EWC: Still on the agenda

18 July 2023

The general state of South Africa – its concurrent list of failings, or ‘polycrisis’ – means that we are constantly having to process some new-but-not-so-new complication of our lives and encroachment on our prospects for the future.

Crime, electricity shortages, collapsing infrastructure, an incompetent civil service. It’s hard to keep up, especially when an issue goes quiet. This is a case of failing to see the trees for the forest.

For well over a decade one of these has been the question of property rights, or rather their abrogation. With some irony, it was with his ascent to office of the nominally reformist and business-friendly Cyril Ramaphosa that the issue went into high gear, the so-called Expropriation without Compensation agenda. It was an early indication that in ideological terms, President Ramaphosa represented more continuity than change that this was the signature policy issue his government pushed for years.

For many South Africans, the issue was effectively resolved by the failure of the attempt to amend Section 25 of the Constitution towards the end of 2021. This was a mistake. Tampering with the Bill of Rights was of course an enormously serious matter.  

But it was never decisive. The ability of the state to take property (at no cost to itself) is already adequately permissible in the Constitution, and in precedent. The mass nationalisation of water and mineral rights (under the custodianship of the state) has already been pushed through.

Indeed, in parallel to the proposed constitutional amendment was a legislative agenda in the form of the Expropriation and Land Court bills. The first would set up a system for the state to take property. This is not limited to land, although it contains explicit provisions for land to be expropriated at ‘nil’ compensation. It also establishes a system of expropriation weighted in favour of the state, so that even in the event of compensation being offered, any contest would be enormously difficult.

The second, the Land Court Bill, aims to institute a parallel legal structure to deal with land issues. On matters of fact, lay assessors (quite plausibly, activists in the land space) would be able to overrule the judge. It’s not hard to see this as a measure in which the form of legal adjudication is secondary to the presumed imperatives of policy and ideology.

Neither of these is law yet, though both are well advanced on that path. The Expropriation Bill awaits presidential assent while the Land Court Bill has been passed in the National Assembly, and is now before the National Council of Provinces. The tools for EWC are being put in place.

And so, it’s worth noting a recent piece from the Government News Agency. Entitled ‘Over 80 000 land claims settled before cut-off date’, it reports on a presentation made to the Parliamentary Portfolio Committee on Agriculture, Land Reform, and Rural Development on progress made in resolving outstanding land claims. Chief Commissioner of the Commission on Restitution of Land Rights Nomfundo Ntloko-Gobodo said that over 82 000 claims (benefiting 450 000 households) lodged before the end of 1998 had been finalised. Around R25 billion had been spent acquiring land, close to R21 billion on financial compensation and something over R5 billion on grants.

All in all, the import was that decent progress was being made; the deputy minister for the portfolio, Mcebisi Skwatsha said that the department would be digesting the Commission’s report to plot a way forward.

The chair of the committee, Nkosi Zwelivelile Mandela, picked up a familiar theme to how it this might be achieved: ‘I truly believe that the only way we will be able to fast-track this is for us to implement expropriation of land without compensation and in doing so, we will be able to address this gross and grave injustice and ensure that land hunger is corrected.’

In other words, a default to EWC.

And to what purpose? All EWC stands to do is to make it cheaper for the state to take property – in this instance land, though be warned that it is unlikely to stop there, a pertinent point in view of the plans for the National Health Insurance. It would do nothing to make land available to those in need of it, and certainly not on the principle of ownership, since government policy on land redistribution (restitution is somewhat different) is explicitly premised on state ownership. (Indeed, when Parliament debated launching an investigation into EWC in February 2018, Gugile Nkwinti – then Minister of Rural Development and Land Reform – was unambiguous that title deeds and freehold ownership were not on the table.)

Nor does EWC do anything to deal with the failings of land reform, be they deficient administration, corruption or the lack of post-settlement support. If anything, it distracts from the challenges involved in agrarian reform, substituting a romantic vision for harsh realities. City Press editor Mondli Makhanya wrote of the EWC drive a few years ago: ‘The discourse became a binary question of whether the masses would like to be given land and thus be magically lifted out of poverty, or have the land stay in the hands of its current (white) owners and be condemned to an eternity of hunger.’

This remains the case today.

As for land hunger, that is a difficult question, and also one not easily remedied. There is certainly an issue in the country’s cities – better expressed as a demand for housing and for access to opportunities. The focus on farmland owes more to ideology (with a sinister undercurrent of hostility to the farming community) and a fixation on racial percentages than on actual demand.

There is virtually no evidence that ‘land’ in the agrarian sense is a major preoccupation for South Africa’s people. The Human Sciences Research Council has described the outlook as ‘symbolic’ support for land reform, though not one from which most South Africans see themselves benefiting nor one in which they would encourage the government to invest its resources and energy. This is hardly surprising for a country that is around two thirds urbanised, and whose people aspire to participate in a modern consumer culture.

So not only does EWC remain a policy objective, but the deficient thinking behind it is as stubbornly entrenched as ever. South Africans should keep this in mind. Despite the forest of problems confronting us, this is a very sinister tree that we should not lose sight of.

Terence Corrigan is project manager at the Institute of Race Relations