FMF: Repeal Expropriation Act, pursue real land reform

Key topics:

• FMF urges repeal of 2024 Expropriation Act, calling it unconstitutional.

• Secure private property rights vital for just, prosperous land reform.

• Proposes a new Expropriation Control Act with fair compensation and limits.

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Issued by the Free Market Foundation

The Free Market Foundation (FMF) has called upon Parliament to repeal the Expropriation Act of 2024 and set about introducing a just and equitable land reform programme that adheres to the text and spirit of the Constitution.

The FMF launched its report, “Constitutional Land Reform: Alternatives to Confiscation and Land Retribution,” at a press briefing on Wednesday, 6 August 2025. It forms part of the FMF’s broader Liberty First initiative.

FMF Head of Policy, Martin van Staden, author of the report, explained that the Expropriation Act is not only dangerous and unconstitutional, but cannot achieve any land reform gains.

Expropriation Act

“Expropriation law is the institutional arrangement that circumscribes when and how the state may take property non-consensually, in an effort to safeguard – as a matter of public interest – the interests of property owners against potential abuse,” says Van Staden. “The Expropriation Act flips the script on its head.”

As a result, Van Staden emphasises that the Expropriation Act is not strictly a law of expropriation as contemplated by the Constitution, but a law enabling confiscation, which the Constitution prohibits.

It is on this and other bases that the FMF is joining litigation to have the Act declared unconstitutional.

“But more than that: While the Act is portrayed as necessary to bring about justice and land reform, it is not a land reform statute,” adds Van Staden. “It deals exclusively with bestowing new – again, unconstitutional – powers upon the state. It imposes few substantive obligations, and not one of these few includes the pursuance of land reform.”

Constitutional land reform

The report explains that secure private property rights are a necessary ingredient to an economically prosperous, and politically free, society.

“After all, it is precisely because the former minority regime denied private property to the majority of South Africans across the majority of the country, that they became not only destitute, but unfree and subject to the whims of petty state officials,” explains Van Staden. “That the democratic government has chosen to oppose the strict constitutional guarantee of secure property is condemnable.”

Section 25 of the Constitution comprehensively balances security of property, the desirability of expanded private ownership, and the imperative of restorative justice.

“These three interweaving dimensions of section 25 are not inherently in tension with one another, despite the best efforts of political actors to pretend that land reform is only possible on the back of disastrous policies like expropriation without compensation or even outright nationalisation,” says Van Staden.

Expropriation control

The most important short-term recommendation is that the current Expropriation Act must be replaced with an Expropriation Control Act, which normalises expropriation law in South Africa and brings it in line with other open and democratic societies.

“There are two key features of a good Expropriation Control Act,” says Van Staden. “The first is that there must be a high degree of respect and deference by the state in favour of the property owner being expropriated. Remember, these people have not been found guilty of a crime or a delict – they are innocent victims of state policy. Expropriation law around the world bears this out.”

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“The second is that market value compensation is as close to a sacrosanct principle of expropriation as one can find among free and prosperous countries,” Van Staden continues. “This is simply not debatable: investors and citizens require nothing less than an absolute guarantee that if the state requires their property for some legitimate reason, they will not be wiped out in the process and will be compensated fully.”

Constructive alternatives

The report sets out multiple constitutionally permissible avenues of substantive land reform that can be undertaken without jeopardising South Africa’s economic future. These include:

• Reducing the red tape and compliance costs that are associated with property acquisition and transfer, which are prohibitive to the poor.

• Eliminating extractive measures like capital gains taxes, and capping municipal property rates, both of which have the state profiting off of South Africa’s quest to become a property-owning society. Many potential beneficiaries of land restitution claims likely choose financial compensation instead, having been advised that property taxes will categorically exceed their ability to pay if they take the land.

• Adopting housing vouchers as advocated by the South African Institute of Race Relations.

• Undertaking a comprehensive audit of all (municipal, provincial, and national) state fixed property with a view to transferring most of it, in full ownership title, to those lawfully living and/or working on the property.

• Strengthening the 1994 Restitution of Land Rights Act by eliminating claims periods and increasing the annual restitution budget. The principle that once restituted, a piece of land falls out of future consideration for any land reform programme, should also be introduced.

• Undoing the past three decades’ nationalisations of natural resources – such as water, minerals, and petroleum – and restoring private ownership (whether in the form of individual or community title).

• Moving away from “communal ownership” as a proxy for state ownership, and ensuring that measures like the 2017 Communal Land Tenure Bill instead bestow unambiguous private ownership of property upon community formations without backdoors that enable state rent-seeking.

“It is clear that there are desirable and beneficial ways to undertake equitable land reform without doing harm to the non-negotiable property rights that make a free and flourishing society possible,” concludes Van Staden. “The Expropriation Act of 2024 was by no means inevitable, nor does it represent the best version of a law conducive for land reform or reparation.”

Click here to read the full report.

Click here to view the press briefing of Wednesday, 6 August 2025.