as the manifest recklessness of this course of action became ever more evident, it pressed on with this. Ignoring warnings and the weight of public sentiment, its final scenes depicted a Parliamentary resolution to amend the Constitution.

In 2019, it became clear that what we were seeing was not so much just a sequel as the next installation.

The script was unevenly written. Battered by bad publicity and staring a declining economy in the face – two out of three quarters of negative growth by the numbers we have available thus far – government reined in its rhetoric. For the first few months of the year, the bombast about EWC gave way to an altogether more reasonable commitment to land reform.

An election was held. Neither EWC nor land reform played a huge role – unsurprisingly, because land has never been high on the list of the public’s priorities, and has never figured among those of the government. Even the Economic Freedom Fighters (EFF), in their starring role as the First Order of EWC, had to mangle their election posters to ensure there was some element of popular appeal alongside the ideology. Hence the odd tagline ‘Our land and jobs now’.

Post-election (and with the post-post New Dawn subplot now pretty much done to death, with the audience having gone out for a leak), the constitutional change was back on the line-up. But with a twist. Having decided that the people had spoken on the need for a constitutional amendment to gut property rights, the reconvened Parliamentary Committee said that the only issue was the wording. In other words, we go onward irrespective. The Constitution itself, and the protection it provides to South Africa’s people, remain under threat. Continuity between 2018 and 2019 therefore…

What we do know now is the envisaged wording of the amendment. That part of the plot has been revealed. ‘A court may,’ it says, ‘where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.’

‘National legislation must … set out specific circumstances where a court may determine that the amount of compensation is nil.’

Innocuous? Any film connoisseur would be cautious about that seemingly innocent detail. Not only does this downgrade property rights in general, but it introduces a number of very particular threats. For instance, it makes it clear that where land reform is at play, it is not just land that might be targeted. The amendment casts the expropriation net expansively.

More importantly, it hands over the formulation of the overall EWC regime to ordinary legislation. We have a sense of what this looks like in the Expropriation Bill. Not only does it provide for EWC on an (open) range of grounds, but it sets up the definition of expropriation so that property can be seized without this counting as expropriation at all. Ergo, no compensation. Very cunning!

Together, these provisions could be invoked to do something altogether more intrusive than one-at-a-time seizures. As we at the IRR have repeatedly warned, for many within the ANC and government, the move on property rights is not about restitution or about increasing black landholding. It is to bring all land in the country under the ‘custodianship’ of the state, along the lines of water and mineral rights.

Far-fetched? Well, part of the 2019 storyline was the case of David Rakgase. A successful black farmer, he had been attempting for close on two decades to buy the state land he had been working. When government reneged on the deal, he took it to court in frustration. Not only did the state resolve to fight his attempts to graduate from tenant to owner, but court papers from the acting director-general of the Department of Rural Development and Land Reform, Rendani Sadiki, were revealing:  ‘Black farming households and communities may obtain 30-year leases, renewable for a further 20 years, before the state will consider transferring ownership to them’.

More recently, a draft policy on land redistribution beneficiaries makes clear that the thinking remains intact – ‘access’ to land, not ‘ownership’ of it.

In this regard, a plot twist to watch out for is where the African National Congress and EFF find themselves over EWC. There is no guarantee that the EFF will support the proposed constitutional amendment – on the grounds that it doesn’t go far enough. There have already been grumblings about this. Could a more ‘radical’ amendment, or a quiet assurance about comprehensive land nationalisation through future legislation, be the price of cooperation?

But 2019 also demonstrated that the country is not taking this lying down. For all the considerable political and institutional interests invested in EWC, there are millions of South Africans who oppose it. Mostly just ordinary people, they understand the threat that it poses to their livelihoods and to their aspirations. The manifest inadequacies of the various processes that have constituted this policy-drive have pretty much guaranteed both legal and political processes.

Meanwhile, as this drama plays out, a broader tragedy will continue. Unfortunately, I can repeat what I wrote last year with only very minor alterations: One of the consequences of all this is that ‘policy certainty’ is deferred. Indefinitely. And policy certainty is one issue that government has been consistent in identifying as a key barrier to economic take off.

As it has been in 2019, the threat of EWC will remain a chokehold on South Africa’s prospects. This is the common story arc that will bind 2019 and 2020. It is a narrative of the triumph of ideology over pragmatism and of opportunities put into perpetual abeyance.

Brace yourself!

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Terence Corrigan
Terence Corrigan is the Project Manager at the Institute, where he specialises in work on property rights, as well as land and mining policy. A native of KwaZulu-Natal, he is a graduate of the University of KwaZulu-Natal (Pietermaritzburg). He has held various positions at the IRR, South African Institute of International Affairs, SBP (formerly the Small Business Project) and the Gauteng Legislature – as well as having taught English in Taiwan. He is a regular commentator in the South African media and his interests include African governance, land and agrarian issues, political culture and political thought, corporate governance, enterprise and business policy.

1 COMMENT

  1. And Terrence, just in case you were wondering, the ANC effectively nationalised the legal bodies of South Africa last year. No doubt the two are linked.

    Now, the legal profession cannot challenge any legal imposition on it unless the Minister wants to.

    Obviously, as the regulations go on and on and will become more dictatorial, the lawyers’ will be legislated into obedience to the government not the civil society they serve.

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