At the ANC national conference in December 2017, which elected Cyril Ramaphosa as president by a tiny margin, the party adopted a resolution that consisted of two mutually destructive elements.
On the one hand it resolved that nationalisation of land without compensation “should be one of the methods used by the state to address land reform”. Yet the same resolution also insisted that any such method “should not have a negative impact with regard to such areas as food security, agricultural production, other economic sectors and investment in the economy”.
It might be said that the first part of the resolution was a victory for the economic Talibans who rejoice in the moniker of “radical economic transformation”, while the second part, or the caveat, was a win for the saner faction who understood the forces that propel growth and investment.
As with any such incompatibles the mixed message pleased neither side, and the matter was deferred to parliament to make sense of this mess.
Reading the runes emerging from the parliamentary ad hoc committee charged with amending section 25 (the property clause) that requires amendment to explicitly endorse expropriation without compensation (EWC), the forces of economic sanity are not represented at all by the ANC component in the committee.
Its members seem entirely mesmerised by the electorally insignificant Economic Freedom Fighters (EFF), which has yet to amass enough support in a single municipal ward to win even one of the hundreds of by-elections it has contested these past five years. The same party dreads its looming appointment with the national electorate in October, and is finding any number of spurious reasons to postpone the poll.
This curious aversion to testing its appeal against a party that claims to be the authentic voice of the dispossessed majority, is in stark contrast to the EFF’s ability to command the attention and the fear of the ANC. It has now secured a meeting with the ANC “top six” to press its demands, insatiable as they might be, on the price it will extract from the governing party to support an amendment to section 25.
Since the ANC has found no support from the constitutionally minded DA, it is obliged to play supplicant to the EFF, ignoring the lessons strewn across the pages of history of the price paid by appeasers.
However, without waiting for the resolution of this danse macabre those pesky, “amorphous markets” have sent an early warning on the price likely to be extracted if we barrel into a glorious future unburdened by such bothersome detail as protecting property rights.
Last week foreign investors withdrew a further R6.6bn out of the JSE, according to fund manager Dean Ginsberg, and R5bn was sold out of the SA bond market, taking combined outflows this year, to date, to a combined R63bn. And that is before the ink is dried on whatever concoction emerges from the parliamentary process regarding EWC. It is also worth pausing to remind whichever force gets the upper hand in the EWC saga that the property clause governs all property, such as shares and bonds, not simply land, and its amendment in whatever shape or form will further drive the country into the ditch.
It was this precise point that leapt out of the page, or more precisely page six, of a densely argued 15-page missive on the topic by former president Thabo Mbeki. Having shunned the ANC and public attention for the long and disastrous Zuma years, Mbeki is clearly again relishing the spotlight of attention and influence even if the beam he shines on the EWC debate is dark and foreboding.
Mbeki states explicitly: “Owners of capital would obviously see the constitutional amendment as opening the door to any government to expropriate any property without compensation. This would be a very serious disincentive to investment which our country cannot afford … We should therefore NOT proceed with the constitutional amendment!”
Much of the rest of his paper is vintage Mbeki replete with orotund phrases and historical quotations. But it is savage in its denunciations. Those who delight in the esoterica of the long history of the ANC might be less delighted to learn from its best vote winning president that the ANC resolution on EWC is an endorsement of PAC policy and a rejection of the party’s holy grail, the Freedom Charter. Or that to implement the resolution will require the reintroduction of “regressive tribalism” into SA.
In fact, on the issue of “regressive tribalism”, the Mbeki paper does not reference the June 11 judgment of the KZN high court on the Ingonyama Trust, a true and property-destructive relic that prevents hundreds of thousands of rural Zulus getting title to land. The judgment threw out the attempt by the trust to convert its trusteeship into a rent-extracting overlordship, at the cost to its alleged beneficiaries.
Yet on the table of the EFF demands is that the very custodianship of Ingonyama should now be nationalised across the country. And all of this wholesale national seizure of private property will be placed under the “custodianship” of a politician, the minister of agriculture, land reform and rural development.
The minister was found wanting by the high court for her “breach of duty to respect, protect, promote and fulfil the constitutional right to property of the holders of rights vested in respect of the trust-held land”.
In 2019, dealing with the same ministry in respect of another contentious land issue, the betterment of the lives of labour tenants, the Constitutional Court held that the department’s failure to manage its basic mandate “to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly exacerbated the intensity and bitterness of our national debate about land reform”.
And now the EFF proposes the same failing department be gifted with enormous, sweeping powers over the edifice of property dispossession and compensation, if any.
In the same judgment, the court skewered the government, noting with arch precision: “It is not the constitution, nor the courts, nor the laws of the country that are at fault in this. It is the institutional capacity of the department to do what the statute and the constitution require of it that lies at the heart of this colossal crisis.”
That ConCourt roasting of the department was delivered in August 2019. The KZN high court finding that the same minister and department were delinquent in their oversight came nearly two year later. Different cases but the same conclusion: the government cannot fulfil its basic mandate.
So how has the ANC responded to the EFF demand that the state and the department now take on a massively expanded brief: national custody of all property and land rights in the entire country?
It did as appeasers do — it attempted to embrace some but not all of the EFF proposal. The ANC in the parliamentary committee has conceded that “certain land” will indeed fall under “state custodianship”. Of course, this dog’s dinner attempt at compromise has been rebuffed by the EFF, which, having pushed the ANC to accept this backdoor nationalisation of land and property, now wants to go the whole hog.
The latest flip-flop or U-turn – which goes way into EFF territory and ever further away from the caveat in the ANC 2017 resolution, and is not even contemplated in the parliamentary instruction to the committee – will do more than “kill entrepreneurial spirit”.
It is the death knell for the economy, for growth, for individual rights, for the economic advancement of the most marginalised in our society. And as Mbeki reminded his readers, it is an utter repudiation of the Freedom Charter promise that “the land shall be shared by those who work it”.
But then again, the ANC doesn’t really have a point of principle these days. It outsourced this to the moribund PAC and the all too alive EFF.
Leon, a former leader of the opposition, now chairs Resolve Communications.
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