An early IRR warning of nationalisation via ‘custodianship’
Seven years ago, back in 2014, the IRR warned that the ANC would seek to nationalise all the country’s land without compensation. It would do so by taking ‘custodianship’ of land and then claiming that no expropriation had occurred (as explained below) and so no compensation need be paid.
The IRR’s warning was dismissed by the government, Agri SA, and the Institute for Poverty, Land, and Agrarian Studies (Plaas), respectively, as unwarranted, ‘unlikely’, and ‘scaremongering’.
Now, however, the ANC and the EFF have agreed that the draft bill to amend Section 25 of the Constitution to allow expropriation without compensation (the EWC Bill) should be revised to include a commitment to ‘state custodianship’ over all land.
ANC and EFF proposals on state custodianship
The ANC’s proposal is contained in a new subsection 25(5), which reads as follows: ‘The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship and for citizens to gain access to land on an equitable basis’.
The EFF’s proposal is much the same, though it wants the italicised words to be deleted. In practice, this change would mean little.
The EFF also seeks a new subsection 25(4A), saying: ‘Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state.’
The ANC’s preferred wording is similar, for it thinks subsection 25(4A) should provide that ‘the land belongs to and is the common heritage of all South Africans’.
Either subsection, if inserted, would point to the supposed rationale for land custodianship. But the key wording is in subsection 25(5) – and would suffice to require new legislation that ‘enables state custodianship’ and gives people ‘access’ to land in the form of land-use licences to be ‘equitably’ allocated by the state.
Earlier this week, the ANC’s Vuzumusi Xaba tried to play down the significance of state custodianship by suggesting that this would apply solely in the ‘period between acquisition and redistribution’.
However, there is nothing in the wording of subsection 25(5) to limit state custodianship in this way. Mr Xaba’s reassurance, if it is to be taken seriously at all, also overlooks the government’s State Land Lease and Disposal Policy (SLLDP) of 2013. Under this policy, land acquired for redistribution must be retained by the state and leased to land reform beneficiaries for a period of 50 years before an option to buy may be granted. On this basis, the ‘state custodianship’ that Mr Xaba sees as applying only ‘temporarily’ could last for half a century.