Time to get real about land reform and expropriation: Martin van Staden

Key topics:Ramaphosa signs Expropriation Act allowing nil compensation for land.Act sparks domestic, US condemnation; strains US–SA relations.Property rights under threat, undermining constitutionalism and economy..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Martin van Staden*.Last week a case-study of mine on expropriation without compensation in South Africa appeared in the 2025 International Property Rights Index. This column is a summary of that study, which can be read in full here.On 23 January 2025, Cyril Ramaphosa assented to the Expropriation Act, a law permitting the state to seize private property without compensation. This legislation, following the failed Constitution Eighteenth Amendment Bill, undermines the protection of private property under section 25 of the Constitution.Its signing ignited a firestorm of domestic controversy and international condemnation, particularly by the United States. It is the straw that broke the camel’s back of US-SA relations, after decades of unprovoked slights by Pretoria.UnconstitutionalityThe Expropriation Act allows for “nil compensation” when property is “expropriated” (in fact confiscated), listing circumstances like unused land held for market value appreciation, or abandoned property. This list is however open-ended, meaning the state could confiscate property without payment in an indefinite range of “public interest” cases.This provision is on its face unconstitutional.Section 25 of the Constitution unequivocally requires the payment of an amount of just and equitable compensation upon expropriation. The very concept of compensation excludes “nil,” as it necessitates a transfer of value to repair the harm of the expropriation done to the owner. To argue that “nil” is an “amount” of “compensation” that could be “paid” is a fundamental abuse of language that is deliberately designed to sidestep constitutional guarantees.No “hunger for land”The Act has been justified on the strength of South Africa’s history of dispossession, exemplified by the Natives Land Act of 1913 and the Group Areas Act of 1950..Read more:.EWC’s gestation – the facts behind the ‘nil compensation’ panic.These laws forcibly removed many, particularly black South Africans, from their homes and properties, as part of the state’s grand project of social engineering.Despite this, research by the South African Institute of Race Relations shows that land reform is a low priority for most South Africans, with only 1% citing it as a key issue in a 2024 survey. There is a much greater desire for socio-economic mobility than for the quasi-Marxist romanticisation of agrarianism.The political elite’s focus on land reform therefore appears more ideological than reflective of public demand.But more than that, it is also more rhetorical than genuine.After all, the state’s land reform budget for 2025/26 is in the region of a mere R5 billion, compared to some R12 billion for the sports, arts, and culture portfolio. To top it off, corruption and waste alone cost the taxpayer R1.5 trillion between 2014 and 2019, which could have funded the market-based compensation expropriations of virtually all desirable rural land in South Africa many times over.Hostility to property is hostility to constitutionalismThe Expropriation Act is not an isolated measure, as many in the discourse have attempted to portray it: “the Act is exceptional and for land reform – it does not mean the Government of National Unity is not committed to investment and business confidence.”Since 1994, however, the government has undermined property rights through laws like the National Water Act, which nationalised water resources, and the Mineral and Petroleum Resources Development Act, which nationalised minerals. The 2015 inaptly so-called “Protection” of Investment Act ended bilateral investment treaties, exposing foreign investors to the same confiscatory risks that South African citizens are subjected to.These policies reflect a hostility to private property ownership per se.When government controls property, it stifles civic organisation at a fundamental level. This is seen, for example, in the Gauteng Provincial Government’s cancellation of an event at Constitution Hill in 2024 because it disagreed with the apparent politics of the event; and the barring of a controversial pastor in East London in 2025 from using a municipal venue. To suppose that state ownership of property will be “neutral” is fanciful: the government will manage its property issues in a political way, picking favourites, winners and losers.This is why, in any constitutional state, property must rightly be overwhelmingly private, and attempts by the state to acquire more for itself actively resisted. Secure property rights are foundational to constitutionalism and democracy, giving substance to citizenship and protecting against political abuse.US-SA relationsThe adoption of the Expropriation Act has strained South Africa’s relations, particularly with the United States.On 2 February 2025, President Donald Trump cut funding to South Africa, rightly citing the Act as a “human rights violation.” An executive order halted aid and opened refugee status for Afrikaners and other racial minorities, correctly perceived as targets of the state-sponsored persecution.In March, US Secretary of State Marco Rubio expelled South Africa’s ambassador, and by June, Congress introduced bills to review bilateral relations and impose sanctions.South Africa’s eligibility for the African Growth and Opportunity Act (AGOA), which requires a market-based economy protecting property rights, is in dire peril.This fallout is compounded by South Africa’s alignment with adversaries like Russia and Iran, distancing it from open and democratic societies.South Africa, long regarded as a mediator for peace, was conspicuously absent in the recent US-led peace process between Israel and the terror group Hamas, because South Africa has openly aligned itself with Hamas, and took the US’s closest ally, Israel, to the International Court of Justice on astonishing trumped-up “genocide” charges.Best practiceIn contrast to the South African government’s posture towards property rights, countries like the United States, Switzerland, and Singapore treat expropriation as a rare tool for social improvement, not punishment. Their laws ensure market-based or above-market compensation, respecting owners as blameless victims.In the US, the Fifth Amendment mandates “just compensation” tied to market value. Singapore’s Land Authority goes out of its way to minimise state acquisitions of private property, and commits itself to being deferential to owners. Swiss law requires full compensation and proportionality.These jurisdictions – two of which are post-colonial states and two of which are severely land-limited, and all of which embody the notion of success – show that compensation is integral to expropriation. This is unlike South Africa’ new approach, which mirrors failed programmes in Zimbabwe and Venezuela, where entire economies collapsed after property confiscation..Read more:.Expropriation Act fallout: SA institutions sound alarm over threats to property rights and economy.Real alternativesSouth Africa can pursue constitutional land reform without undermining property rights.The restitution programme, successful since 1994 to the degree that it has been capacitated, should be expanded with greater funding. Of 64,354 settled claims, 88.2% of claimants chose financial reparation over land, further debunking the “hunger for land” myth. The vast majority of land claims were resolved in favour of the claimants, which by itself furthermore debunks the notion that it is somehow inequitable to expect those ostensibly hungry for land to go to court and prove a case.The state should release its more than 2.5 million hectares of newly-acquired, unused land to deserving civilians.An Expropriation Control Act should replace the Expropriation Act and entrench market-based compensation as the minimum, ensuring owners are restored to their pre-expropriation position.The Institute of Race Relations’ Right to Own Bill could guide a property-respecting framework, while red tape hindering land access should be eliminated.The Expropriation Act threatens economic prosperity, constitutionalism, and South Africa’s global standing. By replacing it with policies that respect property rights, South Africa can address historical injustices, restore investor confidence, and mend ties with the free world..*Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com..This article was first published by Daily Friend and is republished with permission

Time to get real about land reform and expropriation: Martin van Staden

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