The Expropriation Act: We are focusing on the wrong questions

The Expropriation Act has triggered shrill protests and even attempts to leverage opposition to land reform from the US administration. Photo of the White House, the residence of the US president by C.M. Fitzpatrick via Wikimedia (public domain)

The Expropriation Act has triggered shrill protests and threats. This cacophony of criticism is diverting us from a key question we should be asking: Will the Act achieve its purpose?

There is a fundamental difference between the old and new expropriation acts. The 1975 Expropriation Act only permitted expropriation for “public purpose” - when the state needed the land. The new Expropriation Act of 2024 allows for property to be expropriated in the public interest as well as for public purpose. Expropriating land in the public interest imparts a far wider mandate.

The 2024 Act’s preamble quotes Section 25 of the Constitution on property rights. Section 25(4) states that “… the public interest includes the nation’s commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources” and stipulates that “property is not limited to land”.

This wide definition of property is nothing new. Both the 1975 and 2024 Acts define property as immovable and movables. Pretty much anything, under either Act. However, it is land that is the hot potato.

Read with Section 25(4), the new Expropriation Act is enabling legislation for the Constitution, albeit some 30 years late. But late as it may be, we must look to what it can achieve. Even if the Constitution had no Section 25(4), the re-distribution of land is an imperative given the raw anger pervading our unequal society. We reform or we burn.

The new Act’s preamble also cites two other sections of the Constitution. Section 33(1) says that administrative action – including expropriation – must be lawful, reasonable, and procedurally fair. And Section 34 provides for the right to have legal disputes decided in courts. We’ll return to the significance of Sections 33 and 34 regarding expropriation.

But first a bucket of cold water over the hysteria about expropriation without compensation or, as the 2024 Act defines it, “nil compensation”. First off, nil compensation was always possible under the old Expropriation Act read with Section 25(3) of the Constitution. It was just that the courts didn’t have the mettle to make such orders. Now, the new Act restricts nil compensation to just four situations: land speculation, abandoned land (or buildings), unused state land (which would, presumably, be expropriated by a different organ of state), and land where past state subsidies and investment equal or exceed the market value.

Muldersdrift, part of Johannesburg’s West Rand, where Lawyers for Human Rights has a presence, is a patchwork of poverty and privilege: over-crowded informal settlements, wedding venues, horse stables, and luxury developments. Scattered between are empty plots. Some are held for speculation, some have been abandoned by owners, others are municipal property. Here, expropriation for nil compensation would allow the families of retrenched farm workers to be settled on plots capable of providing a home, food, and dignity. This would not solve the national question of land ownership and land use, but it would help.

There would be limited resistance to such shrewd nil compensation expropriations on the urban peripheries. But elsewhere there is deep attachment to the land and deep pockets to defend it. The recent spectacle of a white-right organisation telling tales to the US administration to leverage opposition to land reform illustrates this.

Land is not only wealth but also a fundamental aspect of people’s identity. We are, the Constitution says, one state and one people. Yet, beyond the urban areas, two nations claim the land, or at least its fertile soils. One occupies it through historic dispossession; one wants it back. Pursuit of comprehensive land reform using the new Act will be met with tenacious lawfare in which those with the deepest pockets hold advantage.

The 2024 Act gives ammunition to those who want to maintain the status quo of land ownership. Sections 5-8 of the 2024 Act provide myriad opportunities for lawyers to challenge the procedural steps necessary for expropriation. And there is little doubt that given the general competency of state officials, organs of state seeking to expropriate will err and slip in their applications. The 2024 Act is replete with caveats that can be exploited, reviewed and appealed. Each section and sub-section is a potential booby trap for any expropriating authority when up against smart lawyers.

Then there is Section 34, the right to have disputes heard in a court of law. If there is a dispute between the parties over compensation, the courts will adjudicate. Whether the courts will have the courage to rule in line with the urgent need for land reform in the public interest, or whether they will take a black letter approach to the law, allowing cases to be knocked out on technicalities will be tested.

But this question is moot unless organs of state take the initiative to use the Act to fundamentally shift land ownership. In some situations, we may see decisive action. Possibly, for example, the expropriation of abandoned or hijacked inner city buildings by the City of Johannesburg keen to avoid another Usindiso fire tragedy. But the history of land reform to date indicates that up against powerful landowners, state institutions will make limited headway.

The noisy shrill debate around compensation is a distraction from the real problem. If the constitutional promise, and social necessity, of land reform is to become reality, then we need state entities that act with the determination and efficiency of Verwoerd’s Department of Native Affairs and a judiciary bold enough to breathe life into the imperative of land reform. These are the real challenges that lie ahead and the questions we should be asking.

David Dickinson is professor of sociology at Wits University and an attorney at Lawyers for Human Rights’ Land, Housing and Property Program.

Views expressed are not necessarily those of GroundUp.

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