Land custodianship

South Africans who believe in free market principles and property rights heaved a huge collective sigh of relief on 4 June when President Ramaphosa appeared to reject the EFF proposal that all land in South Africa should be under the “custodianship” of the state. In terms of the proposal, the state would assume custodianship of all land in the same manner it had already taken custodianship of South Africa’s mineral and water resources. All present landowners would, in effect, become tenants of the state under whatever conditions the state might deem appropriate – and no compensation would be payable to landowners for the loss of their property.

Serious concerns were raised at the beginning of June when ANC delegates on the Ad-Hoc Committee responsible for drafting the proposed amendment to Section 25 of the Constitution (the so-called ‘property clause’) appeared to be moving closer to the EFF position. They suggested the following amendment that opened the door to custodianship:

“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”.

They also came closer to endorsing the EFF’s proposal that ‘Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state’ – by accepting the inclusion of a new clause to the effect that ‘the land belongs to and is the common heritage of all South Africans’.

This was, however, not enough for the EFF which announced that it would not support any constitutional amendment that continued to include provision for compensation for expropriated land. However, without EFF support it was most unlikely that the ANC would be able to achieve the two-thirds majority required to amend the Constitution. The mandate of the Ad-Hoc Committee to draft a text for the constitutional amendment was extended to the end of August.

On 4 June President Ramaphosa appeared to reject the idea of custodianship and gave the strongest defence of property rights by any ANC leader – ever. He equated custodianship with nationalisation and insisted that this was not what people wanted. He said that

“Because of the dispossession of the past, there is a hunger for land. It is a need to have a title deed, to own land, not just to be granted use of the land by the state. Farmers want to be able to use the land as collateral to borrow money from banks, and they want access to water rights,”

This appeared to be a major deviation from the ANC’s 2013 State Land Lease and Disposal Policy – in terms of which land acquired by the state for redistribution would be leased to beneficiaries for 50 years before they qualified to purchase it.

Nevertheless, the President emphasised the importance of title deeds and ownership and called for a hybrid system in terms of which individuals, rather than communities, would enjoy ownership of land – while also making provision for communal property rights in traditional areas. He also stressed the role of the courts – rather than the executive – as the final arbiter on property rights.

President Ramaphosa said that negotiations on section 25 were not exclusive, and that the ANC would seek the support of other political parties for the constitutional amendment. Melanie Verwoerd suggested – unsurprisingly to no avail – that the DA should support the ANC’s position.

We have now learned that, despite President Ramaphosa’s assurances, the ANC has not, after all, moved away from the concessions that it made on the principal of custodianship at the beginning of June. Its latest proposed amendment has expanded the principle that ‘the land belongs to and is the common heritage of all South Africans’ to the proposition that “The land is the common heritage of all citizens that the state must safeguard for future generations”.

It has amended its undertaking regarding custodianship by proposing that custodianship would apply only to ‘certain (undefined) land’. It now reads as follows: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.”

So, what has been going on here?

Firstly, this appears to be a repudiation of President Ramaphosa and may indicate the limits of his ability to move beyond the ideological parameters that were laid down at NASREC and remain the programme of the ANC. It is perhaps a warning to those who see him as a saviour.

Secondly, it is an indication of the ANC’s determination to push through an amendment to section 25 to make it explicitly possible to expropriate property with nil compensation. It is important to understand the deadly threat that the proposed amendment would entail for property rights – even without the idea of custodianship. It opens the way to expropriation – not only of land – but of any property – at nil compensation in open-ended circumstances that may be determined by ordinary national legislation.

Thirdly, the conditional wording of the ANC’s latest proposal reveals its reluctance – at this stage – to endorse the EFF’s demand for across the board custodianship. This is probably due, on the one hand, to the fact that custodianship does not fit comfortably with the ANC’s view of itself as a multiclass organisation dedicated to constructive/contestational interaction with the private sector – but more likely to its realisation of the catastrophic consequences for the economy of the EFF’s notion of custodianship.

The questions now are the degree to which the ANC may be prepared to make additional concessions to the EFF in its attempt to secure its support for the amendment of the Constitution – and what the effect of all this will be on Cyril Ramaphosa’s ability to determine the direction the ANC – and the country – will take.

For the rest of us the message should be clear. All those who are interested in avoiding an economic, agricultural and constitutional catastrophe should redouble their efforts to oppose EWC. 

Issued by the FW de Klerk Foundation

21 June 2021