The pariah must re­turn

ANC MPs were right in up­hold­ing sec­tion 25 of the Con­sti­tu­tion against pop­ulist op­po­si­tion as it man­dates land re­dis­tri­bu­tion

CityPress - - Voices - Godongwana chairs the ANC’s eco­nomic trans­for­ma­tion com­mit­tee

There has been an un­prece­dented fo­cus on the land ques­tion over the past few months. This not sur­pris­ing, given that this ques­tion is, and has al­ways been, the cen­tral griev­ance of the coun­try’s African ma­jor­ity, who were dis­pos­sessed and forcibly re­moved from the land.

In the mem­o­rable phrase of Sol Plaatje, the ANC’s first sec­re­tary-gen­eral from 1912 to 1915, be­cause of land dis­pos­ses­sion, “the South African na­tive found him­self … a pariah in the land of his birth”.

In the heat of re­cent de­bates, some have sug­gested that sec­tion 25 of South Africa’s Con­sti­tu­tion, which pro­tects and reg­u­lates prop­erty rights, may be a cul­prit. Such ar­gu­ments are plainly wrong.

In fact, sec­tion 25 pro­vides a frame­work for the res­o­lu­tion of South Africa’s land ques­tion. It man­dates land re­dis­tri­bu­tion; it does not stand in its way.

The key ques­tion is not whether sec­tion 25 serves as an ob­sta­cle, but rather, whether our poli­cies have lived up to the Con­sti­tu­tion’s clar­ion call for the state to un­der­take pro­grammes of land resti­tu­tion and land re­dis­tri­bu­tion.

As re­tired Deputy Chief Jus­tice Dik­gang Moseneke has so clearly ex­plained: “The land ques­tion was fore­most at the time of the for­mu­la­tion of the Con­sti­tu­tion. This is dis­played in the care­ful for­mu­la­tion of the prop­erty clause, which is of­ten more ma­ligned than care­fully scru­ti­nised … The Con­sti­tu­tion does not pro­tect prop­erty; it merely pro­tects an owner against ar­bi­trary deprivation.

“Deprivation that is not ar­bi­trary is per­mis­si­ble. The prop­erty clause per­mits ex­pro­pri­a­tion of land by a law of gen­eral ap­pli­ca­tion, pro­vided it is for a pub­lic pur­pose or in the pub­lic in­ter­est … The prop­erty clause does not carry the phrase ‘will­ing buyer, will­ing seller’, which is of­ten blamed for an in­ad­e­quate res­o­lu­tion of the land ques­tion.

“The state’s power to ex­pro­pri­ate does not de­pend on the will­ing­ness of the land owner. The com­pen­sa­tion may be agreed, but if not, a court must fix it. The com­pen­sa­tion must be just and eq­ui­table, and not nec­es­sar­ily the mar­ket value of the land. Mar­ket price is but one of five cri­te­ria the Con­sti­tu­tion lists for a court to set fair com­pen­sa­tion.”

Fur­ther­more, Moseneke laments the fact that: “In 20 years, our court has not re­solved even one case of land ex­pro­pri­a­tion un­der the prop­erty clause by gov­ern­ment for a pub­lic pur­pose. Sim­i­larly, in the same time the courts have never been called upon to give meaning to the prop­erty clause in the con­text of land ex­pro­pri­a­tion or to de­cide on what is a just and eq­ui­table com­pen­sa­tion.

“One would have ex­pected that a mat­ter so press­ing as land use, oc­cu­pa­tion or own­er­ship would pre­dom­i­nate the list of dis­putes in the post-con­flict con­tes­ta­tion.”

Moseneke’s is a telling crit­i­cism. The pace of land re­form in South Africa has been very dis­ap­point­ing.

Nev­er­the­less, it is very im­por­tant that as the ANC puts poli­cies in place to ac­cel­er­ate the land re­form process, we must re­main firm in our con­vic­tion that land re­form will only be sus­tain­able, broad-based and ef­fec­tive if it is un­der­taken in an or­derly fash­ion, based on sound eco­nomic and le­gal prin­ci­ples.

In this re­gard, the ANC’s fo­cus is not only to pro­vide peo­ple with ac­cess to land as an eco­nom­i­cally pro­duc­tive re­source, but for the ANC to un­der­stand land as a place to live and a place to re­store hu­man dig­nity.

As far back as the early 1990s, the ANC, in our Ready to Gov­ern doc­u­ment, ar­gued that we must take ac­count of the need to main­tain food sup­plies and to pro­vide eq­ui­table and or­derly pro­ce­dures to en­sure land resti­tu­tion and re­dis­tri­bu­tion would take place as smoothly as pos­si­ble.

In pur­suit of these ob­jec­tives, dif­fer­ent land types were iden­ti­fied for re­dis­tri­bu­tion, which in­cluded: land held for spec­u­la­tion; un­der­utilised land or un­used land with pro­duc­tive po­ten­tial; land which is be­ing de­graded; and hope­lessly in­debted land. To this list, we must add state land. It is the ANC’s stated pol­icy that mar­ket forces can­not re­solve South Africa’s land ques­tion. In fact, leav­ing the mat­ter to the mar­ket would likely ex­ac­er­bate cur­rent in­equal­i­ties. As the ANC as­serted in Ready to Gov­ern, an eq­ui­table bal­ance must be struck be­tween the le­git­i­mate in­ter­ests of present ti­tle­hold­ers and the le­git­i­mate needs of those who re­quire land for liveli­hood and shel­ter.

It would be un­just to place the whole bur­den of the costs of trans­for­ma­tion on the shoul­ders ei­ther of the present gen­er­a­tion of ti­tle­hold­ers or on the new gen­er­a­tion of own­ers. As such, the state should shoul­der the bur­den of com­pen­sat­ing ex­pro­pri­ated ti­tle­hold­ers where nec­es­sary.

Con­sid­er­a­tion should also be given to the fact that land re­form would be ac­cel­er­ated if it were to be leg­is­lated that the state should have the right of first re­fusal in the sale of land. This would as­sist in mak­ing spec­u­lated-upon and hope­lessly in­debted farms avail­able to the state.

Ad­di­tional mea­sures, such as tax in­stru­ments, to dis­cour­age peo­ple from keep­ing land for spec­u­la­tion and re­quir­ing them to sell un­used land to the state, should also be con­sid­ered.

A full au­dit of land hold­ings in South Africa would also be of cru­cial as­sis­tance in re­solv­ing the land ques­tion. In this re­gard, the im­ple­men­ta­tion of pol­icy res­o­lu­tions adopted at the ANC’s De­cem­ber 2012 con­fer­ence, held in Man­gaung in the Free State, would be very help­ful as these res­o­lu­tions in­clude the es­tab­lish­ment of a Land Man­age­ment Com­mis­sion and the set­ting up of a Val­uer-Gen­eral’s of­fice to eval­u­ate land which is in the process of be­ing sold to gov­ern­ment.

Cru­cially, ANC pol­icy en­cour­ages the pro­duc­tive use of the land. This, in re­ac­tion to the fact that land in ru­ral ar­eas and some land, secured through resti­tu­tion, is hope­lessly un­der­used.

The land that has been ac­quired ei­ther through resti­tu­tion or re­dis­tri­bu­tion is, in a num­ber of cases, de­graded and in dis­re­pair. This is as a re­sult of the ab­sence of sup­port mea­sures for the ben­e­fi­cia­ries.

It is im­por­tant that the land must be pro­duc­tive to main­tain con­stant food sup­plies and en­sure the well­be­ing of ben­e­fi­cia­ries and ru­ral com­mu­ni­ties more broadly. Suc­cess­ful land re­form re­quires an in­te­grated ap­proach.

A word of warn­ing is that not only would the re­moval of sec­tion 25 from the Con­sti­tu­tion be of lit­tle as­sis­tance in re­solv­ing South Africa’s land prob­lems, its re­moval may also have neg­a­tive un­in­tended con­se­quences. The neg­a­tive ef­fect on in­vestor con­fi­dence would surely be sig­nif­i­cant.

If in­vest­ment lev­els were to fall across a wide range of sec­tors, this would bring tremen­dous hard­ship to an econ­omy al­ready strug­gling with low growth. Un­em­ploy­ment and poverty lev­els would rise and re­duced tax rev­enues would in ef­fect crip­ple many of the pro­grammes be­ing rolled out by South Africa’s de­vel­op­men­tal state.

We should also learn from Venezuela, which na­tion­alised with­out com­pen­sa­tion a num­ber of com­pa­nies in dif­fer­ent sec­tors of the econ­omy. Some of these com­pa­nies took Venezuela to the Ar­bi­tra­tion Tri­bunal of the In­ter­na­tional Cen­tre for Set­tle­ment of In­vest­ment Dis­putes. In al­most all the cases, the rul­ing was in favour of these com­pa­nies.

By re­mov­ing sec­tion 25, we may un­in­ten­tion­ally take power to de­ter­mine ex­pro­pri­a­tion dis­putes on the ba­sis of a “fair and eq­ui­table” prin­ci­ple away from our courts. In fact, we may risk hand­ing ju­di­cial au­thor­ity to ex­ter­nal bod­ies, such as the in­ter­na­tional cen­tre for dis­pute set­tle­ment men­tioned above, to de­ter­mine our land val­u­a­tion dis­putes sim­ply on mar­ket prin­ci­ples.

In ob­serv­ing the re­cent de­bates on land re­form and the sim­plis­tic, coun­ter­pro­duc­tive sug­ges­tions that are be­ing raised by cer­tain op­po­nents of the ANC, it is ob­vi­ous that South Africa is not im­mune to the grow­ing global phenomenon of pop­ulism.

We need to think care­fully how we re­spond to such pop­ulism to most ef­fec­tively neu­tralise it.

The Latin Amer­i­can econ­o­mist, An­drés Ve­lasco, warns: “Anti-pop­ulists … must come to terms with the re­al­ity that bad poli­cies pay off, both eco­nom­i­cally and po­lit­i­cally, long be­fore they be­come toxic.”

In other words, it will not be enough for the ANC and South Africans at large to sim­ply la­bel ideas as “pop­ulist” and then as­sume they will be de­feated.

The best way to de­feat pop­ulism is rather to de­velop eco­nom­i­cally and legally sound pro­grammes that have the po­ten­tial to rad­i­cally ad­dress the needs of the ma­jor­ity of the pop­u­la­tion.

It is this vi­sion that in­forms the ANC’s com­mit­ment to a pro­gramme of rad­i­cal eco­nomic trans­for­ma­tion.

When ap­ply­ing such think­ing about rad­i­cal eco­nomic trans­for­ma­tion to the cur­rent de­bates on land re­form, we are re­quired to base our in­ter­ven­tions on three im­por­tant pil­lars.

Firstly, we must work within the man­date and the pro­gres­sive, re­dis­tribu­tive frame­work of sec­tion 25 of our Con­sti­tu­tion, or the un­in­tended neg­a­tive con­se­quences for the wel­fare of our peo­ple may be sig­nif­i­cant.

Se­condly, as a na­tion, we must give our own meaning and sub­stance to the no­tion of fair and eq­ui­table com­pen­sa­tion, in or­der to re­place purely mar­ket-based val­u­a­tions such as the so-called will­ing buyer, will­ing seller ap­proach. If we give up our self-reg­u­la­tion of such mat­ters – for ex­am­ple, by re­mov­ing sec­tion 25 from the Con­sti­tu­tion – then we risk los­ing our pol­icy sovereignty as such dis­putes may come to be de­cided upon by for­eign-based ar­bi­tra­tion bod­ies.

Thirdly, for the sake of sus­tain­abil­ity, food se­cu­rity and eco­nomic progress, land re­form must be com­bined with ef­fec­tive pro­grammes to in­crease the pro­duc­tiv­ity of land use in many parts of the coun­try.

For all of these rea­sons, ANC MPs were 100% cor­rect when they chose re­cently not to vote with an op­po­si­tion mo­tion to abol­ish sec­tion 25 of the Con­sti­tu­tion.

Per­haps they could have ar­gued the case more force­fully, but ANC MPs should be ap­plauded for their stead­fast com­mit­ment to ex­ist­ing ANC pol­icy on the land ques­tion, as well as to South Africa’s Con­sti­tu­tion, to good gov­er­nance and to true rad­i­cal eco­nomic trans­for­ma­tion in the face of mean­ing­less, self-serv­ing, pop­ulist slo­gans from parts of the op­po­si­tion.

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