The rear-view mirror is the preferred reflector for our government. Far easier to remember the apartheid past, in which most members of the governing party were victims, than the dire times that confront SA.

But even this litigation of the past has both its distortions and its ironies. Take, for example, the latest piece of constitutional nonsense and legislative mischief represented by the new version of the controversial amendment to section 25 of the constitution, the property clause.

In a last-minute ambush of the draft agreed by a majority in the parliamentary ad hoc committee, the ANC has decided to remove a crucial brake against arbitrary dispossession of property. It intends that the minister of land reform, and not the courts, will decide whether the state will pay for land it expropriates, and on the quantum.

This is a nod — a grim replication in fact — to the apartheid past against which the ANC sets its face, for that legal regime was infamous for systematically ousting the jurisdiction of the courts from controversial and rights-delinquent parliamentary acts and regulations. Not simply intent on mimicking its apartheid predecessor, the governing party decided to throw a full-scale assault on the judiciary into its recent wheeze.

In the Sunday Times ANC parliamentarian Mathole Motshekga, ironically armed with a doctorate of law, blamed the courts and not the state for “the slow pace of land reform”.

In a further incongruity he warned that failure to adopt the ANC version of the bill will lead to “the kind of land grabs that took place in Zimbabwe”. He conveniently elides that his government and party provided silent support, and certainly total inaction, in interdicting these.

But the more inconvenient and recent truth on the government’s competence and even-handedness in dealing with land reform was given short shrift by the country’s most senior jurists who comprise the Constitutional Court. Last August, in his valedictory judgment on behalf of a unanimous bench, judge Edwin Cameron wasted no words in skewering the government’s failure to make land restitution a reality for poor black farmers, who by further irony are the intended beneficiaries’ of Motshekga’s latest largesse.

In the judgment of Cameron and his colleagues, while the narrow concern of the case was the betterment of the lives of labour tenants, the issues were far larger. He wrote: “At issue is the entire project of land reform and restitution that our country promised to fulfill when first the interim constitution came into effect in 1994, and afterward in the final constitution in 1997.”

He then noted the failure of the department of rural development & land reform to manage its basic mandate. This is now of urgent relevance given that the ANC wishes to saddle up the same department with enormous power over the entire edifice of property dispossession and compensation. The court held: “(Its failure) to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly worsened the intensity and bitterness of our national debate about land reform.”

Motshekga and the ANC have now decided the courts would be a suitable whipping boy for the failures of land reform. Indeed, in the same weekend newspaper he stated that leaving the decision on expropriation to the courts will mean “it will take another 25 to 50 years to sort out land reform”. Better in his view to hand this arduous task to the same government that presided over the looting of R1-trillion via state capture, switched the lights off at Eskom and downgraded the annual GDP growth rate to less than 0.5%.

Leon, a former leader of the opposition, now chairs Resolve Communications.
@TonyLeonSA.

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