The ANC is trying to provide for land reform without uncompensated expropriation, to ensure that the Constitution does not have to be amended and take the sting out of the party's latest attempt to get more land into black hands.
A parliamentary motion for muscular land expropriation sponsored by the EFF and supported in an amended form by the governing party sailed through the legislature in February and has raised fears about property rights in general.
Since then, the number of sporadic land occupations by poor, homeless and landless South Africans has increased. The seaside town of Hermanus faced an attempted occupation, as did Midrand and other areas in Johannesburg in March.
A task team led by deputy public works minister Jeremy Cronin has drafted an amendment to a forthcoming expropriation law which also sets out clearly which land will be expropriated without compensation.
The team includes some of the country's top land experts, including lawyers Tembeka Ngcukaitobi and Ronald Lambola, as well as President Cyril Ramaphosa, who has worked closely with them to reach a new deal on land expropriation.
It is possible (and preferable) NOT to amend the Bill of Rights, but to introduce a brief limitation clause into the (forthcoming) expropriation bill'
"It is possible (and preferable) not to amend the Bill of Rights, but to introduce a brief limitation clause into the (forthcoming) expropriation bill," Cronin told a high-level land-reform dialogue convened by Professor Nick Binedell of the Gordon Institute for Business Science and Professor Quinton Johnson of the Nelson Mandela University in Johannesburg in March.
Government is concerned about what the debate is saying to investors and to organised agriculture. "We realised the message was creating confusion," said Cronin.
The ANC's amended resolution reflects the bind that the party is in. It states that "the ANC should, as a matter of policy, pursue expropriation of land without compensation", but it then it adds that "this should be pursued without destabilising the agricultural sector, without endangering food security in our country, and without undermining economic growth and job creation".
The new deal is an attempt to satisfy both parts of the resolution and not tamper with the Constitution's Bill of Rights, as well as to define more closely which land can be expropriated without compensation.
Cronin's task team has identified land and property that can be expropriated without compensation as abandoned buildings, unutilised land, commercial property held unproductively and purely for speculative purposes or underutilised property owned by the state, and finally, land farmed by labour tenants with an absentee titleholder.
By identifying these four types of land, the ANC is attempting to create certainty about which land will be targeted for expropriation without compensation. Cronin says the Bill of Rights and the property clause in the Constitution are not obstacles to effective land reform, either agrarian or urban. "Expropriation with our without compensation is only one and probably not the major means to achieving just, equitable, sustainable and absolutely necessary land reform."
He added that South Africa "needs to have a rational, constitutionally compliant and patriotic discussion on how to address the land question as part of a new dawn for all South Africans". The land dialogue in Johannesburg featured the full team the ANC has mandated to lead the land negotiation, and each one of them was at pains to condemn the recent land occupations and to promise orderly land reform and restitution.
Mineral Resources Minister Gwede Mantashe is leading the team, and he spoke on Ramaphosa's behalf on Tuesday's opening day. While Mantashe condemned the occupations currently dominating headlines as "anarchy", he also said it was dangerous to conflate land reform with an automate danger to food security.
Cronin said it was often forgotten that the property clause in the Constitution was a mandate for transformation. Its public interest override includes "the nation's commitment to land reform, and reforms to bring about equitable access to all South Africa's natural resources" and also that "the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis".