Moments after President Cyril Ramaphosa signed the expropriation bill into law, there was an uproar before the ink had dried on the paper.
From civil society groupings to political parties, stakeholders expressed their discontent with the act, while some have hailed this move as a victory for their constituencies.
Agricultural business chamber's head of legal intelligence Annelize Crosby explained the act is procedural and outlines the process of expropriation.
She told TimesLIVE Premium it does not grant any new powers of expropriation, and it is not intended as a land reform tool.
“It provides for expropriation for a public purpose and in the public interest (in line with the constitution). It deals with compensation, also in line with the constitution requiring that it must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected. It contains a section (12(3)) that provides for the possibility of R Nil that may be regarded as just and equitable in certain circumstances,” she said.
Two dynamics are interesting. One, the political whiteness, or those who claim to represent white interests, are facing a crisis of legitimacy, which throughout history has always been something that necessitated fearmongering to overcome.
— Dr Ongama Mtika, analyst
Crosby highlights that the crisis in current discourse around the act is the 'zero compensation' and that it was signed into law without consulting the partners.
The legal intelligence head foresees two ways out of the quagmire for aggrieved parties. The first entails the president referring the legislation back to parliament for reconsideration.
The alternative, according to Crosby, is for two-thirds of the members of the National Assembly to explore the option of applying to the Constitutional Court for an order declaring that all or part of an act passed by the assembly is unconstitutional.
“Such an application must be supported by at least one-third of the members of the assembly; and must be made within 30 days of the date on which the president assented to and signed the act,” she said.
Analyst Dr Ongama Mtimka echoed similar sentiments, elaborating that the act substantively creates an option for government to be able to expropriate land even without compensation at times.
“The act evokes a lot more in its substance, how to expropriate with compensation, than it does without compensation, which is in tandem with the general property rights regime of South Africa,” he said.
Mtimka dismissed any uproar about the act, dubbing it “sheer manipulation and cheap attempts to score political mileage from the process of the act other than what it actually means in practice”.
“Two dynamics are interesting. One, the political whiteness, or those who claim to represent white interests, are facing a crisis of legitimacy, which throughout history has always been something that necessitated fearmongering to overcome.
“Second, if you look at global whiteness in general, there is this anti-wokism which has more to do with the American politics than the transformation politics of South Africa.”
In both instances, Mtimka stated there is a clear extreme manipulation and leveraging of political events for narrow gains for political parties.
He added there might be little to no recourse for the aggrieved, as there is nothing in South African law that reverses parliamentary processes once a particular administration's term has ended and a new one comes in.
“What these parties are asking for is a constitutionally unsound process, but politically may be important for them to want to have de facto veto power on what the sixth administration did. The act followed a legitimate process.
“I can understand the challenges that are coming from the perspective of procedural issues with the parliamentary process, that is a different debate. It will also be interesting how this becomes invoked at a time when the president signs instead of when the NCOP had passed that act.”
Mtika cautioned parties such as the DA for “crying wolf”, threatening to ditch the GNU every time there is a contentious matter.
“Parties like the DA are new to a national government level coalition, so there will be political miscalculations. The challenge with threatening to leave all the time is that over time, you weaken the potency of the threat because you use it willy-nilly. My hope is that over time the parties who are partners with the ANC are going to find more effective ways of achieving their objectives other than threatening to leave.”
He expressed confidence in the clearing-house mechanism as a concept but doubted it would play a meaningful role in the current Expropriation Act debacle.
“The clearing house is an important mechanism. It took the ANC and its tripartite alliance decades to arrive at that stage where it could come up with a mechanism for dispute resolution. That they have been able to come up with one hardly a year since they started this GNU journey, it shows that they are learning, and learning organisations always find ways to improve as long as they are committed to the relationship.
“It is in the nature of political institutions to continuously be tested and renegotiated. It does give them an option to handle disputes. Whether it is going to be effective, I doubt in this particular instance because the horse has already bolted.”
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