Picture: 123RF/JACEK SOPOTNICKI
Picture: 123RF/JACEK SOPOTNICKI

If you’re looking for insight into how entirely pointless many of our politicians are, consider the false urgency over changing the constitution to allow expropriation without compensation.

On Monday, we were told, the ANC and EFF clashed in parliament over the exact wording for the amendment to section 25 of the constitution, ostensibly to make the rules about expropriation without compensation more “explicit”.

As Business Day reported, the parliamentary ad hoc committee was in a “race against time” to finish its report by Monday night, May 31, “amid sharp differences between the ANC and EFF which threaten to drag on an issue that has weighed on investment sentiment”.

Entirely predictably, the parliamentary committee lost this race against time. It has now asked for a 30-day extension to reach some kind of agreement — and you shouldn’t bet on it ever reaching it.

The final stumbling block, it seems, was the role of the courts. 

The EFF — characteristically for a party that only ever seems to find itself on the wrong end of the law — wants the courts to play precisely zero role in deciding expropriation cases; the ANC, however, believes the courts should have “review powers” when there is a dispute.

However, since most other parties oppose the constitutional change, the ANC needs the EFF to side with it, to pass this constitutional amendment.

But, as Bulelwa Mabasa, a lawyer and member of the presidential advisory panel on land reform, told John Perlman on 702 on Monday, the differences between the parties are deeply ideological.

The ANC sees expropriation without compensation as an exception, something that happens in specific circumstances,” she explained. “On the other hand, the EFF believes in land being in the custodianship of the state, and to eradicate the ownership of private property of land.”

In other words, this stalemate was entirely foreseeable from the start. And when the committee reconvenes, it seems destined to be locked in another exceedingly dull version of Groundhog Day.

To make it worse, rather like two vegetarians arm-wrestling for a steak, it’s all very pointless.

As Marianne Merten pointed out in the Daily Maverick a few weeks ago: “Compensation-less expropriation may well be a mainstay of EFF populism and the ANC’s RET [radical economic transformation] faction. But … all tools for land reform and restitution exist in both constitution and law — what had been lacking was political will.”

This is because section 25 of the constitution allows for property to be expropriated “in the public interest”, with “just and equitable” compensation. And, as justice Albie Sachs has pointed out, the constitution “contains no willing seller, willing buyer principle, the application of which could make expropriation unaffordable”.

As Kgalema Motlanthe’s 2017 high-level panel on the assessment of key legislation and the acceleration of fundamental change found, the problem wasn’t the constitution.

Government has not used the powers it already has to expropriate land for land reform purposes effectively, nor used the provisions in the constitution that allow compensation to be below market value,” the panel said in the report.

Nor was paying compensation the biggest problem anyway; rather, “corruption by officials, the diversion of the land reform budgets to elites, lack of political will, and lack of training and capacity have proved more serious stumbling blocks”.

So, instead of lobbying for a change in the constitution, the panel recommended that the government “use its expropriation powers more boldly”.

Yet the ANC and EFF entirely ignored that inconvenient finding. Instead, they spent precious months squabbling over an unnecessary amendment — as if there was no pandemic, SA’s municipalities weren’t crying out for political leadership, and those politicians had nothing else to do all day.

The irony is, had the ANC spent this time actually implementing the existing laws, as Motlanthe said, land reform would probably be in a better place than it is now. 

As a metaphor for our political condition, this constitutional amendment debate is entirely apt. The country is burning, yet many of SA’s “elected leaders” are spending days endlessly debating whether to use sparkling or still water to douse the flames.

Even if there was a constitutional amendment one day, it wouldn’t magically fix SA’s stalled land reform programme anyway, because the problem was never the law — it was the plague of useless officials who have no real clue how to implement it.

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