Former president Thabo Mbeki. (David Harrison/M&G)
This article was originally published on 21 June 2021
Former president Thabo Mbeki has likened the ANC’s decision to expropriate land without compensation to an ‘Africanist’ position advanced by the Pan Africanist Congress of Azania (PAC).
In a document the former statesmen penned to the party’s national working committee, he argues that the ANC should not proceed with the Constitutional amendment of section 25.
“In the light of this requirement, fundamental to the functioning of the democratic movement for many decades, it is vitally important that as the ANC works to help amend section 25 of the national constitution, it must respect the perspective on land redistribution stated in the Freedom Charter, and thus the task to address simultaneously the land and national questions and honour the decision of the July 2018 ANC NEC [national executive committee] lekgotla that the ANC will, through the parliamentary process, finalise a proposed amendment to the constitution that outlines more clearly the conditions under which expropriation of land without compensation can be affected,” he writes.
Mbeki argues that owners of capital would “obviously” see the constitutional amendment as opening the door to any government to expropriate any property without compensation.
“This would be a very serious disincentive to investment, which our country cannot afford,” he adds.
The ANC has been engaged in bilateral talks with political parties to negotiate for its 2017 Nasrec resolution that land should be expropriated without compensation. As part of its strategy, the party has also sought legal advice from a team of legal experts, led by its former treasurer general, Mathews Phosa.
Some of the issues raised during these bilateral political meetings, with parties such as the Economic Freedom Fighters (EFF), include the role of the courts, compensation and the nationalisation of land.
The decision to implement the ANC resolution, which was taken at the 2017 conference, was seen as a strategic move to counter the EFF ahead of the crucial 2019 national elections. The EFF had, thus far, dominated public debate at the constitutional amendment review hearings on land.
Soon after the conference in December, some ANC leaders — including President Cyril Ramaphosa — appeared to be taking a softer stance to the radical resolution taken at the conference by insisting that the constitution in its current form allows land expropriation without compensation.
A document by the ANC legal experts has argued that there is a view that there is no need for the amendment of section 25 of the constitution, because it does not constitute a barrier to transformation and land reform.
The experts argue that the view holds that section 25 (8) expressly states that the provision of section 25 cannot impede land, water and related reform to redress the results of past racial discrimination.
“Furthermore, according to this view, the current formulation of ‘section 25 properly applied could result in the court determining that in a particular circumstance, taking into account all relevant factors, it would be just and equitable to award compensation which substantially below market value, or even — in very rare circumstances — nil compensation’.
“The 18th Constitutional Amendment Bill, gazetted by the parliamentary review committee in December 2019, provides that a court may determine that the amount of compensation is nil. The said discretion afforded to a court could possibly result in compensation being determined to be nil. As such, the amendment as proposed below, in the case of expropriation, is constitutionally valid,” the document states.
In his document, Mbeki writes that the ANC must consider the role and place of land in the context of defeating the challenges of poverty, unemployment and inequality.
All this, he adds, can be achieved only if the country develops a thriving and inclusive economy on a sustained basis.
Mbeki writes that the global historical reality is that agriculture tends to be a continuously declining sector in the structures of national economies, ending up contributing a low GDP percentage.
He adds that nothing will change this tendency, because it relates to the role and place of agriculture in the economy, with the same holding true with regard to rural-urban migration.
“It is important to take these matters on board as we decide what should be done with regard to land redistribution and building a growing and inclusive economy. With regard to the latter, it stands to reason that of great historic importance will be the inclusion of the black majority in the 97.5% of the economy outside the agricultural sector. None of this subtracts from the pursuit of the objective of land reform. It is, however, important to place such reform within the context of the other strategic tasks of the national democratic revolution,” he states.
Mbeki likened the ANC’s adoption of land distribution without compensation to a position adopted by the PAC, which broke away from the ANC after the governing party’s adoption of the Freedom Charter.
He argues that, much like the PAC, the ANC is rejecting its own founding document.
Mbeki argues that the ANC’s 2017 January 8th statement by former president Jacob Zuma that it was ‘time to return the land to our people’, was the first time that such a demand was being made by the ANC in the 60 years since the adoption of the Freedom Charter.
“The statement we must return the land to the people meant that the ANC was repudiating the demand contained in the Freedom Charter only We must return the land to those who work it! Strange to say, this meant that the ANC had now adopted positions advanced by the PAC many decades earlier. It was inevitable that, as happened, this would generate a heated controversy during the 54th ANC national conference. Of interest, it is important to note that so determined were some to ensure that the resolution on land was approved that they were determined to collapse the entire conference if the resolution was rejected,” he writes.
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