There are enough tools to carry out land reform without pulling bricks from of the finely balanced Constitution

Apart from hurling abuse at cheating Australian cricketers, one of SA’s most popular pastimes, politically, is looking through the rear-view mirror. Every anniversary, birth and death, from the great and the good to the great and the bad and those in-between, is occasion for a sonorous declaration, a street renaming or a taxpayer-funded celebration.

Both the best and the worst of SA were conjoined after the death of Nelson Mandela in December 2013, when funds intended for transport to his funeral were stolen by East London city council politicians and officials. And, furthering our best traditions, two months ago the public protector found that two ANC councillors and the former mayor had “acted dishonestly, without good faith and in a manner that compromised the integrity of the municipality”.

Extraordinarily — or not, since the events occurred during the heyday of the delinquent Jacob Zuma rule of ruin — the trio have yet to be convicted by any court of law, although they finally appeared before court in April 2017, some three years after they were first arrested.

Unsurprisingly, perhaps, the felonious mayor at the centre of the scam, Zukiswa Ncitha, has since been promoted and now serves as an ANC MP. I am sure it is of comfort for taxpayers to know that she serves on the National Council of Provinces’s select committee on finance.

The passing on Easter Monday of Mandela’s former wife, struggle icon Winnie Madikizela-Mandela whose life story is in every sense Shakespearean — courage, violence, flaws, banishment, love, betrayal — offers hope in the “new dawn” post-Zuma era that the vultures, skimmers and criminals who disfigured Mandela’s funeral will be interdicted from hers.

The Australian cricketers do rather better when it comes to contrition and consequence. There were no soft landings, sideways promotions or grindingly slow wheels of imperfect justice. Captain Steve Smith, vice-captain David Warner and ball tamperer Cameron Bancroft were bundled out of SA mid-tour, did the airport teary confessionals, received playing bans and the Australian cricket team lost key sponsorships.

The other day, I received a reminder that there was a time when our Parliament was not simply a dumping ground for disgraced municipal officials. It was also a jolt that when you accurately look back through that political rear-view mirror the view can be simultaneously illuminating and distorting.

I was asked by Parliament to write a chapter for a volume it is publishing on the Constitution-writing process from two decades back. It was a reminder that one of the burning issues of today, refreshed in March in the National Assembly, nearly derailed the finalisation of the Constitution in May 1996.

Land and the question of expropriation without compensation was thoroughly debated and thrashed out in the halls and side-rooms of the Constitutional Assembly and in various breakaways, including a trip to the missile-testing range at Arniston. Back then the populist pressure came from the “land lobby” — a loose alignment of civil society groupings and some key ANC figures, including current speaker of Parliament Baleka Mbete. They did not wear red overalls or berets, but practically every item of sound and fury being ventilated today was articulated back then.

Squaring the circle between a right to property, a guard against arbitrary dispossession and land reform imperatives happened when legal academics suggested inserting the words “including land reform” into section 25(4) of the Constitution, relating to public interest as one of the bases for which expropriation could be effected. In exchange, the ANC agreed to drop its draft clause, which would have excluded all protections against arbitrary dispossession in the event of “any measure aimed at bringing about land reform for the benefit of people previously disadvantaged by unfair discrimination”.

Famously, in one amusing moment, then Constitutional Assembly chairman Cyril Ramaphosa crooned “give me a clause to build a dream on”, and the revamped and compromise provision appeared to be exactly that. Why then the need to rehash the battles from the past, especially when the danger of so doing threatens to upend the constitutional settlement, so hard fought and won?

One reason, articulated in fact by Madikizela-Mandela in an interview in 2010, 14 years after she had voted in favour of the Constitution, was that Mandela and other ANC leaders of the time had been guilty of “economic betrayal”.

But whether the word “betrayal” or “compromise” better sums up the constitutional compact that is now under threat, two voices from that era provide perspective.

Kader Asmal, a key ANC constitutional negotiator and member of both Mandela’s and Thabo Mbeki’s cabinets, reminded the Constitutional Assembly in the second reading debate on May 6 1996 that “… this Constitution is a modus vivendi, a means of living together for a whole nation, and not a party manifesto … it is not the exclusive property of one or the other party”.

Ramaphosa, today as president entrusted as the key custodian of the Constitution he helped in profound ways to shape, sounded exactly the same theme two days later in the final debate on the Constitution’s passage.

Back then he told the assembly and the world: “The Constitution is the subject of a rather fortunate paradox. It is no one’s Constitution and yet it is everyone’s Constitution. Just as no one party sees its constitutional proposals reproduced entirely in this bill, so no one person can claim exclusive ownership of this Constitution.”

And if that statement of political reality does not provide a complete and compelling answer to the naysayers of today who would unstitch this compact, what was Ramaphosa’s view back then on the entire package he had presided over, including the highly contested property rights clause in section 25?

“The provisions of this Constitution are sound.” He went on to urge “even those who have some reservations” to vote in favour of it; as indeed both Mandelas and I did at the time. But there is one passage from Ramaphosa’s eloquent vote of confidence in favour of a Constitution now under review again, which offers a clue to current controversies on the property clause. He suggested that in view of “the remarkable achievement of the Constitutional Assembly” SA would become “the new Mecca for constitution makers from all over the world to study how we drafted the Constitution”.

Quite what any latter-day constitutional tourists would make of the current review process is speculative. But beyond speculation is the fact that since the passage of our Constitution 22 years ago, the highest court, in the AgriSA case of 2013, provided a very generous definition of transformation and narrowed the scope for triggering compensation after expropriation. Then there is the revamped Expropriation Bill awaiting presidential approval.

But should Parliament press ahead heedless of the powerful tools and judgments currently in the hands of the state, Ramaphosa might wish to do some constitutional tourism of his own.

In 1970, the Indian supreme court held in the Bank Nationalisation case, also about curtailing the right to property, that: “The erosion of one right in the constitution must inevitably erode the whole constitution.”

Sometimes calling back the past illuminates the path ahead.

  • Leon (@TonyLeonSA), a former leader of the opposition, now chairs Resolve Communications and is a senior adviser to K2 Intelligence of London
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