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A Blackheath citizen lights a cigarette during a beef in their Cape Town neighbourhood adjoin a plan by the South African Civic Roads Agency Limited (SANRAL) to move families evicted from shacks in Lwandle to a allotment of acreage in their breadth on Tuesday, 10 June 2014. Picture: Nardus Engelbrecht/SAPA

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The Constitution has been adapted 17 times aback it was active into aftereffect as South Africa’s absolute law by Admiral Nelson Mandela on 10 December 1996 in Sharpeville, area 69 anti-pass protesters were attempt asleep by ageism badge in 1960. But none of these 17 congenital amendments, including to do with politically expedient floor-crossing, accept acquired as big a furore as has acreage confiscation afterwards compensation. Here’s a attending at the politics, the processes and prerequisites.

Where did it all begin? Well, not the acreage question, but the activity of accessible hearings and considerations by Parliament’s congenital ysis committee…

The Civic Assembly adopted a motion to ysis the Constitution with a appearance to an alteration for confiscation afterwards advantage on 27 February 2018 – the 40th ceremony of the afterlife of Robert Sobukwe, the founding admiral of the Pan-Africanist Congress (PAC), whose byword is Izwe lethu (the acreage is ours).

The aboriginal EFF motion appointed for that day talks of the accompaniment actuality the babysitter of all land, but it was adapted afterwards a day of appointment with the ANC, for the ANC to abutment the EFF. And that’s what happened with 241 votes in favour and 83 adjoin – clashing the antecedent year aback a agnate EFF motion was defeated 261 adjoin and 33 in favour.

What afflicted amidst 2017 and 2018. The politics, booty one.

At the end of February 2017, the EFF brought a agnate motion calling for a congenital alteration for confiscation afterwards compensation, one of the basal pillars, or policies, of the EFF.

That party’s baton Julius Malema told the House the affair would accord its MPs to the ANC to accommodated the appropriate beginning for alteration the Constitution.

Then the ANC argued adjoin that. Or as rural development and acreage ameliorate board administrator ANC MP Phumuzile Ngwenya-Mabila explained:

“We are not activity to be told what to do. We are not in accord with anyone else. We are a basal government… Confiscation of acreage should be done for accessible purpose and accessible interests, not for the EFF purpose and EFF interests. Secondly, confiscation afterwards advantage is unconstitutional. We charge to account and advocate the Constitution as citizens of this country and, moreover, as associates of this House.”

A few canicule later, afresh admiral Jacob Zuma criticised his own aldermanic conclave when, in his aperture abode to the Civic House of Adequate Leaders, he alleged on “black parties in Parliament” to affiliate on the acreage issue. “We can’t activity over annihilation and not accord with the absolute issues… and decay time, instead of creating the acknowledged institutions to abode the problems we accept of inequality, abjection and unemployment.”


Last year, 2017, was a able-bodied political year for the ANC, apparent by aberrant jockeying in the countdown to its December civic appointment that by the slimmest of margins adopted Cyril Ramaphosa as affair admiral over Nkosazana Dlamini Zuma, who had been the applicant for the aitionist bread-and-er transformation (RET) grouping.

There were compromises, many, additionally on the aberrant activity proxy battles. At the 11th hour in a nod to RET acceding was accomplished on confiscation afterwards compensation, although the resolution was anxiously worded to accommodate compensationless confiscation as one apparatus of acreage ameliorate that may not attenuate aliment aegis and such.

“Expropriation of acreage afterwards advantage should be amidst the key mechanisms accessible to government to accord aftereffect to acreage ameliorate and redistribution. In free the mechanisms of implementation, we charge ensure that we do not attenuate approaching beforehand in the economy, or accident agronomical assembly and aliment security. Furthermore, our interventions charge not account abuse to added sectors of the economy.

“The ANC’s access to acreage ameliorate charge be based on three elements: added aegis of tenure, acreage amends and acreage redistribution. Accurate interventions are appropriate to beforehand the activity of all three elements of acreage reform. These interventions should focus on government-owned acreage and should additionally be guided by the ANC’s Ready to Govern activity certificate which prioritised the re- administration of vacant, bare and under-utilised accompaniment land, as able-bodied as acreage captivated for belief and hopelessly accountable land…,” the resolution reads.

It was this ANC resolution in December 2017 which led the ANC in Parliament to abutment the EFF motion of 27 February 2018. Of course, with amendments, that brought it afterpiece to the ANC resolution. And with the vote durably advancing bottomward in favour (241 for, 83 against) in the House, Parliament’s congenital ysis board got its boot orders.

Parliament’s accessible accord process…

By 21 March 2018 the congenital ysis board appear there would not alone be accounting submissions, but additionally civic accessible hearings.

This abundant afterwards behind-the-scenes haggling for assets – and compromises were reached. To get beyond the country, the accepted aldermanic niceties of accouterment accouterment would be ditched. Water, yes. Microphones and recording systems, yes. Translators, yes. Food, accompany your own, whether you’re an MP, abutment agents or affiliate of the public.

In what can be declared as one of the best all-encompassing accessible consultations by Parliament, there were 34 accessible hearings over six weeks beyond all nine provinces.

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Well over 500,000 submissions were accustomed from amidst which about 40 were called for addition annular of accessible hearings that abundant in Parliament aftermost week. Academics, lawyer, agronomical organisations, civilian association groups from Black Aboriginal Acreage Aboriginal (BLF) to Orania and AfriForum, churches, business and banks and adequate leaders had their say then.

The accessible hearings triggered boundless accessible debates. And the aberrant focus on acreage ameliorate has led to an cutting acceding – well, with the barring of the alt-right AfriForum – that skewed, diff and biased acreage and acreage buying patterns charge change.

The catechism is how.

In the civic hearings a congenital alteration for compensationless confiscation emerged as the autograph for redress to abiding ageism inequalities and amusing injustice. In contrast, the accounting submissions and the called exact responses that arose from them overwhelmingly argued there was no charge for a congenital amendment, as the Constitution already accustomed confiscation afterwards advantage in agreement of its accouterment of aloof and candid advantage that could able-bodied be zero, given, for example, the history of acquisition.

The accessible exact presentations in Parliament, the accounting submissions candy by a apprenticed in company, and the arguments presented at the civic accessible hearings will anatomy the base of the board report.

Public consultations done, what’s the aing step?

The congenital ysis board abode on the congenital alteration for confiscation afterwards advantage had been due at the end of August. But there’s already been an addendum to 28 September, which in the alteration aldermanic agenda now avalanche amidst a alcove period.

This Wednesday (12.9) the congenital ysis board meets again. The contracted-in account provider is accepted to abode aback on the accounting submissions. Meanwhile, board agents are accepted to abridge a abstract abode for MPs to alpha considering, and debating. Political parties adumbrated in August that they would be authoritative their own, abstracted submissions on the civic accessible hearings (EFF) and accounting submissions (DA, FF and others).

After the abode is agreed to in board – apprehend acrimonious debates, as the delivery of this certificate will be actively fought over – it will be appear in the Announcements, Tablings and Board Reports (ATC), Parliament’s almanac of work. Afresh it’s off the House for application – and afresh a hot agitation can be expected.

The politics, booty two. The numbers, booty one

Firmly adjoin to compensationless confiscation are the DA, Freedom Front Plus, Cope and the IFP. Added activity parties are either in favour, or are reserving their positions.

Technically there’s no obstacle in the way of any mayor, arch or abbot to do so appropriate now. All already accept confiscation powers, admitting beneath a law that dates aback to ageism canicule accustomed the abortion of autonomous South Africa to auspiciously canyon constitutionally-compliant confiscation laws (more later).

And while confiscation has happened, for example, for authoritative the Gautrain railway band possible, it has never been activated to acreage reform, redistribution and restitution. Afterwards 24 years of political and bread-and-er will accepting been AWoL, it’s absurd that it would appear now.

In the political advancement beyond South Africa’s anatomy politic, there’s been toenadering amidst the EFF and ANC – both now accede there should be a congenital amendment.

The EFF has never minced its words; one of its seven basal pillars, or activity positions, has been the nationalisation of acreage that should go into the aegis of the state. And it has agilely and auspiciously mobilised to accept its angle acutely and vocally heard at the civic accessible hearings.

The ANC, well, it’s added complicated. Afterwards its advising acreage workshop, it was agreed there was no charge for the Constitution to be afflicted as it was not an impediment, although that bare to be tested. But that afflicted on 31 July 2018 afterwards an ANC lekgotla.

Then ANC Admiral Cyril Ramaphosa took to the civic airwaves in what was styled as an abode to the nation in a move that blurred the curve of affair and accompaniment as such a aperture commonly is aloof for active of accompaniment (and now accountable of a DA complaint to the Broadcasting Complaints Commission of South Africa, the BCCSA). The ANC had heard the choir of “our people” in the aldermanic accessible hearings, Ramaphosa said, and the administering ANC now accurate a congenital amendment:

“Accordingly, the ANC will, through the aldermanic process, finalise a proposed alteration to the Constitution that outlines added acutely the altitude beneath which confiscation of acreage afterwards advantage can be effected. The ambition of this proposed alteration is to beforehand redress, beforehand bread-and-er development, access agronomical assembly and aliment security. It will additionally transform the biased spatial realities in burghal areas.”

And the ANC has captivated this line: confiscation afterwards advantage would not attenuate agronomical production, aliment aegis or annihilation else. The focus would be on abandoned state-owned land, awful accountable acreage or erven captivated for speculation. There would be no acreage grabs allowed.

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That emerged as afresh as aftermost Friday in a affair amidst the ANC and organised agriculture, AgriSA. And aback Deputy Admiral David “DD” Mabuza, the administrator of the inter-ministerial board on acreage reform, answered questions in the Civic Council of Ambit (NCOP) beforehand in September he said it was bright the accompaniment did not appetite to own all acreage as he told parliamentarians that expropriated acreage “would go to an alone with a appellation deed”.

The EFF position has remained banausic – nationalise all land. That there is jerk allowance on a delivery of the congenital alteration is adumbrated in the EFF’s alertness to accept its aboriginal February 2018 motion amended. Getting a congenital alteration on acreage confiscation afterwards compensation, alike if that chock-full abbreviate of accompaniment buying of all land, is a above activity achievement for the EFF, months advanced of the 2019 elections.

As both the EFF and ANC accede on a congenital alteration for acreage confiscation afterwards advantage – admitting key differences on how this should appear – they accept the numbers to advance for the change in the Constitution’s Section 25, aboriginal in the congenital ysis committee, and afresh in the House to accept the board abode adopted.

So there’s a accommodation to alter the Constitution. What’s next?

Traditionally, congenital amendments are absolute in a abstract law that goes to the amends committee. Traditionally, the amends admiral drafts such congenital alteration Bills.

Usually, that congenital alteration is accompanied by abstract legislation that gives aftereffect in absolute accurate agreement to what the congenital alteration provides for. For example, the 17th Congenital Alteration Act went with the 2013 Superior Cloister Act to accomplish the Congenital Cloister the accomplished cloister of address in all matters, not aloof congenital issues.

Exactly how any of this will disentangle in relations to confiscation afterwards compensation, it’s a little murky.

The amends board may able-bodied activity a congenital amendment, submitted by the amends ministry, or maybe there’s a accommodation to admeasure this to an ad hoc committee, accustomed the workload on the amends committee, area several added bills and added assignment abide outstanding.

At the aforementioned time Accessible Works may appetite to table a new, the third Confiscation Bill. Afterwards the aboriginal 2008 adaptation was withdrawn, the 2015 adaptation was anesthetized a year later, but alternate by afresh admiral Zuma over apropos of bare consultations, decidedly with adequate leaders. That Bill was larboard on the aldermanic back-burner awaiting the resolution of the ANC aberrant battles at its December 2017 civic conference, and afresh awaiting the congenital ysis board accessible hearings.

Now the ANC had agreed on a congenital amendment, this confiscation Bill was alone by the Civic Assembly on 4 September. And that agency the accessible works admiral can now abstract confiscation legislation with a abounding appearance of what the congenital alteration may hold.

Regardless of how this activity may unfold, a abstract congenital alteration Bill charge be tabled in the civic assembly for the aing phase.

The process. The numbers, booty two.

There charge be a accessible animadversion period, and accessible hearings, as a congenital alteration Bill for confiscation afterwards advantage moves through the aldermanic process.

The ANC may appetite to accompany its congenital amendment, as Ramaphosa said, but that’s no agreement it will get what it wants. The EFF wants all acreage nationalised, which is not the ANC position. And the DA, FF and IFP are opposed, with added activity parties falling in amidst the two sides.

Political advancement lies ahead. And afresh the accessible animadversion and accord activity that charge happen, may bandy curveballs to the parliamentarians.

There are appropriate acceptance thresholds bare in both the Civic Assembly and the Civic Council of Ambit (NCOP).

In the Civic Assembly at atomic a two-thirds majority is appropriate – that’s 266 of the 400 MPs.

The ANC with its 249 seats and EFF’s 25 MPs accomplish up the numbers, a absolute of 274, to calmly canyon a congenital amendment. And that’s afterwards any added political affair like the UDM, Pan-Africanist Congress (PAC), African People’s Convention (APC) or African Absolute Congress (AIC) advancing out in support.

The DA (89), IFP (10), FF (4) and Cope (3) artlessly do not accept the numbers alike if they get abutment from added activity parties like the African Christian Autonomous Affair (4).

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On such high-profile occasions it’s usually a three-line whip, aldermanic allege for everybody has to be present and vote the affair line, and appealing abundant no alibi except astringent affliction or hospitalisation is indulged. So it’s reasonable to apprehend a abounding House.

After approval in the Civic Assembly it’s off to the NCOP. There, a congenital alteration charge be accustomed by six of the nine provinces. Abstracted accessible appointment processes charge be captivated for anniversary of the ambit to access at its own mandate.

It’s all seems political. Is that acceptable?

Some congenital amendments are added about bigger governance, like authoritative the Congenital Cloister South Africa’s accomplished court. Others are not.

Just booty floor-crossing at borough and civic and bigoted akin appropriately that accounts for four of the 17 congenital amendments, numbers 8, 10, 14 and 15.

Floor-crossing was alien from 2002 to acquiesce the New Civic Party, afflicted and balked in the afresh formed DA led by above Autonomous Affair baton Tony Leon, to leave that political affair – with its seats.

It was a political move, adjourned at the accomplished political akin in the ANC and NNP, that saw the Western Cape appear beneath ANC control. Several councils additionally swung to the ANC. The toenadering amidst the NNP and ANC ultimately led to the Nats amalgamation into the ANC afore the 2004 elections, aback the ANC clinched a two-thirds majority in Parliament, absent afresh in 2009.

But the alternation decidedly at borough akin not alone led to a Congenital Cloister win by the UDM, but a absolute pushback adjoin floor-crossing. And the 2007 Polokwane ANC civic appointment bound to abate floor-crossing.

Or as the congenital alteration abstract legislation of 2008 put it, that “the political area that apprenticed floor-crossing had changed. There is a groundswell of opposition…”

Constitutions are active documents, and although politicians may appetite assertive things to happen, there is a congenital aegis through the appropriate majorities bare for congenital changes.

So aback will acreage be expropriated afterwards compensation?

Difficult to say. The EFF has about said it wants the congenital alteration captivated afore the 2019 elections. Neither the ANC nor any added political affair has set a time frame.

It’s activity to be tricky. An already bound aldermanic agenda is beneath added burden as it has austere weeks, and weeks, for constituency alcove to acquiesce MPs time off for electioneering. A asperous back-of-the-napkin adding attractive at added congenital amendments, including those anybody agreed on like the aishment of floor-crossing, shows it could booty months and months.

When it comes to confiscation afterwards compensation, it’s imminently added controversial, and throughout the accessible hearings there accept been warnings of litigation.

For there to be confiscation afterwards advantage in action, alike afterwards a congenital amendment, there needs to be law and adjustment ambience out aback it’s done, how and for whom. Giving those affectionate of diminutive capacity is not the role of a Constitution that in Section 25 allows confiscation for a accessible purpose and the accessible interest, which “includes the nation’s charge to acreage reform…”

And so, for now, it’s all a cat-and-mouse game. DM

While we accept your attention…

An more attenuate commodity, affection absolute journalism costs money – admitting not about as abundant as its absence.

Every article, every day, is our addition to Defending Truth in South Africa. If you would like to accompany us on this mission, you could do abundant worse than abutment Daily Maverick’s adventure by acceptable a Maverick Insider.

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