Expropriation Bill: decades in the making, what lies ahead for South Africa?

How long has this law been in the works?

Years. In fact, the whole issue of land used to be a much hotter topic in the South African political discourse than it is currently. It probably reached its highest temperatures around 2017, when the ANC adopted the principle of land expropriation without compensation at its Nasrec conference. 

In 2018, Parliament held often extremely fraught public consultations on whether the Constitution was impeding land restitution on the grounds of Clause 25, which protects property rights.

At that point, the more conservative view was that the Constitution should be left untouched and the Expropriation Bill should be passed instead. 

After further national consultations, the National Assembly adopted the Expropriation Bill in September 2022 and sent it on to the National Council of Provinces for various small amendments. The bill was ultimately passed by Parliament on 27 March 2024 and has been awaiting the president’s signature ever since.

Why has Ramaphosa signed it now?

There are certain pieces of legislation in the works which are sure to inflame tensions within the Government of National Unity (GNU). The obvious examples in recent months were the National Health Insurance (NHI) Act and the Basic Education Laws Amendment Act (Bela), but the Expropriation Bill falls into the same category.

In all these cases, it’s unclear whether Ramaphosa gave other party leaders in the GNU a heads-up about what his pen was about to do. On these occasions, rival politicians have given the impression of being blindsided.

In response to the Expropriation Bill, the Freedom Front Plus released a statement in which it said that Ramaphosa had not consulted with the GNU before signing the law.

The DA, meanwhile, published a statement on Thursday of just three sentences on the matter, devoted mainly to announcing that the party was in “discussions with our legal team”. The sense appeared to be that the party had been wrongfooted to some degree.

It followed up on Friday with a statement terming the signing of the bill “a matter of utmost seriousness”, with the party vowing to “fight this dangerous legislation by every possible means”.

President Ramaphosa is in Davos, Switzerland, this week for the World Economic Forum. He is leading an extensive delegation to the forum which includes a number of GNU ministers: Agriculture Minister John Steenhuisen (DA), Communications and Digital Technologies Minister Solly Malatsi (DA), and Environment Minister Dion George (DA). Things might just have become a wee bit frostier over there.

What scares people about the Expropriation Bill?

The most controversial word in the bill is “nil”: it provides for “certain instances where expropriation with nil compensation may be appropriate in the public interest”, to quote its opening lines. 

This aspect was foregrounded by AgriSA in a statement which described the bill as a “risk to private property rights” and therefore also “a risk to agricultural sustainability and food security”.

The Freedom Front Plus says it is particularly unhappy about the fact that the law applies to “movable and immoveable, such as intellectual, property ownership” — which would suggest that it is theoretically possible for the government to use the law to “expropriate” your motor vehicle or work.

This is an apparent reference to the fact that the bill’s preamble quotes Section 25 of the Constitution as clarifying that “property is not limited to land”. But Section 25 of the Constitution has stated this, together with providing for the expropriation of property, for three decades.

Action SA says its beef with the bill is that although it is ostensibly premised on the “willing buyer, willing seller” principle, the law “ultimately allows the government to unilaterally set the price if an agreement cannot be reached”.

When announcing the signing, the Presidency stressed that negotiations between the government and the seller must take place on “reasonable terms”.

It stated: “In terms of this law, an expropriating authority may not expropriate property arbitrarily or for a purpose other than a public purpose or in the public interest”.

The Presidency also stressed: “An expropriating authority must also attempt to reach an agreement on the acquisition of the property before resorting to expropriation — except in circumstances where the right to use property temporarily is taken on an urgent basis in terms of a provision in the legislation”.

These assurances may not convince everyone, especially with the example of Zimbabwe offering a nearby precedent for a botched land reform project in which land expropriation was the key instrument.

What do the legal experts say?

Legal experts and agricultural economists seem more relaxed about the bill than the politicians.

Indeed, the Dutch Ministry of Agriculture described the fears around the bill as “bloated”, and wrote: “While land is a sensitive topic in South Africa and the passing of this bill has been divisive, it is clear that there is no immediate risk to land ownership security. This is an important outcome for the agriculture sector where land is a key asset.”

Annelize Crosby, head of legal intelligence at Agbiz, previously wrote for Daily Maverick: “Every government in the world can resort to expropriation as a means to acquire property for certain public purposes.” 

She also pointed out that “powers to expropriate for various purposes already exist in more than 200 other pieces of (South African) legislation”.

If this bill was scrapped, Crosby argued, it would do nothing to prevent the state from expropriating land, since that right was already enshrined in the Constitution. What the bill does do, in theory, is provide certain checks and balances.

Among these, writes Crosby: “It provides for extensive consultation with affected parties, including financial institutions that hold bonds over the affected property, and persons who have rights to the land but are not landowners. It also provides for a series of offers and counter-offers in an attempt to promote agreement between the owner, bond holder and authority on the amount of compensation. Should it be impossible to reach agreement, then compensation must be decided upon by a court of law.”

Nobody is quite sure what the circumstances in which the government would offer “nil” compensation for land would look like, which is one of the points of anxiety. But what is certain is that the law will be abundantly tested in court. 

Will the law lead to more equal access to land?

This is really the million-rand question, because the reality is that a whole lot more would have to change beyond the signing of this piece of legislation.

Research over the years has repeatedly suggested that the major beneficiaries of the government’s land reform programme to date have been politically connected elites. DM