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Confiscation of land (or EWC) – what a muddle

About 190,000 years ago our planet was in the grip of an Ice Age. Oceans receded, ice caps proliferated and the surface of most of the earth became inhospitable to human life. Starvation and death by freezing was the fate of most of the human population The Southern Cape area of the African continent had a coastal region which is now under the sea. That coast was more friendly to humans than the rest of the planet in that there was a warmish ocean current (now called the Agulhas current), plentiful seafood high in proteins and, uniquely so, a fynbos kingdom with roots, tubers and corms that were, and still are, rich in the carbohydrates needed to ward off the cold in the caves occupied of a winter’s night.

According to archeological research and DNA analysis worldwide, conducted by the University of Arizona and the Nelson Mandela University, about 600 breeding couples in the Southern Cape centred around modern day Mossel Bay (which still has the most equable climate on the planet) survived the cold and set off to explore and populate the world so successfully that their descendants currently number over 7,8 billion and have settled in all of the continents on the planet.

The modern era settlement of SA is quite complex. Where the Constitution speaks of “unity in diversity” and created 11 official languages plus 15 more for promotion, it can be deduced that SA is a veritable melting pot today.

Descendants of the original 600 couples consisted of San hunter gatherers and Khoi pastoralists by the time European based explorers first located their distant cousins while on the way to India and to opening up the spice trade with the East. The elements of the “first nation” have inter-mingled to the extent that today they prefer to be known as Bushmen or the Khoisan inhabitants of SA. Much miscegenation with those from Europe and from Central Africa has taken place. The DNA of Archbishop Tutu reveals Bushmen in his lineage. Many early settlers from Europe took a wife from the Bushmen ranks, European women being scarce in Africa in the early days of settlement starting in 1652 with the establishment of a refreshment station in Cape Town by the Dutch East India Company.

At much the same time, the Bantu speaking tribes of central Africa were migrating southwards and conquering Bushmen who got in their way. The southward trajectory ended at the Great Fish River because summer rainfall was required for the crops they tended to flourish. As is still the case, the area south of that river is a winter rainfall area.

By the end of the 19th century, during which the Great Trek northwards took place, much of SA was in the hands of the European settlers. Two British colonies had been established in the Cape and Natal while two Boer Republics, the Orange Free State and the ZAR or Transvaal as it was known were set up, the former between the Orange and Vaal Rivers and the latter between the Vaal and Limpopo Rivers.

Between 1899 and 1902 a war was fought between the British Empire and the two Boer republics, ending in the Peace of Vereeniging in 1902 when the vanquished Boers, their wives and children in concentration camps, their prisoners of war shipped to distant islands, effectively surrendered. There had been earlier wars on the Eastern Cape Frontier and also between Zulus and Brits as well as between Boers and the tribes that they found when they trekked into the hinterland. Much of the fighting was over land.

By 1910, after adroit political manoeuvring , a Union of SA was formed consisting of the two British colonies and the two Boer Republics that had sued for peace at Vereeniging only eight years earlier. Although at the time only 25% of the population of SA claimed to be “European”, the majority of the population was not invited to participate in the setting up of the Union. This led to the establishment of the ANC in 1913 in Bloemfontein, now called Mangaung. In the same year the notorious Native Lands Act was passed by the new parliament in Cape Town.

The Act’s most catastrophic provision for Africans was the prohibition from buying or hiring land in 93% of South Africa. In essence, Africans despite being more in number were confined to ownership of 7% South Africa’s land. This was increased to 13.5% by the Native and Land Trust Act which was passed in 1936. Section 1, sub section ‘a’ of the 1913 Natives Land Act states, “a native shall not enter into any agreement or transaction for the purchase, hire, or other acquisition from a person other than a native, of any such land or of any right thereto, interest therein, or servitude thereover.” However, Africans were permitted to buy and sell land in reserves or scheduled areas while Whites were prohibited from owning land in these places.

The ”land question” was hotly debated over the years, and still is. In 1955 the Freedom Charter was drafted. It addressed the issue, with ANC support, as follows:

“THE LAND SHALL BE SHARED AMONG THOSE WHO WORK IT!
 Restriction of land ownership on a racial basis shall be ended, and all the land re-divided amongst those who work it, to banish famine and land hunger;
The state shall help the peasants with implements, seed, tractors and dams to save the soil and assist the tillers;
 Freedom of movement shall be guaranteed to all who work on the land;
All shall have the right to occupy land wherever they choose;
 People shall not be robbed of their cattle, and forced labour and farm prisons shall be abolished.”  

It can be seen that there is no reference in the Freedom Charter to nationalisation of land, its custodianship or even expropriation without compensation.

When the new SA dawned a constitutional democracy under the rule of law was set up after a National Accord was reached. Section 25 of the Bill of Rights, which is Chapter Two of our supreme law, the Constitution of the Republic of South Africa, sets out the parameters within which the right to property is respected and protected by the state. The meaning of this section has been discussed widely in the work of the SAIRR and in academic circles too. The section can be accessed here (https://accountabilitynow.org.za/on-the-nationalisation-of-land/.)

At its 2017 elective conference, held at Nasrec, the fractious and faction-ridden delegates voted in favour of a resolution that requires parliament to revisit section 25 with a view to introducing a system that allows for confiscation of land or as it is more delicately, albeit inaccurately, called “expropriation without compensation.” The resolution was explained to the media at the time by an ANC spokesperson, Enoch Godongwana and was reported as:

 “The final conclusion that we agreed the national executive committee will initiate some amendments in the constitution’s section 25 to achieve expropriation without compensation.

“For that to happen it must be sustainable,” said Godongwana. This means it must not impact on agricultural production, food security and other sectors of the economy.

He said that even those who want land expropriation without compensation agreed that it should be achieved sustainably. “It should not impact the finance sector and other sectors negatively,” said Godongwana.

The National Executive Committee of the ANC met in July 2018 after which meeting the president announced that:

“The lekgotla reaffirmed its position that a comprehensive land reform programme that enables equitable access to land will unlock economic growth, by  bringing more land in South Africa to full use, and enable the productive participation of millions more South Africans in the economy.

Accordingly, the ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be effected.   

The intention of this proposed amendment is to promote redress, advance economic development, increase agricultural production and food security.

It will also transform the unjust spatial realities in urban areas.”

The sharp end of the much delayed parliamentary process is now approaching rapidly. There is some residual confusion about the size of the majority that will be required if the amendment of Section 25 dilutes property rights guaranteed at present.

In fact, generally speaking, it is possible to amend the Bill of Rights with a two thirds majority, one which currently seems to be unattainable because the ANC and EFF cannot agree on the confiscatory measures under discussion in the parliamentary committee in particular as regards the parameters of the concept “custodianship” a term that is notably absent from both the Nasrec conference and the NEC announcements on the topic.

If truth be told, the EFF favours the nationalisation of land while the ANC does not.

Section 25 addresses all property rights, not only rights to land.

The efforts currently being made by the ANC to woo the small  or “rats and mice” parties in parliament speaks to the dilemma in which the ANC finds itself.

The attaining of a two thirds majority may prove to be impossible if the EFF and ANC remain at loggerheads. The situation is compounded by utterances from leading communist Jeremy Cronin and former president Thabo Mbeki which suggest that the whole idea of EWC is not in line with the overall position of the ANC.

For the two thirds majority to be applicable it will be necessary to find a way to amend section 25 in a manner that does not offend the internationally recognised rule of law principle that property rights be respected in all jurisdictions that offer fealty to the rule of law. In section 1 of the SA Constitution the rule of law is regarded as supreme along with the Constitution itself.

An amendment to the Bill of Rights that does not implicate any tinkering with the rule of law is notionally possible if a two thirds majority in the National Assembly votes in favour of it and enjoys the support of six of the provinces represented in the National Council of Provinces.

If the EFF and ANC remain at odds the prospects of so doing seem slim.

The modus operandi for bills amending the Constitution is set out in section 74 of the Constitution. In it the provisions of section 1 of the Constitution ( including the supremacy of the rule of law) enjoy special entrenchment in that six provinces in the National Council of Provinces and 75% of the members of the National Assembly must support the amendment in question. If the amendment to section 25 currently under discussion, once it reaches a final form, has the effect of diluting the rule of law by restricting respect for property rights currently guaranteed to all ( the right to have the value of an expropriation adjudicated in a court of law being one of them) then the obviously unattainable 75 % majority will be needed.

Should the ANC, and whoever votes with it, attain a majority in excess of two thirds but not at the magic 75%, then it will be possible for at least a third of the members of the National Assembly to apply to the Constitutional Court within 30 days of the president signing and assenting to the Act for an order declaring the Act or part of it unconstitutional. This position is all set out in detail in section 80 of the Constitution.

It would appear that the right of any public interest litigant to challenge the constitutionality of the tinkering with Section 25 of the Bill of Rights is not affected by the provisions of Section 80. This legal conclusion is arrived at because section 2 of the Constitution has a blanket provision to the effect that laws or conduct that are inconsistent with the Constitution are invalid. An amendment that waters down the supremacy of the rule of law by, for example, limiting access to the courts by those expropriated could be challenged on this basis.

The Nasrec resolution by the elective conference of the ANC, its highest decision making body, also contains caveats that are difficult to comply with in that they require that food security and economic development not be prejudiced by the introduction of EWC. These conditions will prove extremely difficult, if not impossible, to meet. Dire warnings of the effect on banks that hold mortgages over farms, on the Land Bank, on the willingness of existing farmers to continue to farm with the sword of Damocles that EWC contains hanging over their heads and the inability of the state to sufficiently capacitate and finance new farmers ( already in evidence in failed agricultural schemes) all suggest that the weasel words in the NEC resolution, worth quoting, are the “get out of jail free card” the ANC reserved for itself at Nasrec. This is how the conference resolution put it:

“[The] conference resolved that the ANC should, as a matter of policy, pursue expropriation of land without compensation. This should be pursued without destabilising the agricultural sector, without endangering food security in our country and without undermining economic growth and job creation,”

This discussion is not complete without mention of the African Growth and Opportunity Act (Agoa) which is the US law passed by Congress in 2000. It allows eligible African countries to export many products to the US duty-free. It has been particularly beneficial to South African automobile, wine, and fruit exporters. These sectors are all big employers and job creators in SA.

Given the Biden administration’s professed commitment to the rule of law and the widely respected World Justice Project definition of the rule of law, ( see here: https://accountabilitynow.org.za/land-expropriation-zapiro-land-grabs-only-possible-with-75-majority-vote-in-parliament-legal-expert/.) It seems likely that the benefits of Agoa will be lost to SA if the confiscation-oriented or EWC constitutional amendment ever sees the light of day.

The cartwheels performed by then Minister of Trade and Industry, Rob Davies, in relation to the frozen chicken imports fiasco, suggest that SA is keenly aware of the benefits of Agoa membership and it is reasonable to anticipate that SA will suffer the type of “undermining of economic growth and job creation” that is expressly catered for in the resolution of the NEC quoted above. Termination of the Agoa membership of SA by disgruntled Americans could be economically disastrous.

The SA Institute of Race Relations is leading the charge against the amendment of section 25 of the Constitution. It has put considerable time, energy and effort into opposing the notions of EWC and of custodianship of land on whatever basis, be it in the form of the nationalisation favoured by the EFF or the less drastic and more limited reform the ANC seems to favour.

 The Universal Declaration of Human Rights, to which SA is a party, favours respect for property rights in its Article 17 which reads:

“1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property”.

The Democratic Alliance has taken up it concerns with cabinet and with the UN itself. It has pointed out that the EWC bill is detrimental to the rule of law, the agricultural sector, foreign direct investment and the long term sustainability of the economy.

No response has been received by the DA from cabinet. It may well be mulling the effect EWC will have on the valuable trade benefits of Agoa which SA currently enjoys. And on how to square the process currently underway in parliament with the express terms of the NEC resolution quoted above.

Cabinet may conclude that it is mission impossible and it may pull the plug on the whole idea. The current balance of forces within the ANC would seem to suggest that pulling the plug is now politically possible as the radical economic transformation faction is on the back foot with Jacob Zuma facing incarceration and Ace Magashule suspended. They are both champions of RET and a departure from both the Bill of Rights and the Freedom Charter provisions quoted above.

It seems unlikely that any amendment that passes constitutional muster can be formulated.

Paul Hoffman SC is a director of Accountability Now

3 July 2021.

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