ANC snubs Malema on Section 25
Talks on expropriation without compensation have stalled between the two main players
The ANC has shut the door on discussions with the Economic Freedom Fighters (EFF) about the proposed changes to the parts of the constitution dealing with the redistribution of land. This is because the ANC plans to produce its own proposal for the amendment of Section 25.
ANC sources say the decision was made on Monday, 21 June when top officials met with the land expropriation task team led by former ANC treasurer general Mathews Phosa.
A team of legal experts is in charge of drafting the party’s legal opinion on amending the 18th Constitution Amendment Bill. ANC insiders said the party’s legal team advised President Cyril Ramaphosa that land could be expropriated without compensation by relying on section 25(2) of the constitution.
The ANC had initially met with the EFF leadership, including Julius Malema and Floyd Shivambu, on 17 and 24 May. At those meetings both parties agreed on the terms of the amendment, but the EFF raised two issues. The points of contention are the custodianship of the land, and the current cut-off for the restitution of property of 19 June 1913, the date of the passing of the Natives Land Act, which stripped black people of existing land ownership and restricted them to ownership of less than 7% of South Africa.
The EFF was determined that the bill read “nationalisation” instead of “custodianship” and want the bill to reflect the words “no compensation” instead of “nil compensation”.
The EFF leaders reneged on the agreement on 26 May when the party failed to attend a virtual meeting for bilateral talks with the ANC. The deadlock between the two parties resulted in an extension of the ad hoc committee’s deadline.
Without the backing of the Democratic Alliance (DA) and other smaller parties that vehemently oppose the amendment of the bill,
the ANC has been seen to be reliant on the EFF.
While the EFF has taken a hard line on its negotiations with the ANC, the governing party has been trying to come up with ways to sidestep the EFF altogether, a party leader said. One ANC leader said Phosa’s legal team sold Ramaphosa on the view that the ANC could temporarily use a system of expropriation that the National Party used during the apartheid regime.
“The ANC could have used the existing bill to expropriate as early as the 1990s but … we were reluctant. Some of the powers that the National Party had still existed. You must remember that this section of the constitution was never changed in the Convention for a Democratic South Africa negotiations. Essentially this means we don’t need to be held at ransom by the EFF. Government must be creative in how it implements it, not to constitutionalise it but to use our powers in the legislature,” the leader said.
In its document, which the Mail & Guardian has seen, the ANC proposed a new clause 25(4)(c), which would state that “the land belongs to and is the common heritage of all South Africans. The land is a common
heritage of all citizens that the state must safeguard for future generations”.
The ANC’S legal experts have also proposed that section 25(5) be amended to read, “the state must take reasonable legislative and other measures, within its available resources to foster conditions which enable state custodianship of certain land in order for all citizens to gain access to land on an equitable basis” (our emphasis).
Phosa confirmed to the M&G that talks with the EFF had reached a dead end. “If you don’t keep to the agreed position we are entitled to find the best alternative to a negotiated agreement and walking away can be better for us,” he said.
The document also explains that the ANC proposes amending section 25(1), which states: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property” to include the following: “provided that a person may be deprived of land without compensation in terms of the law of general application which is in the public interest and is not arbitrary”.
The ANC’S legal experts believe that section 25(2) would allow for
expropriation without compensation by amending section 25(2)(b) to read, “subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court” (the current text) and adding the phrase: “provided that where land and any improvement thereon are expropriated for purposes of land reform as contemplated in subsection 8, the amount of compensation should be nil.”
The ANC began the process to amend section 25 in 2019 following its 2017 Nasrec conference resolution for expropriation without compensation. At the time Ramaphosa had said 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. The decision to implement the resolution was seen as a strategic move to counter the EFF ahead of the crucial 2021 local government elections. The EFF had thus far dominated public debate at the constitutional amendment review hearings on land.
Soon after the conference in December, some ANC leaders — including Ramaphosa — appeared to be taking a softer stance by insisting that the constitution in its current form allowed for land expropriation without compensation.
Parliament then announced in the Government Gazette that the ad hoc committee must initiate and introduce legislation amending section 25 of the constitution to introduce the Constitution Eighteenth Amendment Bill, 2019.
The parliamentary committee amending Section 25 limited its mandate to Sections 25(1), 25(2)(b) and 25(3).
The ANC leader said it would report to parliament in August with proposals for these sections, adding that the party reserved its right to go back to the remainder of section 25.
“We will deal with section 25(7) later,” Phosa told the M&G.
The ANC legal team has also proposed that section 25(3) be amended to state that “the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected”.
The ANC also proposes an amendment of section 25(5) to read: “The state must take reasonable legislative and other measures within its available resources to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.”
The M&G recently reported that former president Thabo Mbeki had cautioned against the amendment of Section 25 of the constitution likening it to an “Africanist” position advanced by the Pan Africanist Congress of Azania.
Mbeki wrote that the ANC must consider the place of land in the context of defeating poverty, unemployment and inequality. This could be achieved only if the country developed a thriving and inclusive economy. Mbeki said agriculture was a declining sector in national economies, contributing little to GDP. The same held true of rural-urban migration, he said.
See “There can be no more excuses for inertia on the return of land”, Pages 26 & 27