Constitution stands firm against amendment, but risks remain

7 December 2021

The failure of the African National Congress to muster support, even of all its own members, in its attempt to amend Section 25 of the Constitution is a significant development, but is far from the end of the process or the risks it entails.

“The outcome of the division is as follows: There was no abstentions, 145 Members voted against, and 204 voted in support of Bill”, according to the National Assembly House Chairperson, Cedric Frolick. The ANC has 230 Members of Parliament.

Commenting on the vote, Terence Corrigan, IRR project manager said the outcome was to be welcomed, and that some comments – especially Minister Lamola’s comments on the undesirability of custodianship of land – deserve ‘praise and encouragement’. However, South Africa should be under no illusions that threats to property rights remain.

‘The proposed amendment formed part of a larger agenda to expand the latitude of the state to seize privately-owned assets. This has been an issue in various forms for well over a decade and has a been a seminal investment deterrent since it was pushed with renewed energy onto the policy agenda at the end of 2017. In the context of the pandemic and lockdowns – and their associated costs – it has done enormous damage, undermining prospects of an economic rebound,’ Corrigan said.

In addition, this process represented the first attempt to tamper with the Bill of Rights, safeguards against state encroachment, at a time when government credibility and the ANC’s popularity waning.

Corrigan added: ‘We have seen a great deal of hostility to the constitution and to constitutional governance in recent years. The attempt to pass this amendment represents a disturbing precedent for the future, where other constitutional provisions might opportunistically be seized upon as a hindrance to particular policy outcomes.’

The IRR also cautions that amendment’s halt is not the end of the matter. A great deal of political capital has been invested in expropriating private property without compensation. It is quite conceivable that constitutional amendment to this end will return in a revised form, possibly one designed as the basis for a deal between the ANC and EFF, which both argue for dispossessing private owners.

In addition, the Expropriation Bill – which would establish the mechanisms for such takings – is returning to centre stage, and indications are that attempts will be made to push it through the legislative processes next year.

All of this means that the EWC agenda, with the economic and constitutional risks it embodies, remains very much alive. South Africa’s people would be well advised to recognise the seriousness of this.

‘Properly handled,’ Corrigan said, ‘this could be a moment to reorient the conversation to real solutions for the country’s ailing land reform efforts, and for its developmental aspirations, with an eye of expanding property rights and the ownership of property for all.’

Issued by Gabriel Crous on behalf of IRR, 7 December 2021