Beware of possible flaws in expropriation gambit

To grant the government the right to deprive people of their property is to concede a truly awesome power.

This is precisely what Expropriation without Compensation (EWC) promises to do.

For its proponents, this is part of its attraction: the idea that an empowered, activist state will intervene to achieve a just and equitable dispensation in respect of landholding in South Africa.

But as the process has unfolded, a growing number of voices have demanded caveats for how it is to be implemented. Agreeing with the principle of EWC – even eager to see it applied – they are nonetheless disquieted by the idea that it might be applied to them.

The recent demand by traditional leaders is one manifestation of this. Another is the view that property owned by black people should be exempt.

A few months ago the Alexandra Property Owners Rights Group (Apor) asserted that if this policy becomes law, it should include a stipulation that the holdings of black people may not be seized.

This would, they argued, be a replay of the agonising experiences of black people under apartheid.

It should not be repeated in the democratic order.

According to the group’s chairperson, Vakele Mbalukwana: “The law can be passed to expropriate land without compensation. You may find that things may start well but after some time the state may end up not choosing whose property is being expropriated. The state can start expropriating land from people whose land was taken by the apartheid government. In the new legislation‚ there must be a clause stipulating clearly that land belonging to black people cannot be expropriated.”

In this, Apor is highlighting a common theme in politics: how to avoid the specific consequences of a generally applied policy. By invoking the very real history of dispossession, it seeks a special dispensation for its constituency.

If EWC is conceived, as many commentators and activists would have it, as a means for redressing historical wrongs, there is a moral logic to this position.

But policy can rarely be tailored in this way; state power is invariably a blunt instrument. Hence the much-discussed law of unintended consequences.

Those hoping EWC can be crafted to exclude black people (or any other group, such as the elderly) from its remit will be disappointed. For one thing, it is unlikely that the blanket exemption of a demographic group from the application of a law would stand up to constitutional scrutiny – if only because such a law would clearly not be of general application.

Perhaps more pertinently, as we at the Institute of Race Relations have argued, having been elevated to a position of formal policy, EWC will be prone to abuse. By its nature, it implies the significant degradation of property rights. Note the second word: rights. This will reverberate throughout society.

Expropriation is something that governments of all stripes do from time to time. Because this is an awesome power that can cause great hardship, limits need to be put on the conditions under which it does so.

Part of this is requiring governments to pay former owners. This is an important part of a relationship between the state and its citizens in a democracy: state power is restrained and the interests of the individual citizen are recognised and are respected.

Granted increased discretion to take its citizens’ property through EWC, governments will be tempted to use it.

To suppose EWC will be limited to measures pertaining to historical redress is to miss its full implications. Expropriations are far more likely to be done in the interests of “development” than in land restitution. This may be for laying down roads or building dams, or constructing infrastructure for sporting events.

People – sometimes claiming generations’ worth of roots on affected sites – are something of a bureaucratic inconvenience to be removed. EWC would provide an ideal means of doing so. Clean and cheap.

Those caught up in this are likely to be poor and vulnerable. Where property rights are undermined, the wealthy and politically connected can buy protection, or call in favours. Poor people cannot. And it is invariably on them that the burdens of indifference and venality fall. This is something EWC would encourage.

It would also be a dangerous tool in the hands of corrupt officials, a tool to extort “fees” from a shopkeeper, or to clear a community off a tract of land desired by a developer.

The National African Federated Chamber of Commerce (Nafcoc) – whose own position does not entirely rule out EWC – put it succinctly. Its chairperson, Lawrence Mavundla, remarked last month: “The current political rhetoric – redistributing unjustly acquired white farms to black people – does not take into account the fact that the amendment to the constitution under section 25 as proposed will outlast the current debate, current politicians and current land reform demands.”

He continued: “Unless expropriation without compensation is strictly confined to the restitution of land taken under apartheid, it will unleash a staggering potential for personal vendettas, corruption and victimisation of political adversities. The awesome power placed in the hands of junior and unaccountable officials throughout the country is terrifying, not just for whites, but for every black South African.”

The difficulty – ultimately – is that confining a policy strictly to any one, limited objective is difficult.

In the end, EWC, as with almost any policy, needs to be evaluated in terms of what it is likely to do, not what anyone would like it to do – and understanding that it is not always possible to shield ourselves from it, even while expecting it to impact on others.

Things may start well but after some time the state may end up not choosing whose property is being expropriated ... there must be a clause stipulating that land belonging to black people cannot be expropriated

Vakele Mbalukwana

Property Owners Rights Group (Apor)