---
title: "Unpacked: Each party’s arguments in the Expropriation Act case"
description: "The DA, a member of the Government of National Unity (GNU) coalition, has joined AfriForum and the Institute of Race Relations in challenging the Expropriation Act, which would allow the government to expropriate land without compensation in some circumstances."
type: "NewsArticle"
publisher: "Daily Maverick"
site: "https://www.dailymaverick.co.za"
section: "EXPLAINER"
author: "Dianne Hawker"
author_url: "https://www.dailymaverick.co.za/author/dianne-hawker/"
canonical_url: "https://www.dailymaverick.co.za/article/2026-08-05-unpacked-each-partys-arguments-in-the-expropriation-act-case/"
published: "2026-08-05T20:57:59"
updated: "2026-08-05T21:11:57"
lang: "en-ZA"
word_count: 2041
---

# Unpacked: Each party’s arguments in the Expropriation Act case

> The DA, a member of the Government of National Unity (GNU) coalition, has joined AfriForum and the Institute of Race Relations in challenging the Expropriation Act, which would allow the government to expropriate land without compensation in some circumstances.

By Dianne Hawker · Published 5 August 2026, 22:57 SAST · Updated 5 August 2026, 23:11 SAST

## Key points
- Five days of high court argument in Cape Town: the DA, AfriForum, IRR Legal and farming group Vaderland Stigting seek to overturn or remake the Expropriation Act — which allows, in some cases, ‘nil compensation’ — while the Presidency, Parliament and the EFF defend it before a three‑judge bench.
- The DA’s attack targets process and rationality — especially section 19’s timing and the NCOP voting mandates — arguing an internal contradiction (the 180‑day trigger can never start) makes the Act arbitrary and therefore unconstitutional; the President accepts faults in section 19, but asks the court to “read in” fixes rather than scrap the law.
- AfriForum and IRR Legal focus on the substance: sections 12(2)(e), 12(3) and 12(4) that permit nil compensation, arguing they breach section 25’s requirement of an ‘equitable balance’ (and clash with international law) and should be redrafted or struck down.
- State defenders — Speaker Thoko Didiza, President Ramaphosa and intervening EFF — say the Act gives concrete effect to section 25, is narrowly framed (non‑automatic) and vital for transformative land reform; amici including the Free Market Foundation and rural advocacy groups will also be heard, with big stakes for property rights and redistribution.

## Content

The Expropriation Act is being scrutinised from every angle, from the timing of its drafting, the delay by President Cyril Ramaphosa in publicising its signing, the wording used in certain sections of the Act and whether it measures up to section 25 of the Constitution.

The high court, sitting in Cape Town, is currently hearing five days of argument in a collection of cases challenging different aspects of the Act, which would allow the state to seize property “for nil compensation” under certain circumstances.

A full bench of three judges is hearing the case, with those challenging the law’s validity and constitutionality including governing coalition member the Democratic Alliance (DA), Afrikaner lobby-group AfriForum and policy advocacy group Institute of Race Relations (IRR) Legal.

A fourth organisation, Vaderland Stigting, has also filed papers in the case. The organisation represents farming interests. The Presidency, Parliament and the Economic Freedom Fighters are presenting counter-arguments in court proceedings.

Here’s what you need to know.

### **DA’s challenge to process**

In heads of argument before the court, the DA says its challenge has implications for South Africa’s constitutional democracy that “cannot be under-estimated”.

“At its core: persons cannot be deprived of their property rights through an incoherent, inconsistent and irrational process under a law that was adopted pursuant to an unlawful process. To do so yields grave constitutional consequences – it sanctions, through the law, an arbitrary deprivation of property,” the party says.

The DA says, unlike others in the case, it is not specifically challenging the “nil compensation” aspect, but rather challenging the rationality of the law.

[FOR CONTEXT

EXPLAINER: What the Expropriation Bill means for South Africa

January 24, 2025 ![Image](https://cdn.dailymaverick.co.za/i/j5le7bI-JKZO9i-t1WQ-p0HS7Pk=/450x0/smart/file/dailymaverick/wp-content/uploads/2025/01/ED_0147647.jpg)](https://www.dailymaverick.co.za/article/2025-01-24-expropriation-bill-decades-in-the-making-what-lies-ahead-for-south-africa/)

The DA focuses on section 19 of the Act, in which section 19 (2) and 19 (3) set out the process for resolving a dispute over an expropriation offer from the state. It stipulates that if the expropriating authority and land owner can’t reach an agreement through mediation or consensus, either party can approach the court.

However, the wording of these paragraphs says this should be done after the “notice of expropriation” is received. The DA points out that only a court can deliver a “notice of expropriation”.

“If a notice of expropriation can only be issued after a court determines the disputed compensation, then the 180-day period in section 19(2) will never commence. The trigger event for the 180-day period – the expropriation notice – will never occur before parties go to court. That trigger event can only occur after parties go to court. This is irrational,” the DA says.

The party’s lawyers also argue that the “irrationality” in these sections “violates constitutional rights”.

“Section 25(1) of the Constitution prohibits arbitrary deprivations of property. This includes arbitrary procedures leading to the deprivation of property. Consequently, if the process of expropriation under section 19 includes an irrational time period, which it does, then any resultant deprivation of property is arbitrary, contrary to section 25(1),” the DA argues.

The party argues that this defect is serious enough for the entire Act to be scrapped.

“Without section 19(2) to (4), the Act cannot work. There is no pathway to resolving disputed expropriations; disputed expropriations cannot come before a court. In the absence of this critical provision, the Act fails to provide parties with a right or process to approach a court as envisaged in Section 25(2)(b) of the Constitution. Consequently, the state, without Section 19(2) to (4), cannot expropriate property without an agreement from the owner. This is contrary to the scheme of the Act, and section 25(2)(b) of the Constitution. The entire Act thus becomes irrational and unconstitutional,” the DA says.

![Di-Expropriation-Explainer](https://cdn.dailymaverick.co.za/i/jjnboXBdme-O1mxXTTZGGOtLIHI=/200x100/smart/filters:strip_exif\(\)/file/attachments/orphans/ED_617412_132372.jpg)

*Democratic Alliance Federal Council chairperson Ashor Sarupen addresses DA supporters outside the Western Cape high court before the Expropriation Act hearing in Cape Town on 3 August 2026. (Photo: Gallo Images / Misha Jordaan)*

The DA also challenges the voting process used in the National Council of Provinces when ratifying the Bill, saying “provincial delegates were not lawfully authorised to vote on behalf of their provinces in favour of the Act”.

The DA questions the mandates of delegates from Limpopo, the Eastern Cape, Gauteng, Mpumalanga and the Northern Cape.

“First, four delegates were given a final mandate by the speaker of their provincial legislature. But speakers lack the power to confer a final mandate. Second, three delegates were given a final mandate contrary to the Rules of their Provincial Legislatures. On either argument, the Expropriation Act was passed unconstitutionally. It must be declared invalid,” the party says.

The DA explained further that in Limpopo, the legislature had raised “19 recommendations” on the Bill which were not adopted before the vote, and in relation to the Eastern Cape the legislature had not deliberated on the Expropriation Bill before the vote.

[LAND REFORM

The new Expropriation Act: Our chance to face SA’s imperial past

February 9, 2025 ![Image](https://cdn.dailymaverick.co.za/i/8SeBkpVK7nYCFkspigV-AnLcfUQ=/450x0/smart/file/dailymaverick/wp-content/uploads/2021/09/Boyce-Oped_1.jpg)](https://www.dailymaverick.co.za/article/2025-02-09-the-new-expropriation-act-sas-chance-to-face-its-imperial-past/)

President Cyril Ramaphosa, who signed the law in December 2024 and announced the signing in January 2025, acknowledges in court papers that there are problems with Section 19, which “justifies a declaration of invalidity under Section 172(1)(a) of the Constitution”.

In the heads of argument, Ramaphosa’s lawyers say there is no need to scrap the legislation because of these errors. He proposes another remedy of “reading-in”, which would involve the court providing new wording that Parliament would adopt to amend the legislation.

### **AfriForum and IRR on ‘nil compensation’**

Afriforum and IRR Legal have taken a different route, challenging sections 12(2)(e), 12(3), and 12(4) of the Act. These sections deal explicitly with the issue of “nil compensation” for expropriation when it “may be just and equitable” and “in the public interest”.

In heads of argument before the court, IRR Legal says these sections of the Act are “fundamentally incompatible” with Section 25 of the Constitution. The IRR argues that the interests of the property owner must be appropriately balanced with the public interest.

“In terms of section 25(3) of the Constitution, the consideration of an ‘equitable balance’ must determine and weigh an affected person’s interests in the expropriated property, and the public interest, with regard to the purpose for which the State seeks to expropriate the property,” IRR Legal says.

It adds that no matter how “noble” the intended use of the property, the private property owners’ rights must be upheld.

“This private property owner then takes a double hit: First, they must alienate their land and pass it to the state, whether they like it or not. Secondly, they are deprived of compensation, even when compared to that which would have been received if the same property had been expropriated for a mundane, unglamorous, or more prosaic reason,” the IRR says.

![Di-Expropriation-Explainer](https://cdn.dailymaverick.co.za/i/uyiy4F1lPn8CtG1MS947au_fvkQ=/200x100/smart/filters:strip_exif\(\)/file/attachments/orphans/ED_617420_171863.jpg)

*Chief executive of AfriForum Kallie Kriel addresses the media before the Expropriation Act Hearing outside the Western Cape high court in Cape Town on 3 August 2026. (Photo: Gallo Images / Misha Jordaan)*

AfriForum raises similar concerns, challenging both sections 12 and 19 of the Act, saying it should be referred back to Parliament for proper drafting. AfriForum also says the court should consider international law when ruling on this matter.

“In foreign case law and in international law, it is generally accepted that there is a duty on the state to pay compensation for expropriations. Customary International Law, however, does not countenance expropriation without compensation, i.e. confiscation of property.

“The question is whether the Constitution or an Act of Parliament can be adopted or amended to provide for expropriation without compensation, whilst still conforming to international law. We submit not,” AfriForum says in its court papers.

### **Ramaphosa, Didiza defend expropriation**

Speaker of the National Assembly Thoko Didiza and President Cyril Ramaphosa have responded to the collective arguments, defending the legislation. In an affidavit before court, replying to the IRR Legal case, Didiza says the Expropriation Act “does not contradict section 25”, but “gives concrete legislative content to it”.

Didiza notes that section 12 of the Expropriation Act provides the relevant circumstances where seizure without compensation could take place.

“It then lists examples, including unused speculative land, unused state land acquired for no considerations, abandoned land and land whose market value is equalled or exceeded by the direct state investment of subsidy,” Didiza says. She argues that the Act uses “non-automatic language”.

![Di-Expropriation-Explainer](https://cdn.dailymaverick.co.za/i/yzmbYVPUaL3E8Rj_LyYw3iR_pmU=/200x100/smart/filters:strip_exif\(\)/file/attachments/orphans/ED_5196043_442555.jpg)

*Speaker of the National Assembly Thoko Didiza. (Photo: Gallo Images / Brenton Geach)*

“It says ‘may’ be just and equitable, it applies only where land is expropriated in the public interest; and it requires regard to all relevant circumstances. Parliament’s answer for AfriForum similarly says section 12 (3) of the Expropriation Act is not a blanket provision, the list is not closed, each case must be evaluated individually, and the ultimate arbiter is the court where compensation is disputed,” Didiza says.

In his heads of argument, Ramaphosa has told the court about the importance and need for the legislation.

“Land reform is a catalyst for structural change, promoting equality, dignity, social justice, economic activity, gender equality and rural development. There can be no freedom without land, and there can also be no peace until the emotional and critical issue of land is settled. Land and dignity are seen as fundamental to realising other constitutional rights,” his lawyers say in their heads of argument.

Ramaphosa notes that the law is meant to replace the outdated Expropriation Act of 1975, which predates the current democratic dispensation.

“As a pre-Constitution statute, the 1975 Act does not comply with the Constitution, including Section 25. This position needs rectification.”

Ramaphosa’s legal team notes that the law was “extensively deliberated on by Parliament”, which also considered the issue of compensation.

Ramaphosa argues that while the “Constitution does not explicitly make provision for the payment of nil compensation”, there is previous case law that indicates that there are certain circumstances “where it would be permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation”.

![Economic Freedom Fighters (EFF) leader, Julius Malema addresses supporters outside Remgro Offices on April 06, 2022 in Stellenbosch, South Africa. Malema led supporters at the partyís land day picket to businessman Johann Rupertís Remgro Offices. (Photo: Gallo Images/ER Lombard)](https://cdn.dailymaverick.co.za/i/rBOr51Xcco6dr2aLRhmI4Q150tQ=/200x100/smart/filters:strip_exif\(\)/file/dailymaverick/wp-content/uploads/2022/04/ED_373973.jpg)

*Economic Freedom Fighters leader Julius Malema has argued that the Expropriation Act is consistent with the Constitution. (Photo: Gallo Images / ER Lombard)*

The Economic Freedom Fighters is also involved in the case, joining as an intervening party. In an affidavit filed in the IRR Legal case, EFF leader Julius Malema says the impugned sections of the Act “are consistent with the Constitution”.

“Section 25(8) of the Constitution further provides that no provision of section 25 may impede the state from taking legislative and other measures to achieve land, water and related reform in order to redress the results of past racial discrimination. The Constitution therefore rejects any interpretation of property rights that ignores the transformative and redistributive purposes expressly embedded in section 25. Property rights and land reform are not constitutional opposites to each other,” Malema says.

Arguments in the case are expected to continue until Friday, with the court also hearing from *amicus curiae*(friends of the court), including the Free Market Foundation’s The Rule of Law Project and the Association for Rural Advancement, which works with labour tenants and farm dwellers. **DM**

> **What does section 25 of the Constitution say?**
>
> Section 25 of the Constititon focuses on property rights and says “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”
>
> It added that property “may be expropriated only in terms of law of general application,
>
> (a) for a public purpose or in the public interest; and
>
> (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”
>
> The section also notes that the amount of compensation “must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected”.
>
> It says these issues should be considered:
>
> (a) the current use of the property;
>
> (b) the history of the acquisition and use of the property;
>
> (c) the market value of the property;
>
> (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
>
> (e) the purpose of the expropriation.
>
> Section 25 notes that public interest includes “the nation’s commitment to land reform” and that property “is not limited to land”.