It's not the end of the road if Bill fails to pass, says ANC ahead of land reform debate

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  • A failure to obtain the required two-thirds majority to amend Section 25 of the Constitution will not be the end of the ANC's land reform road.
  • In an unusual step, the party stated its position on expropriation without compensation ahead of Tuesday's vote on the amendment.
  • The ANC's does not support state custodianship for all land.

While the ANC is unlikely to garner the required two-thirds majority to amend the Constitution to allow expropriation without compensation, the party says it will not be the end of the road for its land reform programme.

On Tuesday afternoon, the National Assembly will debate the proposed amendment, and it will be a significant surprise if the ANC gets the required votes to pass it, because it needs either the DA's or the EFF's votes. Both of these parties are against the legislation, albeit for diametrically opposed reasons.

In an unusual step, the ANC parliamentary caucus issued a communiqué on its position ahead of the hotly anticipated debate.

"For the ANC, the debate is part of a continuum and not an event. Whether or not the ANC gets a two-thirds majority, land reform and in particular, the land redistribution programme and programmes that address the hunger for land and support, will continue through policy, programme and further draft legislation that will be brought to Parliament," reads the document.

"Whilst the major reason why the ad hoc committee was established in 2019 will remain unfulfilled, to make explicit that which is implicit in the Constitution, this opens the way for the Expropriation Bill, the awaited Land Redistribution Bill and a Land Tenureship Bill to take the process forward. Nothing is lost, it merely requires a new way to realise what the Constitution provides for."

An ad hoc committee was appointed to draft the amendments. From the start of the process, it was clear that there was a chasm between the ANC and EFF's stance on what form expropriation should take. In May, EFF leader Julius Malema said the party would never support an amendment that did not place all land in state custodianship.

Even though President Cyril Ramaphosa distanced him from state custodianship, the ANC included a provision to place some land in state custodianship – which is in the bill adopted by the committee. This did not appease the EFF.

The DA was staunchly opposed to any amendment to allow expropriation without compensation from the inception of the process in February 2018.

READ | Land expropriation: 'Historic day' as ad hoc committee adopts Section 25 amendment bill

In its communiqué, the ANC says its "commitment to resolving the land question is grounded on a three pillared land reform programme," consisting of land restitution, security of tenure and land redistribution.

The party concedes that the land reform process has been fraught. "Although much progress has been made in terms of the transfer of millions of hectares of land through redistribution and security of tenure, progress has been slow, given the property considerations in the Constitution and numerous litigation challenges.

"There have been challenges with the land reform process, which [have] more to do with dealing with the immense legacy of land reform and the capability challenges of implementing the land reform programmes and policy. Well-thought-through programmes and policy have suffered from a lack of human resource capacity to realise their potential."

The party notes that it adopted a resolution at its 2017 conference in Nasrec, Johannesburg to expropriate land without compensation, but also that the "resolution stated that implementation must ensure that it does not undermine future investment in the economy, or damage agricultural production and food security and that intervention must not cause harm to other sectors of the economy".

READ | Land expropriation: ANC, EFF drift further apart on Section 25 amendments

The ANC states that it does not subscribe to the wholesale nationalisation of land or wholesale state custodianship of land.

"The State has, since the 1800s, been a custodian of land. This is nothing new. It has taken different forms and is still the case today. The issue has been raised as if this is a new creation which it is not.

"[The] ANC recognises that state custodianship is necessary for particular purposes, redistribution and land reform. In addition, land held through traditional authority on behalf of communities, communal land tenureship, is another form of state custodianship which has been delegated to traditional authority to redistribute land.

"Custodianship can be carried out by an institution, community, traditional authority, individual or government.

"The conscious distortion of fact that has come up in the parliamentary process is that the original Constitutional Review Committee was mandated to make constitutional amendments regarding the kind of future land tenure regime needed, considering the necessity of the state being a custodian of all South African land. This was rejected by the ANC's amendment, which was passed by the National Assembly in 2018 and ratified by the final report."

The ANC will be represented in the debate by Mathole Motshekga, who chaired the ad hoc committee, ANC MP Dibolelo Mahlatsi and Justice and Correctional Services Minister Ronald Lamola. Other MPs who have served on the ad hoc committee and who are likely to participate in the debate, is the DA's Annelie Lotriet, EFF chief whip Floyd Shivambu and the FF Plus' Corné Mulder.

The sitting is scheduled for 14:00.

If there is a major upset and the National Assembly adopts the bill, it will have to be referred to the National Council of Provinces. Given that the ANC controls eight of the nine provinces, it shouldn't encounter much difficulty passing it there. Otherwise, Tuesday will bring to an end a process that started in February 2018 when the EFF brought a motion to amend the Constitution to allow expropriation without compensation, and the motion was passed after the ANC amended it.

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