Expropriation Bill: Costly, however you look at it - News24
Gabriel Crouse
While the window for public comment on the Expropriation Bill remains open – now extended to 28 February – South Africans should consider that a vote for this Bill is a vote either to wreck the economy or to entrench President Cyril Ramaphosa’s power for life, which is ultimately the same thing. At first glance, this claim might seem implausible. What follows is the argument for it.
Before occupying the Presidency Ramaphosa was Deputy President of the African National Congress (ANC) for five years and Deputy President of South Africa for four, a period shrouded in a strange mystery. What was Ramaphosa doing over that period to stay the hands of state capture – the one that stole while the other distracted with racial scapegoating?
With Ramaphosa in the second most powerful post, this question begged attention. As did others. Was he pro-business, or anti-capitalist? Did he, in his personal capacity, judge people by the colour of their skin or by the content of their character? Was his highest loyalty to himself, his party, his race, or his country?
These were all open questions, wrapped in the grand political chin-scratcher; would Ramaphosa be the next President? On the eve of the Nasrec Conference at which he and Nkosazana Dlamini-Zuma contested the ANC’s leadership, I listened to Khaya FM play a game with ten people who phoned in, and it remains an exemplary totem.
Each caller was read a quote from either the CR17 or NDZ campaign and asked to say whether the quote was from Ramaphosa or Dlamini-Zuma. Only two callers guessed right.
Commitment to expropriation of land
That is because both candidates spoke against corruption, but also for “unity” with the corrupt. Both described private enterprise in admiring and in threatening terms. Both were all things to all comers.
The old British line is that “power corrupts”, but a developing global line is that, “... increased power just exposes the character you already had”. When Ramaphosa came to power, the mystery around his values inevitably dissolved into one hard reality when, in his closing address at Nasrec, he promised, “... expropriation of land without compensation”.
In his maiden State of the Nation Address in February 2018, President Ramaphosa elaborated on this commitment when he said that, “... (we) are determined that expropriation without compensation (EWC) should be implemented”, among other things to, “... make more land available to our people for cultivation”.
The reference to “our people” was not in the script of his speech; Ramaphosa added it for personal effect, and the term has since come to be inextricably connected with his politics. So too the phrase “Thuma Mina”, which Ramaphosa explained on Mandela’s birthday in 2018 was the one Mandela’s ghost whispered to him as a blessing for EWC.
EWC is Ramaphosa’s signature policy, both symbolically and practically. On the hopeful side, Ramaphosa has also repeatedly promised that EWC will be enacted in very limited ways, never to harm economic growth or food security. This may well turn out to be the case in the short term, but what comes after that?
We are not angels, none of us. As good as you are, you know that if you had arbitrary powers to threaten and enact dispossession over all your neighbours, the time would come when, in a fit of rage or desperation, you would discharge this power recklessly. The same is true for me.
That is why property rights are at the heart of a free society. They protect all from all in the understanding that people are inclined to collaborate when their scope for abuse is limited. Property rights stop us from exposing the worst of our inner demons.
The Expropriation Bill lifts the lid, however, widening the scope of discretion to disrupt people’s lives in three fundamental ways. First, the Bill allows an “expropriating authority” to execute EWC so long as it deems this to be, “... in the public interest”. This phrase is notoriously ambiguous. A bankrupt municipality might consider taking property in order to pay off its debt to be, “... in the public interest”, which is why international standards avoid such open-ended terminology.
Second, by allowing an “expropriating authority” to issue notice of EWC and to execute dispossession without having to seek court approval, “expropriating authorities” are given wide scope to take first and answer any challenge later, if at all. This provides ex ante discretion, discretion before the fact. This unfairly tilts the legal balance in the State’s favour, much to the disadvantage of property owners.
To appreciate the significance, consider that you cannot simply take to the road in a car believing you are competent, and, should you cause an accident and someone takes you to court, submit yourself to a driving exam to prove that you were competent in the first place. You take the test before, not after, to limit exposing others to your reckless arrogance. Not so for “expropriating authorities”.
Not limited to land
Third, the Expropriation Bill envisages several circumstances for EWC, but explicitly states that these circumstances are “not limited” to those enumerated. This means that expropriation will not be limited to land, as has been claimed by the government.
Combine all three – EWC in the vague “pubic interest”, ex ante discretion, and a “not limited” list of circumstances to trigger EWC – and you see how the scope of this power widens into the realm of whim, mood, emotion, or, as legal eagles put it, the “arbitrary”. Power, in the form of private property rights, risks being taken from the people and handed to corrupt politicians.
The ultimate limitation on this arbitrary power is political, which brings us back to Ramaphosa, the most powerful and most popular person in the country.
Suppose Ramaphosa really does, for political reasons, manage to rein in the worst impulses of municipal officials across the country by impassioned, avuncular speeches, and the occasional move to dismiss those who abuse their widely scoped EWC super-powers.
That might placate some material concerns for a short time, but what about the political concern over the peaceful transfer of power?
Should Ramaphosa, by dint of personality, make himself indispensable to stopping the worst outcomes of EWC, the economic harm will be mitigated at the cost of political catastrophe. South Africa has been spared third-term presidents thus far in part because it has always been obvious how humiliating that would be to the ANC and the country as a free state.
But should Ramaphosa succeed in putting himself, and himself only, between you and would be kleptocrats, this democratic convention could be shockingly forsaken by the same logic that kept divine-right kings in power for generations – “Better the master you know, than the one you don’t.”
In summary, the worst-case scenario is one in which immediate and irrevocable economic damage is done by EWC. But in the best plausible case, Ramaphosa reins in wanton EWC, preventing collapse and growth alike, in exchange for becoming president for life. How do you like the sound of that?
Gabriel Crouse is a writer and analyst at the Institute of Race Relations.