SOUTH AFRICA’S EXPROPRIATION ACT By: Olivia Ugboaja

INTRODUCTION

Expropriation is the governmental seizure of property or a change to the existing private property right, usually for public benefit. This idea is neither unique nor new to the South African government.[1] The right to expropriate is enshrined under section 25 of the Constitution. [2] Over the years, the South African government has used this as a means to empower organs of the state to expropriate property for public purpose. [3]

In colonial times, the black majority faced oppression in many ways, this included the distribution of land, which was largely unfair towards the black South Africans.[4] Decades after the apartheid, the harsh effects are continuously being felt by the black people of South Africa, while the white population still reap the benefits, owning majority of the farmland.[5] The incumbent government intends The Expropriation Act No. 13 of 2024 (“Expropriation Act“) as a means to right some of these wrong, saying it is essentially aimed at addressing the disparities created by decades of apartheid and white minority rule in South Africa that was ended in 1994.[6]  Deputy Public Works and Infrastructure Minister Sihle Zikalala stated "this is a culmination of the long history of struggle waged by the forbearers against the dispossession of the majority of Black people through the 1913 Land Act and the notorious Group Areas Act,”[7]  However, opposition has come from many groups, including the U.S. government, who have threatened the South African government.[8]

ABOUT THE EXPROPRIATION ACT

A parliament process began in 2020 which in 2024 led to President Cyril Ramaphosa signing the Expropriation Bill into law on 23 January 2025. [9] The Expropriation Act repeals the Expropriation Act of 63 of 1975, which permitted the acquisition of property solely for public purpose.[10]  The 1975 Act, failed to effectively redistribute land in a manner that compensated for the ills suffered by the black South Africans.[11]  

The goals of the Expropriation Act include to, establish provisions for the expropriation of property for public purposes or in the public interest; set out procedures for property expropriation, ensuring just and equitable compensation; and define circumstances in which nil compensation may be deemed just and equitable for expropriation in the public interest.[12] This Expropriation Act will protect land owners rights, unlike the opposition may claim.[13]

The Expropriation Act states clearly that, land must not be arbitrarily expropriated, that is without reason or justification.[14] Instead, it must be for purposes that are either aligned with a public purpose or within a public interest. Public purpose is defined as to include “…any purposes connected with the administration of the provisions of any law by any organ of state, in terms of which the property concerned will be used by or for the benefit of the public”.[15] Some examples of public purpose include building of schools, roads, or public nature reserve. Public interest was introduced under §25 of the South African Constitution, but the Expropriation Act extends the definition to read, “public interest includes the nation’s commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources.”[16]

Compensation is intricately linked to Expropriation. The 1975 Act mandated compensation based on market value, commonly known as "willing buyer, willing seller" compensation, which was slow and burdensome.[17]The new Expropriation Act sets out provisions for “just and equitable” compensation, it aligns itself with the Constitution.[18] When determining just and equitable compensation, consideration must be given to factors such as the property's current use, its acquisition history, any improvements made, any State investment in the property, and the purpose of the expropriation.[19] The Expropriation Act introduces the concept of Expropriation Without compensation (EWC), where in some rare cases it may be possible to reach a nil compensation.[20] This is applicable only to land right and where land is being expropriated for public interest, not public purpose.[21] Expropriation Act §12(3) outlines four situations where it may be just and equitable for EWC to apply,  when land is held for speculative purposes and remains unused by the owner; when the land is owned by a state entity that does not use it for its core functions, is unlikely to need it for future activities, and originally acquired it without consideration; when the owner has abandoned the land by failing to exercise control over it despite having the means to do so; and when the market value of the land is equal to or less than the present value of direct state investment or subsidies used for its acquisition and capital improvements.[22]

Some legal professionals in South Africa opined that the Expropriation Act in some capacity “will impact expropriations for land reform and will make compensation more affordable for the state.”[23] However, they do not view it as a means to answer all their land reform issues.[24] 

OPPOSITION TO THE EXPROPRIATION ACT

 The new act has raised concerns across groups in South Africa, especially the Afrikaners,[25] South Africans of European descent.[26] Critics contend that the bill does not specifically prioritize land redistribution for historically disadvantaged communities. Rural Development and Land Reform Minister Mzwanele Nyhontso stated, "This bill has little to do with land reform," emphasizing that its main purpose is to enable the government to expropriate land for public use rather than directly redistribute it to marginalized communities.[27]

The Democratic Alliance (DA), South Africa’s most popular white led political party along with Minister of Public Works and Infrastructure, Dean Macpherson who has the power to expropriate, have said that the law is unconstitutional.[28] They argue that in a democratic country, government should not be given the authority to expropriate property without compensation.[29] The DA challenges the Expropriation Act on substantive and procedural grounds, asking that the court nullify it.[30] Arguing that it did not align with constitutional requirements; five of the seven provinces that supported the Act in the National Council of Provinces did so without securing a provincial mandate as required by law and regulations; and it contains vague and contradictory provisions, making it unconstitutional.[31]

President Donald Trump has made public opposition to the Expropriation Act, threatening to cut all funding to South Africa over “massive human rights violation.”[32]  On February 8, President Trump signed an executive order making good on his threats to seize financial assistance to the South African government.[33] This will result in millions of dollars being withheld, this will most certainly leave a dent in the South African health sector.[34] Additionally the order provides refugee status in the United States to privileged white people in South Africa, and requiring that South Africa shift their position regarding expropriation before these funds will be released.[35]

While President Trump has the right to withhold funds from South Africa, he does not have the right to interfere with another State’s democratic system, especially when the United States have similar expropriation laws under the Fifth Amendment.[36]

CONCLUSION

From all indications, the Expropriation Act is not unconstitutional nor is it intended to attack Afrikaners. Instead, it finds powers from §25 of the Constitution and gives the court the final say, as a form of check and balance.[37]  The Expropriation Act is a gradual attempt to right the decades of wrongs, which the black people of South Africa are still living with and recovering from. It is a necessary means to restore economic opportunities to the black people of South Africa.[38]

[1] The Expropriation Act 13 of 2024, CMS, (Feb. 2, 2025), https://cms-lawnow.com/en/ealerts/2025/02/the-expropriation-act-13-of-2024.

[2] Property rights (section 25), CCAC, https://ccac.concourttrust.org.za/constitutional-links/property-rights-section-25 (last visited Feb. 17, 2025).

[3] The Expropriation Act 13 of 2024, supra note 1.

[4] Ilayda Cakirtekin, FACTBOX – What is South Africa’s land law that triggered Trump’s threats?, AA, https://www.aa.com.tr/en/africa/factbox-what-is-south-africa-s-land-law-that-triggered-trump-s-threats/3470475, (last visited Feb. 17, 2025).

[5] Id.   

[6] Id.  

[7] Id.  

[8] Id.  

[9] Expropriation Act: Deconstructed and Demystified, WERKSMANS,

https://www.werksmans.com/legal-updates-and-opinions/expropriation-act-deconstructed-and-demystified/, (last visited Feb. 17, 2025).

[10] Id.  

[11] The Expropriation Act 13 of 2024, supra note 1.

[12] Id.  

[13] Id.  

[14] Id.  

[15] Assessing key aspects of the new Expropriation Act, FASKEN, Jan. 29, 2025, https://www.fasken.com/en/knowledge/2025/01/assessing-key-aspects-of-the-new-expropriation-act#:~:text=For%20what%20purpose%20may%20expropriation%20be%20done?,-Expropriation%20can%20essentially&text=%E2%80%9Cpublic%20purpose%E2%80%9D%20is%20defined%20as,the%20benefit%20of%20the%20public%E2%80%9D..

[16] Id.

[17] Lindani Zungu, Trump’s fear mongering on South Africa’s land reform exposes his hypocrisy, ALJAZEERA, (Feb. 7, 2025),https://www.aljazeera.com/opinions/2025/2/7/trumps-fear-mongering-on-south-africas-land-reform-exposes-his-hypocrisy.

[18] Expropriation Act: Deconstructed and Demystified, supra note 9.

[19] Id.  

[20] Id.  

[21] Id.  

[22] Id.  

[23] Id.  

[24] Id.  

[25] Gerald Imray, The South African land law that prompted a Trump executive order is being challenged in court, AP, https://apnews.com/article/trump-south-africa-afrikaner-white-farmers-7930f26fbac90468d26053c1b99a789f, (last updated Feb. 10, 2025).

[26] https://www.britannica.com/topic/Afrikaner

[27] FACTBOX – What is South Africa’s land law that triggered Trump’s threats?, supra note 4.

[28] The South African land law that prompted a Trump executive order is being challenged in court, supra note 25.

[29] Helen Zille, DA’s court challenge against Expropriation Act begins, DA, (Feb. 10, 2025), https://www.da.org.za/2025/02/das-court-challenge-against-expropriation-act-begins.

[30] Id.  

[31] Id. 

[32] FACTBOX – What is South Africa’s land law that triggered Trump’s threats?, supra note 4.

[33] Kanishka Singh & Steve Holland, Trump signs order to cut funding for South Africa, REUTERS, (Feb. 8, 2025),https://www.reuters.com/world/us/trump-signs-executive-order-aimed-south-africa-white-house-official-says-2025-02-07/.

[34] Gerald Imray, Why is Trump punishing South Africa and who are the Afrikaners he wants to give refugee status to?, AP (Feb. 8, 2025), https://apnews.com/article/south-africa-trump-musk-afrikaners-0f58dfe1651671d30fcbe16d00c3d99c.

[35] Id.

[36] Trump’s fear mongering on South Africa’s land reform exposes his hypocrisy, supra note 17.

[37] Assessing key aspects of the new Expropriation Act, supra note 15.

[38] Trump’s fear mongering on South Africa’s land reform exposes his hypocrisy, supra note 17.