Section 25: Why the DA should vote with the ANC for the constitutional amendment
Over the last two years, there has been a lot of noise about the proposed amendment to Section 25 of the Constitution which would clarify the issue of land expropriation without compensation.
It is well known that the recent call for expropriation without compensation originated at the ANC’s Nasrec Conference in 2017. Of course, there was legitimate concern about the slow pace of land reform, but ultimately the motion relating to expropriation without compensation came on the last day of the conference from those who didn’t (and still don’t) support Cyril Ramaphosa. Knowing that this would be extremely tricky to implement, they understood that such a motion would likely set him up for failure and thus possible re-call.
The EFF - desperate for a post-Zuma rallying cry – jumped on the bandwagon in 2018 and used a parliamentary debate to start the whole ad-hoc committee process.
A few months later, following a push by Ramaphosa and his supporters, the ANC’s NEC agreed that the Constitution should be amended in order to clarify under which the existing right to expropriation without compensation should be applied. It was a measured and calm approach to a very hot issue in the ANC, as well as the country, and very much in line with what was later tabled in the Constitutional Eighteen Amendment Bill.
As tabled, it only adds a couple of sections to the existing Constitution. Section 25(2)b currently says that land can be expropriated and that the amount and manner should be determined by a court. The tabled amendment makes it explicit that a court can rule that nil compensation is appropriate.
It also says that national legislation must make it clear under what circumstances courts can determine zero compensation.
If all of this is read in the context of the full text of the Constitution there are still numerous safeguards such as that any decision “must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected”. In fact, many have argued that the bill makes explicit what is already in the Constitution.
“Instead of pushing the ANC closer to the EFF or putting Ramaphosa under more threat from his detractors, the DA could be the bigger party and agree to safeguard property rights whilst speeding up the corrections of historical wrongs”
The bottom line is that what was proposed in the amendment bill poses no threat to private ownership.
However, in order for this bill to pass, a two-thirds majority is required. In fact, some argue it might require a 75% majority. (A 75% majority requires 300 votes in parliament; a two-thirds majority requires 267).
The ANC currently has 230 votes. So, assuming that every single MP is present on the day of the vote (that never happens), they would need another 37 votes for a two-thirds majority or 70 additional votes in the case of a 75% majority.
It is virtually impossible that they would get 300 votes – so if indeed a 75% majority is required, this bill will never pass.
In the case of a two-thirds majority, the ANC needs either the EFF or the DA to vote for them. (Even a combination of smaller parties would – at most– give them an additional 14 votes – well short of the required threshold.)
For the last few weeks, the ANC tried to get the EFF to moderate their position. However, the EFF is adamant that they want to do away with private ownership and advocate that the state becomes the custodian of all land.
This compelled the Ad Hoc committee responsible to present parliament with a report on the matter to ask for a further postponement of the deadline in order to try and to secure enough votes for the amendment bill to pass.
The ANC has only 3 options left.
They could let the bill lapse, on the basis that the required majority couldn’t be reached. This would mean that Ramaphosa would have to report back to country and his party that they had tried their best, but couldn’t secure the required majority. This would send a very bad message to the majority of people in the country regarding land reform. In addition, those in the ANC intent on bringing Ramaphosa down would undoubtedly use this as a mechanism to mobilise further support against him.
The second option is that the ANC move closer to the EFF’s position. That could have a devastating impact on food security, market confidence, and international investment.
The third option is to try and get a deal with the DA. However, the DA has said from the start that they would in principle oppose any amendment to Section 25. In fact, they have resorted to rather untruthful scaremongering.
On their website, they stated: “If passed, this bill means the government will be free to take your home, business, land… in fact anything that you ‘own’, without compensation!
If passed, it will destroy our economy and kill investor confidence!”
As indicated earlier, this is utter nonsense.
If the DA has any sense they would make a deal with the ANC and vote for the (moderate) proposed amendment. If they do, it would send a strong message to African voters (who they desperately need) about their commitment to land reform, whilst still protecting private property rights – thus appeasing their white voters. Farmers might not be impressed, but then again the farming community largely turned their backs on the DA during the previous national election.
It is of course true that it is not for the opposition to clean up the ANC’s mess or intervene in their political faction fighting. However, there comes a time when for the sake of the country a political party should think beyond small victories. I would argue that this is one of those times.
Instead of pushing the ANC closer to the EFF or putting Ramaphosa under more threat from his detractors, the DA could be the bigger party and agree to safeguard property rights whilst speeding up the corrections of historical wrongs.
In doing so, the DA would also have powerful leverage to ensure that the Constitutional Amendment remains measured and moderate.
This would be good for the country, race relations and the economy, and even possibly the DA but eish! I’m not holding my breath…