08 June 2018 – 05:05
Jeremy Cronin and Thando Wababa
EXPROPRIATION WITHOUT COMPENSATION
The policy proposals of the ANC’s land summit and their endorsement by the national executive committee have not always been clearly communicated. That’s a pity. The land summit was a pivotal moment in several ways. In closing, President Cyril Ramaphosa highlighted the groundbreaking role of the workshop in bringing together the ANC-led alliance, government practitioners and, notably, a wide range of land and agrarian experts and activists. This is surely part of Ramaphosa’s new deal style, breaking with anti-intellectual habits that had grown in the recent past, seeking to develop evidence-based policy, engaging with progressive but independent forces. Reflecting on the earlier divisive debate at our 54th ANC national conference, many could be heard saying: “But this is the workshop we should have had before our December conference.”
Important points of consensus have emerged. There is a deepening acknowledgment that the weaknesses and slow pace of land reform since 1994 have little to do with the Constitution and more to do with policy confusion, weak institutions, corruption, elite capture and an overemphasis on land restitution with its enormous legal challenges to prove claims at the expense of a forward-looking, land redistribution programme focused on today’s urban and rural poor.
The importance of security of tenure and appropriate tenure forms for the 60% of South Africans outside the often-burdensome formalities of the Deeds Office and its “non-African”, some would argue, individual versus household or communal titling, were also highlighted.
So where does this leave the heated topic of expropriation without compensation? Workshop participants were mindful of our conference resolution on land, which, among other things, resolved that “expropriation without compensation should be among the key mechanisms [note the plural] available to government to give effect to land reform and restitution”. That resolution, for good measure, added “in determining the mechanisms of implementation, we must ensure we do not undermine future investment in the economy, or damage agricultural production and food security”.
The National Assembly EFF resolution was successfully amended by the ANC with similar qualifications. Despite frequent misreporting in this regard, neither the ANC conference nor the parliamentary resolution definitively call for a constitutional amendment.
We are inclined to agree with those who, like advocate Tembeka Ngcukaitobi, argue that no constitutional amendment is required to enable expropriation without compensation. Instead, ordinary legislation can be used, building on section 25 (8) of the property clause, which states that “no provision” in the property clause “may impede the state from taking legislative and other measures to achieve land, water and other reform … provided any departure … is in accordance with the provisions of section 36 (1).”
Section 36 (1) is the general limitation of rights clause: “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society …”
Section 36 has often been used in ordinary legislation to limit constitutional rights. Compensation for expropriation should be explicitly waived in legislation in cases of purely speculative land-holding or abandoned buildings or for titling labour tenants.
But what’s at play in this? Respect for constitutionality doesn’t mean the Constitution can never be amended. It needs to be a living document. The more salient issue is what we are trying to achieve through allowing expropriation without compensation under certain conditions.
It is here the ANC needs to more clearly distinguish its position from that of the EFF – not for the sake of being different, but because the EFF position is self-contradictory, unworkable and, despite its populism, anti-poor. The EFF argues that all land in SA must be expropriated without compensation. Once done, we are told, it will be possible for unoccupied and unproductive land to be identified, which can be redistributed free.
This expropriation without compensation of all land includes that owned by black households and communities.
Why go through the enormously complicated business of expropriating all land, making the state the uber-custodian, threatening security of tenure for millions, to then identify “unused” and “unproductive” land? Why not focus immediately on such land, including that already under state custodianship? Note, further, that in the former homelands, where the state is the nominal custodian, wholesale expropriation without compensation of communities is often rife, driven by a triad of corrupt officials, chiefs and mining houses.
But there is even more weirdness. Addressing white farmers in 2015, Julius Malema told his audience: “As long as it’s a productive farm, we don’t have to interfere with the production on that piece of land.” Along similar lines, in February Malema told the media: “If you are a farmer and you have lost ownership of the land to the state, then the portion of the farm you are using to produce whatever you are producing should continue uninterrupted …”
And here comes the sleight of hand: Malema tells white farmers the EFF’s without-compensation demand only relates to the ground. In cases of full expropriation, improvements on the land will be compensated. Compensation returns through the back door! But the ground value of most farms is typically a small fraction of market value. If the constitutional requirement of just and equitable compensation were really the blockage to agrarian reform, the EFF’s approach to no compensation for the ground doesn’t remotely address the problem.
Similarly, in regard to mortgaged property Malema recently pronounced: “We are nationalising the land … not these things on top. If you’ve got a bond, we will talk to the bank that we have taken the land. [We will ask the bank] how much was the land and they will tell us and we will say that is gone without compensation. You will be left with the bond on the house.”
Note the naïveté. The banks will be asked to take billions of rand worth of losses by volunteering the value of the ground on which all mortgaged property is situated! This will be expropriated without compensation. Imagine the enormously complicated, administratively expensive task to fairly subtract ground from the rest of the value for all mortgaged property in SA!
Moreover, wealthy mortgaged homeowners and large businesses are likely to occupy prime locations. Poorer mortgaged homeowners or spaza shop proprietors are on land that has a smaller proportional value in their bonds. The EFF approach would amount to a disproportionate discount for the rich. The ANC proposal to consider a land tax is a much more equitable approach.
Serious rural and urban land reform is imperative. Land expropriation is among the potential mechanisms available to the government. But expropriation with or without compensation is not a silver bullet. Instead of threatening millions of black South Africans who have recently acquired a modicum of tenure security, instead of ignoring those who remain insecure, let us advance tenure security especially for the poor and marginalised. Let us focus particularly on labour tenants, farm workers and their families, land-starved petty producers, the half-citizens living under patriarchal domination in former homelands, those in informal settlements and inner-city owner-less buildings. This would be real land reform, not elite capture masquerading as state ownership.
Cronin is deputy public works minister and Wababa a ministerial adviser.