The 2017 ANC conference resolution to expropriate land without compensation was not new but can be said to be a response to its own failure on land restitution and implementation of section 25 of the 1996 Constitution. It was superfluous except as an attempt to upstage the EFF, which had adopted the land question as one of its cardinal pillars.
In his first state of the nation address (Sona) last year, President Cyril Ramaphosa raised the issue and the EFF saw it as an opportunity to test ANC sincerity on the land question.
The fallacy of the EFF was to adopt the concept as a political expression and seek to superimpose it as a legal concept. Needless to say, the debates were shallow, including by one Mosiuoa “Terror” Lekota who suffers from political listeriosis and who associated expropriation without compensation with the PAC when the concept does not exist in any PAC documents because its founders had a higher coefficient of thinking than he has.
The founders of the PAC understood that expropriation as a legal concept was centuries old, had taken different forms in different countries and had existed in South African legal jurisprudence since colonial times.
One watched political plumbers from the South African adult daycare centre fighting and arguing without first seeking a legal meaning of expropriation, despite many parties having legal plumbers in that parliament. Had they first sought to understand what constitutes expropriation in legal terms, they would have saved themselves a lot of pain and unwarranted insults.
Expropriation means the act of a government in taking a privately-owned property, ostensibly to be used for purposes designed for the benefit of the overall public. The concept of expropriation in its legal meaning has an implicit recognition of the legal title of the property to be expropriated. In simple terms, expropriation recognises the legal ownership of those to be expropriated or their property is to be acquired by the government for the public benefit. Given, therefore, our jurisprudence, ‘expropriation’ and ‘without compensation’ cannot be in the same sentence because the concept recognises the legal title of those whose property is to be expropriated.
The legal bind and cleft that the adult daycare centre has put itself in is telling, given that the proponents of expropriation are the very same midwives of the Constitution. Section 14 of the Constitution explicitly protects seizure of possessions of a citizen. While distinct from expropriation, it would require a 75% majority to amend this section to allow what is contemplated by the EFF. It may also require the amendment of section 36 of the Constitution, the limitation of rights that ipso facto would require a 75% majority, as chapter 2 of the Constitution requires such a threshold. It is clear that section 25 cannot be read in isolation from other sections, in what the former Public Protector, in warning against this tendency, referred to as the need for the Constitution to be read purposefully.
Our constitutional law, that the fifth Parliament has a propensity to violate, as do heads of state from Jacob Zuma to Ramaphosa, deals not with expropriation without compensation but with the deprivation, in section 25(1). The legal advisers of parliamentary cheque collectors and Parliament seem to pay no attention to Constitutional Court judgments. The ANC conference was near the taverns of Diepkloof in Nasrec, Johannesburg, when the resolution was adopted. The Constitutional Court has paid a lot of attention to section 25(1) that deals with arbitrary deprivation because, in our law, expropriation cannot also be for the benefit of private individuals.
In trying to extricate itself from legal plumbing, the ANC says it wants to clarify the section, but the courts have clarified section 25 and the ANC fails to say what it is that it wants clarified that has not already been in many court cases. Having realised that ‘expropriation’ and ‘without compensation’ cannot be in the same sentence, the ANC creates more confusion, saying it will expropriate land that is in the hands of the state.
In the AgriSA case which challenged the Mineral and Petroleum Resources Development Act, the Constitutional Court clarified the issue that if the state is the custodian of certain categories of land and transfers the land from the current owners to others in a strict application of the AgriSA criterion, it does not expropriate land. It means the president and the ANC are lying not only to Parliament but to the public.
Any amendment of section 25 will remain in courts for a long time, as long as it refers to expropriation without compensation because no such thing can exist in law.
The other issue is the need for a law of general application. There cannot be a law that targets a particular racial group as it would be unconstitutional.
What one does not deny is that South African citizens do not exist to serve the Constitution, but that the Constitution exists to serve the citizens of South Africa. Where it fails, it has to be amended. The ANC has failed to put a cogent case that requires the Constitution to be amended. One deliberately separates the EFF from the ANC because, besides being the midwife of the Constitution, it is the very ANC that has failed to apply the Constitution in land reform. Instead, we know of top ANC leaders who own farms, and friends and family who are beneficiaries of the slow land reform.
The EFF comes from an ideological and historical position and goes further to deal with a land tenure system. They do so in a reckless manner without regard for the existing tenure system. It is suicidal for people to hand over title deeds in exchange for 99-year leases to thieves who have ransacked state-owned enterprises, sold the country for 30 pieces of silver and been involved in corruption in the distribution of RDP houses. The wife of former minister Fikile Mbalula was mentioned in a fraud case involving R600 million of RDP houses in Qwaqwa, Free State, with Hlaudi Motsoeneng. Environmental Affairs Minister Nomvula Mokonyane bankrupted the water affairs department and has been mentioned in many cases involving corruption. The ANC secretary-general Ace Magashule is mentioned in a case involving Estina dairy farm that was supposed to be for the poor. Zuma is not only mentioned in land disputes in KwaZulu-Natal but as a recipient of cattle from North West and the Eastern Cape destined for emerging farmers.
The ANC must apply the law and the Constitution and stop playing games, unless they want another heist. The sensitive issue of land and our bloodied colonial history should not be used by thieves and state capturers to serve their own interests at the expense of the country.
“You cannot win at the negotiating table what you have not won at the battlefield.”
- Ngcukana is a consultant at Investec Asset Management
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