In my interaction with business and civil society, it is clear that the possibility of an amendment to Section 25 of the Constitution continues to cause huge anxiety.
Although my sources have made it clear that the ANC does not believe that they require an amendment in order to do expropriation without compensation, President Cyril Ramaphosa’s late night announcement on 31 July clearly conveyed the ANC’s decision to support an amendment.
Given the ANC’s dominance on the Constitutional Review Committee, it is fairly certain that an amendment of Section 25 would be recommended in their report to Parliament later this year.
Of course, at the same time, the president has been at pains to clarify that the amendment would not facilitate blanket expropriation without compensation or nationalisation of land. He (and other ANC leaders) continue to emphasise that any expropriation will be done in a sensible and sensitive manner.
Although an amendment to the Constitution, and particularly the Bill of Rights, should not be taken lightly, many in the Ramaphosa camp emphasise that a carefully considered clarification of Section 25 would give more certainty to this issue than subjective interpretations by future political operatives which could be far more radical. It would also give clear guidelines to any policy and legislative processes.
So how imminent is such a Constitutional amendment?
Assuming that the national election will be held towards the end of April or early May 2019, it would be extremely difficult, if not impossible, to pass such an amendment prior to the election.
Firstly, Parliament would almost certainly run out of time. The current session of the National Assembly ends mid-September. Even in the unlikely event of the Constitutional Review Committee completing their work by 28 September, they will have to wait for the next session of Parliament to table the report in the National Assembly.
Assuming that they recommend an amendment to Section 25, Parliament would then refer the matter of drafting such an amendment to the Department of Justice. The draft would have to get Cabinet approval, after which it will be referred to the Portfolio Committee on Justice and Correctional Services. This committee will then have to consider the matter and most likely again have a period for public comment and hearings on the specific wording of the amendment.
This will only happen in the new year, after SONA and possibly also the budget process in March. Parliament usually takes between 6 and 9 months to pass any piece of legislation which would take us beyond the election.
Even if they decide to drastically expedite the process, it is very difficult to see where they would get the numbers from to pass the amendment.
Although there has been some debate about the issue I think we can accept that an amendment to Section 25 would require a two-thirds majority rather than the super majority of 75%.
In that case, the ANC would be 18 votes short if every ANC MP is present in the house. To allow for unavoidable absenteeism on the day, it is always necessary to have a safety buffer of 8-10 additional votes. So, 26-28 votes in total.
It is very difficult to see where those votes would come from if the amendment is voted on before the election. Of course, the EFF has 25 elected MPs. However, it is virtually impossible that the EFF would vote for an ANC tabled amendment leading up to the election.
The ANC has made it crystal clear that they intend to deal with the historical injustices around land ownership as a matter of urgency. However, they are also acutely aware that should they do anything irresponsible, it would have catastrophic repercussions for the market and the currency. This would in turn impact on any future growth in the economy and, most importantly, job creation, which is the number one issue concerning voters.
The ANC and the president particularly would not agree to any amendment that would allow the possibility for massive land expropriation, nationalisation or land grabs. Given the EFF’s insistence on radical measures such as nationalisation, it would be virtually impossible for the governing party to find wording that would satisfy the EFF, yet not collapse the market and currency – at least before the election.
In a calmer post-election period, and depending on the outcome of the election, the EFF might be more willing to compromise.
If the ANC does not have the EFF’s support, they would have to rely on the IFP’s 10 votes (and still be a number of votes short). However, the IFP would be unlikely to support any amendment that might potentially impact on traditional land.
That leaves only the DA. Needless to say, it would be suicidal for the DA to support any motion around expropriation of land before an election.
Delaying any amendment till after the election has positive and negative repercussions. The continued uncertainty around expropriation without compensation could mean a further slowdown in foreign direct investment and a continued lack of confidence from the markets for at least another 9 months.
However, in the long run, it would be far better to deal with the emotional issue of land reform and the serious issue of an amendment to our Bill of Rights when cooler heads can prevail in a post-election period.
– Melanie Verwoerd is a former ANC MP and South African Ambassador to Ireland.