After more than two decades of the land reform programme, the land question in South Africa remains unresolved and highly contested. On 27 February 2018 the National Assembly set in motion a process to amend the constitution in order to allow for land expropriation without compensation.
That parliamentary motion gave rise to the constitutional review committee process, which held public hearings across South Africa, called for written submissions and held oral submissions at parliament, soliciting public opinion on whether a constitutional amendment should be considered to allow for the expropriation of land without compensation. Public consultation has concluded after a long-haul of parliamentary processes, the country awaits a verdict.
Events leading to 27 February 2018
Almost exactly one year ago, the Economic Freedom Fighters (EFF – an opposition party in parliament with 6% of seats) proposed a motion to amend the Constitution to allow for the expropriation of land without compensation. The said motion, was defeated by 261 votes to 33. “The motion was immature,” argued the then minister of Department of Rural Development and Land Reform(DRDLR) Gugile Nkwiti on behalf of ANC – the African National Congress – the ruling party.
A year later, the ANC voted with EFF on the similar motion. The voting of the ANC with the EFF culminates the ANC’s long-standing contradiction of using radical rhetoric while many of its endorsed policies are seen to be quite liberal in content. Key moments exhibiting the ANC’s radical rhetoric include the 2005 Land Summit, the 2007 Polokwane conference resolutions on land as a campaign platform in the 2009 elections, 2014 election manifestos, and ANC policy conference in 2017. On the other hand, since the 1990s, the ANC has strongly guarded against criticism of the ‘Willing Buyer, Willing Seller’ policy and the use of market value when calculating compensation despite provisions noted in section 25(3) of the constitution.
In 2017, the ANC voted against the motion in February but said the opposite at its policy conference in June and at its 54th elective conference in December by adopting a similar resolution to expropriate land without compensation. In its post-conference declaration in December 2017, the ANC said the party would “as a matter of policy, pursue expropriation of land without compensation”. The expropriation without compensation was qualified with criteria of agricultural production, economic stability, and food security; this was thought to be sufficient to appease factional tempers.
Ahead of the conference, there were contesting factions in the ANC, separated by campaigns around either the fight against state capture and corruption in the government, or promises to deliver Radical Economic Transformation (RET) with an ‘expropriation of land without compensation’ policy.
However, the leadership election results at the conference pointed to a stalemate, with the two different factions taking a similar number of positions. The RET was ‘cautiously’ announced in newly elected leader, Cyril Ramaphosa’s, acceptance speech of victory, including the ‘expropriation of land without compensation’ policy resolution that was adopted at the conference. “Expropriation of land without compensation should be among the key mechanisms available to government to give effect to land reform and redistribution. In determining the mechanisms of implementation, we must ensure that we do not undermine future investment in the economy, or damage agricultural production and food security. Furthermore, our interventions must not cause harm to other sectors of the economy.
“The ANC’s approach to land reform must be based on three elements: increased security of tenure, land restitution and land redistribution. Concrete interventions are required to improve the functioning of all three elements of land reform. These interventions should focus on government-owned land and should also be guided by the ANC’s Ready to Govern policy document which prioritised the re- distribution of vacant, unused and under-utilised state land, as well as land held for speculation and hopelessly indebted land…,” reads the resolution of the conference.
In his maiden speech delivering the State of the Nation Address (SONA) as the new president of South Africa, Mr Ramaphosa, said that his administration would be continuing with a policy of expropriation of land without compensation. It was this ANC resolution in December 2017 which led the ANC in Parliament to support the EFF motion of 27 February 2018.
27th February, the day of the motion
The now Minister for the Department of Water and Sanitation – who before the 26th February’s night cabinet reshuffle, was the minister of the DRDLR – Gugile Nkwinti was quoted in the media on the 26th February having said, on behalf of the ANC, that the governing party would support the motion – brought in the name of the EFF leader Julius Malema.
In the morning hours of the 27th February 2018, there was an early indication that the ANC caucus would adopt the resolution – and essentially make sure that it would pass – when the ANC NEC member Tony Yengeni tweeted that the governing party would ‘support the motion’.
On the 27th of February 2018, EFF leader, Julius Malema, brought a parliamentary motion for land expropriation. However, the ANC successfully ensured that it makes key amendments that effectively watered down the EFF’s push in line with its national conference resolution.
Swift reminder: at the national conference, the ANC had agreed to start the process of amending Section 25 of the Constitution to allow for land expropriation without compensation. However, this decision was qualified by the requirement that the Constitution would only be amended if it would not negatively impact the agricultural sector, national food security or other sectors such as financial services.
With amendments by the ANC, an overwhelming majority of parliamentarians voted for the motion with 241 votes in favour and 83 against – unlike the previous year when a similar EFF motion was defeated 261 against and 33 in favour. The division of parliamentarians was along party lines.
Political realities explain why the resolution was phrased in this way. One ANC faction wanted the constitutional change, the other did not. But the skeptics knew of widespread anger inside the ANC (and outside it) at the slow pace of land reform. Insisting that there was no need for a change would not have been credible – it would mean being seen as complacent to an unequal holding of the land.
Events following the motion
The Constitutional Review Committee was given a mandate by the National Assembly and the NCOP to review section 25 of the Constitution, and other clauses where necessary, to make it possible for the state to expropriate land in the public interest without compensation. In so doing, the Committee was obliged to solicit public opinion hence it undertook an extensive nationwide public hearing process from June to August.
Taking into account what ordinary South Africans, policy-makers, civil society organisations, and academics have to say about the issue, the committee will then make recommendations to Parliament, in the form of constitutional amendments by the end of September. Although they were given a deadline of 30 August 2018 by which to do all of this, the Committee requested an extension in making recommendations to parliament.
By 21 March 2018, the Committee announced there would not only be written submissions, but also hold countrywide public hearings. In line with its mandate, the Committee invited the public to submit written comments. From those written submissions about 30 participants (representing the agricultural sector, academics, civil society organisations, and the religious sectors) made oral submissions at parliament in September. The closing date for the written submissions and an indication to make the oral submission was 31 May. However, the Committee extended the deadline for written submissions by two weeks. This happened after civil society organisations such as Helen Suzman Foundation and others felt the 45 days provided were not sufficient.
Before, the extension, the Committee had already received 140 000 written submissions and predicting an increase threefold as the deadline approaches. This led to fears that some groups could deliberately be clogging the system as MPs heard about one person that had made one similar submission more than 60 000 times.
By the closing date on June 15, the Committee had received 700,000 written submissions. The Committee then proceeded to split into two groups to visit nine provinces as there were two more phases of submissions on the agenda. From June to August 6, in what can be described as one of the most extensive public consultations by Parliament, there were 34 public hearings over six weeks across all nine provinces.
During this period of the public hearings, in May, the ANC held a two-day land summit in Boksburg where it decided there was no need to amend the Constitution. Instead, it opted to test the limits of Section 25 of the Constitution by expropriating land without compensation immediately within the current ‘limitations’. This, the party explained, was because many believed Section 25 in its current form allowed expropriation of land without compensation. Furthermore, the land summit had also decided that land expropriation without compensation could also go ahead, adding that certain national departments such as public works, basic education, and human settlements already had the power to expropriate land without compensation.
In less than three months after the ANC’s land summit decided there was no need to amend the Constitution and with public hearings at the tail end, President Ramaphosa “addressed the nation” through a recorded message – after 22:00 on Tuesday of 31 July – as ANC president. He announced that the party will move to amend section 25 of the Constitution to explicitly allow for expropriation of land without compensation a decision informed by its two-day Cabinet Lakgota. In response to President Ramaphosa’s announcement, Mmusi Maimane, of the Democratic Alliance(DA), said in the statement: It is quite remarkable that on a day that has seen unemployment rise again to levels of a humanitarian crisis – the highest in 15 years – the ANC has decided to ramp up its efforts to undermine economic growth and job creation and play Russian Roulette with the economic future of SA”. In contrast, Floyd Shivambu of EFF tweeted: “… this represents capitulation and surrendering to the demands of the people”.
Public hearings attracted about 24,000 people countrywide, only 2,700 of them offered oral submissions. This, according to preliminary results presented by the Committee compared to 700,000 written submissions the committee received with more than 59% against the amendment of the constitution, is in contrast with overwhelming support for Constitutional amendment shown at public hearings.
After six weeks, 32 public hearings and meetings, Parliamentary Review Committee wrapped up its final hearings in Cape Town on Saturday, 4 August, with a number of orators speaking about the plight of farm workers and dwellers threatened with farm evictions to the Committee and 2000 participants that flooded the Friends of God Church in Goodwood. The gathering in Cape Town in many ways became a political rallying point – a final show of force for the EFF which has mobilised throughout the process, a moment for the ANC to push its support cohesively as it has not really done before, and for the DA.
The majority of presentations in Parliament in the first week of September were a select group of practitioners, activists, academics and landowners which argued against a constitutional amendment, saying the Constitution was not an impediment and that, in any case, even if the Constitution was amended, a raft of laws was still required to provide the legislative and regulatory framework.
On the 11 of September, following oral submissions at parliament, the Alliance for Rural Democracy marched to Parliament to hand its list of demands. A week later, the report by Isilumko, who used the submissions made at the recent public hearings amendments as the basis of their findings, was slammed by EFF as propaganda, raising their suspicions that the company had operated outside of its mandate.
Now, it is written submissions versus public debate. Both being an integral part of the public process. According to the report, ANC has viewed the public hearings roadshow as not comprehensive and definitive – it is rumored that ANC would attempt to reopen the window allowing for further submissions. However, legal experts have argued that this could be done by a Constitutional Court order.
The Committee is expected to give a recommendation whether to amend Section 25 of the Constitution to allow for the expropriation of land without compensation.
In any event, to allow for expropriation of land without compensation or to oust the jurisdiction of the court to have a final say on the expropriation would require an amendment of various parts of section 25 of the Constitution. Section 74 of the Constitution prescribes the procedures that must be followed to amend the Constitution – including the property clause contained in section 25.
To pass an amendment to section 25 of the Bill of Rights would require a supporting vote of at least two-thirds of the total number of members of the NA. Additionally, it would require the support of six of the nine provincial delegations of the National Council of Provinces (NCOP) to pass such an amendment.
But in the unlikely event that an amendment of section 25 indirectly amends section 1 of the Constitution, this would require a supporting vote of at least 75% of members of the NA.
This means that the specific content of any amendments will determine whether the NA would have to pass the amendment with a two thirds majority or with a 75% majority.
The Constitution also imposes other procedural requirements that must be followed by the legislature when amending the Constitution. The Constitution further requires extensive consultation before the legislature may consider the amendment of any part of the Constitution.
For now, a divided nation on land question awaits a verdict.
- Sobantu Mzwakali writes for Land Network National Engagement Strategy(LandNNES)