There is a curiosity that underlies the current spat between the DA and the ANC over the Expropriation Act, the National Health Insurance (NHI) Act and other legislation of this ilk: why does President Cyril Ramaphosa insist on backing legislation that most probably cannot and will not be implemented?
The act of passing the legislation – like signing the Expropriation Act into law, as he did last week – is comparable to magicians waving gloved hands frantically in the hope of misdirecting their audience while sneaking the rabbit into the hat.
DA leader and agriculture minister John Steenhuisen effectively put the government of national unity (GNU) on notice over the weekend invoking clause 19 of the agreed statement of intent that founded the GNU. The clause requires “reasonable attempts to address disagreements” and specifies that parties that represent 60% of the seats in the National Assembly must agree with the negotiated decision. It effectively provides the DA with a veto on new legislation – but as the DA is learning to its cost, the ANC apparently does not regard this agreement as relevant to previous passed legislation.
The ANC’s response has been that the Expropriation Act was actually passed by parliament last year, as the DA was fully aware, and all that has happened since is that the president has applied his mind to its constitutionality, and satisfied himself that it would pass constitutional muster, and signed it.
The DA’s perspective is essentially that this is disingenuous, particularly as it does not reflect the current political balance of power; it’s seeking a “reset” of its relationship with the ANC. Yet, Steenhuisen was careful to say the DA is not at this point issuing an “ultimatum”, nor is it signalling its intention to leave the GNU.
Yet, for DA voters, the attitude of the ANC – which suggests it intends just forging ahead with an undifferentiated policy programme and does not recognise that it is no longer the majority party – is galling. Comparatively, for the ANC, the DA’s perceived lack of recognition that the ANC is by far the country’s most popular party must be galling too.
ANC secretary-general Fikile Mbalula said at a press conference during the ANC’s weekend lekgotla at the Emperors Palace casino that the ANC had not “outmanoeuvred the DA, the DA had outmanoeuvred itself” over the issue.
“The DA … did not say to us in the statement of intent, all the bills that we disagreed with, you must add them afresh. We would have told them right from the onset that we don’t agree, and that’s it. So they hope that maybe some spirit will come in along the way to stop things. It doesn’t work like that. When you enter into a terrain, fundamentally you say … you’re not going to start everything afresh.”
But Mbalula said the ANC was open to discussing the issues with the DA and other members of the GNU in the designated forums. If parties felt there were constitutional issues with the legislation, they were of course free to pursue that avenue, which the DA and other parties have undertaken to do.
The DA faces a peculiar challenge because the ANC has made no bones about the fact that it is pressing forward with three pieces of controversial legislation particularly reviled by the party’s supporters: the NHI Act, the Basic Education Laws Amendment (Bela) Act and, now, the Expropriation Act.
It’s almost as though the ANC is daring the DA to pull out of the GNU. Behind these actions, the ANC’s calculus is that it cannot be seen to be slowing down in implementing “transformation” legislation, or it will become vulnerable to attacks from parties on its left wing.
Legislative showboating
Yet, the ANC’s fundamental problem is that reliance on the politics of legislative performance and production, what might be described as legislative showboating, will create disappointment when it fails to lead to any concrete change.
The provocatively named Expropriation Act is a good example. Though the act technically makes it possible for land to be expropriated with zero compensation, the terms of the act specify an exhaustive “checks and balances” process before that could technically happen.
Experts in this legislation point out that it provides for extensive consultation with affected parties, including financial institutions that hold bonds over the affected property, and persons who have rights to the land but are not landowners.
“It also provides for a series of offers and counteroffers in an attempt to promote agreement between the owner, bond holder and authority on the amount of compensation. Should it be impossible to reach agreement, then compensation must be decided upon by a court of law,” Annelize Crosby, the head of legal intelligence at Agbiz, wrote when the legislation was being discussed before parliament.
This does not satisfy AgriSA, which described the bill as a “risk to private property rights” and therefore also “a risk to agricultural sustainability and food security”.
The Freedom Front has added its voice to the call to test the legislation at the Constitutional Court, while the IFP has said the legislation should have been sent to the GNU “clearing house”, which is still lacking a formal constitution.
Yet, rather like the NHI Act, political commentators point out a massive distinction between the notional aim for the Expropriation Act, and the concrete results actually likely from its entry into the statute books. Legislation so circumscribed by administrative and legal action might be implemented here and there, but the ANC is clearly dreaming if it thinks the legislation on its own will be the cause of a substantial land ownership reconstitution.
Likewise, the NHI Act envisages the scrapping of private health care in South Africa, yet it’s not envisaged that this will actually happen for decades, not least because the legislation is unpopular with huge swathes of the ANC’s own support base, particularly those in the civil service. Neither is the cost of the enterprise even vaguely clear, so its affordability is questionable.
And if that’s the case, is the ANC not risking disappointing its supporters when the heralded legislative innovations don’t result in the promised changes? For all the be-gloved hand-waving, the political risks remain palpable.
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