Land grabs: Just another sneaky way to enrich ANC friends - Biznews

14 June 2018 - The fact that the consultation period is so short reinforces the perception that the committee is not interested in hearing what the public thinks.

By Anthea Jeffery*

The deadline for public written submissions on a possible constitutional amendment to give the state the right to embark on expropriation without compensation (EWC) was this week. At least 200,000 written submissions have reportedly been sent in to the Constitutional Review Committee charged with reporting back to Parliament on whether this should be done.

Dr. Anthea Jeffery
In the past ten days alone, some 40,000 people have endorsed the IRR’s submission warning that EWC will damage the economy, undermine our democracy, and worsen the inefficiency, elite capture, and corruption that largely explain the failures of land reform.

Moreover, since roughly 90% of the productive farms transferred have subsequently collapsed, EWC is unlikely to ‘unlock the value’ of the country’s land, as President Cyril Ramaphosa has repeatedly pledged. Nor will it ‘return’ the land to ‘the people’, as the ANC constantly stresses. Rather, land taken via EWC will be held by the state and used by it as a patronage tool to deepen dependency on the ruling party. This is the fraud at the heart of the EWC proposal.

However, despite the cogency of these concerns, all the public submissions urging the committee to advise against EWC are headed for a giant dustbin and will not merit any consideration by the committee at all.

Why so? Because Vincent Smith, co-chairman of the committee, has recently made it clear that the decision to embark on EWC is already a ‘done deal’. All that the committee is considering, thus, is whether EWC should be implemented by amending the Constitution or by using the Expropriation Bill of 2015 (or other ordinary legislation).

So much for proper public consultation. Yet the Constitutional Court has made it clear that the consultation process must do more than go through the motions. Rather, in the words of the court, people must be given an ‘opportunity to be heard’ which is ‘capable of influencing the decision to be taken’.

There is little prospect of any such influence being brought to bear when the committee has prejudged the most important issue.

Land Grab. More brilliant cartoon work available at
What of the time provided for public consultation? A mere 60 days has been allowed, which is the time generally provided for written submissions on ordinary legislation. But what is in issue here is a constitutional amendment that will drive a stake through the 1990s settlement, deepen racial divisions, give a dangerous level of power to the state, and impoverish the great majority of people.

To understand the risks in EWC, South Africans need time to research the impact of land nationalisation in a host of other countries. They need to know about events in the Soviet Union (under Lenin and Stalin), in China under Mao Zedong, and in Kampuchea (under Pol Pot).

They also need time to get to grips with some more recent examples. These include the collapse of the economy and the rape of democracy in Zimbabwe from 2000 on. Also relevant is the saga in Venezuela, where land expropriations and other nationalisations have led to acute food shortages, severe economic contraction, hyper inflation at staggering rates, and harsh political repression.

Read also: SA perilously close to land grabs: Ramaphosa vows to take property off ‘lazy hands’
By contrast, South Africans also need time to assess how property rights contribute to political freedom and prosperity. They need to know, for instance, that the poorest 10% of people in countries that uphold property rights are ten times better off than the poorest 10% of people in countries that embark on EWC or other forms of nationalisation.

However, the time needed for such investigation has not been allowed. Instead, the committee has imposed an arbitrary deadline (tomorrow’s date of 15th June 2018). This short period is contrary to what public consultation requires.

To cite the Constitutional Court once again, ‘a truncated timeline’ may be ‘inherently unreasonable’, as it then becomes ‘simply impossible…to afford the public a meaningful opportunity to participate’.

The court has also dismissed the notion that such a timeline can trump the right to proper public consultation. Rather, it is ‘the timetable that must be subordinated’ to the right. In addition, says the court, deadlines should not be imposed without assessing whether there ‘is real – and not merely assumed – urgency’; whether the time allowed is truly sufficient for the public ‘to know about the issues and have an adequate say’, and whether ‘the magnitude’ of the issues under consideration has been properly weighed.

Has the committee met any of these tests? Why the urgency to push EWC through now, ostensibly to speed up land reform, when the government has been dragging its heels on the issue – and allocating miniscule amounts of revenue to it – for more than two decades? Can 60 days possibly be enough for people to do all the necessary investigation and then formulate their arguments? And surely the ‘magnitude’ of the EWC issue – let alone any constitutional amendment that may be made to allow it – requires far more than the usual 60-day period?

The fact that the consultation period is so short reinforces the perception that the committee is not interested in hearing what the public thinks. In its view, the EWC decision is a ‘done deal’ and there is no need to consider either evidence or argument regarding it.

This is profoundly undemocratic. So too is the ANC’s sleight of hand on the ambit of the EWC proposal. The ruling party keeps stressing that EWC will be confined to land – and that it will primarily affect only ‘unused’ or ‘unproductive’ land, as its leaders keep reiterating.

But the ANC shows no intention of changing the definition of ‘property’ in either the property clause of the Constitution or the Expropriation Bill. Yet both make it clear that ‘property is not limited to land’.

If these definitions are not going to be changed, then precisely what other property is going to be subject to EWC? If land alone is not in issue – and land reform is not the rationale for other uncompensated expropriations – then people need very much more time to ‘know about’ the full ramifications of the EWC proposal and then to have an ‘adequate say’ on it.

Dr Anthea Jeffery is Head of Policy Research at the IRR, a think tank which promotes political and economic freedom.