Although assented to by the president, South Africa’s 2024 Expropriation Act is not yet in force. Tembeka Ngcukaitobi, top legal scholar and author, unpacks its implications, complexities, and the real power behind expropriation.
Expropriation under the new Expropriation Act of 2024, which was assented to by the president on 22 December 2024, although it was published on 24 January 2025.
I should explain a minor detail. The presidential act of assenting to the bill has transformed the bill into law, but it does not make it operative right now because no date of commencement has been proclaimed. And it is not clear why the president has delayed in bringing the law into force, especially bearing in mind the apparent expectation and promise that came with this law.
So the Expropriation Act of 2024 is not yet operative.
Any expropriations that take place today are still under the 1975 Expropriation Act. But as the minister of public works and infrastructure has recently explained, no private property has been expropriated in the last 10 years, and no private property will be expropriated under his tenure.
In fact, when it comes to land, the research shows that no expropriations for land reform have taken place since the dawn of democracy.
Perhaps none of this detail really matters because law is state policy at large. So we must take the contents of the expropriation act to represent the intentions of the state, even if we have no reason to believe that their actions will follow their words. After all, the power to expropriate for land reform is not a new thing. It has been in existence for more than 30 years.
What is expropriation?
Let me start then with the definitions. An expropriation is a method of acquisition of ownership of private property by the state for the benefit of the state. It differs from an ordinary form of acquisition, like a sale or auction or prescription, because first it is compulsory.
Secondly, it is for identified purposes. And thirdly, it is accompanied by compensation, which must be just and equitable.
Compensation is not the same thing as price or value, because price or value is derived from the market through the fiction of a willing seller, willing buyer. Compensation is decided by a court, and it must be a reflection of the public interest and the interests of those individuals affected.
So, compensation is a collective endeavour. Each and every one of us contributes to it. Yet, it benefits only one person, the private owner of the property. As to the process of expropriation, not much has changed.
17 stages
Expropriation will take place in two discrete stages. Stage one is the expropriation, and stage two is the determination of compensation.
The procedure in the new law is cumbersome and difficult. I counted 17 stages from the time an intention to expropriate is announced to the time the property is acquired by the state.
Basically, when the state wishes to acquire property, it must decide the reason for that acquisition and whether it fits the framework of the act. Once it has done so, it must issue a notice, which then triggers a full-scale process of engagement and investigation.
When the minister has decided that a particular property must be expropriated, under section 8, he is entitled to issue a notice of expropriation.
There has been some controversy about Section 8. That section contains provisions that are apparently in conflict with one another.
On the one hand, it appears to suggest that an expropriation may not take place until there is an agreement on compensation, or failing which, a court has decided the expropriation. But Section 19 of the act makes it clear that there is a separation between expropriation and compensation.
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Legal clarity from the courts
In my view, the solution is the constitution itself. It makes a separation between expropriation and compensation. Expropriation is state power. It is not subject to agreement with the owner. It is compensation that the constitution subjects to agreement with the owner. So, one simply cannot, in law, have an individual veto the power of expropriations as such.
What I have said is not new. Even the 1975 Act, designed by our former oppressors, distinguished between expropriations and compensations. Then, as it is now, there was urgency in facilitating the transfer of property once it has been identified for expropriation.
In the constitutional state, there is still that urgency, but it is now also underpinned by the demands of justice.
So you may ask the question, if the state wishes to acquire property for a broader public purpose, why should it wait until the private owner decides whether or not to agree on the price that has been offered?
This very issue was decided by the constitutional court in the case of Haffejee versus eThekwini Municipality, where the court was unanimous that there is no rule of constitutional law that requires an upfront agreement and an upfront payment prior to expropriation taking place.
So property will vest in the state as soon as a notice to expropriate has been issued under Section 8 of the act.
What Section 12 says
Thus far, I have been addressing the first stage of the expropriation procedure. The Expropriation Act of 2024 contains references to land reform, but these are empty references because we know that the final destination of expropriated property is state ownership. We benefit nothing from expropriation.
Before I leave this topic, let us turn our attention to another important provision, Section 12, which has also generated a lot of heat. This is the section that allows the state to offer nil compensation to an owner of expropriated property.
The section does not apply to all property, despite false claims to that effect. It is tailored to apply only to land, but land is not defined. Only land parcels are defined, and they refer to surveyed lands which have been registered or are yet to be registered.
Therefore, it excludes unsurveyed land, of which there is plenty in South Africa. And for land, generally, I would recommend a definition in the subdivision of the Agricultural Land Amendment Act of 1970.
Section 12 itself is not just about nil compensation. It contains a provision that excludes certain factors from being taken into account in determining compensation, such as where a person deliberately improves the property or imposes enhancements in the property in order to increase the value.
Labour tenants are also another area of interest, as the land falling under the Labour Tenants Act may also be expropriated subject to nil compensation, and for good reasons too.
At the heart of Section 12, however, lies Section 12, Subsection 3, which is the only section in the whole act specifically devoted to land.
The scope of that act is land required for public interest, therefore excluding instances where the state requires land for public purposes. While the distinction between public purpose and public interest can be an illusory one, it is often not clear, it is nevertheless an important one.
Public purpose boils down to whether or not the property is required by the state in the discharge of its legal duties. But public interest, which has not been satisfactorily defined, includes land reform. That means that land which is required for land reform may be expropriated subject to nil compensation. Here, I am afraid the Act loses direction because its thrust is not land reform.
This is a law designed to help the department of public works to fulfill its obligations. Yet there is more. The mere fact that land is needed for land reform is not a general entitlement to take it on a nil compensation basis. Nil compensation must also be just and equitable. Some factors are highlighted in the act as possible indicators where nil compensation may be just and equitable.
‘Another paper tiger’
I repeat my primary thesis. We need land, but we cannot afford it. And the reason we can’t afford it is a reason of history. White people, too, once did not afford land. It was the state that enabled them to acquire it through violence, treachery, and theft.
The African National Congress promised this land in 2022, but it has yet to deliver on it. And so, as a tool of land reform, an expropriation law makes sense only if the end goal is to acquire land for redistribution.
Without addressing the demand side of land reform, the Expropriation Act is another paper tiger. It is only loud in its back, but it is ultimately ineffective. And finally, it is necessary to recall that land reform is primarily a matter of justice.
- Tembeka Ngcukaitobi is a top legal scholar and author. He is widely respected for his work in constitutional law and land reform. This speech was originally delivered at the Food For Mzansi Young Farmers Indaba. It has been shortened and lightly edited for length and clarity. The views and opinions expressed in this article are those of the author and do not necessarily reflect the views or positions of Food For Mzansi.
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