THE EXPROPRIATION ACT UNPACKED

The signing of the Expropriation Bill into law by President Cyril Ramaphosa on 23 January 2025 marks a significant shift in South Africa’s land governance framework. This newly enacted legislation repeals the Expropriation Act of 1975, aligning land expropriation with the Constitution and providing a structured legal pathway for the acquisition of land in the public interest. The Act is set to play a pivotal role in the country’s land reform programme, infrastructure development, and economic transformation efforts.

A Legislative Milestone

The Expropriation Act of 2024 was the culmination of a rigorous five-year process that included extensive public consultations and parliamentary deliberations. The Act provides a clear framework for how the State may expropriate property for public purposes or in the public interest, ensuring due process, just compensation, and transparency.

Under the previous Expropriation Act of 1975, which predated South Africa’s constitutional democracy, expropriation was largely guided by outdated policies that did not align with the rights enshrined in the Constitution. The new law modernises this process and enhances the legal protections afforded to affected property owners while ensuring that land can be accessed for economic development and redistribution where necessary.

This law will assist all organs of state - local, provincial and national authorities - to expropriate land in the public interest for varied reasons that seek, among others, to promote inclusivity and access to natural resources." - President Cyril Ramaphosa

Historical Context and the Need for Reform

South Africa's history of land dispossession dates back centuries, with indigenous communities forcibly removed from their land during colonial and apartheid-era rule. Laws such as the 1913 Land Act restricted black South Africans from owning or leasing land in most parts of the country, consolidating wealth and land ownership among a small white minority. This systemic exclusion created widespread poverty and economic inequality, issues that persist to this day.

Land reform has been a central component of South Africa’s transformation agenda since 1994, with varying levels of success. Previous attempts at land redistribution and restitution have been hindered by legal disputes, bureaucratic inefficiencies, and funding constraints. The Expropriation Act aims to address these challenges by creating a more streamlined and legally sound approach to land acquisition.

Key Provisions of the Act

The Act sets out the legal mechanisms and justifications for expropriation, reinforcing that property may only be expropriated under a law of general application and in accordance with constitutional principles. The key provisions include:

Just and Equitable Compensation:

Compensation for expropriated property must be fair, considering factors such as market value, historical acquisition and use, and State investments in the property. The compensation framework ensures that neither the property owner nor the State is unfairly disadvantaged.

Public Purpose and Public Interest:

The Act defines ‘public purpose’ as including State infrastructure projects, service delivery improvements, and economic expansion initiatives. ‘Public interest’ is broadly defined to include land reform and efforts to address historical injustices regarding land ownership.

Nil Compensation in Specific Circumstances:

In certain cases, property may be expropriated without compensation where it is just and equitable to do so. Such cases include land that is abandoned, held for speculative purposes, or not in productive use in a manner that serves the public interest.

Mandatory Negotiation Process:

The expropriating authority is required

to attempt negotiations with the property owner before proceeding with expropriation. This ensures that expropriation is a last resort rather than a first recourse.

Right to Mediation and Judicial Review:

If a dispute arises regarding the expropriation process or the amount of compensation, affected parties can seek mediation or legal recourse through the courts.

Government’s Perspective

President Cyril Ramaphosa underscored the significance of the legislation, stating: "The Expropriation Act is a landmark piece of legislation that seeks to redress historical land injustices while ensuring equitable access to resources. It will be implemented responsibly to promote inclusive economic growth."

Deputy Minister of Public Works and Infrastructure, Sihle Zikalala, has welcomed the enactment of the legislation, describing it as ‘seminal and ground-breaking.’ He highlighted that the law affirms the role of the State in unlocking land for socioeconomic development, infrastructure expansion, and industrialisation. According to Zikalala, the Act aligns South Africa with international best practices and will facilitate more inclusive economic growth.

He also emphasised that the Act addresses the historical injustices of land dispossession, dating back to colonial and apartheid-era laws such as the 1913 Land Act and the Group Areas Act. By enabling more equitable access to land, the government aims to enhance food security, stimulate industrialisation, and improve spatial planning across the country. "This legislation will enable the State to implement much-needed land reforms in a just and systematic manner," Zikalala stated.

Comparing South Africa’s Expropriation Policy with International Examples

Globally, expropriation laws exist in many countries to allow governments to acquire land for development. Countries such as Brazil, Canada, and Germany have expropriation frameworks that balance public interest with private property rights. In Brazil, for instance, land expropriation is frequently used to address social inequities, particularly in urban housing. Canada follows a structured process that includes fair compensation and judicial oversight, similar to South Africa’s new approach.

"This is the legislation that will take South Africa in reality on the path of economic transformation and inclusive economic growth."- Deputy Minister of Public Works and Infrastructure (DPWI), Sihle Zikalala

While South Africa’s expropriation policy has been contentious, legal experts argue that the Act aligns with international norms. The challenge will be ensuring that its implementation is carried out with transparency and in a manner that builds investor confidence.

The Role of Municipalities and Infrastructure Development

Local government plays a crucial role in the implementation of the Expropriation Act. The legislation empowers municipalities to expropriate land for essential services, housing development, and urban renewal projects. However, municipalities are required to follow a structured process, including consultation with affected parties and compliance with the law’s procedural safeguards.

Additionally, municipalities must work closely with provincial and national government departments to ensure that expropriation decisions align with broader spatial and economic planning strategies. The Act also mandates municipal managers to provide input when expropriation proposals affect municipal land use and planning.

Balancing Economic Stability and Transformation

One of the government’s key commitments is to implement the Expropriation Act in a manner that does not destabilise the economy. President Ramaphosa has reiterated that land reform and expropriation will be conducted responsibly, ensuring continued investor confidence and protecting agricultural productivity.

To this end, the law includes provisions to protect property rights while enabling the redistribution of land in a manner that fosters economic inclusion. The focus is on ensuring that expropriation contributes to national development rather than causing uncertainty or undermining growth.

Legal and Procedural Safeguards

The Expropriation Act establishes a robust legal framework to ensure that expropriation decisions are carried out fairly and transparently. These safeguards include:

Court Oversight:

The courts play a key role in resolving disputes over expropriation and compensation, preventing arbitrary land seizures.

Regulatory Compliance:

The Department of Public Works and Infrastructure is the primary implementing authority and is tasked with ensuring that expropriation aligns with national policy objectives.

Protection Against Abuse:

The Act contains measures to prevent expropriation from being used for private gain or in a manner that is inconsistent with constitutional principles.

Conclusion

The Expropriation Act of 2024 represents a fundamental shift in South Africa’s approach to land reform, ensuring that expropriation is conducted in a legally sound and economically sustainable manner. By balancing the need for land redistribution with economic stability, the law provides a framework for advancing inclusive development while upholding constitutional principles.

As South Africa embarks on this new phase of land reform, it is essential that the implementation of the Act remains transparent, fair, and in line with broader national development goals. The success of this legislation will depend on the commitment of all stakeholders - government, businesses, civil society, and affected landowners - to engage constructively in the process.

WHAT MAY BE EXPROPRIATED?

According to the Constitution of South Africa Section 25 (4)(B), “property is not limited to land.”

Thus, any property including movable property and immovable property may be expropriated for legitimate use.

Why may expropriation be done?

Expropriation may be done for two purposes:

• a public purpose; and

• in the public interest

Public Purpose

Public Purpose can be defined as “any purposes connected with the administration of the provisions of any law by any organ of state”. An expropriating authority may expro-priate for a valid reason or purpose e.g. land expropriated for a school or hospital.