Certainty, certainty, certainty… an evocative concept that populates our political discourse. It is a commodity, it seems, that we need above all else. If only we could have confidence in the future, we could plan around it.
It is also a goal which we are perpetually ‘working towards’ in many spheres. Policy certainty is the one issue on which the government will honestly concede that its own actions (and inactions) have been damaging to South Africa’s prospects. Yet achieving it has been an arduous, tortuous, inconclusive process – rather like the search for the mythical pot of gold at the end of the rainbow.
This comes to mind in light of a piece by Jan-Jan Joubert that appeared on Moneyweb last week: ‘Greater certainty on expropriation imminent’.
I find Joubert an eminently readable journalist, and this article does not disappoint. It describes the back and forth in Parliament’s ad hoc committee on the amendment of Section 25 of the Constitution. This deals with property rights and protections; its amendment would be the first amendment to the Bill of Rights. This is a very serious precedent indeed, and a dangerous one given that the Constitution and constitutional governance have come into the crosshairs as a scapegoat for South Africa’s malaise (most recently by former president Jacob Zuma).
As it turns out, Joubert’s headline relates only to a small part of the content his piece covers. To wit: ‘Greater certainty on the content of the imminent change to the wording of Section 25 of the Constitution to give explicit meaning to the state’s power to expropriate property without compensation has emerged after a week of often heated debate and input in parliament.’
So, the imminence is not really about expropriation, but about the wording of section 25. And perhaps not the actual wording, but certainty about the direction in which it will go. For the account of the goings-on in the committee points to some pretty fundamental arguments over the nature of that amendment.
Committee co-chair Dr Mathole Motshekga raised an idea mooted before the pandemic struck, that expropriation decisions – including on the amount of compensation paid – should be constitutionally vested in the executive to the virtual exclusion of the courts. The incumbent government would be judge, jury, and – dare one say it? – executioner.
Quantum leap
This is a rather different prospect from the draft wording that has been published, and a quantum leap from the soothing idea that was punted in the past about how this would merely ‘make explicit what is implicit’. Or, as President Cyril Ramaphosa said back in 2018, the Constitution as it stands already allows expropriation without compensation. So, no biggie. (In fact, it was so insignificant that he declared that the Constitution would be changed even before the consultation process was complete.)
Meanwhile, the president’s investment envoys were chugging about the world trying to persuade those with the money to sink it into South Africa. It seems that they were finding this tough – since their interlocutors did rather regard the prospect of the government taking their stuff as a biggie.
Trudi Makhaya, the president’s economic advisor, said that, well, the best thing was to ‘just be frank’. Sage advice that, if only there was something to be frank with. Frankness and certainty are kissing cousins. When we’ve decided how much latitude we have to grab your investment, we’ll let you know – that’s hardly an enticing punt, especially when the economy is not a particularly competitive one.
I can only imagine that one of those investors watching from Seattle, Stockholm, or Seoul would be shaking their heads. Policy certainty is nowhere close. Not on the agenda. What we have is merely a flailing around in the conceptual muck and mire.
This at a time when a new Expropriation Bill is being piloted towards enactment. It grants considerable power and discretion to a sweep of government officials to take property, whether for free or – probably more likely and therefore more concerning – at a substantial discount. Minister Patricia de Lille has earnestly assured us that this is constitutionally compliant. Okay, maybe. Will that be unless Dr Motshekga gets his way and makes the courts redundant? Watch this space for the next exciting instalment.
A caution
Intriguingly, some contributors to the debate raised the state’s record of managing land reform as a caution. Once it has its enhanced powers, does it have the capacity to use them productively? Personally, I’d say that the whole direction of this policy drive is destructive, but let’s stick with this logic. Not only has land reform underperformed, but so has the government’s whole land bureaucracy. But don’t take my word for it – the Minister of Agriculture, Land Reform, and Rural Development, Thoko Didiza, said as much in Parliament recently.
‘It’s clear what we have in large measure are individuals who may not have the requisite skills to undertake this task,’ she said.
The representative of the Catholic Church warned diplomatically that poorly conceived measures to redress a grave wrong can end up inflicting a new round of damage. I’m guessing that this will prove prophetic.
For the moment, we await not certainty, but some sort of truncated glistening of a possibility of how this will play out at some distant point in the future. It may make for a wonderful spectacle that is the pride of a professional political caste and the joy of journalists. For real-world South Africa, it postpones future prospects indefinitely.
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Image by Hermann Traub from Pixabay