Understanding South Africa’s New Expropriation Act: Key Changes and Implications

President Cyril Ramaphosa has signed the Expropriation Act into law, enabling land expropriation without compensation under specific circumstances. The Act replaces the 1975 Expropriation Act, introducing mechanisms for administrative justice and negotiated expropriation processes. While compensation remains the norm, it may be set at nil in cases where land is unused or held for speculative purposes. The legislation aims to clarify and regulate land expropriation, addressing historical injustices while ensuring fairness in most cases.

Key Features of the New Expropriation Act

The head of land reform and a member of the President’s land reform advisory panel, explains the core aspects of the law.

• The previous 1975 Act lacked administrative justice mechanisms, whereas the new legislation promotes negotiated processes and fair expropriation.
• The state must notify landowners before expropriation, and they have the right to contest the decision.
• Compensation is determined through negotiation, with the landowner proposing an initial amount.
• Land may be expropriated without compensation under specific conditions, such as abandonment or speculative holding.
• State-owned entities holding land not used for core functions may also be subject to expropriation without compensation.

Compensation and Market Value Considerations

• The Act upholds “just and equitable” compensation as a guiding principle.
• Compensation-free expropriation applies only in limited circumstances, with productive land and occupied properties generally protected.
• Factors influencing compensation include the purpose of expropriation, market value, and prior investments on the land.

• The issue remains highly political, with concerns about land and property rights.
• The Act dispels some public misconceptions about the scope of expropriation without compensation.
• The Economic Freedom Fighters (EFF) and uMkhonto we Sizwe Party (MKP) argue that the law does not go far enough in advancing land reform.
• The Act is seen by some as symbolic rather than transformative, given the state’s historical reluctance to expropriate land.

• Expropriation has long been part of South African law, influenced by European legal traditions.
• The Constitution allows expropriation for public purposes or in the public interest.
• The 1975 Act permitted expropriation but lacked safeguards for fairness and transparency.
• The state’s expropriation power predates the current Constitution and has been exercised before.

• Minister of Public Works Dean McPherson has stated he will not enforce the law, despite its enactment.
• The Democratic Alliance (DA) opposes the Act and has criticized the government for not consulting them as a coalition partner.
• The DA may challenge the law in the Constitutional Court but had to wait until it was enacted before doing so.
• The President could not veto the bill without consulting the Constitutional Court.
• The Minister must implement the law as part of his duty, representing the country rather than a political party.

• The Act does not introduce expropriation as a new concept but refines the compensation framework.
• Courts will assess compensation on a case-by-case basis, considering fairness and public interest.
• While abandoned or hazardous properties may be expropriated without compensation, private homes are unlikely to be affected.

• Expropriation will target abandoned or neglected properties first.
• Property owners have legal avenues to challenge expropriation decisions.
• Authorities must attempt negotiations before proceeding with compulsory expropriation.