For years, ‘the land’ has been the vehicle through which property rights have been attacked. Going back well over a decade, a succession of proposed laws and regulations have been introduced – some implemented, some successfully fended off – which sought to curtail ownership rights in the name of ‘land reform’. This was accompanied by an intermittent campaign of vilification of South Africa’s farming community as being part of the problem.
As the IRR has pointed out repeatedly, there is something fundamentally ideological about this. Agrarian Reform has been described by the Department of Rural Development and Land Reform as ‘a rapid and fundamental change in the relations (systems and patterns of ownership and control) of land, livestock, cropping and community.’ Not much there about livelihoods or economic viability. Commercial agriculture is often fleetingly dealt with, if at all, in official documents.
The recently published draft regulations for water licences fit quite neatly into this pattern. New water licences are to be issued according to racial quotas; licences for the largest users, those using in excess of 1 000 000 cubic metres a year, will only be issued to enterprises with a shareholding by black people of at least 75%. This does not for the moment affect existing licences, through there are concerns that this prefigures quotas on existing licences when these come up for renewal.
This is an obvious threat to the country’s hard-pressed farming economy. Yet the proposed regulations are equally indicative of something else: the quality of the legislation (and regulation) that governs the country.
Evidence-based policy
Firstly, South Africa notionally subscribes to the idea of evidence-based policy. Government action, by this measure, should be governed by the best information available as to its real-world application, rather than mere ideology or sentiment. It’s an eminently sound approach.
A centrepiece of this is the requirement (since 2015) for a Socio-Economic Assessment to be undertaken. The object is expressly to ensure that ‘the full costs of regulations and especially the impact on the economy’ are correctly understood before they are adopted. This study should be appended to the relevant measures when they are published, so as to enable informed public comment and debate.
Nothing of this nature has been provided – nor is it apparent that such a study was even undertaken. If any consideration was given to the impact that these regulations would have, potentially vast and certainly of concern to organised agriculture, the public has not been favoured with a sight of it.
This undermines a Constitutional requirement, that the public must be offered meaningful participation in the legislative process: an obligation repeatedly reaffirmed by the Constitutional Court.
The failure to conduct such assessments, or instead to produce facile, pro-forma attempts at them, has been a recurrent theme for years. Much of what makes it onto South Africa’s books lacks any real thinking about what the new rules are likely to mean for the country. Ideology and sentiment rather than practicality hold sway.
Vague and misleading wording
Secondly, the draft water regulations are marked by vague and misleading wording. For example, ‘black people’ and ‘blacks’ are used in the regulations, without definition. The regulations also go beyond their nominal purpose of ‘[prescribing] the procedures and requirements for water use licence applications’. Instead, they seek to impose a substantive new set of onerous racial requirements.
Here again, the Constitutional Court has spoken out on the issue, and condemned vague wording (as in the case of Land Access Movement of South Africa and others v Chairperson of the National Council of Provinces and others).
Thirdly, the draft regulations are ultra vires the National Water Act. Section 27 of the Act demands that when a licence is under consideration ‘all relevant factors’ (of which it lists 11, although this is not a closed list) must be taken into account. There is no authority conferred on the Minister in the Act to unilaterally alter the terms of the legislation, while any attempt on his part to do so would infringe the doctrine of the separation of powers. Nor is there anything in the Act that would allow all 11 listed factors to be subordinated to any single one of them – as the regulations seek to do.
This principle has been confirmed by the Pretoria High Court and Supreme Court of Appeal (SCA) in the Goede Wellington Boerdery case. This involved the refusal of a water licence based on only one of the 11 factors in the Act: the need to ‘redress past racial…discrimination’. Both the High Court and the SCA found that a farmer’s race cannot be the sole consideration in deciding on a water-use licence, as the Act clearly requires all 11 listed factors to be taken into account.
The regulations nevertheless seek to make race the sole criterion, which is at odds with the statute and ultra vires the regulatory powers it confers on the minister. Powers exercised ultra vires are also unconstitutional.
Note though, that in the 2018 National Water and Sanitation Master Plan, the Department of Water and Sanitation said that it wanted to make ‘equity the primary consideration in water allocation’. This is irrelevant for now, as no amendment to the Act has been made. But it does point to the intention behind the draft regulations.
The proposed regulations are in essence a short-cut route to a predetermined objective, contrary to both the letter and intent of South Africa’s legislative requirements.
Not isolated
And this is not an isolated case. The Institute has documented extensively the procedural failings in the various strands of the EWC policy drive – contrived public hearings, ignoring inconvenient submissions and so on. The Expropriation Bill was accompanied by an impact assessment that not only ignored the considered input of groups such as the Institute, but dismissed concerns about corruption and abuse in its application. ‘The apprehension appears to be misplaced,’ it intoned, ‘There are sufficient checks and balances in both government policy and different legislations [sic] to keep the issue in check. Continuous rights and obligations advocacy drives should be used to get persons to know the relevant legal instruments.’ Cavalier to say the least.
Much the same could be said of the impact assessment that accompanied mooted changes to firearms legislation, some of which was in flat contradiction to the study on which it supposedly relied.
Extensive ministerial discretion, meanwhile, has been written into a vast body of law. This was remarked on even in the 1990s, and has meant that weighty matters have been placed at a remove from democratic accountability. It is, after all, rather easier to impose a measure through a ministerial decree that have it subjected to public and parliamentary scrutiny. The recent imposition of what are effectively racial quotas backed by lethal fines in the Employment Equity Amendment Act of 2020 are a prime example.
The envisaged NHI embodies both of these dynamics, with no costing having been done and with an institutional system largely in the hands of the minister.
Institutional failings
Much of this relates directly to failings in South Africa’s institutions. Back in 2012, then National Assembly Speaker Max Sisulu remonstrated with legislators about the ‘poor quality’ of the legislation they were producing.
‘I am concerned that more and more legislation is returned to the National Assembly for correction, either section 75 legislation which the NCOP has recommended that the Assembly amends to make it constitutional, or legislation that was found to be unconstitutional by the courts,’ he said. He added that many Members of Parliament were absent from meetings – and that cabinet ministers were lax in their obligations to account to Parliament, such as in neglecting to answer questions timeously.
And here South Africa remains. If implemented, the most optimistic view of the impact of the water quotas will be a significant elevation of uncertainty for the farming economy, hardly something of benefit either to itself or to the country at large. And property rights will take another blow.
Had South Africa’s lawmaking systems functioned properly, we would not be in this position.
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