The Expropriation Act and Land Reform: Ensuring human rights in South Africa

AS South Africa commemorates Human Rights Month, the nation’s land reform programme has once again taken centre stage in the broader human rights discourse.

Peter Setou, chief executive of the Vumelana Advisory Fund, this week emphasised that land ownership, access, and productive use were not merely economic issues but fundamental to the fulfilment of human rights.

In a hard-hitting statement, Setou said the right to land extended far beyond mere ownership. “It includes the ability to productively utilise land to improve the livelihoods of people,” he said.

A persistent challenge in South Africa’s land reform process has been the underutilisation of the restituted land. To address this, Setou called for thorough assessments before land claims were finalised, alongside robust plans for land use and community support to ensure long-term viability and sustainability.

The enactment of the Expropriation Act of 2024 by President Cyril Ramaphosa earlier this year has further intensified the debate around land reform. The new legislation, which replaces the apartheid-era Expropriation Act of 1975, provides a legal framework for the government to expropriate private property for public purposes or in the public interest.

While the Act generally mandates fair compensation, it also allows for instances where no compensation may be paid, provided it is deemed just and reasonable.

Setou acknowledged the contentious nature of the legislation, stating: “While there is consensus on the need to undertake a land reform programme to rectify the racially skewed land ownership patterns resulting from centuries of colonialism and decades of apartheid, there is a sharp divergence of opinion on the appropriate approach to land reform. Of importance is to ensure that the land reform process does not further compromise human rights, but that it reinforces and restores dignity.”

He further said: “The constitutionality of the Expropriation Act, in particular the provisions dealing with expropriation with nil compensation, is yet to pass constitutional muster in the country’s courts after several parties vowed to institute litigation.”

The issue has created a polarised environment. On one hand, thousands of communities that were forcibly removed from their ancestral land are still awaiting restorative justice as their land claims remain unresolved. On the other hand, numerous property owners fear that the operationalisation of the Expropriation Act—particularly the provision for zero compensation—could infringe on their property rights.

“There is therefore a need to strike a delicate balance between the aspirations and hopes of the indigenous communities that are waiting for their claims to be settled and the fears of property owners who are anxious about possible arbitrary expropriation,” Setou said.

The recent tensions between South Africa and the United States have thrust the Expropriation Act into the global spotlight after US President Donald Trump, earlier this year, took to social media, claiming that South Africa was “confiscating land, and treating certain classes of people very badly”.

Trump further claimed that the act enabled the South African government to seize ethnic minority Afrikaners’ agricultural property without compensation. Trump’s statements were accompanied by an executive order halting US aid to South Africa.

But what is the truth behind the Expropriation Act, and does it justify the claims made by Trump? Africa Check, a leading fact-checking organisation, has delved into the details to separate fact from fiction.

Fact-checking the Expropriation Act

Expropriation is not a new concept, nor is it unique to South Africa. Thomas Karberg, an associate at Werksmans Attorneys, was quoted by Africa Check as saying: “The expropriation of land is not a new phenomenon, nor is it specific to South Africa. Land can be expropriated to build roads, government-funded facilities, and so forth.”

In other countries, expropriation is referred to as eminent domain or compulsory purchase. These terms all describe a government’s power to acquire private land for public use, typically accompanied by monetary compensation.

The primary purpose of the Expropriation Act is to allow the South African government to acquire private property for public use or in the public interest, with compensation determined as “just and equitable” rather than based solely on market value. Importantly, the act also permits expropriation without compensation in exceptional cases.

Karberg said: “The 1975 Act used the concept of ‘willing buyer, willing seller’, which meant that the government had to pay the market value of the property it was expropriating.” However, this approach created legal tension with Section 25(3) of the country’s Constitution, which requires compensation to be just and equitable, balancing the public interest and the interests of affected property owners.

“There was legal tension between the 1975 Act and the Constitution, and since the Constitution is the highest law in the land, the Act had to be updated to resolve that tension,” Karberg said.

Section 12(3) of the 2024 Act outlines specific circumstances where expropriation without compensation may occur. These include:

• Ensuring fair access to natural resources, such as land or water
• Land that is unused and held solely for speculative purposes
• Government-owned land that is not being used for its core functions and was obtained at no cost
• Land that has been abandoned and is not being managed by the owner.

Karberg further said that expropriation without compensation was reserved for exceptional cases and was not a blanket policy.

Contrary to claims of widespread land confiscation, the Expropriation Act follows the rule of law. Karberg explained that expropriations would involve a formal legal process and would include adequate notice periods and opportunities for property owners to challenge the expropriation or the compensation on the table. “Compensation will either be agreed upon by the state and owner(s) or decided by a court,” he said.

Land restitution, or “land claims”, aims to address historical injustices stemming from the 1913 Natives’ Land Act, which restricted black South Africans to owning or renting land within designated native reserves. These reserves initially comprised only 7% (later expanded to 13%) of the country’s total land area.

Karberg said: “Expropriations in the context of land restitution have been part of our law since 1996. However, expropriations in land claims are reserved for exceptional cases.”

Land claims must follow a legal process overseen by the Land Court, with decisions subject to appeal at the Supreme Court of Appeal or the Constitutional Court.

Karberg further said that land restitution was only one component of the country’s broader land reform programme. “The act clearly indicates that it is not intended to be used to legitimise wide-scale 'land grabs' or confiscation of land,” he said, warning that “false narratives” surrounding the act were “very dangerous”.

Setou argued that land reform was not just about redistributing land but about restoring dignity, security, and driving social and economic development. He pointed out that the United Nations had recognised the critical role of land ownership in sustainable economic growth by including it in the eight targets and 12 indicators of the Sustainable Development Goals.

To achieve this, Setou stressed the importance of strengthening land tenure rights, particularly for those living on communal land. “Secure land tenure will not only empower individuals by allowing them to use land as collateral but also attract private-sector partnerships to enable communities to participate in local economic development.”

As South Africa forges ahead with its land reform agenda, Setou urged policymakers to ensure that implementation strategies uphold human rights, promote inclusive economic participation, and foster the development of communities across the country.

“Land reform remains an essential element for the realisation of many human rights,” he said. “It is crucial that we get it right, not just for the present generation but for future generations as well.”

The Expropriation Act, while contentious, remains a legally grounded step toward addressing historical inequalities and promoting equitable access to land. Misinformation and sensational claims, such as those made by Trump, risk overshadowing the nuanced and necessary conversations around land reform in South Africa.

For now, the focus needs to remain on ensuring that the Act is implemented in a manner that balances public interest with the rights of property owners, while advancing the broader goals of justice and development.