COMMENT

Custody battle: Deciphering proposed amendments to property clause

Phephelaphi Dube writes that ultimately, custodianship model has to be underpinned by transparency and accountability

Custody battle: Deciphering the proposed amendments to the property clause

18 March 2018

The National Assembly’s resolution on 27 February to review the property clause resulted in near hysteria, or euphoria. However, there is a sore lack of nuance, and even deliberate misinformation, regarding the contents of the motion passed. 

The crux of the final amended resolution is to “review section 25 of the Constitution and other clauses necessary to make it possible for the State to expropriate land in the public interest without compensation and in the process conduct public hearings to get the views of ordinary South Africans, policy makers, civil society organisations and academics, about the necessity of, and mechanisms for expropriating land without compensation”.

As such, the resolution as it appears, is vague, perhaps deliberately so. It in essence throws the ball back to the South African public and demands that the public fill in the gaps created by the vagueness. The wording is laced with ambiguity and certainly lends itself to many interpretations. Hence this piece’s focus on what could have been - but is not: the State as the custodian of all land.

While the resolution was an EFF-sponsored motion, it is important to note that the final resolution adopted is an amended version of the EFF’s initial proposal, which among other things, stated that the “property clause makes it practically impossible for the dispossessed of their land to get justice for injustices perpetrated against them”.  A salient feature of the failed initial resolution is a provision that takes “into account the necessity of the State being a custodian of all South African land”. It is probably this - since deleted - phrase, alongside the final reference to “expropriation without compensation”, which has given the impetus for either near hysteria or euphoria. This, over the State’s perceived intention to either abolish private property rights, or to make land available to all South Africans. Skepticism over the State’s ability to adequately allocate and manage resources is not unwarranted, given the well-documented failings of State-driven land reform initiatives. Nevertheless, it is important to delve further into the notion of state custodianship and to distinguish it from nationalisation.

Custodianship differs from nationalisation. The dictionary meaning of nationalisation is a “taking by the State of privately held rights with or without payment or compensation”. The 20th century is littered with such examples, ranging from the seizure of American companies and individual’s properties in the early years of the Cuban Revolution, to the industries - including coal and steel - nationalised across Europe post-World War II. Suffice to say, since nationalisation involves the State acquisition of private property rights, when applied to land, this would mean the effective abolishment of private property, as was seen in the former Yugoslavia, post-World War II.

It should be underlined that State custodianship over certain resources is already recognised in South Africa. In Agri SA v Minister of Mines and Mineral Resources, the Constitutional Court countered the charge of expropriation of minerals, ostensibly ushered in by the 2002 Mineral and Petroleum Resources Development Act. In terms of the Act, the State is now the custodian, on behalf of South Africa’s people, of their common heritage - the mineral and petroleum resources of the country. The Constitutional Court made apparent that the State, as the “custodian of these resources, is not seeking or supposed to be a co-contender with people or business entities for the right to prospect for or mine these minerals. It is a facilitator or a conduit through which broader and equitable access to mineral and petroleum resources can be realised.

Custodianship, regardless of its merits, does not mean that the State has acquired and thus has become owner of the mineral rights concerned, as explained by the Constitutional Court. The State cannot, as would an ordinary owner, use and enjoy any of these rights. The State is a mere administrator as a way of giving effect to its responsibility to ensure more equitable access to natural resources. The State thus has an elevated duty of care, which is distinguishable from that of an ordinary owner, in that custodianship demands that the State act in the best interest of the nation.

Custodianship over land would involve a series of regulations regarding the use and enjoyment of private property, thus curtailing the entitlements currently enjoyed by private property owners. The State would play an increased role in determining how private property is used.

However, custodianship depends on high degree of trust between the citizens and the State. South Africa at the moment is operating on a trust deficit between the State and citizens. This creates not unreasonable suspicion between the State and citizens, particularly over the ability of the State to effectively govern in the best interests of its citizens. In the current political climate, where allegations of State Capture - which are yet to be disproved - loom large in public discourse, one cannot be faulted for being alarmed at the latest developments. The recently deposed Minister of Mines, Mosebenzi Zwane, certainly gave cause for distrust of the custodianship model, given the widely reported influence of external sources in the drafting and framing of key mining policies.

Ultimately, the custodianship model has to be underpinned by transparency and accountability, in addition to well-functioning public institutions. That said, policy in South Africa’s highly unequal society cannot be framed in response to poor governance issues. There is a need to aggressively deal with South Africa’s unequal society, while managing concerns such as job losses and investor confidence. A nuanced understanding of the transformative nature of the Constitution’s property clause, applied with fidelity, would be a good place to start.

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights, 18 March 2018