Expropriation of land against the backdrop of transformative constitutionalism

Abstract

Abstract

This study investigates the expropriation of land against the backdrop of transformative constitutionalism in South Africa. I examine the current Expropriation Act (new Act) and focus on section 12(3)(a)-(d) which provides for nil compensation in certain instances of expropriation. The lack of a provision expressly allowing expropriations to be done at nil compensation has necessitated an effort to amend section 25 of the Constitution. On 07 December 2021, a motion was tabled in the National Assembly to amend section 25 of the Constitution to allow for expropriations at nil compensation. The motion did not pass because the African National Congress (ANC) fell short of the required two-thirds majority, as neither the Democratic Alliance (DA) nor the Economic Freedom Fighters (EFF) supported the amendment. This failure and the inherent limitations of the old Expropriation Act gave rise to the new Expropriation Act.

The main aim of the new Expropriation Act is to better realise the section 25 obligation to redress the result of a past racial discrimination through the expropriation of land that was taken from the majority of black people by the white minority. The current Expropriation Act seeks to address how the state will expropriate land at nil compensation in certain instances. The primary challenge of the new Expropriation Act lies in section 12(3)(a)-(d), which specifies four circumstances under which nil compensation may be applied. However, it also indicates that it is not ‘limited to’ these instances. The list is consequently not exhaustive and in theory, allows for expropriations against nil compensation under other unknown circumstances not stipulated under section 12(3)(a)-(d). The Act creates legal uncertainty and, if not administered with great oversight and frugality, can create a myriad of social and economic problems which include agricultural sustainability, the loss of employment, homelessness, a reluctance by foreign investors and even the possibility of State abuse and corruption.

This study compares the new Expropriation Act to the old Expropriation Act. It investigates whether the new Expropriation Act passes constitutional challenges by analysing the limitation of nil compensation in terms of the section 36 limitation clause. Some of the social and economic issues that may arise from the practical implementation of nil compensation are discussed. Transformative constitutionalism as a possible lens to understand and interpret nil compensation is examined.

The new Expropriation Act became law on 23 January 2025. Almost immediately, several political parties criticised the promulgation of this Act and indicated their intentions to challenge its legitimacy. This study was undertaken before the promulgation of the Act. However, many of the criticisms lodged at this Act still align with the concerns raised in this study.