Key topics
- SA’s Expropriation Act allows land seizure with ‘nil compensation’.
- Attempts to amend the Constitution for EWC failed in 2021.
- The Act is signed but not yet in effect, pending a set implementation date.
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By Daniela Ellerbeck on behalf of the FW de Klerk Foundation
Introduction:
This article is the first in a series that will explore the Expropriation Act, 2024. It will deal with the history of the notion of “nil compensation” for land expropriation.
On 23 January 2025, the Presidency released a press statement that the President had signed the Expropriation Act, 2024 into law (i.e. “assented to” the Act). The Act allows for the State to expropriate land for “nil compensation” (sections 12(3) and 12(4) of the Act).
History of “nil compensation”:
Change the Constitution:
The attempt to legalise land expropriation for nil compensation (also known as expropriation without compensation or EWC) was first aimed at the Constitution. The Constitution currently states that the amount of the compensation (and its time and manner of payment) must be just and equitable (section 25(3) of the Constitution).
In 2018, the Fifth Parliament created the Joint Constitutional Review Committee (“the First Committee) to investigate whether or not the Constitution should be changed to allow for nil compensation. This First Committee held public hearings to discuss EWC and produced a report, which recommended that:
| “a. Section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without Compensation, as a legitimate option for Land Reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs. b. That Parliament must urgently establish a mechanism to effect the necessary amendment to the relevant part of Section 25 of the Constitution.c. Parliament must table, process and pass a Constitutional Amendment Bill before the end of the 5th Democratic Parliament in order to allow for expropriation without compensation.”. |
In early 2019, before its term ended on 29 March 2019, the Fifth Parliament created the Ad Hoc Committee to Amend Section 25 of the Constitution (“the Second Committee”) as the mechanism. On 13 March 2019, days before the Fifth Parliament would dissolve, the Second Committee produced a report, recommending that the Sixth Parliament deal with the matter.
After the 2019 elections, the Sixth Parliament was sworn in, in May 2019, and soon thereafter established the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution (“the Third Committee”) in July 2019. This Committee too, held public hearings. It also drafted the Constitution Eighteenth Amendment Bill (B18-2021) and introduced this Bill in Parliament on 8 September 2021. The Bill aimed to change the Constitution to explicitly state that where land is expropriated for land reform purposes, the amount of compensation may be nil (clause 1 of the Bill).
However, the Sixth Parliament rejected the Second Reading of the Bill thereby causing the Bill to lapse and, therefore, effectively rejecting it, on 7 December 2021. The Constitution, therefore, still requires just and equitable compensation.
Origins of the Expropriation Act, 2024:
In October 2020, while the Third Committee was busy with its work trying to change the Constitution, the Minister of Public Works and Infrastructure introduced the Expropriation Bill (B23-2020). This Bill provided that “[i]t may be just and equitable for nil compensation to be paid where land is expropriated in the public interest” (clause 12(3) of the Bill).
This Bill made its way through Parliament’s two houses, undergoing public hearings (in 2021 and 2023) and changes. On 27 March 2024, the D-version of the Bill was passed by both Parliament’s houses and sent to the President for assent. On 20 December 2024, the President signed it into law, although the Expropriation Act, 2024 is not yet in operation. It will only come into operation on a date that the President is still to determine and gazette (section 31 of the Act).
Read also:
- FT: Trump vows to stop US assistance to South Africa over land law
- Cyril poked the eye of the bear – Col. Chris Wyatt
- BN Briefing: Trump vows to cut US aid to SA; De Beer on 21 SA ministers & deputy ministers under a cloud; and more
Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation
