The Expropriation of Land Act 13 of 2024
News media has been abuzz after the unexpected signing into law by President Cyril Ramaphosa of the Expropriation Act 13 of 2024 (the “Act”) on 23 January 2025.
Most newsworthy has been the United State’s reaction to the Act - on the 7th of February an Executive Order was signed and published on the White Houses’ website setting out inter alia as follows –
“Section 1. Purpose. In shocking disregard of its citizens’ rights, the Republic of South Africa (South Africa) recently enacted Expropriation Act 13 of 2024 (Act), to enable the government of South Africa to seize ethnic minority Afrikaners’ agricultural property without compensation. This Act follows countless government policies designed to dismantle equal opportunity in employment, education, and business, and hateful rhetoric and government actions fueling disproportionate violence against racially disfavored landowners. The United States cannot support the government of South Africa’s commission of rights violations in its country or its ‘undermining United States foreign policy, which poses national security threats to our Nation, our allies, our African partners, and our interests.
Sec. 2. Policy. It is the policy of the United States that, as long as South Africa continues these unjust and immoral practices that harm our Nation:
a) the United States shall not provide aid or assistance to South Africa; and
b) the United States shall promote the resettlement of Afrikaner refugees escaping government-sponsored race-based discrimination, including racially discriminatory property confiscation.”
This has sparked discontent, turmoil, and confusion within the borders of South Africa’s political landscape causing the second largest political party and party to the Government of National Unity (GNU), the Democratic Alliance (the “DA”) to file papers, electronically, in the Western Cape High Court on Friday 7 February 2025. The DA submits that it has been unequivocal about the Act, stating that –
“We reject this Act, because we believe that no government in a democratic country should be given such sweeping powers to expropriate property without compensation.
We have not forgotten that the apartheid government used similar powers to forcibly remove communities from their land, often with inadequate compensation or none at all. This history teaches us that true redress requires protecting property rights, ensuring that no government is ever given unchecked expropriation powers ever again.”
And while – at least on the face of it – it appears as if South African’s have every reason to be concerned, this couldn’t be further from the truth. For what it’s worth expropriation without compensation very rarely, if ever, happens. In addition, the Act would still need to be consistent with our Constitution, most importantly Section 25 of our Constitution.
But we’re getting a little ahead of ourselves.
Let’s go through this section by section.
First, some history.
The Eminent Domain Doctrine
We begin our foray into the annals of history with Hugo Grotius, popularly regarded as the founding “father” of international law. Grotius was also legal adviser to the Dutch East India Company (the VOC), during the Dutch empires’ “ascendancy” which was shaped by its encounters with native populations in Southern Africa (particularly the Cape), Africa, and Asia.
Grotius was not merely an apologist for Dutch colonialism, but its foremost theorist, interlocutor and spokesman. And he justified the taking of land from the indigenous people within Southern Africa, Africa and Asia by the introduction of the notion of “eminent domain” into the vocabulary of European colonisation.
“The property of the subject”, Grotius wrote in 1625, is under the “eminent domain of the state”. Which meant (theoretically but also in practice that) the state is entitled to use the property of a subject of the state “for ends of public utility”. We can only assume that those who founded “civil society” intended that private ends must yield to public ends. The caveat being that when this happens “the state is bound to make good the loss to those who lose their property”.
But compensation never ensued following the taking of the land.
The legal doctrine as it was written stands to this day and is entrenched into the fabric of the legal systems which follow the English tradition. America continues to apply the doctrine of eminent domain, ensuring that public policy can override private interest.
Today, it comes in different guises, including the concept of expropriation. And what we can tell from the concept of expropriation is that it’s intrinsically linked to compensation.
What Does the Farming Community Say?
With Trump hellbent on protecting the “ethnic minority Afrikaners’ agricultural property” being expropriated without compensation, it may be a clever idea to look to AgriSA to de-escalate any tensions that may arise because of the United States’ Executive Order and seizing of funds to South Africa.
Johann Kotzé CEO of AgriSA writes that –
“no seizures or confiscations of private property have taken place. Nor has any land been expropriated without compensation. Isolated cases of land grabs and trespassing have been dealt with. Additionally, rumours linking farm murders to the signing of the Act are baseless and irresponsible. Farmers remain productive and committed to their operations.”
In addition, AgriSA has been actively involved in legislative developments impacting the agricultural sector. When amendments to the Expropriation Act No. 63 of 1975 were first proposed in the early 2000s to align it with the 1996 Constitution, AgriSA played a key role in discussions. Before the recent signing of the Bill, AgriSA actively participated in NEDLAC and parliamentary processes from 2013 to 2020, including contributing to the 2015 Expropriation Bill, which laid the groundwork for the current legislation.
From the outset, AgriSA acknowledged that expropriation in the public interest is a necessary function of any government. Internationally, expropriation in the public interest is an accepted principle, provided it’s constitutionally and legally sound and at a price that is fair and reasonable. AgriSA not the importance of Section 25 of the Constitution, which has not been amended. Importantly, Section 25 requires that compensation be just and equitable, ensuring a fair balance between the public interest and the rights of affected property owners.
Despite political uncertainty, AgriSA confirms that farmers remain committed to farming, they will continue producing food, supporting rural economies, and driving agricultural growth.
What Does the Constitution Say?
Section 25 of the Constitution contains the pillars for the transformation of property –
· Section 25(2) empowers the state to expropriate property for public purposes and in the public interest – under the old Expropriation Act of 1975 (the “1975 Act”) expropriation was permitted only if it was for public purposes. This was not in line with the Constitution. The difference between purpose and interest is the reason for the expropriation. Where the State acquires property for its own use, that’s regarded as public purpose. Where the State acquires the property for the ownership and benefit of a wider group of persons which go beyond the State’s own use, that’ll be regarded as a public interest expropriation. The Constitution says that public interest includes the nation’s commitment to land reform and to reforms to bring about equitable access to all of South Africa’s natural resources. The inclusion in the Act of the acquisition by the State of land not only for a public purpose, but also in the public interest mirrors the Constitutional property clause, which defines the public interest as including the nation’s commitment to land reform of property. This means that the Act aligns with section 25 of the Constitution.
· Section 25(3) deals with just and equitable compensation - although the Act explicitly allows for R nil compensation in certain circumstances, this doesn’t mean expropriation without compensation is inevitable. Section 12 of the 1975 Act provided that an expropriated person is entitled to the amount “which the property would have realised if sold … in the open market by a willing seller to a willing buyer” and “an amount to make good any actual financial loss caused by the expropriation.” The Act however has adopted the formula of just and equitable in the determination of compensation, and has discarded the willing seller, willing buyer formula drawn from the 1975 Act. The requirement that payment of compensation must be just and equitable means that there’s no abstract determination of compensation, but rather a meticulous task must be performed in each instance, and with every property to determine what is just and equitable.
· Section 25(4) explains that property is not limited to land. Overall, Section 25(4) doesn’t provide for the unqualified right to hold private property, although judicial authority holds that such a right is implicit in the structure of the section.
Don’t Confuse Land Reform with the Expropriation Act
The Act must not be confused with land reform legislation. They are two distinct pieces of legislation.
The Act does not introduce new expropriation powers, nor does it replace existing land reform policies. The legal framework for land reform, including the Land Reform (Labour Tenants) Act, the Extension of Security of Tenure Act, the Restitution of Land Rights Act, and the Provision of Land and Assistance Act, remain unchanged.
The main and overarching concern with the Act is the expropriation without compensation (EWC). Although we have – admittedly – set out above that EWC may happen in certain circumstances, there are a few caveats that must be noted in this regard. The first is EWC applies only to land, as opposed to other forms of property, i.e. real rights such as mining rights, limited real rights, intellectual property, and movable property. The Act doesn’t contain a special definition for ‘land’ but the Constitution at Section 25(4) states that “property is not limited to land”.
EWC applies only where land is expropriated in the public interest (ownership and benefit of a wider group of persons) as opposed to for a public purpose (for States own use). This suggests that EWC will be mainly to expropriate land for land reform purposes. In this context, the only conceivable form of property that can be expropriated without compensation is land and not real rights or limited real rights attached thereto, such as mining rights or water use licences.
Section 12(3), of the Act provides some guidance insofar as EWC is concerned. It lists four circumstances in which it may be just and equitable for EWC –
“(3) It may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited to -
a) where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from appreciation of its market value;
b) where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;
c) notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), where an owner has abandoned the land by failing to exercise control over it despite being reasonably capable of doing so;
d) where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land.”
These are very particular circumstances that may justify EWC, but they must be considered in light of all relevant circumstances. This would no doubt include the factors as set out in Section 25 of the Constitution (highlighted above). And, as we have set out above, be limited – in most situations – to land only.
While the Act was signed on the 25th of January 2025, Section 31 of the Act states that “This Act is called the Expropriation Act, 2024, and comes into operation on a date determined by the President by proclamation in the Gazette”.
As at the date of writing this article, the Act has not – as yet - come into operation.
While there is much debate about the Act locally and around the world – particularly it seems in the United States - land reform has, since the end of Apartheid, been an issue that sought redress. Until now, any reformation in the context of land redistribution hasn’t seen the light of day. And that matter has recently become more and more urgent. We are therefore of the opinion that an Expropriation Act that is aligned with the Constitution should be welcomed, especially if it will enable land reform to work effectively.
Although we have taken the utmost care to ensure that this information is correct, we urge you to consult with a suitably qualified legal practitioner who will be able to answer any questions you may have on the Expropriation Act. In this regard, we would be more than happy to support you. Please feel free to contact us to see how we can best assist.
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(Sources used and to whom we give thanks – Daily Maverick here, here and here; News24; BBC; Democratic Alliance; SabiNet; The Conversation; The White House; AgriSA and Werksmans).
