Is the threat of land expropriation an ANC ruse?

Members of the public line up in Tzaneen, Limpopo, to participate in the public hearings into the amendment of section 25 of the Constitution to allow for land expropriation without compensation. (Alex Mitchley, News24)

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South Africans are caught up in the debate around the expropriation of land without compensation. It’s rumored that business refuses to spend money and it’s being reported farmers are wondering whether it is worth their while to invest in planting crops if their property can be expropriated without fair compensation.

We’re losing jobs and investment is down as we bob between resentment, denial and downright fear: Will we become another Zimbabwe?

Perhaps it’s time to stop and ask whether this could be what the ANC wants.

The debate around land expropriation could be missing a key factor: that property rights are first and foremost enshrined in the Bill of Rights, as follows:

25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application—

(a) for a public purpose or in the public interest; and

(b)  subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

As such, the Bill of Rights both determines and defends the status quo.

In light of this, pushing land expropriation without compensation through would mean an amendment to the Bill of Rights. Amending the Bill of Rights would require 75% of the representative vote, 9 percentage points more than the two thirds needed to change any other part of the Constitution.

It’s doubtful that the ANC could pull this off.

Based on public pronouncements, the DA, IFP, FF+, Cope and ACDP are opposed to land expropriation without compensation. Altogether, these parties occupy 109 seats in Parliament, amounting to 27,25% of the vote.

This effectively exceeds the 25% threshold needed to block changes to the Bill of Rights in Parliament. In other words, the ANC, with 249 seats in Parliament or 62,25%, does not have the 75% required to change the Bill of Rights. Even if they managed to unite all other parties in Parliament, bar the aforementioned, they would still fall short. So why all this fear mongering?

Is the ANC trying to out-EFF the EFF? 

The EFF is known for its brand of nationalism, with talk of land expropriation, illegal occupation and so on. It is arguable that the ANC is trying get in on this by positioning itself as the party that is fighting for land for the people (even though state ownership will mean that those who don’t own land now, never will). 

The ANC, in other words, could be using the land expropriation narrative to diminish the "clear blue water" between itself and the EFF so that it can tap into the EFF’s share of voter support (current and/or potential new support). The ANC is captivating the public consciousness with this issue and putting civil society, the private sector and opposition parties alike, firmly on the backfoot.

It is a dark agenda. 

For President Cyril Ramaphosa to have sworn an oath of office "to at all times promote that which will advance and to oppose all that may harm the Republic" to allow for such fear mongering is ghastly. Particularly if it is indeed true that they know that the Bill of Rights stands in their way.

Such is the mastery of PR and public sentiment that the land debate is not a debate at all, precisely because it is highly doubtful that the ANC can pull it off. It seems to be nothing more than an exercise in political marketing for the ANC, at the expense of the South African economy.

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