President has the upper hand — for now

• SA’s new political reality is creating landmines for its participants and the Expropriation Act is the latest, but it won’t be the last

Politics is about leverage, and President Cyril Ramaphosa’s signing expropriation legislation into law provides him with more of it in the ANC and the government of national unity. SA’s new political reality is throwing up landmines for its participants. The Expropriation Act is the latest but not the last. Parties, the ANC and the DA in particular, will have to learn to navigate this new terrain. This learning process is likely to lead to a rollercoaster ride in SA politics, with twists and turns for both parties.

Politics is about leverage and President Cyril Ramaphosa’s signing the Expropriation Bill into law provides him with more of it, inside the ANC and in the government of national unity (GNU).

SA’s new political reality is throwing up landmines for its participants, and the Expropriation Act is the latest. It also won’t be the last.

Parties, the ANC and the DA in particular, will have to learn to navigate this new terrain.

This learning process is likely to lead to a roller-coaster ride in SA politics, with twists and turns emanating from within both parties as they seek to maintain their relationship with each other while satisfying their vastly different constituencies.

DA leader John Steenhuisen on Saturday released a letter he wrote to Ramaphosa in which he detailed his party’s concerns over the manner in which the GNU is functioning.

This was prompted by Ramaphosa’s signing of the Expropriation Bill into law.

Ramaphosa’s assenting to the law sent SA and its global rightwing observers into a tailspin, hysterically bemoaning SA’s descent into Zimbabwe 2.0.

The “left” and nationalist wing hailed the “progressive legislation” for ushering in an era when the dispossessed finally “get their land back”.

The legislation does neither. It describes the procedure that various government ministries, the president and premiers have to use to expropriate land in the public interest and for public use — their powers to expropriate have long been part of the country’s laws but this legislation tells them how to go about doing it.

Head of legal intelligence at AgriBiz Annelize Crosby said there were at least 200 other pieces of legislation on expropriation — the water minister for instance has the power to do so, as does the president, premiers and a host of other ministries.

She examines the legislation from a legal perspective and said that while there were problematic elements to it, it is mostly benign. “From a legal point of view, the constitution was not amended; the protection of property rights stands. The test for just and equitable compensation in the constitution still stands,” she said.

The act sets out the procedure for arriving at the figure for just and equitable compensation.

Former deputy minister of public works Jeremy Cronin, now retired, who was one of the ANC’s key figures working on the legislation, told Business Day that the legislation replaced an Expropriation Act dating back to the 1970s that was unconstitutional and that vested an inordinate amount of power in the minister of public works to expropriate. Cronin said the purpose of the Expropriation Act was to set out the procedure for all who hold the power to expropriate, according to existing legislation, in the government.

“The big problem was there was no description of a fair and equitable process (in other legislation) … this act now sets out that procedure,” he said.

A complication arose in 2017, Business Day understands, when the “radical economic transformation”, or former Zuma faction, inside the ANC pushed for the bill to make provision for expropriation with no compensation.

Due to that push in the very divided ANC at the time, a provision was included for “nil compensation”, which Crosby argues differs from “no compensation”. However, she adds, this is a problematic part of the legislation.

“Section 12.3, which provides for nil compensation, is altogether too vague … for instance it says the compensation ‘may’ be nil. This is dangerous,” she says.

The act lists the circumstances in which it may be “nil”, which includes unused or abandoned land for instance, but the wording renders it broader than simply the circumstances listed in the act — challenging it in court will be expensive for citizens.

Another drawback, she said, was that the procedure to expropriate land in the public interest and for public use in the act is very cumbersome — it’ sa lengthy process, with numerous checks and balances.

The DA said it would approach the courts to challenge the act, but has also raised a formal dispute with the ANC in the GNU before its dispute resolution mechanism, the clearing house, chaired by deputy president Paul Mashatile.

The Expropriation Act and the National Health Insurance Act have now been formally logged as disputes and parties have to battle it out to reach a compromise.

Politically, signing the Expropriation Act into law gave Ramaphosa the upper hand in the looming battle over the NHI.

The DA now has to negotiate for concessions in two pieces of legislation, both heavily resisted by its own constituency.

Internally in the ANC, Ramaphosa shored up his standing among his critics — the SACP and an anti-DA lobby led by the likes of Gauteng premier Panyaza Lesufi and the remnants of Zuma’s faction inside the ANC, including sections of the party in KwaZulu-Natal and NEC members such as Andile Lungisa and Mzwandile Masina.

He has effectively silenced this grouping by pushing through with “transformative” legislation, which the ANC had already passed through parliament.

The argument by this grouping that Ramaphosa is pandering to the DA cannot hold water now.

However, his advantage could be short-lived: a compromise will have to be struck or he risks the GNU collapsing before reaching its first anniversary.