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The way in which the debates around land reform have been allowed to degenerate and the public hearings to be hijacked to serve as a sort of referendum will probably make it impossible for President Cyril Ramaphosa to avoid amending Section 25 of the Constitution.
It would be the exact wording of that amendment that would make all the difference.
I addressed a group of senior business and professional people, most of them black, last week on the land issue. I was surprised at some of the reactions I got.
I showed with hard facts and figures that there is a relatively small number of black South Africans who want to become farmers and that most of those who do want land for food production, only want small pieces of land.
I quoted documents and studies showing that the failures of land reform since 1994 were more a reflection on government policies and incapabilities than on the Constitution; that most redistributed commercial farms were a commercial failure because the state failed to offer sufficient post-settlement support. Why would they get that right now, now that we're talking about a hundred times the number of farms previously redistributed?
I explained that South Africa was 66% urbanised; that more than ten million people had moved from the communal areas to cities and towns in Gauteng and the Western Cape alone since 1994, and that most of these new arrivals had to find homes in overcrowded informal settlements.
I pointed out that large chunks of the 18 million hectare communally owned black areas, the old bantustans, are now unused as a result of the migration to the cities.
I thought I made a convincing case that the land hunger is more about urban land than agricultural land, especially the people in squatter camps and backyards who need a piece of land of their own to build a house and rebuild some dignity.
Expropriation without compensation (or compensation well under market value) of urban land is very different from the expropriation of economically active commercial farms.
I told my audience that according to the latest research, some 20% of commercial farmland had already moved into black hands, and that figure excludes the 15% of the total surface area of the country owned by traditional communities.
I added that establishing those black citizens with aspirations to become commercial farmers on the land would not be all that difficult and that organised agriculture is committed to go out of its way to help facilitate that and speed up the process in the interests of stability.
I also quoted research that showed that the argument that land ownership automatically means the end of poverty was patently false; and showed what happened to the economies of other countries that had resorted to expropriation without compensation.
And yet my presentation wasn't well received by some members of my audience.
Some, all of them with at least one university degree and very successful in their fields, actually confronted me with arguments I have seen on social media and heard from EFF populists: the colonial land thieves never debated, they just stole the land, so why should we even debate this issue? Or: it is none of anyone's business what black people do with the land they're going to take, it's theirs and they can do with it what they want. And: how would you feel if someone robbed your house and afterwards wanted to negotiate about the stolen goods?
This underlines something I have written about many times: the land debate is almost more about history, symbolism, redress, justice and black dignity than about land itself.
Frustration and anger about continued racial inequality, resentment about white people's continued comfortable lives in the face of black poverty are more important than the cold facts about land redistribution.
It simply doesn't feel right that black people have less access to land than the white people whose ancestors openly started arriving in 1652.
Ramaphosa and his inner circle understand the complexities and consequences to the economy of expropriation without compensation very well.
It's not a secret that they argued strongly against the ANC proposal at its December conference that the Constitution be changed.
In the time since then, expropriation without compensation has developed into one of the main issues in the election campaign, and the election is only about ten months away.
Ramaphosa and his advisers want to play for time, hoping that the final decisions on this issue can be postponed until after the election.
I think the pressure is going to be too much, I think the ANC cannot afford to vacillate much longer if it wants a solid electoral victory next year.
The compromise would be an amendment to Section 25 of the Constitution that would satisfy the clamour for change, but not open the door to large scale expropriation without compensation that would damage agricultural output and devastate the economy.
Subsection 3 (3) could be changed from saying, "The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances" by adding that under certain specific circumstances, that amount of compensation could also be zero.
The opening statement of the section, that "no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property" should stay, but a bill should urgently be prepared to spell out exactly how expropriation should work.
Perhaps this is the best outcome in any case, if it is accompanied by a serious commitment of government to manage the process of land redistribution a lot better than it has thus far.
But long before this could be put to Parliament, government needs to radically step up the provision of land for the urban landless, using available state land but also using the present Constitution to expropriate privately owned land without or with very little compensation.
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