Can the ANC and the EFF strike a deal on the land question? It looks unlikely.
The EFF has drawn its bottom line so far to the left of the ANC that it looks unreachable. Its demand that all land be placed under state custodianship is something the ANC at this point — stable, with pro-market thinking firmly in control — will not go for.
After failing to secure this in a bilateral meeting with the ANC parliamentary representatives two weeks ago, EFF deputy leader Floyd Shivambu said his party wanted to meet the ANC’s top six. But the ANC has sent the EFF packing. Deputy secretary-general Jessie Duarte says the ANC sees no need for such a meeting and its parliamentary representatives have a full mandate to go about their business.
The appetite in the ANC to cut a deal is not substantial. And, from comments by Shivambu, it seems the EFF is getting ready to walk away anyway. If agreement could not be reached with the ANC at top level, he said, then the two parties will have to agree to disagree. The EFF would continue to fight for nationalisation of the land in other ways.
For the EFF this is understandable. It is in a win-win situation. If the amendment is passed due to co-operation between the ANC and EFF, it will have forced the governing party’s hand to change the constitution, adding the politically charged words of “expropriation” and “nil compensation”. If the amendment doesn’t pass because the EFF refuses to back it, it also wins — passing the amendment has become something that is much more important to the ANC than the EFF.
The ANC has conference and national executive committee (NEC) resolutions that need to be implemented. Through parliament it has held public hearings throughout the land, where people have bared their pain over past losses. Among voters, ANC branch members and activists, the ANC will look weaker for failing to pass it than it will by acceding to EFF demands.
In recent weeks the EFF has upped its destructive, stone-throwing politics. Looking for relevance, it has now attacked the medicines regulator, tapping into conspiracy theories on social media that Russian and Chinese vaccines are being withheld. More stones to throw over the ANC’s failure “to return the land to the people” can only be a good thing in such an environment.
But while things are looking shaky they have not yet collapsed. A deal is still a possibility. It is therefore important to look at the ANC’s proposed amendment to Section 25 and deal with the problems. Leaving aside for now the absence of necessity to amend the constitution at all, which many progressive legal minds have pointed out many times, since it implicitly allows for nil compensation already, the biggest problem is that identified by former president Thabo Mbeki in his letter to the ANC last week.
While the ANC’s conference and NEC resolutions asked parliament to make it explicit that the constitutional provisions around expropriation for land reform do allow for nil compensation, the gazetted bill went further than this, adding to the clause that this could be the case even where the land had been improved by investment. This is Mbeki’s main point. As he says in his letter, this could mean that a mine could be expropriated for land-reform purposes and nil compensation paid. This, he says, is the sort of thing investors do not like.
He is right, of course, and why the ANC thought to include this in the first place has never been explained as it goes against the provisos of the party’s own resolution that it should not have a negative impact on financial and other sectors. In its latest proposals, made 10 days ago, the ANC made new sops to the EFF. It added state custodianship as a form of tenure whereby the state can provide access to land by citizens. The wording was vague though, stating that this would include “certain land”, which it did not define.
It was no surprise then that the EFF rejected it, vague and meaningless as it was. ANC committee whip Cyril Xaba says the purpose of the clause is genuinely to make allowance for people who choose not to hold title deed. Why anyone would make big investments under those conditions he does not explain. It is also intended, he says, to codify tribal “permission to occupy” as a form of tenure and make clear it that this too is endorsed by the constitution.
That raises a different discussion that must be thoughtfully and carefully had. It would be a mistake and injustice to rural people to push it through as part of this amendment.
• Paton is editor-at-large.