‘Relentlessly and without compromise…’

[Nat Quinn]

It’s hard to argue that South Africa has not reached a point of crisis. We’re a society in which over half the country lives below the official income poverty line, and around a quarter has trouble in affording food. Unemployment stands at just under 34% on the official definition – and that excludes those who are jobless and would accept work but are not looking for it. Crime remains a bane on our daily existence: between March and June this year, 6 424 people were murdered, or over 70 a day in this period.

Infrastructure creaks after decades of neglect and the pillaging of the institutions that were meant to oversee them. The ports in Cape Town and Durban were ranked as among the least efficient on earth in a report by the World Bank and S&P Global Market Intelligence in June. Roads and rail are in disrepair. The Post Office is effectively bankrupt. As for electricity supply, we’ve lived with load-shedding for around 15 years, with little to suggest imminent improvement.

The country’s water supply, so critical for an environmentally stressed country, is failing, and many municipalities lack a piped flow of potable water. Many municipalities have been disastrously mismanaged long term, rendering some communities effectively ungoverned spaces.

Even the metros are not immune from this. The three cities in Gauteng are each now having to deal with both electricity and water cuts. Doctors in hospitals report being asked to ferry in water from home to allow toilets to be flushed. A headline in News24 the other day put it like this: Triple whammy hits Joburg: ‘No water, no electricity and no one steering the ship.’

Last year, the government literally lost control of parts of the country as rioting hit – particularly here in KwaZulu-Natal.

Put all those things together and it is unsurprising that investment stands at historic lows of 13% of GDP. This while the National Development Plan envisaged 30%.

If there was ever any dispute about the existence or severity of our national malaise, this should have been dispelled.

We mention this not only to underline the grave circumstances that bring us here today, but because there is an explanation that all who are concerned with South Africa’s future should understand: what has brought us to this point is not only corruption, greed or incompetence; South Africa has been brought to this point by deliberate policy choices.

This is about ideology. The ruling African National Congress does not and has for decades not considered itself a political party. It is a liberation movement, a political organisation endowed by history with the right and duty to lead a radical reordering of society. It does not see itself as representing a constituency with a conditional mandate to manage the state. It is an embodiment of ‘the people’ – note that phrase. What it represents is the higher aspirations of society. ‘Struggle’ is a near permanent condition, for a liberation movement undertaking this momentous project must always be vigilant of the nefarious purposes of its ‘enemies’ – note that phrase too.

Bear this in mind, and much that might seem otherwise incomprehensible becomes obvious.

For years, we have warned about the growing threat to property rights. Since 2007, we have tracked more than 30 distinct policy, regulatory, and legislative measures geared at expanding the latitude and discretion of the state to take privately owned assets. You will all, I am sure, recognise this in the phrase Expropriation without Compensation.

Its origins go back to the ANC’s Polokwane conference in 2007, where the so-called willing-buyer/willing-seller policy was to be done away with.

Then came the draft Expropriation Bill of 2008.

This in turn informed the cessation of the Proactive Land Acquisition Strategy in 2010.

In 2011 came the agriculture green paper, which suggested a raft of policies hostile to private property, such as land ceilings and EWC.

Proposals for farmers to cede 20% of their holdings for redistribution or to hand over half their holdings to their employees came soon thereafter.

This was followed by the Land Restitution Amendment Act of 2014 that sought to provoke hundreds of thousands of new land claims without the budget to finance them.

Thereafter came the Property Valuation Act through which the State hoped to give itself discounts when paying for property expropriated.

Then came the Agri Land Bill that envisaged making the State custodian of all agricultural land, as the Green Paper had warned; this would have removed pretty much all budgetary constraints in land affairs.

Then came the Regulation of Land Holdings Bill that would cap farm sizes and force farmers to surrender the surplus.

This was followed by the proposed amendment to the Constitution.

We’ve made the point previously that the amendment to the Constitution was an important issue, but not necessarily the decisive one. Extensive powers could be brought to bear without it.

And so, a mere two weeks ago, there was the passage of the Expropriation Bill and the Land Court Bill through the National Assembly. This is why we are here.

The Bills

The Expropriation Bill has been on the agenda for some years now. Among its provisions is explicitly the taking of property – land, here – at ‘nil’ compensation. This is the unadulterated meaning of EWC. It entitles the state to do so in terms of an open list of grounds including where ‘unused’ land has been bought primarily for resale at a profit, and where the owner ‘fail[s] to exercise control over it’.

Here’s something else. When expropriating, the Bill establishes a procedure that allows officials to take property even while challenges are still under way. You can imagine how that would incentivise landowners to take what is on offer.

The EWC Bill also defines ‘expropriation’ so narrowly that when the state takes control of property by nominally extinguishing ownership, rather than transferring ownership, in a nationalisation process called “custodianship”, then no compensation may be due. This is a particular concern for us. It has already happened with water and mineral rights. It has repeatedly been put forward as a means to deal with the country’s land question. The 2017 land audit, for example, proposed doing so, and a senior official told an audience at the World Economic Forum (think about that, this message at the World Economic Forum) a few years back that this was the intention. The failed 18^th Constitutional Amendment also proposed ‘state custodianship of certain land’; it is an idea that has not gone away.

The Land Court Bill meanwhile sets up a parallel court structure to deal with land matters.

It allows in some instances for the admission of evidence that would not generally be acceptable in a court. Perhaps more concerning is that judges may sit alongside assessors whose criteria for appointment is unspecified – although they would have the considerable power to overrule the judge on matters of fact (although not on questions of law).

The notable risk here is that they could be appointed because of their involvement in land activism, with the implied mandate to deliver more rapid and expansive land reform. Their interventions might be important for determining, for example, whether an owner has failed to exercise control over his or her land, and whether ‘nil’ compensation is in order.

Under the Bill, Land Court matters cannot be appealed at the Supreme Court of Appeal despite, or maybe because, of its reputation for relative independence.

These measures, we reiterate, have now been passed by the National Assembly. They still need to be processed by the National Council of Provinces and signed by the President. But be under no illusions: the EWC agenda has been given a significant boost.

Nor are these the only developments of importance.

Another piece of proposed legislation germane to your property rights is the Unlawful Entering on Premises Bill, which is intended to replace the Trespass Act. This obliges property owners and occupiers to report the presence of intruders to the police (‘as soon as it comes to the attention of the lawful occupier’), and for the police to intervene to remove them.

It also includes a specific reference to the possibility that the intruders might be intended to settle themselves: ‘If intruders already erected any form of housing on the premises and already occupy the erected housing, the authorised member or members must arrest them for unlawful entry on a premises.’

That requirement is actually quite positive; but as a practical matter, there exists considerable anecdotal evidence that the police are not generally concerned with dealing with land invasions, viewing them as a low-priority matter.

Moreover, this sits uncomfortably alongside the recent ruling in the Western Cape High Court on the eviction of Bulelani Qolani. His case attracted a lot of attention in 2020 when it was captured on camera, Qolani having been naked at the time. Noting that ‘whether such structures [informal housing] are complete, incomplete, or in the process of being built, they are capable of providing shelter from the elements’, and because of the constitutional rights involved, this suggests that court orders needed to be obtained before evictions. This in turn would seem to imply that it’s questionable whether the police would be able to remove people who had settled illegally on a property without the requisite court order. A court order could take significant time and resources to obtain.

Furthermore, the Unlawful Entry Bill’s insistence that only a specially authorised or designated member (as set out in sub-clauses 8(1)(a) and (b)) may respond to a call for help against intruders is, as the IRR’s submission to Parliament put it, ‘absurd’. Most police officers, not being the “authorised” or “designated” member, will be barred by the Bill from responding to calls about intrusions, even when the property defenders have been overtly threatened. Most police officers will have to turn a deaf ear to urgent calls for their assistance under the Bill. Imagine calling 10111 and reporting an ongoing invasion only to be told to wait to be put through to the specially “authorised member” – if one is available – before your cry for help is heeded.

How this could play out

So, think for a moment about how this could play out – not just these individual measures, but how they might function collectively.

Let us tease out a possible case. A land invasion is the nightmare scenario for any property owner, large or small, urban or rural. In the main, we have argued that the government does not seek to encourage them, but typically finds itself impotent to act, and under political pressure to refuse to do so.

Think now what might happen if a piece of real estate is invaded. Frantic calls to the police are ignored, and the owner is given the run-around. As shacks go up – and these are often highly coordinated operations – TV cameras move in. Impassioned ‘community leaders’ appear on TV, followed by political entrepreneurs who frame this as an issue of justice.

Interestingly, the Unlawful Entering on Premises Bill also provides that a defence against a charge under the proposed legislation would be that ‘the person charged reasonably believed that they had title to or an interest in the premises that entitled them to enter the premises.’

It remains to be seen how this will be interpreted. But it is not inconceivable that this might be invoked in cases where land invasions are orchestrated and local strongmen have demanded payment by prospective occupiers. Or where prolonged inaction – either through slow court processes, or state inaction – might create the expectation that permission to remain has been granted. Or perhaps where political rhetoric or policy debate has generated that impression.

After months of this stalemate, a neat solution could be argued. Neat for the state, anyway. The owner has clearly lost control of the property, and the state needs to step in and take it. After all, a ‘community’ is now settled there, and there is little stomach to deal with the fallout from acting against them. Given the circumstances, the property could be taken at ‘nil’ compensation.

And if this should come before the Land Court, well, imagine the matter being adjudicated by assessors with a background in land activism. For it is likely that to them would fall such questions as whether the owner has in fact lost control of the property, whether a reasonable expectation existed on the part of the occupiers that they had a right to take possession of the property and so on.

Let us say once again that the prospects are to say the least not encouraging.

Politics

We think that at this juncture it’s also necessary to put the state of politics in South Africa on the table. Since we raised the alarm about the threat to property rights, we have encountered a stubborn refusal on the part of many observers and interest groups to acknowledge the role that politics plays in this policy drive.

Some maintained that while these were obviously bad ideas, they were never going to come to fruition – because they were so obviously bad ideas. We’ve seen this again and again. Once carefully considered, they’d be quietly retired. We even heard that the ANC’s own 2017 resolution had its own self-destruct button, in that it pledged that EWC would not undermine investment or compromise food security.

Others laughed it off as ‘just politics’. It was all about making a point for constituencies within the ANC. It’s posturing. It’s not to be taken seriously as a matter of practical governance.

Both of these perspectives ultimately concluded that EWC would never happen.

Ironically, this line of thinking became particularly prominent with the election of Cyril Ramaphosa as party president, and then South Africa’s president. This was despite the ANC’s conference resolution on the latter at the end of 2017, and the considerable political capital that the President himself put into driving the idea. This was despite his assertions that EWC would turn South Africa into a Garden of Eden, or that ‘we are going to take land and when we take land, we are going to take it without compensation.’

An aside, the leaps of logic were quite extraordinary.

We argued – and we were a lonely voice in this – that EWC was very largely about politics, but it that it was also a very grave threat, with very real intentions of being operationalised.

The ANC’s master narrative of South Africa’s trajectory is what is known as the National Democratic Revolution. This is the overall strategy by which the ruling party would progressively take over all levers of power and remake society. To achieve its vision, a powerful state must be able to subordinate and discipline private interests. Reconfiguring ‘property relations’ is central to this and features repeatedly in its documents.

The point is that behind the EWC drive is a strong ideological commitment. Populism, misguided policy and sheer corruption feature too, but there is a hardcore of genuine belief that this must be undertaken to achieve the society that the ANC envisages. Understand that and you can understand just how serious the threat is.

Understand, too, that there are few within the ANC’s leadership who disagree with this. Perhaps the governments of Nelson Mandela and Thabo Mbeki could temper their ideological impulses by a strong strain of pragmatism, but for the most part, that has gone.

For all the talk of ‘factions’ with the ANC, this is an issue on which there is general agreement. Some may be more inclined towards it for ideological (perhaps within their own worldview, idealistic) reasons. Others might see it as a means to ensure redistribution to their constituencies, or as a sort of racial retribution. Still others might simply see an opportunity for another bout of looting. Some might support it for all three reasons. But all would agree on the end result. Very few would be open to dropping the idea, and even fewer to rejecting it.

If there should remain any doubt about this, remember that a golden opportunity existed to step back from the issue when the amendment to Section 25 failed to pass. Yet at the ANC’s policy conference in June, President Ramaphosa declared that EWC was a tool that the party ‘must’ utilise. Emphatic that.

And this is as the country faces a conjunction of problems that will only be solved with massive investment, local and foreign.

Note, too, the following: the certain, assumptive dominance of the ANC is waning. Its failures over the past 15 years – South Africa has achieved only about half the growth rates of other emerging markets – along with generational change is starting to be reflected in growing electoral losses. Already it has lost its dominance in most cities. There is widespread speculation that it will lose its national majority in 2024.

This would open up major opportunities to usher in an era of reform. We’ve written about it extensively. But it also opens up dangers.

The most obvious of these is that many in the ANC might see their access to plunder and patronage curtailed. As it feels power slipping, the party could lurch into a make-or-break gamble to take as much as possible. The means to do so are being put in place.

Another option is that the ANC would turn to the Economic Freedom Fighters to shore up its position. The parties have the same pedigree and substantively the same ideological outlook. And recently, the EFF has sided with the ANC to take back the City of Johannesburg. It has also been reported that the two parties are in discussions about repeating this in other metros.

If this should become the position at national level after 2024, it is a sure bet that EWC will be a keystone of the agreement. And remember that the EFF has committed itself to nothing less that than the full ‘custodianship’ of all land in South Africa. The consequences of this would be severe indeed.

This should concern you all as farmers. It would mean grave damage to and probably the elimination of your capital base. To the extent that your farming operations continue, you would progressively find yourselves beholden to government officials and ever-expanding diktats, until one day you’d realise that you were effectively a government official yourself, in all but name.

Remember too that the ideological impulse that propelled EWC was paired with a campaign – sometimes brazen, sometimes subtle – of racial nationalist incitement and stigmatisation of the farming community. We doubt we need to go into much detail. Farmers stole the land; they are guilty of the original sin; they evicted a million people from their homes; they beat and rape their staff; they have been sabotaging land reform; they have driven up food prices. Essentially, farmers are a ‘problem population’ bearing much of the responsibility for the poverty, unemployment, and social tensions that now threaten the future of every South African.

The very word ‘farmer’ came to appear regularly in news reports involving brutality – real or alleged – committed by white upon black people in South Africa’s rural parts, even where no connection to a farm or agriculture existed.

The purpose of propaganda is stigmatisation, to make you ‘the other’ – so that society will lose its ability to empathise with you, and so that no-one will come to your defence when you come under violent or legislative attack – as has now happened.

But be under no illusion: once this process has been rolled out against farms and farmers, it will be replicated elsewhere.

Looking forward

However, in coming here, we also intend to sketch the possibilities available to resist this drive. In fact, to shift the country’s trajectory.

The first step is of course to recognise what is happening. This has been one of the central constraints in pushing back against EWC, simply because so many refused to acknowledge the danger in the first place. Sometimes this was wishful thinking – I feel it in my heart, as one stakeholder (a very good man, incidentally, the kind who wants to help this country succeed) put it. In other instances, it was more insidious. Some interests tried to sell the narrative that it was going to be someone else’s problem. Real estate agents assured clients that it would not affect urban properties. One journalist actually told us of an editorial instruction to put an optimistic spin on the issue. This is exactly what the resultant article did.

Acknowledge the problem, get the analysis right and you can begin to deal with it. Ironically, and perhaps fortuitously, the state of the country has made it apparent just how serious our problems are.

From there, you can begin to organise around institutions that will defend your interests. There are of course several of these. Do not expect them to unite; but they can learn to work together. We at the IRR count ourselves as one of the foremost on this arena.

Once you have organised yourselves and determined to defend your interests, you need to be firm on the principles that are non-negotiable. Any mandates you give to any bodies in which you are involved must have these as the foundation. Never fall into the trap of negotiating away core principles by allowing your opponent to set the terms of reference for debate.

We’ve seen this again and again. It’s the argument that you can bargain a better deal in the hope that your interlocutors will be satisfied with your concessions. This is the line of thinking that says EWC will be okay, if it’s done correctly. Or that title might fruitfully be replaced by state-issued leases, provided the terms of those leases are long enough. Or that surrendering a portion of your farm might immunise you against further demands. Or that a cap on the size of farms is doable, provided it’s a large cap. Once you’ve conceded the principle, it’s only a question of the extent of what you’ll lose. Expect that over time, those demands will be revisited and steadily increased.

Defend those principles. Every attack and misguided or malicious comment must be answered. Show why it was wrong, and spell out what the consequences of such wrongheaded policy will be. Also be ready to offer alternatives. Insofar as EWC is a reckless and dangerous policy, it does build on a foundation of real historical and social concern. Land reform can be executed in a productive manner that sees existing farmers as partners not adversaries and leave the country more prosperous than before, and with property rights strengthened rather than weakened. These arguments need to be made. Command public opinion and you win. This is what we at the IRR call the Battle of Ideas.

Waging this conflict – challenging attacks, putting forward better ideas, drawing attention to your perspective – provides the basis for exerting pressure for change. Pressure breeds reform. You need to exert appropriate pressure to force a balance of power. Globally, farmers are very powerful lobbies, but not in South Africa – we need to change that.

The strategies available are numerous. There is intervention in the media. Talking one by one to influential businesspeople and opinion leaders. Touring the world and talking to investors. Even by organising mass actions.

Pressure is also not confined to government and officialdom. It’s been our experience that many potentially influential parties prefer to sit these challenges out, hoping that they will be spared. Remember that the Banking Council tried to dodge the issue by asking only that the interests of banks – not their clients – would be protected.

Apply pressure on banks, corporations, cooperatives, and suppliers along your value chains if they fail to speak up on their own.

Beware of relying on business leaders, the ANC’s few remaining reformers, or foreign governments to step in – they will not of their own volition come to your aid.

Don’t rely on the political opposition, since it lacks the numbers at present.

Don’t count on the protection of laws or even on constitutional provisions – the whole point of the EWC drive is to change them.

For us at the IRR, our strategy is to fight the Battle of Ideas relentlessly and without compromise. Since the beginning of 2018, we have published no fewer than 1 489 substantive opinion pieces and letters to the editor on these themes. Taking into account all forms of media engagement – citations, interviews, and social media posts – our tally of media hits over this period comes close to 8 000.

The goal was to place the dangers inherent in EWC firmly on the public agenda.

We’ve offered critiques and solutions. Right now, we remain committed to fighting the Expropriation Bill, even as the window of opportunity for success becomes smaller.

We’ve pushed back aggressively against the stigmatisation of farmers. We have approached news outlets to challenge the use of the term ‘farmer’ where no farmer was involved. We’ve sought to establish the truth in cases where allegations have been made – as we did in the recent case of Garth Simpson. We do not act here as an agitprop outfit, but as a South African institution concerned that justice and debate is sacrificed for identitarian narratives.

We’ve spoken to farmers’ associations, business chambers, company executives, financial analysts, journalists and editors. We’ve put ourselves in government offices and in political party headquarters. We’ve been to Parliament, and to the Union Buildings. We’ve spoken to investors in London and Brussels and Berlin and Washington, and to representatives from the governments and business communities of countries from every continent and from diverse ideological backgrounds. Our messages have been carried in publications – paper and online – across the world. From Argentina to Japan.

Ultimately though, our appeal is to ordinary South Africans in places like this. Decent, ordinary, common-sense folks who want this country to work. That’s why we’re here.

Let us conclude with what Dr Cronje said to a similar gathering back in 2019:

‘You can win this. But to do that you need to take a firm decision for yourself that you are no longer going to stand for the abuse and the lies. Without the courage to fight for yourself, how do you expect anyone else to do so – or hope to win outsiders to your cause and have them treat you with any respect? But I assure you that if you do stand up and follow the strategy I have set out, there is a very good chance that you are going to win – and that you will not just win for yourselves, but, far more importantly, that your example will inspire others to say ‘No!’ to a cruel and divisive government, and insist on sensible policies that can deliver a stable and prosperous future for all South Africans.’

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