Key topics:
- Trump’s order halts U.S. aid over South Africa’s Expropriation Act.
- The Act enables property seizure, raising concerns about property rights.
- Ramaphosa defends the law, calling it constitutional and not discriminatory.
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By Dave Steward
On 7 February, President Trump issued an executive order which charged that “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.
“In addition, South Africa has taken aggressive positions towards the United States and its allies, including accusing Israel, not Hamas, of genocide in the International Court of Justice, and reinvigorating its relations with Iran to develop commercial, military, and nuclear arrangements.”
The Executive Order announced that “as long as South Africa continues these unjust and immoral practices that harm our Nation, the United States will not “provide aid or assistance to South Africa” and “will promote the resettlement of Afrikaner refugees escaping government-sponsored race-based discrimination, including racially discriminatory property confiscation”.
In response, President Ramaphosa insisted that there was “no single group that faces persecution or illegal deprivation of their rights as laid out in our Constitution and our Bill of Rights.” The Expropriation Act was not “a confiscation instrument, but a constitutionally mandated legal process that ensures public access to land “in an equitable and just manner as guided by the Constitution”. The Constitution prohibited “the arbitrary deprivation of property” and required “just and equitable compensation be paid in the event of expropriation for a public purpose or in the public interest.”
In this Article I shall deal with the with the first of the US charges – relating to the Expropriation Act – and will address the other two charges in subsequent articles. I shall not deal with the charges relating to South Africa’s hostile international orientation against the United States and it allies – since the South African government has not refuted them.
The Expropriation Act arises from the need to bring outdated expropriation legislation (the Expropriation Act, 1975) into line with Section 25 of the Constitution. However, its focus on expropriation without compensation (EWC) flows directly from the National Democratic Revolution (NDR) ideology of the ruling ANC-SACP-COSATU Alliance (the Alliance) – and more specifically from the ANC’s decision at its National Conference in December 2017 to amend section 25 of the Constitution to make provision for EWC.
In terms of the NDR ideology, the ANC-SACP did not view the solemn agreements included in the 1993 and 1996 constitutions as final and binding. Instead, they saw them only as tactical advances in their march to their respective ideological goals – which in the case of the ANC is “the National Democratic Society” – in which property, jobs and wealth will be allocated on the basis of national demographics – and which, in the case of the SACP/COSATU, is a communist state that would abolish the private property rights of ALL South Africans.
The ANC-SACP has long believed that “a critical element of the program for national emancipation” should be “the elimination of” what it calls “apartheid property relations”. In its 2002 Strategy & Tactics documents it declared that “the central task in the current period is the eradication of the socio-economic legacy of apartheid; and this will remain so for many years to come.” In the ANC-SACP’s view this was a continuing struggle “which, as a matter of historical necessity, will loom ever larger as we proceed along the path of fundamental change.”
In March 2012 the ANC-SACP announced that the time had come for it to take this process to the “second (or economic transformation) phase” of the national transition. In June 2012 President Zuma told the ANC Policy Conference that the balance of forces had shifted sufficiently in South Africa and internationally for the ANC to abandon constitutional compromises it made during the first – or “political” – transition. “We had to make certain compromises in the national interest…. For example, we had to be cautious about restructuring the economy, in order to maintain economic stability and confidence at the time.”
The current iteration of the second phase is “Radical Economic Transformation” (RET) – which is defined as a “fundamental change in the structure, systems, institutions and patterns of ownership, management and control of the economy in favour of all South Africans, especially the poor, the majority of whom are African and female…”
It is impossible to consider the Expropriation Act outside the context of the clear intentions that have regularly been expressed by the ruling Alliance – and more explicitly its officially adopted RET policy. Indeed, it is difficult to see how the ANC-SACP could implement RET without the severe dilution of property rights inherent in the Act and without broad provision for expropriation with compensation that would be nil or substantially below market values.
A significant obstacle in the path of this process has been the property guarantees in section 25 of the 1996 constitution. To overcome this obstacle, the ANC adopted a resolution at its 54th National Conference at NASREC in December 2017 that it should “as a matter of policy, pursue expropriation of land without compensation.”
The Constitution 18th Amendment Bill, which was the result of this process, was defeated in December 2021 when it failed to achieve the two-thirds majority required by the Constitution. It would have included a provision that “a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.’’
Following the failure of the Constitution 18th Amendment Bill, the government introduced legislation to amend the existing Expropriation Act (1975) which resulted in the Expropriation Act 13 of 2024 which was adopted by Parliament on 27 March 2024 and signed into law by President Ramaphosa on 25 January 2025.
It is important to note that the Act deals with the expropriation of all forms of property – and not just land. This is evident from its accentuation of the definition in section 25 that “property is not limited to land” and from several clauses in which the Bill refers to “expropriation of land” as only one of the facets of potential expropriations.
The following provisions are of particular relevance:
- In terms of S. 25 (2) of the Constitution, property may be expropriated only in terms of a law of general application for a “public purpose” or in the “public interest”. According to S. 25(4) the public interest includes the nation’s commitment to land reform, and reforms to bring about equitable access to all South Africa’s natural resources, and property is not limited to land.
- However, the definition of “public interest” cannot be left solely in the hands of the government of the day – particularly now that the ANC has lost its majority and must rely on the support of its GNU partners. Special attention should be given to the impact that the dilution of property rights would have on the core goals and foundational values in the Constitution. These include the quality of life of all citizens, unity in diversity, human dignity, equality, human rights and non-racialism.
- The definition of “public purpose” arouses grave concerns. Although the definition is the same as it was in the 1975 Act, it has traditionally meant expropriation of property required for a public purpose such as the building of a dam, a road or a railway. However, the definition “includes any purposes connected with the administration of any law by an organ of state”. When read within the context of the ANC-SACP’s NDR policy objectives this might be interpreted to include any of the many post-1994 laws relating to transformation – such as The Promotion of Equality and Prohibition of Unfair Discrimination Act whose purposes include ”the eradication of social and economic inequalities” in accordance with section 9(2) of the constitution. This might empower national, provincial and local authorities to expropriate agricultural land for the purposes of land reform; private residences to achieve equitable housing goals; – or privately held shareholdings in companies in pursuit of the government’s goal of imposing demographic representivity in the private sector.
- Expropriation is defined as “the compulsory acquisition of property by an expropriating authority or an organ of state upon the request to an expropriating authority” means that property would have to be acquired by an organ of state. This creates concerns that should the state deprive owners of property as the custodian of such property – or as a result of regulatory provisions – expropriation would not have taken place and compensation would therefore not be payable. Thus, in 2013, in AgriSA v the Minister of Minerals and Energy no compensation was paid for assets that were taken over by the state as custodian.
- The inclusion of the words “including but not limited to” in the list of the circumstances under which nil compensation may be paid makes nonsense of the entire clause.
- The circumstances in clause 12(3) in which nil compensation may be paid – including “where 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 an appreciation in its market value” is open to almost any interpretation and requires much closer definition. The application of the same principle to other assets such as shares would, in effect, destroy the stock market and the generation of investment based on the legitimate expectation of appreciation in the market value of shares and assets.
- The payment of nil compensation for land “where an owner has abandoned the land by failing to exercise control over it” – might result in serious injustice in circumstances where the owner has been forced from his property by land invasions or building hijackers.
- In terms of the timetable set out in the Bill, expropriated property could be transferred to the expropriating authority long before a court has reached a decision on equitable compensation. In terms of clause 17(4) the expropriating authority may apply to a court to have the compensation paid at a date after transfer of possession. This might create an untenable and inequitable situation for property holders, particularly if they depend on the expropriated property for income and because of the heavy legal expenses that they would have to pay to challenge the valuation of their property.
Conclusion
The contention in the Executive Order that the Expropriation Act “will enable the government of South Africa to seize ethnic minority Afrikaners’ agricultural property without compensation” is essentially correct – in as far as it will create broad and unlimited situations in which nil compensation – or compensation substantially below market value – could be paid for expropriated property. However, the Act does not target Afrikaners specifically and would affect the property rights of all South Africans. Also, it might enable the government to expropriate not only agricultural property – but any property – with the payment of nil compensation.
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