After a cliffhanger 2018, all eyes are on the New Year’s sequel
If 2018 had been a movie, it would have ended in a cliffhanger, an inconclusive final scene that leaves the audience holding its breath. The central plot of the year was clear: the contest around introducing a regime of Expropriation without Compensation. It has both driven and ridden a crest of heady emotion, goaded by ideology, and justified with circular appeals to economic transformation. And it reached its climax when Parliament adopted a report recommending a change to the constitution.
Hence we await the coming year’s sequel. How the script will pan out is unknown, but it seems quite apparent where the key plotlines will unfold.
The most obvious is the proposed constitutional change. This is the first change to the Bill of Rights since the constitution was adopted, and is thus no small matter. It has the potential to call into question the robustness of South Africa’s constitutional framework as a bulwark against the abuse of state power. The idea that whatever happens will be undertaken within the parameters of the constitution looks decidedly less reassuring when those parameters are to be dismantled.
What this change will look like is anybody’s guess. It may tinker with wording (makes ‘explicit that which is implicit’, as the parliamentary report puts it) or it may pave the way for something altogether more extreme, such as the custodial seizure of all land in the country. While there has been some effort by government and the ruling African National Congress (ANC) to downplay the extent of the change, it would be premature to assume that an altogether more ‘radical’ option may not prevail. After all, post-election, a good showing by the Economic Freedom Fighters might embolden them to demand a thorough butchering of the property clause in exchange for cooperation with the ANC.
However, another plotline is the resistance to such a change. The public participation process that produced the committee’s recommendation was hardly exemplary. Indeed, it was deeply deficient. The sense that it was merely passing through the motions to pronounce a foreordained conclusion hung over it throughout. That more than 99% of written submissions were evidently ignored only serves to confirm this. Since South Africans are constitutionally entitled to a level of participation in their governance and law-making that provides a meaningful opportunity for input and influence, this is a grave matter – certainly grounds for challenging the parliamentary process and all that has flowed from it.
Lobby group AfriForum attempted an early challenge, seeking an urgent interdict to prevent Parliament from adopting the report. It was unsuccessful, but the merits of the matter remain undecided. A number of other organisations are preparing similar challenges – rightly so, given the importance of the matter. It is imperative that our representatives apply their minds properly. Indeed, some groups, such as Agri SA, that attempted to seek a solution by avoiding confrontation seem now to have realised that open opposition might be the only course left. In the coming year, the courts will be the setting for some epic battles. High Noon on Constitutional Hill, perhaps?
Meanwhile, another, underappreciated plotline – the manoeuvrings of the some of the less visible characters – will proceed apace. As we at the Institute of Race Relations have previously noted, the state is quietly empowering itself to undertake EWC quite apart from the highly publicised parliamentary process. Regulations recently gazetted under the Property Valuation Act propose a formula for compensation that seems designed to slash the compensation to which expropriated property owners would be eligible to way below market value, and, in some cases, to nothing at all.
Simultaneously, new expropriation legislation is in the works, which – if news reports are to be believed – will explicitly make provision for EWC. The wording suggests that while EWC will be geared at seizing peripheral assets (abandoned properties for example), it notes that taking property without compensation is ‘not limited’ to these.
Together, these could represent a very disconcerting twist in the plot. (Any good sequel will, after all, maintain suspense by introducing unanticipated material.)
In the event, it is highly unlikely that any early resolution is in sight. Amending the constitution is a drawn-out process and our elected representatives will prioritise the coming election (ironically, polling data shows that most South Africans do not give much priority to land reform, and so it is an open question whether this will have a significant impact on the election). The constitutional amendment will not be resolved – one way or another – before mid-year, and possibly not for some time thereafter. The related issues of law and policy may grind on for years. Even after they are (or may be) formally settled, EWC is primed to be a stage for noisy and destructive political theatre. That is in its nature. Expect a turbulent period in which some of our worst political impulses – racial nationalism, evidence-free populism – will be gaudily on display.
One of the consequences of all this is that ‘policy certainty’ is deferred. Indefinitely. And policy certainty is one issue that government has been consistent in identifying as a key barrier to economic take off. As it has been in 2018, the threat of EWC will remain a chokehold on South Africa’s prospects. This is the common story arc that will bind 2018 and 2019. It is a narrative of the triumph of ideology over pragmatism and of opportunities put into perpetual abeyance.
And so there is a strong possibility that when 2019 comes to a close, we will be awaiting yet another sequel, in frustrated hopes of an inspiring ending.
Terence Corrigan is a project manager at the Institute of Race Relations. Readers are invited to join the IRR by sending an SMS to 32823 (SMSes cost R1, Ts and Cs apply).