Expropriation Act – neither harmful nor helpful
Despite the public debate, the concept of expropriation is neither new nor dangerous. In fact, it is necessary for a functional state, based on the rule of law and the principle of constitutionalism. Old regimes, including the Union of South Africa and the apartheid regimes, had expropriation laws to empower and enable the state in the execution of basic elements of governance. In its essence, the power of expropriation, which vests exclusively in the state, is designed to enable the state to acquire property from private hands in order to fulfil its public mandate.
Our expropriation laws are no different. And have never been.
So what is the talking about, then?
The Expropriation Act of 2025 intends to repeal and replace the 1975 Act of the same designation. The 2025 Act differs from its predecessor in at least two important respects, namely that expropriation may be undertaken in the public interest and for public purposes. The term public interest is a constitutional term, which is intended to include the goal of land reform to redress the apartheid and colonial land patterns. The second aspect is that the 2025 Act introduces a novel concept of compensation for the owner of property, not based on "willing seller, willing buyer" but on “justice and equity”, terms which are slippery and have never been capable of precise legal or economic definition, despite many attempts at attaining precision.
What will happen in practice? Expropriation takes place in two stages. Stage one is the actual expropriation, in which the state notifies the owner of its intention to acquire his property, the reasons for doing so, and the amount it proposes. An owner has the right to object, including the right to approach a court for judicial review of the decision to expropriate. Crucially, such decisions are also subject to judicial control under administrative law.
Stage two is the determination of compensation. Unlike the first stage, here the final decision on the amount of compensation can be made only by a court, not by the government. The Act permits compensation at below market value, including nil compensation, a subject which has generated much controversy and debate. In fact, the Act contains stringent safeguards in its framework, ensuring not only procedural fairness, but also the active participation of an affected owner in each instance, and final arbitration by a judge.
The latter point – judicially determined compensation – is vital in South Africa, whose judiciary is renowned for its independence and competence.
A last word: This is not an Act to solve the crisis of landlessness. It does not pretend to be. Nor is this Act intended to abolish private property rights as such. Those who say so are being mischievous. For property rights holders, nothing dangerous will come of it. For the landless, their aspirations have been deferred. Perhaps once again.
Tembeka Ngcukaitobi is the author of Land matters: South Africa's failed land reforms and the road ahead.
See also:
On land, constitutional law and social justice | Etienne van Heerden Veldsoirée 2023
Kommentaar
The Act strengthens the legal principle of private ownership. Stupid of ANC to think that they can irrationally just apply it. It is going nowhere. Another ANC ploy to gain votes.