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STATEMENT: EVOLUTION OF PROPERTY RIGHTS SINCE 1994

IMG8681In a speech on the evolution for property rights since 1994, FW de Klerk warned Government against taking any action that would destroy the carefully constructed agreements on property rights that are contained in section 25 of the Constitution.

De Klerk was addressing a conference on the future of property rights, hosted by the FW de Klerk Foundation and the Konrad Adenauer Foundation in Johannesburg on 27 August 2014.

De Klerk said that South Africans were receiving contradictory messages from Government as to whether it would "take the road to economic growth and social justice that is indicated by the National Planning Commission" or whether it would "take the 'second phase' road toward the goals of the National Democratic Revolution."

On the one hand, the ANC had decided at its Mangaung Conference at the end of 2012 to adopt the NDP as its economic programme. On the other hand, in statement after statement, ANC leaders had been expressing their intention of proceeding with the radical implementation of the second phase of the National Democratic Revolution. 

De Klerk said that the search for an equitable balance had been at the heart of the constitutional negotiations on the key question of property rights. All reasonable parties had accepted that it would be untenable and unacceptable to freeze land ownership patterns on the demographically skewed basis of the past. 

Land reform was essential - but it would have to take place in an equitable manner - that would, on the one hand, make provision for "the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources." On the other hand expropriation would be "subject to compensation, the amount of which and the time and manner of which have either been agreed to by those affected or decided or approved by a court."

De Klerk observed that it subsequently became evident from the ANC’s Strategy & Tactics documents that it had never intended to maintain a reasonable balance on property rights. It decided that its National Conference in December 2007 should review property rights because they were proving to be "an obstacle to wealth redistribution". The National Conference called for the abandonment of "market-driven land reform"; immediate review of "the principle of willing-seller, willing-buyer" and the alignment of all legislation relating to expropriation with the Constitution.

Since then the Government had adopted the broad  approach to property rights that was set out in its Green Paper on Land Reform in 2011. This would require  'Agrarian Transformation' - which was defined as "a rapid and fundamental change in the relations (systems and patterns of ownership and control) of land, livestock, cropping and community." In terms of its proposals there would be four categories of land tenure:

  • State and public land that would be subject to leasehold; 
  • Privately owned land - that would be freehold but with 'limited extent';
  • Foreign owned land that would be freehold with 'precarious tenure' and subject to conditions; and
  • Communal land with communal tenure and institutionalised use rights. 

De Klerk said that these proposals had since become the basis for the government’s new approach to property rights and given rise to a raft of contentious new property legislation - including the Promotion and Protection of Investments Bill; the Property Valuation Act; the Mineral and Petroleum Resources Amendment Bill; the Restitution of Land Rights Amendment Bill; the Regulation of Land Holdings Bill; and the Private Security Amendment Bill.

In the meantime there had been further indications that the government had decided to move down the NDR road - while continuing to give lip service to the NDP. In January this year President Zuma had repeated the "second phase" theme that "we have achieved political freedom, now we must achieve economic freedom, and ensure that the ownership, management and control of the economy is deracialised further".

At the same time the South African Communist Party (SACP) had succeeded in achieving effective control of economic policy.

Some years ago the SACP had adopted a "medium term vision" "to secure working class hegemony in the State in its diversity and in all other sites of power". At its 11th Congress in 2007, the SACP had repeated its adherence to the 1928 instruction of the Communist International that It should develop "systematically the leadership of the workers and the Communist Party" in the ANC.

This had happened. The SACP had long been handed some 30% of the ANC’s parliamentary seats - without having to win a single vote. Members of its Central Committee now held the following key posts - giving it particular influence with regard to the determination of economic policy:

  • Gwede Mantashe: Secretary-General of the ANC (and recently described by Ferial Haffajee as “the most powerful man in South Africa”);
  • Jeff Radebe: Minister in the Presidency responsible for the NDP;
  • Rob Davies: Minister of Trade and Industry
  • Senzeni Zokwana: Minister of Agriculture
  • Minister Thembelani Nxesi: Minister of Public Works
  • Minister Blade Nzimande: Minister of Higher Education and Training
  • Minister Ibrahim Patel - although not a member of the Central Committee - strongly associated with COSATU.

De Klerk said that none of this was in line with the agreements that had been reached between 1990 and 1996. "When we agreed to the 1996 Constitution we signed on for the values, rights and institutions that it articulated. We did not sign on for the National Democratic Revolution. We were never consulted about the ANC’s approach to transformation and we do not accept it."

He concluded by calling for serious talks between the Government and all those who were targeted by its version of transformation (including, our minorities, our farmers, the media, civil society organizations; and small and large businesses):

  • About its approach to transformation;
  • About the importance of upholding the values in the Constitution;
  • About the likely consequences for the economy, for inter-community relations and for the future of our national accord arising from any dilution of property rights; and
  • About how we can all work together to achieve real transformation as envisioned in the founding values of our Constitution.

Issued by the FW de Klerk Foundation


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