Edition: May/July 2018


Pandora’s box opens

It started with farmland. Can it move onto retirement funds? Heaven help us.

Ring another alarm bell. It’s sounded by the intention of the ANC government to review and amend s25 of the Constitution that deals with property rights.

Eerily included in s25 is the provision that “property is not limited to land”. Whatever does this mean? What is it intended to mean, and to what mischievous interpretations might it lead?

Amidst the heated contention over the move by the ruling party for the state to expropriate land without compensation, this tiny insertion at s25(4)(b) has so far attracted no attention as to the perils that meddling with constitutional “property” protections might invite. Once a Pandora’s box has opened, it can be inordinately difficult to close.

Be suspicious that the Economic Freedom Fighters won’t allow it easily to close. The EFF has the bit between its teeth and the ANC, preparing for the 2019 elections, is bending over to accommodate it.

Step one for the EFF has been the populist onslaught against Jacob Zuma. With him removed, step two is the populism of land redistribution without compensation. Both are causes that the EFF has championed with demonstrable success; not bad for a party in opposition.

Step three, for the EFF to retain its populist relevance, is the anti-white rhetoric of Julius Malema that daily becomes more sinister. He has painted land redistribution in a colour that defies the non-racialism enshrined as a founding value of the Constitution. The ANC, in contrast to the modifications introduced for support of the EFF’s parliamentary motion on s25, has hardly muted it.

Step four draws closer. In the public process of s25’s review, to be concluded by end-August, it’s apparent that the provision of “property” not being limited to land falls outside the terms of reference. So there’s no immediate threat. However, once the principle (if that’s how it may be described) of land expropriation without compensation is accepted, other forms of “property” enter the radar of political opportunists.

Such as what? Long-term savings accumulated prior to a specified cut-off date, perhaps? Heaven help us. Under apartheid, by definition, white people enjoyed better education and better access to more highly-paid jobs; hence better opportunity to build wealth. The inequalities that flowed are endemic.

“In order to redress the results of past racial discrimination,” says s25, parliament may enact legislation where rights in the Bill of Rights are limited “only in terms of law to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

To date, the controversy over land expropriation without compensation has been inflammatory. This is perfect for the EFF’s purpose, to be seen terrorising the elite and fighting for the masses, without accountability for the damage being caused.

To th e credit of President Cyril Ramaphosa, he’s obfuscated it in qualifications about food security and agricultural production. But on the “return” of land used for non-agricultural purposes – residential, industrial and commercial – there’s silence.

Much of the heat derives from the false assumption, nowhere intimated in s25, that compensation should be at the level of willing buyer and willing seller. By the same token, little light is being shone on the numerous constitutional protections against arbitrary deprivation.

Overarchingly, the door has been opened for amendment to s25. The danger is that it will fall victim to political expedience, heightened by the danger that next in line will be property other than land.

By all means, let the debate begin. By no means, let it be overpowered by diatribe as a substitute for research.

Or be subsumed into an elevation of past redress over economic consequence. Then it might do some good, if only to clear the polluted air.

Embedded in the ANC phrase book is “the triple challenges of inequality, poverty and unemployment”. Looked at in silos, inequality is the easiest to remedy. Simply, the richer can be made poorer without the poorer becoming richer. Viewed in cohesion, remedy has been formulated in the neglected National Development Plan.

Ramaphosa was an architect of the NDP. He was also an architect of the Constitution. As the advertisement for a financial institution puts it, consistency is the only currency that matters.

Ramaphosa’s is about to be tested.

  • This article, by TT editor Allan Greenblo, was originally published by BusinessLive and InceConnect on March 6.