CAPE TOWN — The highly anticipated Expropriation Act challenge is set to begin in the Western Cape High Court, where three separate applications will contest the constitutionality of the new land legislation. As the Democratic Alliance (DA), AfriForum, and the Institute of Race Relations (IRR) prepare to argue that the law is unconstitutional on both procedural and substantive grounds, legal experts are stepping in to clarify the stakes. Bulelwa Mabasa, Head of Land Reform and Dispute Resolution at Werksmans Attorneys, provides critical insight into the legal friction surrounding expropriation without compensation and the future of property rights in South Africa.
President Cyril Ramaphosa signed the Expropriation Act into law last year, replacing the outdated 1975 legislation. Mabasa noted that the 1975 Act predated the 1996 Constitution and lacked essential safeguards, such as a landowner’s right to be heard or the right to appeal. While expropriation for public purposes—such as building schools, clinics, or major infrastructure projects like the Gautrain—is a standard government tool used globally, the new Act introduces the controversial concept of expropriation without compensation.
According to Mabasa, the central point of legal friction lies in the Act’s potential to allow the state to extend the circumstances under which property can be taken without compensation. Scenarios cited in the legislation include abandoned buildings in city centers, such as those in Johannesburg, or fallow land. However, applicants argue that phrasing such as “including but not limited to” means the list of circumstances is not finite, potentially expanding state power beyond constitutional limits.
Despite these concerns, Mabasa emphasized that the Constitution’s Section 25(3) already provides guidelines for calculating compensation, factoring in the purpose of the expropriation, market value, and any direct state investment made when the property was acquired. Furthermore, the new Act introduces additional procedural hurdles for the state, including mandatory mediation, arbitration procedures, and the court as the final instance.
“Practically speaking, it is possible,” Mabasa explained, emphasizing that the new law adds more safeguards and hurdles for state departments, not fewer, before land can be expropriated with or without compensation.
The applicants also argue that the Act weakens Section 25 property rights. Mabasa highlighted a crucial constitutional distinction: South Africa does not guarantee a positive “right to property” in the Bill of Rights. Instead, it is framed negatively, guaranteeing citizens the right *not* to be arbitrarily deprived of property. The courts will now grapple with whether the new Act waters down this protective right.
Addressing broader national concerns, Mabasa cautioned against conflating expropriation with land reform, calling it a common misnomer. Expropriation is an administrative power managed by the Minister of Public Works for specific state needs. In contrast, land reform—governed by the Restitution and Redistribution Acts and overseen by the Minister of Land Reform—aims to restore land rights and improve access for those who lost them.
The slow pace of land reform, Mabasa noted, stems from systemic delays and the absence of a comprehensive redistribution act, not the Expropriation Act itself. This sentiment aligns with observations by Advocate Timber, who has previously noted that land reform delays and legislative gaps remain a core issue in the country’s transformation efforts.
Looking ahead, if the Western Cape High Court strikes down specific provisions of the Act, the concept of expropriation will not disappear. Mabasa suggested that while the “without compensation” clauses, or provisions allowing expropriation to proceed during ongoing negotiations, arbitration, or litigation, might be deemed unconstitutional, the broader framework of the Act can still survive. The ultimate outcome will determine whether South Africa moves toward a watered-down version of the law or maintains a balanced, constitutionally sound approach to state acquisition and property rights.
