Dr Frans Cronje, chief executive of the Institute of Race Relations (IRR) notes: ‘It was alarming to see the extent to which fallacious nonsense came to define public policy debates such as that “white privilege” and “white monopoly capital” explained black poverty when, as just one example, South Africa was recording some of the worst school-level literacy and numeracy rates of any emerging market.’
In this milieu, the government pushed a steady, if uneven, campaign to abridge property rights. The protection of private property has long been viewed ambivalently within the ANC, and regarded by some in the party as a ‘sunset clause’ destined to be abrogated or a ‘fatal compromise’ that has stifled the upliftment of the poor.
Some background is necessary here. At the time of its unbanning, the ANC had long been committed to a programme of nationalisation, and a broadly socialist economic plan. The collapse of the Soviet Union and the tarnishing of socialism as an economic model had thrown this into disarray. Over the transition period, the ANC shifted towards a market-based approach, although this was not universally accepted. Part of the was the acceptance of qualified protections for private property. (It should, in fairness, be noted that some prominent thinkers in the ANC argued that property protections would be necessary to protect its owns supporters from suffering a repeat of the deprivations associated with apartheid.)
As the ruling party after 1994, and by far the dominant force in the negotiations for the final constitution, the ANC was able to see a ‘property clause’ (Section 25) adopted that provided protection from arbitrary deprivation but was hedged with numerous qualifications that would grant the state a relatively free hand to pursue redistributive policies. These would include, but were explicitly not limited to, land reform, and enjoined the government to pay ‘just and equitable’ compensation when taking property.
The late Professor Kader Asmal, a respected legal academic, senior ANC member and cabinet minister, summed up its perspective: ‘The constitutional limitation on rights is important in determining the extent of state intervention in regulating rights. Where there are conflicts between the rights of individuals, the objective of government will be to promote the rights to a basic quality of life for all citizens, particularly the poor.’
Within this framework, the party moved with some energy to abridge property rights in certain areas on nominally developmental grounds. This took the form of the vesting first of water resources, and later mineral in the state, through the National Water Act of 1998 and the Minerals and Petroleum Resources Development Act of 2002 respectively. The state would hold these on behalf of the country, and use would be granted through licences. This model would come to be seminally important in the future – although they attracted relatively subdued public attention, perhaps because the ownership of these resources had always been generally at a remove from most ordinary South Africans in any event.
It was, however, with the end of President Mbeki’s tenure that the move on property rights took on a more directed, aggressive and generalised character. Since this time, the IRR has recorded more than two dozen policy, regulatory and legislative moves on property rights. Not all have concerned land ownership (the cancellation of bilateral investment treaties with a number of European countries, and pending demands for indigenisation of foreign-owned assets in the security industry, for example, have increased the vulnerability of foreign investments) – although land ownership has featured prominently.
For example, the State Land Lease and Disposal Policy, which governs land redistribution, envisages ‘redistributed’ landholdings remaining state property. Only those able to farm on a substantial commercial scale will be able to make an offer to purchase – and then, only after fifty years. (This has subsequently been reduced significantly, though without much fanfare.) Ironically, such policies demonstrate a continuity between the apartheid era and the present. Little has been done to enhance African property rights in the former homelands – largely to appease the traditional leaders – nor has post-apartheid policy done enough to expand property rights in urban centres. Indeed, a report on the impact of legislation, commissioned by Parliament and produced by a panel under former president Kgalema Motlanthe, remarked: ‘[P]olicy shifts appear to default to some of the key repertoires that were used to justify the denial of political and property rights for black people during colonialism and apartheid.’
The EWC agenda that emerged in 2017 thus built on a foundation long in the making. As President Zuma came under pressure for notorious misgovernance, he attempted to rally support by calling for ‘radical economic transformation’ – blaming ‘capital’ and the white minority for the malaise, and demanding ‘radical’ measures, including confiscation of land. This resonated with the established direction of policy, the rhetoric around it, and the ANC’s ideological convictions. And having committed itself as a party to this course of action, when the EFF – claiming to represent the radical purity that the ANC had abandoned – moved a parliamentary resolution on EWC, the ANC could not but support it.
Importantly, there has been no convincing argument on how EWC would advance land reform. The Motlanthe commission rejected the view that paying compensation hindered land reform, citing rather indifferent political will, meagre budgets and administrative incapacity. Other investigations have shown that the state owned over 4 000 farms which it has failed to pass on to beneficiaries. Obtaining land is only one element, and not necessarily the most important one of a successful land reform programme. Yet the drive to ‘take’ land, not to purchase or negotiate for it, would fulfil an ideological urge. Concurrently, ANC and government leaders assured traditional leaders that EWC will not target their holdings. This suggests the status quo in enormous tracts of land (directly affecting millions of the poorest people) will remain – and one of the most important and most enduring elements of the ‘land question’ – would purposefully be ignored.