“EWC” as signifier of the divergent conversations we are having

This weekend, I read on the making of the interim Constitution and the multi-party negotiations in the early 1990s. Keeping a close look at the current amendment process, I have learned that making a Constitution is a messy process. It is not a linear process, with a beginning and an end. It does not have an end to begin with, as it evolves as it is being contested.

But it is also a frustrating process. Since a Constitution contains the values that we as a nation aspire to, it goes to the heart of who we are — when we write a Constitution and amend it. In that sense, contestation about how it should be amended currently speaks to the future we envision.

The question of land is also laden with history and memory. It contains questions of identity. It is often a place where we bury the past and where we hope for a better future.

It is, therefore, also emotional. And rightfully so. But it also means that when we have this conversation, it contains other things that that what our fellow South Africans might understand, and hear.

And I am trying to hear the conversations, as I have noticed the past three years, that often when we talk about expropriation-without-compensation, we mean different things. It has become code for other conversations we are, or in many senses, are not, having.

I have started making notes and asking people to elaborate on what they mean, and this is, so far, what I have come up with. And it helps me navigate the terrain better.

Maybe it will help you too.

The property rights system

The one conversation deals with the property regime we want: private ownership vs nationalisation (or “custodianship” — which is a different legal concept than nationalisation).

The ANC accepts capitalism and the protection of private property rights — accepting that the State may interfere with property rights for a variety of reasons. Also, for land reform purposes. The preamble to our Constitution talks about the divisions of the past that have to be addressed, based on democratic values, social justice and human rights.

This is what makes section 25 such an interesting section: ownership is inherently limited, in that the State may interfere in the right to private ownership (through deprivation/expropriation), for a public purpose or in the public interest, subject to the payment of “just and equitable” compensation. In the EWC conversation, the conflict lies in exactly to what extent the State may limit private ownership in the interest of the society.

Many people have voiced fears that South Africa will become a communist state. I think this is unlikely. In my view, the more significant threat is that the new elite will merely replace the old elite and that there will be little redistribution. This means that inequality to persist, and that would eventually lead to violence and destabilisation.

Land reform

EWC is also shorthand for “land reform” in general. This seems unfortunate, as land reform is an all-encompassing field in South Africa, divided into three programmes: land redistribution, restitution, and tenure security.

There has been much movement the past year on various fronts in the land reform arena. There are many diagnoses of the problem. There are proposals and solutions on the table that need to be translated into clear policies and legislation and implemented by the executive after building and rebuilding solid institutions.

It speaks to how the land must be redistributed — who must benefit, and what support should be given. It speaks to the people who were dispossessed after 1913 in terms of racially discriminatory laws, who have lodged claims and is still awaiting its finalisation. It asks questions of whether we restitute with land or with money? There has also been conversations of removing the 1913 date. Tenure security look at farm dwellers and people living on customary law land, for instance. It is a whole complex and interwoven system of trying to make sure that people have secure rights in property — in whatever form.

And where will expropriation fit in here? When the State needs to acquire the land — either to redistribute or satisfy a restitution claim — the State may expropriate land. But expropriation does not say who must get the land, how we will keep the State accountable for not handing it out to cronies, or finalise the restitution claims quicker. For that, the mechanisms lie in the land reform programmes.

Who should pay for land reform?

There is always this underlying question about justice, restitution and retribution. Who should shoulder the bill for land reform? To date, it mainly rested on the fiscus, who have spent less than 1% of the budget on land reform. Farms have not been expropriated for land reform purposes, and the State primarily purchased land at market value (and sometimes, much higher).

We pay compensation for expropriation because it cannot be expected from an individual to carry the burden for a public project that the whole nation benefits from. Why must farm owners be expropriated and lose everything, while the urbanites get off scot-free? How do we make sure that this burden is spread among all who benefited from the system of apartheid?

Professor Sampie Terreblanche had a solution: a special tax of 0,5% over 10 to 20 years on wealth accumulated under white political supremacy. He proposed this to the Truth and Reconciliation Commission. Archbishop Emeritus Despond Tutu echoed this. But it was not accepted. If it were, this pool of money would be ideal to use to compensate or “top up” landowners’ compensation when their land gets expropriated for land reform purposes.

Because if the Constitution is based on restorative justice, as I believe, then there are requirements for it to work: an acknowledgement of the injustices of the past, an apology and restitution to make good the apology. These are vital conversations to have, to cement the formal technical talks.

And this conversation plays out in questions such as “why must we pay for land that was taken away under colonialism and apartheid”.

I believe that a restorative justice approach is the best way forward, as retribution will just continue the cycle of violence. We, as a society, is traumatised by apartheid and colonialism, and we need to heal as a society so that we can stop dis-acknowledging each other.

In this sense, I can only say amen to the words of Judith Butler:

Sometimes you have to imagine in a radical way that makes you seem a little crazy, that puts you in an embarrassing light, in order to open up a possibility that others have already closed down with their knowing realism. I’m prepared to be mocked and dismissed for defending nonviolence in the way that I do. It might be understood as one of the most profoundly unrealistic positions you could hold in this life. But when I ask people whether they would want to live in a world in which no one takes that position, they say that that would be terrible.

To whom does the country belong?

Linking on to the previous meaning of EWC is the conversation about to whom this country belongs. The Preamble to our Constitution confirms that South Africa belongs to all who live in it. But the conversation sometimes does not reflect this and contests this. Who can rightfully lay claim to the land? Who were the first inhabitants, and who are the dispossessed? Were the land bought, stolen, or conquered? And were the contracts and treaties just?

It is said that the Constitution legitimised the patterns of colonial conquest, and in this process, the real indigenous people of this country were left out.

It speaks to our origins, our history, who are strangers, and who are not. And, whether we can indeed be held responsible for the sins of our fathers? And if so — is this a legal, or a moral, obligation?

How do we find the stories if history is also contested? If history is always only tentative? If we need to hold the space for many stories, the more stories, the more understanding of the complexity we will have?

This brings me back to my earlier remark: We are attempting, for the first time, to live together in this country, united in our diversity — as an “us”.

The technical legal debate

The fifth meaning is the one that I mostly have my nose in. It is the technical legal conversation of section 25. The payment of compensation. Whether the Constitution explicitly provides for “without compensation” or an amount of “nil compensation”, or neither. And if the semantics matter.

The Constitutional Review Committee asked if the Constitution should be amended (and answered “yes”), so we are now deliberating on “how”.

The conduit by which I landed up in this debate is my technical knowledge about section 25 of the Constitution and, more specifically, the payment of compensation for expropriation. Amid the medley of the other conversations, this debate focuses on the question of whether the Constitution should be changed (through a democratic process, it has been decided “yes”), and if so, how.

In this conversation, we often have other conversations, which is not the ideal place to have the other conversations.

The conversation should have focused instead on how one will bring justice and equity issues into calculating an amount of compensation in a legal culture that is wrongly fixated on market value. Market value speaks to value, not to compensation that is just and equitable.

Nowhere to run, nowhere to hide

The land conversation is one that brings up many emotions and discomfort. At times, we want to disengage because it is overwhelming. But we cannot run from it. It is not going away. And it will not be fixed in my lifetime. But maybe generation can make sure that the trees are planted so that future generations can sit under them.

This is the shortened and reworked version of a chapter in the book Should we go? To emigrate or not: 21 voices speak their mind compiled by Alet Law, available here.