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[OPINION] The judiciary is the next frontier for land reform

After President Ramaphosa’s recent late-night announcement that the ANC would press on with amending s25 of the Constitution to allow for expropriation of land without compensation, many have said the die has been cast and the ANC is inexorably on the path to populism and South Africa, economic ruin.

The parliamentary process, which has included public hearings on land reform, has continued despite the fact that its outcome has largely been undermined and pre-empted by Ramaphosa’s clumsy announcement.

That the ANC has found itself running scared of the rather more militant EFF can be seen in the speed with which it now wishes to deal with the land issue. We are told that the state will now bring test cases before the Land Claims Court in respect of 139 earmarked farms in order that they may be expropriated without compensation.

ANC NEC member Zizi Kodwa has said that this will bring ‘political certainty’. That might be in short supply given the unexpected nature of Ramaphosa’s announcement that Tuesday night. In addition, no one quite knows which farms have been earmarked and why?

AfriForum recklessly released a list of farms allegedly ear-marked for expropriation but there was no truth in the names on the list. In an environment of uncertainty, ‘fake news’ has cachet.

For his part, ANC chairman Gwede Mantashe has added to the confusion by saying that farmland over and above 12,000 hectares should be expropriated or ‘given away’. What kind of rational debate can this sort of statement bring about, one wonders?

The salient question, of course, is why the ANC has waited 24 years to test s25, which in Ramaphosa’s own view does not preclude expropriation without compensation as an option. And it also begs the question as to why has there not been a discussion about the redistribution of state-owned land? The state is by the largest owner of unused land in the country, after all.

The challenge now is that the debate has not been holistic and focussed on what has stymied land reform since 1994, which reasons include the state’s hopeless ineptitude and corruption related to the redistribution of land. Instead, the debate is now unhelpfully stuck in the mode of the sloganeering where all that we hear is ‘expropriation without compensation’. It has become the only option, not one of an array of options. It is unfortunate because it provides grist to the mill of those who have been saying South Africa is ‘another Zimbabwe’ and then prevents a complete discussion on the issue based on facts not only emotion.

Agri SA has rightly called for calm heads as the land issue is dealt with, but has also said that it will challenge the matter in the Constitutional Court if needs be. It is almost certain that one of these test cases will end up in the ConCourt eventually. And this is now the next frontier - the judiciary.

It is certain that the ANC will make up the two-thirds majority it needs to amend s25 by garnering EFF votes. Whoever therefore brings a ConCourt challenge will be bringing it against the ANC-led government and its maverick partner, the EFF. They will also be doing so in a political atmosphere that is highly charged.
Our country remains locked in protest on a daily basis as citizens clamour for rights to be fulfilled. After 24 years of desperate poverty and deepening levels of inequality, many have had enough. It is into this social context that any ConCourt decision will have to be made.

During the Zuma years our courts were tested to their limit. The Nkandla judgment saw the ConCourt coming up directly against the most powerful political office-bearer, the President of the Republic, Jacob Zuma and his obligations in terms of s83 of the Constitution. That judgment went to the heart of power. Then Mogoeng Mogoeng said powerfully about the president that: “He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation's constitutional project. The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.”

That was March 2016. Since then the courts have continued to be at the centre of holding Zuma and his corrupt associates to account. We need only think of the ‘spy tapes’ judgment and the related Supreme Court of Appeal judgment in which the court dismissed Zuma and the National Prosecuting Authority’s appeal and found that the decision not to prosecute Zuma in 2008 was ‘irrational’.

Given the weakness of many of South Africa’s democratic institutions, such as Parliament, for instance, the Zuma years saw a glut of court cases simply to hold Zuma and his ministers to account where Parliament would not. It repeatedly placed the courts, specifically the ConCourt, in the midst of the political arena.

Whereas legal action to bring about political accountability should be a last resort, it became the norm during the Zuma years. The courts therefore by implication became political actors, albeit often quite obviously reluctantly. This past week we keenly felt the detritus of the Zuma years when the ConCourt found that Shaun Abrahams’ appointment was invalid. Once more the ConCourt delivered a scathing judgment on governance processes under Zuma. The judgment sought to underscore the importance of the rule of law. One cannot help but think, however, that the courts ought really not to be repeatedly dragged into political battles.

Over the years, the EFF has used the courts to its advantage. In the Nkandla matter it was the first applicant. It cheered the courts’ independence when that judgment went its way. Yet, it is also clear that Julius Malema has a fraught relationship with the Constitution - he has invoked it opportunistically and has not, for instance, hesitated to call for land grabs – “If you see a beautiful piece of land, take it,” being but one example of inflammatory unconstitutional rhetoric. In addition, Malema has found himself embroiled in an array court cases relating to hate speech and was an early defender of Zuma until Malema was expelled from the ANC.

Elements within the ANC itself have criticised the courts as the ANC struggled to defend itself in the face of repeated corruption scandals. In 2015 the government failed to adhere to Judge President Dunstan Mlambo’s order that it detain Sudanese President Omar al-Bashir, who is wanted by the International Criminal Court (ICC) for mass killings and rape against civilians in Darfur. South Africa is a signatory to the Rome Statute, the treaty that established the ICC.

Tensions may have reached a high point with the al-Bashir matter, but it is worth remembering that various ministers and senior members of the African National Congress (ANC) have attacked the judiciary consistently in the past few years. After the Mlambo judgment, former ANC secretary-general Gwede Mantashe launched a scathing attack on the courts, labelling them as ‘problematic’ and saying that ‘some sections’ of the court system are driven by a desire to ‘create chaos for governance’ in South Africa. His then deputy, Jessie Duarte, followed suit with similar criticisms.

In 2012, Ngoako Ramatlhodi – senior ANC member and currently the minister of mineral resources – also lashed out at the judiciary while delivering a lecture in honour of ANC President AB Xuma. Ramatlhodi accused the judiciary of seeking to undermine the executive. But the tension went further than criticising the judiciary. As the Nkandla matter unfolded, we saw successive ministers and the president himself undermine the Public Protector’s Office, which is a constitutionally mandated body charged with ensuring that there is no impropriety in public administration. When the previous Public Protector Thuli Madonsela released her report into the corruption within the Passenger Rail Agency of South Africa in 2015, the ANC’s lukewarm response was to call her findings and recommendations ‘allegations’.

So, while our courts have done a sterling job of undergirding the rule of law and the Constitution, what might the alternative situation be if the ConCourt hands down a judgment in a test case on land which is perhaps unfavourable to the likes of Malema, his red berets and the populist faction of the ANC? Who will then protect and defend the Constitution in that politically fraught context? This is the real danger in a democracy as fragile as ours, with deep inequality and poverty. It is also the danger of stymieing democratic debate based on rationality and facts and then having to test policy in a judicial context.

The Ramaphosa-led government has therefore erred in now limiting the land debate to a ‘do-or-die’ amendment of the Constitution. It is likely to place unnecessary pressure on our courts and it is also simply not as easy as all that.

Judith February is based at the Institute for Security Studies and is also a Visiting Fellow at the Wits School of Governance. Her book 'Turning and turning: exploring the complexities of South Africa’s democracy', published by Pan Macmillan, was released this month. Follow her on Twitter: @judith_february

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