The FW de Klerk Foundation writes regular articles on topical issues, supports language and cultural rights and participates in the national debate on racial and cultural issues. The Foundation also promotes communication by holding conferences and workshops.
STATEMENT: PRESIDENT RAMAPHOSA REJECTS THE IDEA THAT THE STATE SHOULD BE CUSTODIAN OF ALL THE LAND IN SOUTH AFRICA
Last Thursday the Foundation warned South Africans about the serious ramifications of the proposals put forward by the ANC and EFF at the beginning of last week for the amendment of section 25 of the Constitution to allow for the expropriation of property without compensation (EWC). The deliberations in the Parliamentary Ad-Hoc Committee that has been considering the text of the amendment, raised serious alarm bells. These included:
- the suggestion of land custodianship (with the State being the custodian of all land, including private land, in South Africa),
- removal of the 1913 cut-off date for land and redistribution claims (to make provision for such claims to go back earlier);
- the use of nil or zero compensation (for expropriated property); and
- a severely diminished role for the courts when determining issues related to expropriation of property.
The issue in the negotiations between ANC and EFF that caused most concern was an EFF proposal that the state should assume custodianship of all land in the country. The EFF threatened that it would “withdraw its support to amend section 25 of the constitution, or the property clause, should the ANC not back its calls to place all land under custodianship of the state”.
The EFF and ANC appeared to be moving closer to an agreement when the ANC agreed that the state would “take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship and for citizens to gain access to land on an equitable basis.”
The Foundation is accordingly relieved that President Cyril Ramaphosa announced at a press conference in Cape Town on Thursday last week that he was opposed to state custodianship over land in South Africa. He said that “state custodianship equals nationalisation, and that is not what the dispossessed want” and added that “the negotiations between the ANC and the EFF were not exclusive and that the ANC remained open to negotiating with other parties”. He also confirmed that “South Africa is a constitutional democracy, and no one can gainsay the role of the courts.”
On Friday the National Assembly extended the Ad-Hoc Committee's term until the end of August - by which time it must present its proposal for the amendment of Section 25. While effective land reform is mandated by the Constitution most experts - including former Chief Justice Arthur Chaskalson and the ANC’s own High-Level Panel - were of the opinion that land reform could be achieved without amending section 25.
Although the President’s recent statement is welcome - the question remains why the ANC is so intent on amending the principal constitutional protection for the property rights of all South Africans?
Issued by the FW de Klerk Foundation
7 June 2021
An early IRR warning of nationalisation via ‘custodianship’
Seven years ago, back in 2014, the IRR warned that the ANC would seek to nationalise all the country’s land without compensation. It would do so by taking ‘custodianship’ of land and then claiming that no expropriation had occurred (as explained below) and so no compensation need be paid.
The IRR’s warning was dismissed by the government, Agri SA, and the Institute for Poverty, Land, and Agrarian Studies (PLAAS), respectively, as unwarranted, ‘unlikely’, and ‘scaremongering’.
Now, however, the ANC and the EFF have agreed that the draft bill to amend Section 25 of the Constitution to allow expropriation without compensation (the EWC Bill) should be revised to include a commitment to ‘state custodianship’ over all land.
ANC and EFF proposals on state custodianship
The ANC’s proposal is contained in a new subsection 25(5), which reads as follows: ‘The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship and for citizens to gain access to land on an equitable basis’.
The EFF’s proposal is much the same, though it wants the italicised words to be deleted. In practice, this change would mean little.
The EFF also seeks a new subsection 25(4A), saying: ‘Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state.’
The ANC’s preferred wording is similar, for it thinks subsection 25(4A) should provide that ‘the land belongs to and is the common heritage of all South Africans’.
Either subsection, if inserted, would point to the supposed rationale for land custodianship. But the key wording is in subsection 25(5) – and would suffice to require new legislation that ‘enables state custodianship’ and gives people ‘access’ to land in the form of land-use licences to be ‘equitably’ allocated by the state.
Earlier this week, the ANC’s Vuzumusi Xaba tried to play down the significance of state custodianship by suggesting that this would apply solely in the ‘period between acquisition and redistribution’. However, there is nothing in the wording of subsection 25(5) to limit state custodianship in this way. Mr Xaba’s reassurance, if it is to be taken seriously at all, also overlooks the government’s State Land Lease and Disposal Policy (SLLDP) of 2013. Under this policy, land acquired for redistribution must be retained by the state and leased to land reform beneficiaries for a period of 50 years before an option to buy may be granted. On this basis, the ‘state custodianship’ that Mr Xaba sees as applying only ‘temporarily’ could last for half a century.
Despite some minor points of difference, the ANC and EFF have thus agreed to include state custodianship of all land in the EWC Bill. Their consensus on this key point is what matters – not the insignificant issues on which their further concurrence is now being sought.
Little real divergence on courts and compensation
There is also little real divergence between the ANC and EFF on the role of the courts or the payment of compensation.
The EWC Bill, as initially gazetted for public comment in December 2019, said that ‘a court’ would decide whether ‘nil’ compensation should be paid for ‘land and any improvements thereon’ that were expropriated for land reform purposes. The initial EWC Bill also said that new legislation to be adopted in the future would set out the circumstances in which ‘a court’ might decide that compensation on land expropriation would be nil.
The ANC wants to omit these specific references to the courts. However, it also proposes that the courts should retain their current powers to ‘decide or approve’ on the compensation payable on expropriation if the parties cannot agree on this.
By contrast, the EFF wants to exclude all reference to the courts. It also wants to omit any entitlement to compensation on the expropriation of property of any kind.
Is this a significant point of contestation between the ANC and the EFF? Not really. For the ANC plans to use expropriation relatively seldom and to rely in many instances on the concept of ‘deprivation’, as contained in subsection 25(1).
Expropriation versus deprivation
According to Mr Xaba, ‘the Constitution provides two ways in which the state may interfere with property rights, which are deprivation and expropriation’. It is only expropriation that requires the payment of compensation, whereas deprivation does not.
What is the difference between the two? In the ANC’s perspective, if the state takes ownership of property, then expropriation has occurred and compensation must be paid. By contrast, if the state instead assumes the custodianship of property for the benefit of others, then this is merely a ‘deprivation’ for which no compensation is payable at all.
In practice, of course, the state’s powers of control over property are very much the same irrespective of whether it takes ownership or custodianship. The distinction between the two concepts is thus entirely artificial. It has nevertheless already served the ANC well.
Take the example of the country’s mineral resources, two thirds of which used to be privately owned. If the ANC had taken ownership of these resources under the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, billions of rands in compensation would have had to be paid to the erstwhile owners of these resources. But because the MPRDA instead vested all mineral resources in the custodianship of the state, the ANC argued that this was a mere deprivation for which no compensation was due. This argument was upheld, moreover, by the flawed majority ruling of the Constitutional Court in the Agri SA case in 2013.
Nationalisation via custodianship
The custodianship concept is now to be deployed to nationalise all land, as the revised EWC Bill makes clear. This holds enormous dangers, for it could make the vital agricultural sector as ‘uninvestable’ as mining has become under the MPRDA. Its ramifications for the property market and the banking sector (to name but two examples) are also massive but unclear.
Worse still, the custodianship concept – or some similar mechanism for property ‘deprivation’ – could also be used to extend nationalisation way beyond land to important pools of private capital. This process will be facilitated by subsection 25(4), which defines ‘property’ as ‘not limited to land’ and is not to be amended by the EWC Bill.
All medical scheme reserves, for example, could in time be vested in the custodianship of the proposed National Health Insurance Fund, which will then use these funds to help provide the same (limited) healthcare benefits to everyone.
All pension funds could similarly be vested in the custodianship of the proposed National Social Security Fund, which would use them to help provide much the same (small) payouts to all pensioners. All bank savings might in time be vested in the custodianship of a new state bank, which would use them to fund infrastructure projects unlikely to be any more successful than Eskom’s disastrous new-build programme.
According to the ANC, there would be no expropriation in such custodial takings, so none would merit compensation. This explains why the ruling party sees little risk in retaining the Constitution’s current wording on ‘just and equitable’ compensation, which the EFF would prefer to jettison.
The effective nationalisation of private capital is thus a crucial part of what lies ahead – and what the EWC Bill is intended to allow. State control will help divert these funds to socialist objectives and so advance the National Democratic Revolution (NDR). State control will also, as tax revenues diminish, help grease the ruling party’s patronage machine and so maintain its fragile unity and hold on power.
Can the EWC Bill be stopped?
The Ad Hoc Committee responsible for drafting the EWC Bill was supposed to finish its work by 31st May 2021 but failed to reach agreement on the revised text. It is thus seeking a 30-day extension to finalise the measure.
Its ANC and EFF members, along with committee chair Dr Mathole Motshekga, have discounted a legal opinion from Parliamentary Legal Services which warns that most of the proposed changes to the EWC Bill are ‘substantial’ amendments that:
- exceed the committee’s mandate to ‘make explicit what is implicit’ in Section 25;
- need to be advertised for public comment; and
- must be referred to relevant government departments, the nine provincial administrations, and the National House of Traditional and Khoi-San Leaders.
Dr Motshekga seems determined to finalise the EWC Bill within 30 days. He also wants the National Assembly, which will be in the middle of a 10-week recess, to convene a special sitting to deal with the committee’s report. It will be up to the National Assembly to decide what to do if the committee has in fact exceeded its mandate, he says. Whether there is any need for further public consultation will also be determined in due course.
The EWC Bill is extremely urgent, adds Dr Motshekga, for ‘the government cannot tell people to build a new economy if they do not have anywhere to live’. Moreover, ‘there is unrest and land invasions all over because people are impatient and want access to land… Failure to resolve the land question will be tantamount to planting a time bomb in one’s own house…and bring[ing] the whole house down’.
However, this alleged urgency cannot be used to circumvent the need for proper procedures, as set out by Parliamentary Legal Services. In addition, a comprehensive socio-economic impact assessment is still needed to help inform the public consultation process – rather than the EWC Bill’s bland assertion that its ‘financial implications for the state’ are ‘none’.
Earlier this week, the chair of Agri SA’s Centre for Excellence: Land, Willem de Chavonnes Vrugt, cautioned that land custodianship without compensation would ‘give control over all private land to the state, [which] would be a recipe for an economic and humanitarian disaster and an invitation to large-scale corruption’.
This echoes the IRR’s long-standing warnings but does not go far enough. For it assumes that custodianship will stop at land, whereas the ANC intends to take its deprivations very much further – to private sector capital and other forms of property too.
This article first appeared in the Daily Friend on 3 June 2021 and is republished with the kind permission of Dr Anthea Jeffery and the South African Institute for Race Relations.
STATEMENT: THE NEED FOR FURTHER CONSULTATION ON AMENDING THE CONSTITUTION
The FW de Klerk Foundation notes a number of concerning developments regarding the ongoing deliberations on amending section 25 of the Constitution to allow for expropriation of property without compensation (EWC).
Although the Ad Hoc Committee on Amending Section 25 of the Constitution (the Committee tasked to amend the constitution to allow for EWC) has decided to request Parliament to grant it a further 30 day extension to complete its work - which in principle ought to be welcomed - a number of critical issues under discussion should raise serious alarm bells for all South Africans. These include:
- the suggestion of land custodianship (with the State being the custodian of all land, including private land, in South Africa),
- removal of the 1913 cut-off date for land and redistribution claims (to make provision for such claims to go back earlier);
- the use of nil or zero compensation (for expropriated property); and
- a severely diminished role of the courts when determining issues related to expropriation of property.
It is reported that the parliamentary legal services continues to be intricately involved in the process and it “recommended to extend scope of the committee on some clauses as well as holding further public hearings.”
It is further reported that it seems “fundamentally that the ANC and EFF appear to be in some agreement that the courts should have a diminished role to play in expropriation matters” and that “although the EFF and DA preferred a 60-day extension, the ANC insisted on a 30-day extension.”
These developments raise a number of critical questions:
- Why are the ANC and EFF jointly supporting a limited role for the courts? A move to introduce any measures to limit the role of the courts will infringe on section 165(3) of the Constitution which prohibits any person, or organ of state, from interfering with the functioning of the courts;
- The ANC was seemingly, at first, not in favour of the EFF’s continued calls for nationalization of land and state custodianship of all land in South Africa - what made it change its stance on this point?
- Why is the ANC seemingly inflexible on the extra allocated time - i.e., 30 days instead of the proposed 60 days - could this be a voting tactic considering the upcoming elections?
Considering the serious negative implications of EWC for the country in general, but also these specific and more damaging parameters being driven by the EFF and ANC (i.e., land custodianship, zero compensation and limiting the adjudicative role of the courts to determine disputes) the Foundation implores Parliament to grant not only a 60 day extension to the committee but also another round of public participation - as suggested by the parliamentary legal services - in the process to address these new amendments.
Issued by the FW de Klerk Foundation
1 June 2021
ARTICLE: ANC CORRUPTION, FACTIONALISM AND RADICAL POLICIES LIKELY TO CONTINUE
It was that 15th century master interpreter of political cunning and deception, Niccolò Machiavelli, who wrote: “Men will not look at things as they really are, but as they wish them to be - and are ruined”.
He may as well have written that as a warning to exasperated South Africans hoping for or believing we are at the start of a post-Zuma and Magashule era of new hope and prosperity that will be without corruption, minus the paralysis caused by factional fighting in the ANC, and rid of the spectre of radical populist policies.
Think again, and don’t read too much into what you think you are seeing happening. I hate to be the bearer of bad tidings, but even if Jacob Zuma and Ace Magashule may be on their way to political oblivion or worse, nothing else is likely to change much for the better. Many commentators - mostly without any proof in my opinion - have, for instance, interpreted the fates of Zuma and Magashule as a major blow for the faction supposedly advancing radical economic transformation (RET).
What happens to RET?
It may be a setback for the concerned faction, yes, but not necessarily for RET. The truth is, the fight between the governing ANC factions aligned with either Cyril Ramaphosa or Zuma/Magashule had little to do with reform or renewal and taking South Africa to a better space. It had much more to do with who gets to hold the steering wheel on the drive down the road to ruin - but for different reasons.
With the demise of Zuma and Magashule, RET will not miraculously be off the table. In fact, as the central element of the second phase of the ANC’s national democratic revolution - official ANC policy and strategy courtesy of the SACP - RET will rather be intensified and expanded. That much we have already seen, also coming from President Ramaphosa himself. And lest we forget, major elements of RET were adopted at the 2017 national conference as official ANC policy, with Ramaphosa bound to its implementation.
To have called one faction the RET faction is a misnomer. To both factions the official ANC policy of RET was/is simply a means to an end in the dynamics of the battle between them. For the Zuma/Magashule faction it was a populist, rhetorical slogan and thus a mobilising tool to regain power and the keys to the state’s piggy bank and goody cupboards. For Ramaphosa and company it is a political and ideological strategy with which to strengthen the undisputed ruling - as opposed to governing - grip of the ANC for generations to come, and something in which his key backers, the SACP and COSATU, are heavily invested.
Can Ramaphosa redeem the ANC and himself?
There is still an outside chance that Ramaphosa may redeem himself (and the ANC) and wriggle his way out of this ideological straitjacket. But don’t hold your breath as there’s no concrete evidence of that at this stage. Nonetheless, it was Ramaphosa who, after ousting Zuma in 2017/18, played nice with international audiences as he sought much needed investment (and still does when the occasion demands).
He made all the right noises - promising to end corruption, end factionalism, implement economic reform, and return the economy onto an inclusive growth path. It was also Ramaphosa who displayed “strategic patience” to apparently slowly bring on board the factions and Alliance partners that were seen blocking any perceived moves towards a more dynamic, liberal economic strategy.
And it was Ramaphosa who always appeared to attach the sober moderating qualifier to the ANC’s wilder statements around expropriation without compensation (EWC) and other RET policies adopted in 2017. As a shrewd politician who keeps his cards close to his chest, Ramaphosa is something of a political artful dodger or chameleon. He has managed to put different spins on a wide range of issues, tailoring them for different audiences. The issues included RET, structural economic reforms, EWC, nationalising the Reserve Bank, and a new economic policy/strategy.
The audiences have been as diverse as the WEF crowd in Davos, to investment conferences in London and Johannesburg, the Central Committee and Politburo of the SACP, the ANC’s socialist labour ally COSATU, a land redistribution advisory panel, famers’ representative organisations, the radical and moderate wings of his own ANC, and leaders within the business community, among others. None ever seemed overly disappointed with Ramaphosa or his message… because it was tailored to their expectations.
Economic blueprint for the future
RET is the ANC’s economic blueprint for the future. Nothing came of Ramaphosa’s promised structural reforms or new economic strategy. Finance Minister Tito Mboweni’s effort in this regard was quickly squashed and replaced with a gobbledygook strategy concocted by members of the NEC and advanced by Ace Magashule, only for it too to be replaced by the current economic reconstruction and recovery plan, necessitated by the devastation of Covid-19 and, like the subsequent state of the nation address, containing rehashed old ideas.
However, Ramaphosa himself set the precondition that a capable state - with an efficient and professional civil service - is an important enabling factor without which this plan will not succeed. And it was Ramaphosa himself who then placed that very obstacle in its way and contradicted himself when he later told the Zondo commission of inquiry into state capture that the ANC would not end its destructive policy of ‘cadre deployment’ - the key facilitator of inefficiency, non-delivery, patronage, and corruption.
A number of factors support the fact that the ANC, and Ramaphosa, have since last year adopted an ever more radical stance fashioned around the implementation of RET central to the second phase of the national democratic revolution (NDR. For one, Ramaphosa’s own rhetoric has leaned that way with his statements increasingly couched in ‘transformation’ language designed to advance a more radical agenda with strong redistributive content. In turn this must strengthen and advance the NDR. The looming spectre of an upcoming National General Council (NGC), municipal elections and next year’s elective National Conference, may have played some part in this - but there’s more to it.
And in order to secure majority support on the NEC in his battle to be rid of Magashule, Ramaphosa is rumoured to have promised NEC sceptics (erstwhile opponents) increased radicalisation, specifically around expanding the terms of EWC, in return for their support.
In addition, a number of radical new legislative and other measures have recently been introduced by the ANC with Ramaphosa’s support. These include various draft legislative and constitutional amendments pertaining to allowing for and widening the scope of EWC and zero compensation; the establishment of a race-based tourism equity fund while throwing established tourism businesses under the Covid bus; the setting of new binding racial quotas via employment equity legislation that could even affect things like attorney-client privilege; wide and ambiguous amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act; and the new centralised control and development model for municipalities, among others.
Meanwhile Ramaphosa also remains beholden to the SACP and COSATU who helped him come to power and with whom he historically has very close ties. He will again need their assistance to stave off any potential attacks at the pending NGC and at next year’s elective conference. There’s also no sign that the dictatorial reign of Nkosazana Dlamini-Zuma and her National Coronavirus Command Council - set up in terms of very weak state-of-disaster legislation that lacks proper checks and balances and time limits - will end soon.
Can the ANC reform itself post-Zuma/Magashule?
Despite the NEC having undertaken to deliberate ‘ANC renewal’, that’s unlikely to be more than an unproductive talk shop. Factionalism and corruption will not be stamped out until the ANC acts like a real political party (it still refers to itself as a movement and views itself as the only legitimate representative of the people); rids itself of its liberation movement broad-church approach that facilitates competing groups and agendas; ends the ideological suffocation of its alliance with the SACP and COSATU; replaces cadre deployment with a professional and independent public service; and tackles all corruption even-handedly across the board without fear or favour.
And with municipal elections coming up, a whole new generation of ANC cadres with local and regional business/tenderpreneur/career ambitions are waiting in the wings.
By Stef Terblanche, independent political risk analyst and member of the FW de Klerk Foundation Panel of Contributors
STATEMENT: THE FIREARMS CONTROL AMENDMENT BILL AND THE REMOVAL OF CITIZENS’ RIGHT TO DEFEND THEMSELVES
The FW de Klerk Foundation shares the alarm of many South Africans over the recently published Firearms Control Amendment Bill which, among other things, seeks to remove self-defence as a reason to own a firearm in South Africa.
The Constitution guarantees the right to life and the right to freedom and security of the person - which includes the right to be free from all forms of violence whether they are of a public or private nature. Indeed, the right to life may be regarded as the most fundamental right of all - because, axiomatically, without it none of the other constitutional rights can be enjoyed. The right to freedom and security of the person - not to be subject to violence or rape - is crucial for the enjoyment of the capstone right to human dignity.
For this reason, the protection of the lives and persons of citizens is generally regarded as the most fundamental function and duty of any state. Yet, in the case of South Africa, it is a duty that the state has lamentably failed to carry out.
South Africa’s murder rate of 35,9 per 100 000 people (2019) is the second highest of any country in the world with a population over 4 million. The highest is Venezuela with 36,69/100K in 2018 - but with only about half South Africa’s number of murders. And the situation is deteriorating. The Minister of Police, Mr Bheki Cele recently released the latest SAPS crime statistics for the first quarter of 2021 - indicating an increase in murder and attempted murder of 8,45% and 8.7% respectively. The shocking reality is that more than 500 000 people have been murdered in South Africa since 1994. That is about 100 000 more than the number of US servicemen who died in World War II.
South Africa also has the highest rape rate in the world with 132,4 rapes per 100 000 people. The second highest - Botswana - lags behind South Africa with 92,8/100K. (The EU average is 10,19/100K and that of the USA is 27,3/100K.)
South Africa is undisputedly one of the most violent countries in the world. The state is clearly incapable of carrying out its primary duty of protecting the lives and persons of its citizens. And so, unfortunately, for many South Africans, owning a firearm is often the only legitimate way of protecting themselves, their families and possessions. This is particularly true of the country’s embattled farming community.
The Bill must also be viewed in the context of a number of related developments including -
- recent budget cuts to the South African Police Service (SAPS) that will leave millions of South Africans even more vulnerable to crime - (although the budget of the VIP Protection Unit has been increased to R1,7 billion);
- the complete disarray at the SAPS Central Firearms Registry in Pretoria with an estimated backlog of over 1 million cases;
- unacceptable backlogs (more than 208 000) in DNA and forensic case exhibits at the SAPS Forensic Science Laboratory - which Mr Cele has admitted to being “completely unacceptable”; and
- a rise in violent mob-justice incidents (as recently seen at Zandspruit near Johannesburg) where residents indicated that the reason the community took the law into their hands was a lack of police response to crimes in the area.
South Africa’s astronomic crime statistics - particularly for violent crimes such as murder, rape, armed robbery and GBV - unfortunately confirm the institutional incapacity of the state to protect people and safeguard the lives and persons of its citizens - and especially of its most vulnerable populations.
The explanation given by the Minister Cele, for stripping South Africans of their right to use firearms to defend themselves is entirely unconvincing. He says that the reason “is to curb the rise in illegal firearm ownership.”
He is evidently trying to create the impression that legal firearms - and not the state’s incompetence - are the cause for increased crime rates in South Africa - intimating that “once these get stolen, they become illegal.” Rather than disarming South Africans and removing the only option they may have to defend themselves, the Minister and SAPS should address their own institutional failures to carry out their most fundamental duty to protect their citizens.
A disturbing question remains: why - at this increasingly volatile time in the evolution of our post-1994 society - does the government actually want to disarm its citizens?
A copy of the Bill (published on 21 May 2021) can be found here and commentary must be submitted to the Civilian Secretariat for the Police Service within 45 days:
Issued by the FW de Klerk Foundation
25 May 2021
ZOOM DISCUSSION: PEPUDA 2021 Amendment Bill - How concerned should South Africans be?
The Department of Justice and Constitutional Development recently published the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000 and known as PEPUDA) amendment Bill for public comment.
The deadline for submissions was originally 12 May 2021 - although a number of organizations (including the FW de Klerk Foundation) have received an extension until 30 June 2021 to deliver comment on the proposed amendments which present, collectively, a sharp and highly concerning departure from the current PEPUDA.
The Foundation will be submitting comments on the proposed amendments before the above deadline.
Join Adv Jacques du Preez (CEO, FW de Klerk Foundation) and Adv Mark Oppenheimer (an expert in discrimination and hate speech law in South Africa and a practicing member of the Johannesburg Bar) for a zoom discussion on the potential effects of the Bill, should it be implemented.
According to Adv Oppenheimer:
The Bill will have five major consequences. First, redefining the terms “equality” and “discrimination”. Second, departing from the fault requirement found throughout our law by creating liability for unintentional acts or omissions which cause prejudice to or undermine the dignity of a person. Third, making persons vicariously liable for contraventions of the Act performed by their workers, employees, or agents. This would include discrimination, hate speech and harassment. Fourth, a series of hefty obligations will be placed on Non-Governmental Organisations, traditional leaders and institutions, community organisations, and those contracting with the State, and the executive will be empowered to create codes to regulate these sectors. Government Ministers will be empowered to discriminate between people, companies, and organisations depending on their size, resources, and influence. Finally, it requires the State to overhaul all laws, policies, codes, practices, and structures which do not conform to the newly proposed definitions of equality and discrimination."
The Foundation shares these concerns about the Bill and is of the view that the strenuous obligations imposed by the Bill, if implemented, will be virtually impossible to fulfil - it will also be very costly and burdensome because the ‘equality’ suggested by the Bill cannot be quantified.
The video can be accessed here:
South Africans are urged to present their enquiries, comments and submissions on the amendments to the following address:
Attn: The Director-General: Justice and Constitutional Development
FW de Klerk Foundation
ARTICLE: THREE PROPOSED CHANGES TO THE EWC CONSTITUTIONAL AMENDMENT BILL
The draft constitutional amendment bill (the Bill) allowing land expropriation without compensation (EWC) is already damaging enough to make South Africa largely uninvestable.
The Ad Hoc Committee (the Committee) responsible for drafting the Bill is nevertheless considering amending it – and making it very much worse – in three crucial ways.
In particular, the Bill might be changed to:
- limit the role of the courts in deciding on ‘nil’ compensation;
- extend the ‘nil’ compensation provisions from land to property of all kinds; and
- make the state the custodian of all land, as the EFF continues to demand.
Such changes are potentially momentous. Yet how much public participation will be allowed on these further changes remains unclear.
These vital issues came to the fore at the committee’s most recent meeting (on Friday 7th May 2021), when parliamentary legal adviser Charmaine van der Merwe was asked to respond to the changes being mooted.
A more limited role for the courts
The Department of Agriculture, Land Reform and Rural Development (the land department) has proposed that the wording of the Bill be changed to limit the role of the courts. It argues that allowing the courts to decide on ‘nil’ compensation on land expropriation amounts to ‘judicial overreach’ and ‘violates the principle of the separation of powers’. The Department of Public Works and Infrastructure (the public works department) agrees.
According to the public works department, the Bill must thus be changed so that the amended subsection 25(2) of the Constitution reads as follows (new text is underlined and proposed omissions are marked in bold):
Section 25(2): Property may be expropriated only in terms of law of general application –
- for a public purpose or in the public interest; and
- subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court: Provided that in accordance with subsection (3A), [a court may] where land and any improvements thereon are expropriated for the purposes of land reform, [determine that] the amount of compensation that may be paid is nil.
The Bill makes no change to subsection 25(3), which therefore continues to provide that ‘the amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected’. The five listed factors relevant to that equitable balance – including market value and the ‘purpose of the expropriation’ – also remain the same.
However, a new subsection (3A) will then be inserted, as the Bill has proposed right from the start. But the public works department wants the wording of this subsection to be changed as well, so that it reads as follows (again, new text is underlined and omissions are marked in bold):
Section 25(3A): National legislation must, subject to subsections (2) and (3), set out specific circumstances where [a court may determine that] the amount of compensation that may be paid is nil.
This shift seems to reflect what the ANC decided back in January 2020: that the executive should be empowered to decide when ‘nil’ compensation will be paid, as allowing the courts to determine this will be too time-consuming and complex.
As the ANC put it, judicial review of the executive’s decision cannot be excluded, given the Constitution’s guarantee of administrative justice. But the power to decide on nil compensation should be reserved for the state’s officials, while the courts should be confined to reviewing the fairness and reasonableness of these bureaucratic decisions.
The proposed changes to the Bill, as set out above, may not go as far as this – as the wording used could still allow the courts to ‘decide’ that compensation should be nil. However, that the courts would no longer have an automatic right to decide on nil compensation, as the Bill initially provided, is worrying.
So too is the peremptory element in this proposed sub-clause. This can easily be read as meaning that ‘the amount of compensation that may be paid’ – in other words, that is permitted to be paid – ‘is nil’ whenever land and improvements are expropriated for land reform purposes.
The underlying intention may, of course, be different. If that is so, the final wording of the Bill will need to be far clearer in stating that nil compensation will apply, in the land reform context, only if this is either agreed by the owner or ‘decided or approved’ by a court.
According to Ms van der Merwe, there is a problem with the Bill’s original wording as ‘the courts would have serious backlogs if every case [of nil compensation] were to be referred to them’. Hence, if the Committee does not want the courts to be ‘the only decision-maker in respect of nil compensation’, the Bill will have to be changed. This change will need to be advertised to the public, as further described in due course.
Whether nil compensation should apply to property of all kinds
Section 25 of the Constitution defines property as ‘not limited to land’. The public works department has therefore argued that the Constitution already allows the payment of nil compensation for any property that is expropriated in the public interest, not merely land. Since the Committee’s mandate is to ‘make explicit what is implicit in Section 25’ – and the country’s history may make it just and equitable to expropriate other property for nil compensation too – the Bill should be changed to reflect this wider scope for EWC.
According to Ms van der Merwe, any such amendment would need to be advertised. Permission might also have to be obtained from the National Assembly, as the Committee’s mandate is to focus on land needed for land reform purposes.
Whether the Bill should provide for state custodianship of land
According to the EFF’s Floyd Shivambu, the Bill is defective because it does not delete subsection 25(7) of the Constitution – which allows for the restitution of land to those dispossessed of it after June 1913 – or stipulate that the state must ‘become the custodian of all land’. The need to provide for state custodianship, he says, can be traced all the way back to February 2018, when the National Assembly mandated the Constitutional Review Committee to ‘review and amend’ Section 25 of the Constitution to allow for EWC.
Ms van der Merwe responded that the Committee’s mandate does not include the deletion of subsection 25(7) or the custodianship issue. But Mr Shivambu countered that ‘thousands of submissions have referred to the proposal about the state being the custodian of the land’. In addition, ‘the people have already informed the politicians that subsection (7) should be deleted’. Parliamentary legal advisers who disagree are thus ‘undermining the work of politicians’ who reflect the views of ‘more than 70% of the people’.
The ANC members of the Committee seemed to support Mr Shivambu on various points, including the need to review all previous resolutions relevant to the Committee’s mandate. They also implicitly agreed that the Committee may amend any part of Section 25, including subsection (7).
How much additional public comment is needed?
Ms van der Merwe told the Committee that any significant changes to the Bill will need to be advertised. However, whereas ‘the first call for comments on a bill is normally quite a big exercise, the second call for comments is more specific. Only new substantive changes must be advertised. Further public hearings are held only if anything is unclear. The number of people that want to [make oral presentations] is smaller and the process therefore requires less time’.
ANC members of the Committee nevertheless questioned why more public consultation should be required. According to Vusumuzi Xaba, if people who have already addressed the Committee through public hearings ‘suggest a new clause that is not in the published bill, [their] proposals [should surely be] accepted as a product of the public participation process’. Committee chair Dr Mathole Motshekga agreed that ‘input from the people should not be ignored as it would make the public participation process nonsensical’.
The way forward, according to Dr Motshekga
Against the background of Mr Shivambu’s repeated accusations that the Committee has been ‘hijacked’ and diverted from its original mandate, Dr Motshekga promised that all relevant resolutions would be brought before the next meeting so that ‘members can refresh their memories’.
Further deliberations on the content of the Bill are due to begin this week. The Committee is expected to finalise the wording before the end of May, so that the measure can then be submitted to the National Assembly for adoption.
According to Dr Motshekga, the Committee is ‘not confined to considering what was published in the initial draft’ of the Bill, as gazetted in December 2019. This suggests that all three of the changes outlined here could soon be introduced – and without much further public consultation.
This article first appeared in the Daily Friend on 13 May 2021 and is republished with the kind permission of Dr Anthea Jeffery and the Institute for Race Relations.
CASE DISCUSSION: CONCOURT RULING A POWERFUL STEP FOR BLACK WOMEN IN SOUTH AFRICA
In the recent matter of Agnes Sithole & Another v Gideon Sithole & Another1 the South African Constitutional Court confirmed and upheld a High Court ruling that marriages under South Africa’s old Black Administration Act be made in community of property by default.
The Constitutional Court was approached for confirmation of an order of invalidity originally handed down by the by the High Court (KwaZulu-Natal Local Division in Durban) in terms of section 167(5) of the Constitution. At its core, the case concerned a constitutional challenge against the provisions of section 21(2)(a) of the Matrimonial Property Act (MPA)2.
Section 21(2)(a) of the MPA permitted couples to make the out of community accrual system (provided for in Chapter I of the MPA) applicable to their marriages and is worded as follows:
“(a) Notwithstanding anything to the contrary in any law or the common law contained, but subject to the provisions of paragraphs (b) and (c), the spouses to a marriage out of community of property –
(ii) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it was in force immediately before its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988, may cause the provisions of Chapter I of this Act to apply in respect of their marriage by the execution and registration in a registry within two years after the commencement of this Act or, in the case of a marriage contemplated in subparagraph (ii) of this paragraph, within two years after the commencement of the said Marriage and Matrimonial Property Law Amendment Act, 1988, as the case maybe, or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect.”
The High Court declared section 21(2)(a) of the MPA unconstitutional and invalid to the extent that it maintains and perpetuates unfair discrimination. The Court ruled that this discrimination was created by section 22(6) of the Black Administration Act3 (the BAA) in that marriages of black couples - entered into under the BAA before 1988 - were automatically out of community of property.
In this sense section 22(6) of the BAA provided that -
“A marriage between Natives, contracted after the commencement of this Act, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate, native Commissioner or marriage officer (who is hereby authorized to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage except as regards any land in a location held under quitrent tenure such land shall be excluded from such community.”
Mr and Mrs Sithole were married in December 1972. The marriage was out of community of property by virtue of section 22(6) of the BAA and at the time the application was brought before the Court a quo the couple had been married for a period of 47 years. The marriage was further constituted as out of community of property because of section 21(2)(a) of the MPA - which did not automatically change the matrimonial regime. Mrs Sithole was a housewife. During 2000 the couple purchased a house - which was registered in Mr Sithole’s name only. Subsequent to this the relationship between the parties soured and Mr Sithole threatened to sell the house.
Mrs Sithole sought and obtained an order interdicting and restraining Mr Sithole from selling the house or in any manner alienating it pending the finalisation of the application before the High Court and ultimately, the Constitutional Court.
The Court, in a unanimous judgment delivered by Justice Tshiqi, indicated that the main issue to be determined was –
“Whether the order of constitutional invalidity made by the High Court should be confirmed. The outcome of that inquiry is predicated on whether the impugned provisions discriminate unfairly against Black couples whose marriages were concluded in terms of the BAA, including the applicant and other women similarly placed. If they do, the next question would be whether there is a justification that saves the challenged provisions from constitutional inconsistency. Lastly, if unfair discrimination is found and it cannot be justified, this Court must confirm the order of constitutional invalidity and make an order that is just and equitable”.4
The Court thereafter reiterated the well-established approach to be followed when considering whether discrimination is unfair, and as set out in the matter of Harksen v Lane5:
“Where the equality clause is invoked to attack a legislative provision or executive conduct on the ground that it differentiates between people or categories of people in a manner that amounts to unequal treatment or unfair discrimination, the following stages of the enquiry into a violation of section 8 are helpful:
“(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose?
If it does not then there is a violation of section 8(1).
Even if it does bear a rational connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis: (i) Firstly, does the differentiation amount to ‘discrimination’?
If it is on a specified ground, then discrimination will have been established.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed.
If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).
(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution [now section 36 of the Constitution])”.
The Court’s Findings
Justice Tshiqi indicated that the provisions perpetuate the existence of a special matrimonial regime for Black couples who concluded their marriages before 1988. This meant that there was indeed ‘differentiation’ in that marriages of Black people were different from those of other races6.
Justice Tshiqi continued that –
“The discrimination complained about is on the listed grounds of race, gender and age in section 9(3) of the Constitution. In terms of this section, the state may not unfairly discriminate directly or indirectly against anyone on one or more of the grounds listed in the section. In terms of section 9(5) of the Constitution, discrimination on one or more of the grounds listed in section 9(3) is presumed to be unfair unless proven otherwise.
The discriminatory effect of the provisions can be traced back to the provisions of the BAA. The differentiation under the BAA was on a racial basis in that it created a special dispensation for Black couples. Section 22(6) of the BAA had the effect that unless Black couples expressed a desire to enter into a marriage in community of property their marriage was automatically out of community of property. This was different to what pertained in respect of other racial groups whose marriages were automatically in community of property. Section 21(2)(a) of the MPA did not have the effect of automatically converting the default position of marriages of Black people so that they were automatically in community of property like those of other races. Instead, it required all spouses in marriages out of community of property, entered into before the commencement of the MPA either (i) in terms of an antenuptial contract; or (ii) in terms of section 22(6) of the BAA, to cause the provisions of Chapter I of the MPA (the accrual system) to apply for the conversion of their marriages, within two years after the commencement of the MPA. Thus, although the amendment brought by section 21(2)(a) formally rectified the discriminatory provisions of the BAA, it failed to address the lasting discriminatory effects of these provisions. Instead, it imposed a duty on Black couples who wanted their matrimonial regimes to be similar to those of the other racial groups, to embark on certain laborious, complicated steps to enjoy equality with other races”.6
The learned Justice also made it very clear that in the Court’s view the challenged provisions have indirect unfair discriminatory consequences for women. In the Court’s view - and flowing from evidence led a quo in the High Court - Black women are hard hit by the impugned provisions disproportionately to their husbands and the challenged provisions have far reaching intersectional effects on Black women’s rights compared to their male counterparts.7
Applying herself to the final requirement as enunciated in the Lane-case Justice Tshiqi ruled that –
“The unfair discrimination is not saved by section 36(1) of the Constitution and that he provisions of section 21(2)(a) of the MPA are inconsistent with the Constitution and invalid and the High Court order to this effect should be confirmed”.8
The Court’s Order
The Court consequently ordered that -
“1. The provisions of section 21(2)(a) of the Matrimonial Property Act 88 of 1984 (‘the MPA’) are declared unconstitutional and invalid to the extent that they maintain and perpetuate the discrimination created by section 22(6) of the Black Administration Act 38 of 1927 (‘the BAA’), and thereby maintaining the default position of marriages of black couples, entered into under the Black Administration Act before the 1988 amendment, that such marriages are automatically out of community of property;
2. All marriages of black persons that are out of community of property (and concluded under section 22(6) of the Black Administration Act before the 1988 amendment) are, save for those couples who opt for a marriage out of community of property, hereby declared to be marriages in community of property;
3. Spouses who have opted for marriage out of community of property shall, in writing, notify the Director-General of the Department of Home Affairs accordingly; and
4. In the event of disagreement, either spouse in a marriage which becomes a marriage in community of property in terms of the declaration in paragraph 2, may apply to the High Court for an order that the marriage shall be out of community of property, notwithstanding that declaration.9
The practical implications going forward is that effective from 14 April 2021 that the default position is that all marriages which, in terms of the BAA, were automatically out of community of property are in community of property - unless the affected couple has opted out.
The judgment and practical implications thereof are to be welcomed and presents an excellent illustration of the way our Courts approach unfair discrimination and how it is determined.
The judgment must also be seen as a sterling example of how the South African Constitution and Bill of Rights can be utilized and implemented to effect real and positive change for all South Africans - in this case particularly, Black women, who continued to suffer disenfranchisement as a result of the effects of marriages concluded in terms of the old Black Administration Act.
4Judgment ad paragraph 11
6Judgment ad paragraph 22 - 24
7Judgment ad paragraph 27
8Judgment ad paragraph 47
9Judgment ad paragraph 59
By Adv Jacques du Preez, CEO of the FW de Klerk Foundation
10 May 2021