Custody battle: Deciphering the proposed amendments to the property clause
18 March 2018
The National Assembly’s resolution on 27 February to review the property clause resulted in near hysteria, or euphoria. However, there is a sore lack of nuance, and even deliberate misinformation, regarding the contents of the motion passed.
The crux of the final amended resolution is to “review section 25 of the Constitution and other clauses necessary to make it possible for the State to expropriate land in the public interest without compensation and in the process conduct public hearings to get the views of ordinary South Africans, policy makers, civil society organisations and academics, about the necessity of, and mechanisms for expropriating land without compensation”.
As such, the resolution as it appears, is vague, perhaps deliberately so. It in essence throws the ball back to the South African public and demands that the public fill in the gaps created by the vagueness. The wording is laced with ambiguity and certainly lends itself to many interpretations. Hence this piece’s focus on what could have been - but is not: the State as the custodian of all land.
While the resolution was an EFF-sponsored motion, it is important to note that the final resolution adopted is an amended version of the EFF’s initial proposal, which among other things, stated that the “property clause makes it practically impossible for the dispossessed of their land to get justice for injustices perpetrated against them”. A salient feature of the failed initial resolution is a provision that takes “into account the necessity of the State being a custodian of all South African land”. It is probably this - since deleted - phrase, alongside the final reference to “expropriation without compensation”, which has given the impetus for either near hysteria or euphoria. This, over the State’s perceived intention to either abolish private property rights, or to make land available to all South Africans. Skepticism over the State’s ability to adequately allocate and manage resources is not unwarranted, given the well-documented failings of State-driven land reform initiatives. Nevertheless, it is important to delve further into the notion of state custodianship and to distinguish it from nationalisation.