Focus on mode of amendment as ANC gambles on outsmarting EFF
All three main parties aim to gain maximum political capital from land issue but not everyone will win in the end
Now that the ANC has decided that section 25 of the constitution must be amended to make land expropriation without compensation an explicit option, the next frontier is what that amendment will look like. How it is done will affect the extent to which property rights are compromised and under what circumstances. As usual, politics rather than good sense will play a major role in the final outcome.
All three main parties are aiming to make maximum political capital. But the stakes are high — particularly in the main race between the ANC and EFF — and not everyone will win in the end.
But first, the modalities. The clues to what the ANC hopes to see are in the wording of the statement made by President Cyril Ramaphosa last week. In that statement it is acknowledged that as the ANC had said at its land summit, “a proper reading of the constitution … enables the state to effect expropriation of land with just and equitable compensation and without compensation, in the public interest”.
It goes on: “It has become patently clear that our people want the constitution to be more explicit about expropriation of land without compensation as demonstrated in the public hearings…. 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.”
What the ANC therefore wants is a limited change to the constitution that will do no more than clarify section 25, not because it is legally necessary, but because it is worried that if it doesn’t it will lose support among voters.
Such a clarificatory change, say constitutional lawyers, may affect investor sentiment but won’t affect broader property rights much in general. In this version, expropriation without compensation would be limited exclusively to the purpose of land reform, and the conditions under which expropriation without compensation could occur would be clearly spelled out.
In practical terms, this means either amending section 25(3), which spells out the factors that must be considered when determining the amount of compensation an expropriated owner must be given, to make it clear that “just and equitable compensation” could under certain conditions be no compensation. The ANC is yet to spell out these conditions, but at various points has said the criteria would include: whether the land is being used; how it was acquired; and whether it has been abandoned by a heavily indebted owner. The conditions would be included either in the constitution or in a new expropriation bill.
A second possible way the amendment could be effected would be to amend section 25(8), which states that no provision of section 25 “may impede the state from taking legislative measures to achieve land … reform, in order to address the results of past discrimination” to include expropriation without compensation among them. This option has the most support.
These amendments would limit the parameters of expropriation without compensation to land reform only and make the conditions clear. In effect, compensation in the event of expropriation would be the default position, which could be departed from under certain conditions.
The changes would also leave intact the role of the courts in reviewing expropriation decisions. The way expropriation takes place is under a general law of application. In the case of land reform, an expropriation order is made by the Land Claims Commission. The constitution states that if agreement is not reached on the amount to be paid for compensation, a court will have the power to decide.
If this scenario remains untouched a reasonable amount of protection remains for land owners, who are still in with a shout if the state behaves unreasonably. However, they would probably object more strongly to expropriation decisions than they have before, in the knowledge that the compensation award could now be zero.
Incidentally, or perhaps not so incidentally, the effect of this could be that expropriation cases become jammed up in the courts, making even less land available for reform in the short term than before.
All of this assumes that the ANC will alone determine the content of the amendment that is voted through parliament. But it will not be that easy.
The wording is not the ANC’s choice alone: to pass it with a two-thirds majority it needs the support of the EFF, the DA or an alliance that includes all the other minority parties in parliament. The last-mentioned option is about as unlikely as the second-last option. The DA has made it clear that its key platform from now to the election will be to oppose the ANC on the land issue as loudly and often as possible.
It is how things play out between the EFF and the ANC that will be the thing to watch. The ANC’s motivation for changing the constitution is neither to speed up land reform nor to make expropriation without compensation possible (because it believes it is already possible), but to win votes. Having been unprepared and outplayed by the EFF every step of the way as the land expropriation issue has unfolded, the ANC now believes the best way to seize back the initiative is by making the amendment itself, on its own terms, in a nice, moderate way.
In doing so, it believes it will put clear water between itself and the EFF on the land matter and expose the EFF’s position — which is that the state should own all land, and citizens and businesses would occupy it on the basis of leasehold — as being out of step with the aspirations of the majority of the people, to whom individual property ownership is important.
Most ANC insiders are making some or all of the following assumptions about how this great new strategy will play out: the EFF won’t support the ANC motion; the DA will support it; and if neither do the motion will fail to pass and the ANC can blame it on the opposition.
They are convinced that they now find themselves in a win-win situation. But these are naïve assumptions. The EFF, which has championed the land issue since its formation and introduced the original motion into parliament in February 2017, is too savvy to be outsmarted at the last minute. Other options exist.
As the ANC is divided, the EFF can be expected to exploit these divisions. It will bargain and horse-trade. If it remains true to form, it will extract more from the ANC than it deserves. It could also support the ANC motion and claim victory, which it would rightly have achieved. No other party has forced the ANC to amend the constitution, especially on something as fundamental as property.
If the motion fails to pass, the ANC will have to remain irrevocably committed to changing the constitution. If it is not to be hypocritical, it will have to rev up its support for expropriation in its manifesto and election promises. That could turn the expropriation issue into a long-term cloud hanging over the economy.
Rather than a win-win, it could be a lose-lose scenario for the ANC and the country.