Land seizure and SA’s expropriation law: scholar weighs up the act

Expropriation of property is a potential tool to reduce land inequality — a matter of increasing urgency due to the slow pace of land reform

03 February 2025 - 12:35 By Zsa-Zsa Temmers Boggenpoel
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President Cyril Ramaphosa recently signed the contentious Expropriation Bill into law, drawing the ire of US President Donald Trump. File image.
President Cyril Ramaphosa recently signed the contentious Expropriation Bill into law, drawing the ire of US President Donald Trump. File image.
Image: Karen Moolman

South Africa has a new law to govern the expropriation, or compulsory acquisition, of private property by the government for public purposes or in the public interest.

The passing of the Expropriation Act followed a parliamentary process that began in 2020.

The act repeals the apartheid-era Expropriation Act and aims to align expropriation law with the constitution. It sets out the procedures, rules and regulations for expropriation. Besides setting out in quite detailed fashion how expropriations are to take place, the act also provides an outline regarding how compensation is to be determined.

In SA’s colonial and apartheid past, land distribution was grossly unequal on the basis of race. The country continues to suffer the effects.

Expropriation of property is a potential tool to reduce land inequality. This has become a matter of increasing urgency and South Africans have expressed impatience with the slow pace of land reform.

Land reform needs a capable and proactive state that implements the legal framework in a manner that prioritises expropriation as a mechanism to ensure land reform

There is much debate in the country about the provisions of the new act. The debate is mostly about the extent to which it affects existing private property rights. Some argue the act is unconstitutional while others welcome it as a necessary step in the right direction.

I’m a professor of law with a keen interest in this area of the law, and recently edited a book on land expropriation in SA by leading experts. My view is that an expropriation act aligned with the constitution should be welcomed to enable land reform to work effectively.

Land reform also needs a capable and proactive state that implements the legal framework in a manner that prioritises expropriation as a mechanism to ensure land reform.

To date expropriation has not been used effectively to redistribute land more equitably as part of land reform.

I am not convinced that the act, in its current form, is the silver bullet to effect large-scale land reform, at least not the type of radical land reform that South Africa Sa urgently needs.

Understandably, the act will have a severe impact on property rights. However, it substantially protects landowners affected by expropriation. Only in very limited cases would they not be compensated.

The act says property must not be expropriated arbitrarily or for a purpose other than a public purpose or in the public interest.

Public purpose means by or for the benefit of the public. For example, expropriating property to build roads, schools and hospitals. Public interest is broader and includes the nation’s commitment to land reform.

“Arbitrary” would usually mean without reason or justification.

The act further requires that an expropriating authority – an organ of state or person empowered by the act or any other legislation – must first try to reach an agreement with the owner to acquire the property on reasonable terms before considering expropriation.

This gives some power to a landowner, even though expropriation does not normally require consent. The act also says a specific expropriation must always be authorised by a law.

Section 12 of the act deals with compensation for expropriation. It is arguably the most controversial part of the new legislation. The section does not appear to be problematic and is largely the same wording as section 25(3) of the constitution. This part of the property clause sets out what must be taken into account when compensation for expropriation is determined.

Section 12(3) of the act refers to “nil compensation”, or when nil rand (monetary) compensation may be paid. There is no explicit reference to nil compensation in the current wording of section 25 of the constitution. It’s a new thing in the Expropriation Act.

However, courts have toyed with the idea that section 25 of the constitution provides room for a reduction in compensation.

The circumstances in which nil compensation could be granted in terms of the new act are very limited. Section 12(3) leaves the discretion to the expropriating authority to determine when it may be just and equitable to pay nil compensation. However, the act lacks guidelines on how such discretion must be exercised.

The scope of Section 12(3) is also limited in some respects. For one, it is restricted to land. Only where land is expropriated would nil compensation be an option. Therefore not all forms of property can be expropriated without compensation. The notion of property under section 25(1) of the constitution is generally wide and includes rights and interests which are broader than only land. For instance, personal rights, mineral rights and licences are included under the section 25(1) notion of property.

This wide understanding of property is not applicable to section 12(3), which refers to “land” being expropriated.

Section 12(3) is also limited to the expropriation of land “in the public interest”. Nil compensation is therefore envisaged only in the context of expropriation of land undertaken in the public interest, and not also for a public purpose.

Three of the four categories listed in section 12(3), where nil compensation is envisaged, are linked to the way in which the property was being used prior to the expropriation. Land used in a productive manner is therefore not evidently envisaged under section 12(3).

Nil compensation is not necessarily limited to the instances listed. However, the amount of compensation must in all instances, be just and equitable.

The act forces South Africans to engage with the idea of nil compensation in a more direct manner.

The presence of a clause dedicated to nil compensation provides new clarity on when this could apply.

It is hard to determine whether the act will pass constitutional muster without seeing how expropriation under it will work in practice. It remains to be seen whether it will have the far-reaching consequences that many fear, or call for.

Zsa-Zsa Temmers Boggenpoel is an academic at Stellenbosch University

This article was first published in The Conversation


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