Commentary on Land Reform, and the Ensuing Constitutional Crisis


Written by: Jonathan Patrick Bongani Geach

President Zuma recently sent a bill back to parliament which sanctioned the state with the power to expropriate land without the consent of the land’s owner, following compensation in the form of an amount determined by the Valuer-General, if it is of sufficient public interest to do so. Public interests include the state’s commitment to land reform, as stipulated in s25 (4) (a) of the Constitution of the Republic of South Africa (“Constitution”).

The bill was initially sent back to parliament due to the Legislature’s failure to facilitate adequate public involvement, in terms of their constitutional obligation, as found in s59 (1) (a) of the Constitution.

President Zuma seemingly used this opportunity to declare his intention to amend the bill not only to disregard the lawful owner’s consent, but also to remove any form of compensation, in its entirety. The right to compensation for any land expropriated by the state is found in s25 (2) (b) of the Constitution.

Currently, if a bill of this nature were ever promulgated into law, it would face a declaration of Constitutional invalidity by the Constitutional Court, almost immediately upon its inception. The only way a bill of this nature will become law, is through a preceding constitutional amendment to the subsections in s25 (The Property Clause) – and the ANC knows that.

Although South Africa is governed underneath a system of Constitutional sovereignty, in which the Constitution is the supreme law of the land, the provisions within the Constitution are not immune to change and review – not even the Bill of Rights. The Constitution has been amended 17 times since its adoption in 1996, and may very well be amended again in the near, and far, future.

The implications of such amendments, however, differ wildly, and the envisioned Constitutional amendment which would have to precede any Act of parliament aimed at radically changing how land reform occurs in South Africa, could potentially trigger a chain reaction of worrisome events, which could easily result in a new constitutional crisis.

According to s74 (2) of the Constitution, for a constitutional amendment to occur affecting any provisions within the Bill of Rights (such as the Property Clause in question), a majority vote of no less than two thirds (about 66%) of the National Assembly is required, in addition to 6 out of the 9 provinces voting in favour of the amendment in the National Council of Provinces (“NCOP”).

As things currently stand in the National Assembly, the ANC holds 249 seats (62.15%) and the EFF hold 25 seats (6.35%), meaning that if the ANC were to propose a Constitutional amendment, their MPs would almost certainly vote unanimously for it, as well as the MPs of the EFF (due to a confluence of interests), resulting in a combined vote of 68.50% in favour of a Constitutional amendment, which is narrowly above the two thirds majority required for the amendment affecting provisions in the Bill of Rights to pass.

The National Council of Provinces would most likely see a vote in favour of the amendment pass, with a slightly broader margin than that which was seen in the National Assembly, considering that 7 of the 9 provinces have ANC dominated provincial governments, whilst Gauteng still narrowly has an ANC majority, with 50% of the province’s votes in the 2014 general elections having gone to them.

This means that if the ANC can manage to throw the entirety of its weight behind its provincial votes in the NCOP, then we may very well witness a display of political muscle unlike anything seen since 1994, with the ANC using its mass to bulldoze through a Constitutional amendment affecting a fundamental right, which would have the entire world gasping.

The reality of the situation is that this is no mere prophecy of doom aimed at rustling the feathers of civil libertarians everywhere, but a very real, and tangible threat to South Africa’s fledgling democracy.

The ANC had the wind knocked out of it during the 2016 Municipal elections, seeing that three prominent municipalities (including the capital of the nation) fell to DA administrations in two of its flagship provinces (Gauteng and the Eastern Cape), and ever since that spectacular defeat, they have been plotting as to how they will regain the support of the disillusioned masses, consisting of the poorest and most economically vulnerable members of our society.

Their answer, just like in the USA across the pond, and in continental Europe as we speak, is to turn to populism. Populism can be described as the shadow of democracy. Whereas democracy is intended to be a tool to expand individual freedom, populism warps it into a weapon to stifle freedom, and to destroy civil liberties.

And to think of the civil liberties it will destroy!

The ramifications of the ANC implementing a land reform policy akin to the indigenization drive of Zimbabwe would set South Africa ablaze, literally and figuratively. To understand why this will happen, we must first understand just why the Constitution is so important, and why we all make such a big fuss about it on the public stage.

Firstly, the constitution is a de facto armistice agreement, which single handedly prevented South Africa from descending into a civil war. Even in 1994, when the battle lines were already being drawn, the promise of the coming Constitution was enough to keep the war bands at bay.

Of particular importance to the success of this effective peace treaty, was the way in which the Constitution addressed the question of land reform. It acknowledges that we must right the wrongs of the past by making land reform a priority of the state, whilst making provision for the livelihoods of thousands of South Africans which would be dramatically affected by any policy of expropriation.

The people currently living on land which is subject to expropriation have often lived there for multiple generations, and have subsequently built their entire lives around the productivity of their land, most commonly as farmers.

To evict these people in some draconian fashion, without any compensation, would effectively be an official condemnation to a life of poverty. For the state to willingly and knowingly sentence entire families to poverty would be paramount to a war crime. At the very least, it would constitute a gross infringement of their most fundamental human rights, notably the right to human dignity, in addition to infringing upon the right to freedom and security of person, equality (indirectly), property (assuming it is not amended), housing, healthcare, food, water, and social security.

The Constitution does make express provision for the limitation of rights in very specific and regulated circumstances in s36 which is known as the special limitation clause. The limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, and a host of factors must be considered before a limitation can be justifiably made. One such factor is the relation between the limitation and the purpose for the limitation.

The infringement of the aforementioned rights is not the intention of the presidency, which seems clearly focussed on only addressing the issue of inequality between ethnicities with regards to land ownership.

The infringement of the rights is mere collateral damage from the implementation of such a ruthless land reform policy, in the eyes of the presidency. Considering this most fundamental flaw in legality, the massive limitation of the rights of those who would be effected by the expropriation of land would not be justifiable in terms of s36, and thus the clause would deem these infringements unjustifiable and unlawful.

(Image by Juta)

Not only would the South African government be violating its own laws, but it would also violate international law. The displacement alone from forcibly removing people from their homes without any provision for alternative accommodation would be a humanitarian disaster, and in direct transgression of the Prevention of Illegal Eviction (PIE) Act. The subsequent poverty it would produce would be contrary to the UN mandated Millennium Development Goals, of which South Africa is a signatory member.

Furthermore, these resultant effects would be indistinguishable from a state sanctioned “punishment” of thousands of people for a crime they themselves did not commit. Yes, stolen land should be viewed as stolen property, but which judiciary, apart from North Korea, would support the notion of generational guilt, and impose punishment on the descendants of criminals?

I would even go so far as to argue that by willingly and knowingly depriving a person of the aforementioned rights, the state is indirectly infringing upon their right to life, for the aftermath of such crudely executed expropriation of land would undoubtedly lead to mass mortality. There exists an interconnectivity between rights, and the risk of an infringement to one resulting in a domino effect is only too real.

If the state doesn’t respect its own laws, or the rights of others (i.e. its citizens), then what moral authority does it have to enforce laws regarding conduct on the rest of the citizenry? There would be an unprecedented psychological backlash from such a move, that would result in protests, violence and extremism flaring up all over the country, as people “dish out justice” in accordance with the actions of the government. Investors will disappear almost overnight, if the government gives itself the power to effectively take away any property it wishes, for whatever justification it concocts, with no compensation or consideration for the previous owners.

South Africa is a diverse nation, and if its many citizens feel that their rights are threatened or disregarded, it wouldn’t be far-fetched at all to see mass emigration, calls to federate the country, or outright secession from communities which feel targeted by the state, and feel that they must take the task of protecting themselves into their own hands.

South Africa is effectively a nation formed from clusters of micro nations, where the majority of each ethnic, cultural, and religious group seems to live parallel lives to one another, which only ever intersect when they have to i.e. at state institutions and public places. The government is supposed to bind the people together, being almost the sole common denominator in each South African’s life. It is in the interest of justice to break away from the authoritarian past, and if the new constitutional dispensation begins to advance groups of people at the outright expense of other groups of people, then South Africa could easily implode underneath its own diversity.

Some will see it as a betrayal of the armistice, and a relapse to a time in which human rights weren’t binding tenants, but mere suggestions for the state to follow. Others will be delighted and call for further draconian action. The country would split along ethnic, cultural, and ideological lines just as it did 23 years ago.

To put it plainly; if we abandon the Constitution, we abandon South Africa. The Constitution is an ideological barrier between the authoritarian far left, and the authoritarian far right. No one man is strong enough to stand against the power of the state, and the Constitution effectively serves as his shield against its strength. The matter of land is so central to the South African dilemma that if we were but to stray even a little from the negotiated solution, then we may plummet into the darkness, and drag the whole nation down with us.

The Constitution of our Republic exists so that each citizen may further rule their own destiny. A threat to the Constitution is a threat to all South Africans, for once the dominos start falling, they don’t stop. The means by which land reform is carried out will determine the justifiableness of the actual land reform policy itself.