South Africa’s governing party, the African National Congress (ANC), has done the impossible again! First, it succeeded in negotiating with the then governing National Party (NP) to get rid of Apartheid, then it took part in hard-fought debates on creating a new constitution and won genuinely democratic elections.

Many, if not most, foreign observers expected not peaceful elections but a civil war. I recall talking to a member of one of the main American TV networks at the South African Broadcasting Corporation (SABC)’s Auckland Park headquarters in 1994. He put his view simply: “We’ve come to cover the war”.  But there was no war, and I told him that there wouldn’t be.

Now, the ANC has discovered what mathematicians and great minds have failed to do, namely, how to square the circle! They have found a way (or so they tell us) to use constitutional, rule-of-law means, to practice theft. Or, as they so elegantly put it: “Expropriation without compensation.”

So did the South African parliament recently vote to expropriate land without compensation? The answer, despite appearances, is “no”. The parliament voted to investigate whether the constitution, as it stands, is able to allow for land expropriation without compensation. Following the February 27 vote, with 241 MPs in favour and 83 against, the matter is now before the Joint Constitutional Review Committee.

The committee has until August 31 to report back to parliament. If the committee, made up of members from the National Council of Provinces (there are nine provinces) and members of parliament, decides that the constitution permits expropriation, then that is that. If not, it must bring recommendations based on which parliament will be allowed to pass a motion to change section 25 of the constitution, which deals with property rights.

The fact is that the constitution did arrange for land restitution, but with compensation, to be determined by either a court or a duly constituted body.

What has not been in the headlines is that such a body already exists although it did most of its work from 1994 to 1998 -- the Land Claims Court. It received some 80,000 claims and accepted some 76,000. Of these, only 5,800 claimants asked for land (or land back) while all the others asked for financial compensation. If all the 76,000 claimants had started to farm, even allowing for some failures, there would be far more Black farmers on the land than the 32,000 existing White commercial farmers.

Note that each claim does not represent only one person! Some might, but the vast majority represent families and sometimes entire clans. The potential farmers are far more numerous than the 76,000. So why did so few take up farming and why are so many of those cases failures?

These are not people wanting to go back to their ancestral land and starting to make a living from farming. Rather, it fits in with other statistics showing a large movement away from the rural areas to cities. 

Background to the current crisis

So why all this “land expropriation” talk now?

The answer is a disaffected former ANC Youth League leader, Julius Malema, who started an alternative party, the Economic Freedom Fighters (EFF).

The EFF follows a strange amalgam of Communist and Nazi ideology sprinkled with some Pan Africanist rhetoric. Malema has been in court for both hate speech and damage to property and will likely be there again. The EFF is known for its anti-Semitic and racist tirades. It was the EFF which led the motion for the vote, which the ANC then scaled down. Oddly enough, the EFF tried a similar motion last year, only to be swatted down by the governing party.

So why now?

Most political commentators think the ANC is concerned about losses to the official opposition, the Democratic Alliance (DA), a Western-style liberal democratic party, as well as to the EFF. At the last parliamentary vote in 2014, the ANC lost its two-thirds majority, while the DA is up to 22 percent of the vote, with the EFF landing six percent.

In municipal elections in 2016, the ANC lost further, with the EFF going up to eight percent, the DA going up to 26 percent and the ANC dropping to 53. More important, perhaps is that they lost Tshwane (Pretoria), Johannesburg, Nelson Mandela Bay (Port Elizabeth) and Mangaung (Bloemfontein) and other key municipalities. In some of these the DA went into alliance with the EFF as well as smaller parties.

This has been a blow for the ANC as the DA has shown up how badly the party has governed. Add to that the disastrous years of President Jacob Zuma’s government, with astronomical amounts of money lost to corruption and bribery as well as wastage, and the ANC’s future election prospects look grim.

What isn’t obvious from the figures is that while the DA generally gets five percent of the Black vote and no more, the EFF gets almost all its support from poor Blacks. So along with the general trend – worrying from the ANC’s point of view – they are losing at least a further eight percent of the people they claim most to represent, poor Blacks.

The emotional cry from the EFF’s supporters (not to mention an extra-parliamentary grouping, Black First Land First – BLF) is “give back our land”. Together with the ANC, they are saying the Whites simply came to the Cape back in 1652 and launched a massive land-grab.

But as always in history, matters are not that simple. It’s true that the British Empire, the Union government (1910-1948) and the Apartheid government (1948-1994) took land from Coloureds (mixed race people) and Blacks, but before that, there had been a great deal of buying of land, of agreements between Boers and various Black tribal leaders for land, and even before that, the now almost extinct original inhabitants of South Africa, the Khoi and San (formerly known as the Hottentots and Bushmen.)

So, to simply “expropriate” successfully-working farms, some of which (in the Western Cape Province) have been in the hands of White families for eight generations, would merely create two injustices. And two wrongs don’t make a right.

Add to that that in the original motion, all land would be owned by the state. As DA leader Mmusi Maimane has pointed out, his parents lived in a township under Apartheid and couldn’t own their house, so why go back to that?

So, while part of the explanation of the ANC’s apparent “lurch to the left” is fear of EFF votes, there are also internal ANC rivalries that explain the move.

President Cyril Ramaphosa is walking a tightrope. Soon after announcing that he would “expropriate” the land, he quickly said it would not done as it was in Zimbabwe; that it wouldn’t be a “smash and grab”. He added that the “land redistribution” would also not threaten food security in the country.

But if he’s serious about that, that means the land the EFF and BLF most want, productive farm land, would be out of bounds.

Soon people (rumoured to have been inspired by the EFF) began “land invasions” (these have happened before). Places as far apart as Midrand (between Pretoria and Johannesburg) and Hermanus (in the Western Cape Province) were affected. Sadly, the crowds tended to attack foreigners and xenophobic violence seems to be an integral part of these uncontrolled invasions, which are beaten back by the police. But, as mentioned above, these illegal “land grabs” are not in farming areas, but in urban ones.

So, what is the situation? Do Whites own all or most of the land? The Devil, again, is in the details!

When introducing the parliamentary motion, ANC Minister of Water and Sanitation Gugile Nkwinti gave figures based on a government land audit. According to this, Whites own 72 percent of the land, Coloureds 15 percent, Indians five percent and Blacks only four percent.

This was immediately challenged by Agri SA and the main agricultural magazine Landbouweekblad (Farmers’ Weekly) who said more land has gone into Black hands by private purchase than by the government’s initiatives and that Black farmers own 27 percent of the land and over 40 percent of the land potential. In KwaZulu/Natal (KZN) province, almost 73 percent of the land is in the hands of Blacks.

Some four million Blacks own land communally as tribal traditional land and these are in the country’s most fertile regions, KZN Province and the Eastern Cape. However, as most tribal lands use subsistence farming methods, these are also among the least productive.

Farm murders

A brief note is necessary about something which has gone unnoticed for too long but is now in the international spotlight: farm murders. These are brutal, gruesome and have a variety of causes. The police have recently upgraded these vicious killings to “priority crimes” and according to AfriForum, an Afrikaans lobby, some 94 farmers and farm workers have been killed since the beginning of the year.

While that is shocking, it must be put in a South African perspective, where there are some 51 murders a day, or a total of 19, 016 nationwide. We lose the equivalent of an army division every year to murder!

The ANC argues it is “only crime” while farmers’ groups argue it is organised violence. It does look likely that it’s organised, but it is a long way from being “genocide” as some are claiming. Is there a link between the government’s investigation of land expropriation without compensation and farm murders? Experts like the Institute for Security Studies’ Dr Johan Burger, a policing expert, said on a television show that “it’s too early to tell” as the statistics were not in yet.

It is unlikely, at this point, that the two are related as the land invasions are all in urban areas, not where the farms are.

The economic effects of expropriation

I spoke to Professor Pierre de Vos of the University of Cape Town about how the constitutional clause governing property rights, Section 25, could be amended. He said if the parliament wanted to allow government to expropriate land without compensation, but within the rule of law, it would need a two-thirds majority, which it could produce. However, if it wanted to arbitrarily “grab” land, that would require 75 percent of parliamentary votes, which even with the EFF and some small parties, is out of the ANC’s reach. In short, the worst-case scenario of a Zimbabwe-style land grab is out for the moment, anyway.

The current constitution permits the state to expropriate land with minimal or no compensation in some cases. An absentee landlord might own an apartment complex which has been condemned, but despite court demands, won’t evict the tenants and keeps collecting the money. In other words, there are extreme cases but these would not apply to food-producing farms.

Still, the agricultural sector, and the whole country, is in a state of uncertainty. Some reports say farmers are not buying new equipment or upgrading old equipment, such as tractors. Still others are considering emigration, although not many.

The impact of weakening property rights on the country’s economy would be enormous. Most farmers are in debt and agricultural loans make up some 125 billion rand (US$12 billion) and the Land Bank holds another 43 percent of farmer’s debt. If the government grabs the land, who will pay the banks? Investors will pack up and leave. And so on.

What then, is President Cyril Ramaphosa, an intelligent man, really up to? The way I read it, he is trying to win back voters who would otherwise vote for the EFF. And meanwhile, he is sending “roadshows” to the UK and US to keep investors happy, assuring them that the rule of law will remain.

It’s either that or that American correspondent will finally get his “civil war”.

Christopher Szabo is a freelance journalist based in Pretoria, South Africa.