……article dated 5 July 2021…..

Parliament awaits outcome of ANC/EFF debate…

Whatever happens as a result of the extended ad-hoc parliamentary meetings between the governing party and the EFF on the proposed Amendment of Section 25 of the Constitution, such outcome will be one of the most important political moments in the country’s development on the land issue.  Hopefully a non-combative direction will be arrived at.

At the same time, the much-decried Expropriation Bill remains waiting in the wings for the outcome.   Like any other past major discussion involving land and property rights, emotional language always forms part of the debate, but in the end it will be the clinical meaning of words rather than any posturing that will define the future road.

Whatever is decided calls for immediate application at law or, alternatively, to drop mmediately any motion to amend the Constitution.  In the interests of stability, such political games cannot be extended any longer under current conditions.  In the knowledge there will always be winners and losers in land and property rights arguments, the issue must be sorted out urgently in order to bring and end to the paralysis that has surrounded the government’s land reform programme.   Internal arguments within the governing party have largely led to this paralysis, coupled with ineffective government application of reforms.

Supping with the devil

In their search for an election platform, the EFF have gained some political advantage in the short term and have seemed to now have the ANC over a  barrel on land reform initiatives, having stolen a march on the ANC by successfully pushing through Parliament the motion to amend the Constitution to acquire land for no compensation, or “nothing” in the first place.

The ANC  found themselves having to follow this initiative with their vote. To vote against it was impossible they found.

The highest court

Following the decision by ConCourt after application that such an amendment was possible, an ad-hoc parliamentary committee was formed between all parties at the President’s behest to word an amendment of Section 25 of the Constitution, the ANC and the EFF remaining the only parties interested in such an amendment.  Such was rejected by all other parties.  In turn, a sub-committee was formed between the two to hack out the terms proposed to allow such an acquisition, this sub-committee presently attempting to wordsmith the proposed amendmen, the DA and the FF+ sitting in as ‘observers’.

The current “standoff” is because any amendment to the Constititution, as distinct from a Bill of General Application, requires a two thirds majority in Parliament for the necessary constitutional change, the EFF knowing that the ANC needs their show of hands in order to make this up . Any ‘normal’ Bill requires a simple majority of hands.

Bad poker

We suspect that the EFF might have overplayed their hand with their sudden call for nationalisation of all land, having used the Constitutional Court’s cut off date for the application to be voted upon in order to corner the ANC through lack of time. However, in order to keep any counter offer alive and to try to keep the partnership going, the ANC kickied for touch 30 seconds before the final hooter and asked for extra time. ConCourt gave them the time, it appears reluctantly, and after one more meeting with a recalcitrant EFF, the ANC have rejected any further meetings.

Like most, they seemed to have realised that all EFF suggestions are purely political theatre and such a resolution as nationalisation will probably never fly. The ANC MPs on the sub-committee, through their chair, have accordingly indicated that they will leave a suggested wording  for “nil” compensation on the table for the primary ad-hoc committee to consider when the whole Bill is debated after Parliament re-assembles.

At this stage, with Parliament closing, the two parties therefore are unable to express any considered joint outcome, the EFF merely claiming in a statement that it  was political ‘cowardice’ on the part of the ANC for not “biting the bullet on land acquistion . The EFF have never put forward any seriously constructed wording on the table as a proposal it appears, only suggesting the policy of nationalisation. 

Dangerous rhetoric

Leader of the EFF, Julius Malema, who is not involved on either committee, chimed in upon the failure of the committee to meet again re-quoting former president Jacob Zuma’s controversial statement that South Africa will indeed change its laws to allow government to expropriate land without compensation. “Our president Zuma said we must expropriate land with no compensation last week.”, Malema said. “Why are you defying him? You’re defying your president because you only subdue to white rule and will never listen to any view opposing whites.

“South Africa has now seen you for what you are”, Malema said, playing to the gallery in usual fashion. . “You are a walking contradiction. You’re now exposed”, he said of the ANC.  

Fall back plan

Before the final meeting of the sub-committee on 2 July, a few days ago, committee chair of the parliamentary ad hoc committee, Dr Mathole Motshekga (ANC), has now found himself considering “nationalisation” as suggested by the EFF; consideration of a possible ANC alternative wording; or falling back on Minister de Lille’s Expropriation Bill, legislation originally drafted in 2015 and subsequently brought up to date recently.

The clue to the Expropriation Bill and its intended application stares one squarely in the face when one considers who tabled the Bill originally.   It was the then current Minister of Labour, Thulas Nxesi,Minister of Public Works in 2015 and now, for the latest version, it is Patricia de Lille, the current Minister of Public Works. 

Indeed, it is public works ministerial portfolio that has charge of all state assets and this is the ministry charged with running the state asset register. Whilst the largest number of assets are buildings these are on land as are the thousands of parks facilities and hundreds of thousands of hectares of unused land, both rural and urban.

No compensation

Whilst this Ministry has no controlling interest in privately owned land whatsoever, it still has developmental needs for land.  Under the proposed Expropriation Bill, the Minister can acquire any land, either held by any state department, SOE or private entity for an agreed price or land for ‘nil’ compensation under certain proposed conditions where it has to, all parties having looked at these conditions benignly, including the FF+ and the DA.   

Under this proposal, should the state require private land for any public works programme, whether it be for a state housing plan, an agricultural programme, or an infrastructure development such as water, roads, rail and electricity, it can get it under certain conditions and if needs be for nothing with more conditions being met. Such legislation is provided for in most democratic countries.

These conditions and procedures to obtain such land, whether it be registered in its state asset register or in private hands, are laid down in the proposed Bill already  in circulation but held up temporarily.  The ANC, meawhile, have been told again and again that to acheive this process of land acquistion for no compensation under certain circumstances, although more lengthy, will not have to involve a possibily unattainable two thirds majority in Parliament but just the normal majority needed to pass most Bills.

So the problem for the ANC now is an “all or nothing matter”. The problem is, of course, that the Expropriation Bill is hardly the prize to take to take to the next elective ANC conference.or to a national election where the EFF will be waiting.  Again, a further dispute has occurred within the ANC between moderate forces and RET followers, all now heightened by the possiblity of the incaceration af a past President defying the same ConCourt. 

More kicking for touch

In the last sub-committee meeting, the ANC, most unwisely and without much thought many say, countered the EFF move by opting for “custodianship” as an alternative to ‘nationalisation’.  This was rejected by the EFF in what was really a debate conducted through the media rather than parliamentary debate.   A pause followed, with the ANC announcing it would return for a final meeting with the EFF. This has now fallen through with the parties agreeing to disagree.  Parliament has closed except for a few virtual meetings on other business.

Meanwhile, there has been an outburst from ANC party ranks in Durban, the ANC having now realised that the idea of ‘custodianship’ went down badly with Ingonyama Trust in KwaZulu-Natal, where much of the monarch’s estate was already leased out to portions of the Zulu nation. This area is already difficult with monarchial argument on heirachial issues and also troublesome within ANC party ranks with the ANC Premier in Kwa-Zulu Natal, Sihle Zikalala, seemingly aligned at times with the Jacob Zuma camp.

Voices from the past

Some of the ANC have now consequently backtracked on the whole issue, following a rebuke from past president Thabo Mbeki on the subject.  They seem to be returning to the ideas espoused by the Expropriation Bill, currently on hold from hearings in the provinces awaiting the outcome of decisons on the progress of the Consititutional Amendment Bill 

Dr Motshega of the Constitutional ad-hoc committee has now received from ANC MPs a somewhat half-hearted last offer on any constitutional change wording on no compensation which, as things stand at the moment, proposes to amend section 25(1) of the Constitution as follows.  “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”.

What happens next is a vacuum in this debate for parliamentary recess until August 16.  This is, of course, of no concern to the EFF who see their failed parliamentary motion as part of their toolbox for the next election.

( Article written before the riots and looting in both Kwa-Zulu Natal and Gauteng ) 




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