The NA's resolution on EWC: A clause-by-clause analysis

Gabriel Crouse says the EFF's solution to low levels of black "ownership" of land, appears to be no ownership at all

Although there is no doubt that passing the Land Expropriation Without Compensation Resolution was a watershed moment in this country’s history its exact wording is glossed over. This is facilitated by the fact that the EFF’s publication of their motion garbled the paragraphing, which make the amendments difficult for the public to understand. Below is the EWC Resolution, as it was passed after amendment, with annotations supplied on the basis that words, word for word, matter.

As of 27 February 2018 the (divided) House of the National Assembly:

(1) notes that South Africa has a unique history of brutal dispossession of land from black people by the settler colonial white minority;

“Unique” is a strange word choice. It is trivially true that all aspects of our history are unique in the same way that every moment is unique including this one. It is difficult to believe that this clause is meant to say that our constitution should reflect the fact that dispossession of land from black people was unjust and should be redressed since our constitution makes that commitment already. When sloppily used “unique” means not just distinct but also beyond comparison.

(2) further notes that land dispossession left an indelible mark on the social, political and economic landscape of the country, and has helped design a society based on exploitation of black people and sustenance of white domination;

The term “indelible” is key here. An indelible mark is one that cannot be removed no matter how long you keep scrubbing. To erase an indelible mark you must erase the fabric on which the mark is made. This indicates the motion has no hope of succeeding by its own lights, also that it is the basis of perpetual racialization in government action. That contravenes the opening clause of the Constitution which holds the country together.

(3) acknowledges that the African majority was only confined to 13% of the land in South Africa while whites owned 87% at the end of the apartheid regime in 1994;

This claim is misleading in a number of ways. The Land Acts and Group Areas Act were repealed in June 1991 under National Party government and all racial restrictions on the purchase of land lifted. The first land claims were actually initiated and implemented under the 1993 Abolition of Racially Based Land Measures Amendment Act. The 87% figure included the 12% of land in state hands, as well as urban land.

It is also distorted by the fact that it includes huge tracts of commercial farmland in the Northern and Western Cape, along with western parts of the Eastern Cape, which are desert or semi-desert and totally unsuited to cultivation. Historically and geographically it makes sense to look at land distribution patterns in the higher rainfall east of the country. Here the ‘homeland’ areas made up 1.8% of the Free State, 5% of Gauteng, 12.5% of Mpumalanga, 19.8% of the North West, 27% of Limpopo, 34% of the Eastern Cape, and 44,7% of KwaZulu Natal.

(4) further acknowledges that the current land reform programme has been fraught with difficulties since its inception in 1994, and that the pace of land reform has been slow with only 8% of the land transferred back to black people since 1994;

The 12% of South Africa that was state land passed into the hands of the ANC government in 1994. In terms of transfers from white to black this took three forms: Government land redistribution, land restitution (where land was transferred or payment was accepted in lieu of the land), and private land purchases. The 8% figure referred to refers only to government land purchases of commercial farmland on behalf of black people.

If one excludes the arid tracts in the western part of the country from the denominator, and includes private land purchases one gets a more accurate picture. This was recently done by Agri-SA. This found that the share of agricultural land in the hands of either government or black South Africans made up 26,7% of the total (rising to 46,5% in terms of land potential). At provincial level it now ranged from 7,9% in the Free State, 39,1% in Gauteng, 39,7% in Mpumalanga, 45,3% in North West, 48,3% in the Eastern Cape, 52% in Mpumalanga, and 73,5% in KwaZulu Natal.

(5) acknowledges that the recent land audit claims that black people own less than 2% of rural land, and less than 7% of urban land;

The key word here is “own”, given the figures cited above. This claim from the government’s “land audit” should be acknowledged for what it is: an indication, amongst other things, solely of the fact that – thanks to ANC government policy - a huge number of black people live on land for which they have no title deeds. As many as 30 million black people live outside the titling system which, in turn, deprives them of access to credit, incentives to invest in their dwellings or land improvements; as well as the benefits of a mature rental market which incentivize upkeep and investment from rentiers. To quote Dona Horby and Rosalie Kingwill’s summary of their own book this “untitled” population includes “5 million...in RDP houses where no titles had yet been issued due to systemic inefficiencies...and 17 million in communal areas”. The EFF’s proposal in terms of their initial draft resolution was that the state become “custodian of all South African land” and all South Africans tenants of it, would reduce the “ownership” figures to 0% for black and white.

(6) recognises that the current policy instruments, including the willing buyer willing seller policy, and other provisions of section 25 of the Constitution may be hindering effective land reform;

The key term here is “may” which was introduced by the ANC’s amendment. The EFF’s original Motion stated that section 25 was “at the centre of the present crisis”. It also included a paragraph which “further recognises that [section 25] makes it practically impossible for those dispossessed of their land to get justice for injustices perpetrated against them”. This was deleted by the ANC amendment. In comparison the claim that section 25 “may be hindering” is very weak language, since that recognition is equivalent to the claim that section 25 may not be hindering effective land reform. This is the most confusing aspect of the bill. For the ANC to pass this Motion to begin amending the Constitution they had to make it one that might also not amend the Constitution. Alternatively this is just party politics, with the ANC insisting on taking the credit for demanding land expropriation without compensation as seen in the next paragraph.

(7) notes that in his State of the Nation Address , President Cyril Ramaphosa, in recognizing the original sin of land dispossession, made a commitment that Government would continue the land reform programme that entails expropriation of land without compensation, making use of all mechanisms at the disposal of the State, implemented in a manner that increases agricultural production, improves food security and ensures that the land is returned to those from whom it was taken under colonialism and apartheid and undertake a process of consultation to determine the modalities of the governing party resolution;

This is the first mention of “agriculture”. Agricultural land is not, however, specified as the type of land that president Ramaphosa is calling to be expropriated. “Agriculture” is merely the sector which must increase in production through expropriation without compensation -- if past practice is evidence of future expectations this stipulation will not be realized. Whether production in other sectors must increase or not by this process is unspecified.

So the key term here is not “agriculture”. Rather it is a specification of which land will be expropriated without compensation, namely that which “was taken under colonialism and apartheid”. This could go up to 100% of all South Africa if Malema’s view is accepted that “No white person is a rightful owner of the land” anywhere on the African continent. The Motion makes no other specification of what this key term means exposing unfathomable consequences.

(8) further notes that any amendment to the Constitution to allow for land expropriation without compensation must go through a parliamentary process as Parliament is the only institution that can amend the Constitution;

What has been left unclear is what Parliament takes such amendments to be viz. Rule of Law entrenched in the opening clause of the Constitution. Parliament can amend the Constitution with a ⅔ majority unless the amendment undermines Rule of Law in which case a ¾ majority is needed. No indication is made of whether Parliament considers its forthcoming action to be of the former or latter kind.

and (9) with the concurrence of the National Council of Provinces instructs the Constitutional Review Committee to –

(a) 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, 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;

The ANC amended this section to rely on the Constitutional Review Committee rather than an ad hoc committee which would have had more representation from opposition parties. Further, in precluding the ad hoc committee’s mandate under Rule 167, the issue of receiving “petitions, representations or submissions from interested persons or parties” included in Rule 167 have been replaced. Instead of the government opening itself up to the public who would bring their views to the Committee the Committee will “get the views” from the public at their own discretion.

(b) propose the necessary constitutional amendments where applicable with regards to the kind of future land tenure regime needed;

Again, “land tenure regime” does not distinguish agricultural land. All property that is land has been placed on the table by this motion which begs the question of what exactly this country stands on and what it stands for.