Terence Corrigan: The 'curate's egg' of ANC land policy - News24

11 June 2022 - The phrase 'curate's egg' can be traced back to an anecdote about a junior cleric – the curate – who found himself in an embarrassing position. An egg which he was eating at breakfast with his bishop turned out to be spoiled. The bishop offered him a new one, but observing propriety, the young man insisted all was in order. It was, he insisted, satisfactory for him.

Terence Corrigan

The phrase 'curate's egg' can be traced back to an anecdote about a junior cleric – the curate – who found himself in an embarrassing position. An egg which he was eating at breakfast with his bishop turned out to be spoiled. The bishop offered him a new one, but observing propriety, the young man insisted all was in order. It was, he insisted, satisfactory for him.

Originally intended to refer to something that was wholly bad, the 'curate's egg' has come to denote something mixed – the egg is good in parts.

This phrase comes to mind when reading the ANC's latest set of discussion documents prepared for its upcoming policy conference, particularly its thoughts on land matters. (This is presented in the most recent edition of its journal Umrabulo; specifically, the section entitled 'Strengthening Economic Recovery and Reconstruction to Build an Inclusive Economy'.)

Given that President Cyril Ramaphosa invested a great deal of political capital in dealing with the 'land question' through the Expropriation without Compensation (EWC) agenda, this aspect of the ANC's thinking is of profound importance. This is so not just as it concerns land reform, but the question of property rights more broadly. Indeed, the EWC push created a headache for South Africa's investment aspirations, as government representatives admitted from time to time.

Expropriation without compensation still on the agenda

The document makes clear that EWC remains very much on the agenda. The failure of the constitutional amendment to the property clause represented a setback, which the document briefly notes. However, it confirms that this was but one part of the overall strategy.

Thus: 'The progress made towards the passing of expropriation legislation and strengthening of land redistribution processes will add impetus to the land reform programme. This will also be bolstered by the establishment of a specialist Land Court as well as a Land Court of Appeal, as contained in the Land Court Bill, aimed at accelerating the country's land reform programme as well as resolving backlogs and disputes around land claims.'

As the Institute of Race Relations has argued, the constitutional amendment – serious though it was – was not the only part of the EWC drive, and not even (necessarily) an essential part of it. Both the pending Expropriation Bill and the Land Court Bill could be used to achieve substantively the same goal.

The Expropriation Bill defines expropriation so as to make it possible to deprive an owner of his or her property without this legally being defined as an act of expropriation. It would thus be possible to declare state' custodianship' of all land in South Africa in line with minerals and water rights, and in line with a Constitutional Court decision (this was the so-called Agri-SA case). It also prescribes an expropriation procedure that looks set to skew things against the property owner, providing the state – not least, South Africa's troubled municipalities – with a potent weapon to seize assets.

The Land Court Bill, meanwhile, is put forward as a means to accelerate land reform. Concerns include the provision that two lay assessors may be appointed to hear cases alongside the judge; the former may overrule the latter on matters of fact. The Bill does not specify how these assessors will be appointed, and there is a possibility that activists may be put in these positions to ensure particular outcomes. Here, their perspectives could determine, for example, whether 'nil' compensation is warranted. 

All of this shows more continuity with the past few years than change from them. These will hardly be reassuring to investors, or to the farming economy. This is the bad part of the egg. 

However, there are some interesting comments elsewhere in the document.

It notes that the state has acquired a substantial amount of farmland but that these holdings are not producing as they might. This is common cause. It calls for collaboration between small farmers and agribusinesses and for finance to be made available. Citing 'anecdotal evidence', it then goes on to indicate a threefold plan to raise the productivity of these farms:

'1. Land ownership (title deeds) should be transferred to qualifying beneficiaries who are selected according to the approved beneficiary selection policy. Strict selection based on merit and skills, as well as means-testing, should be applied.

2. Production finance is secured by the title deed. CASP [Comprehensive Agricultural Support Programme] funding (which must be redesigned) for improvements in immovable assets and farm infrastructure.

3. Establish links with commercial value chains, agribusinesses, and government procurement schemes.'

This is very interesting, and nothing more so than the recognition of the importance of title deeds. Land redistribution policy has for well over a decade been opposed to ownership, limiting the possibility of purchase to large producers, and then only after years of having worked the land. The government even went to court to oppose a successful black farmer – David Rakgase – who sought only to have the government deliver on a commitment to sell the property to him.

Good part of the egg

Accepting the possibility of conferring ownership could mark a significant shift in the government's position. This would be to the good. It would be no panacea – even as a means for raising capital – but it would be a necessary step in establishing a confident and successful new community of farmers.

This is the good part of the egg.

The document, to its credit, notes that a successful rural economy will depend on the resilience of the enabling elements – infrastructure, local governance and so on. This is entirely true, but whether this is brought to fruition will depend on whether the state is able to perform its duties in just those areas where its failures have tended to be most severe.

The same argument might be made about the prospects for success of the land reform endeavour as a whole – the new land administration architecture that has been proposed (such as the Land Reform and Agricultural Development Agency) carries with it not only the prospect of continuing the current dysfunction, but compounding the dysfunction through the complicated task of putting new institutions in place.

That is a part of the egg whose quality the future will reveal.

It's not entirely clear what became of the curate and his unfortunate breakfast, although one fears that if he swallowed the whole egg, the effect would have been most unsettling. Perhaps under the gaze of the bishop, he felt he had no option. Perhaps we was able to pick around it and take only what was nutritious.

The various parts of the ANC's document present a similar dilemma.

Terence Corrigan is a project manager at the Institute of Race Relations.