The Expropriation Act bogeyman: It’s not as bad as you think

Land reform is held up not by legislation in South Africa, but by glacial government action, ‘elite capture’ and corruption. The new law is no panacea for that.
6 mins read

Much ire has been directed at the Expropriation Act signed by President Cyril Ramaphosa last week, with many fearing the spectre of wholesale land grabs. 

But how alarmed should we be really? 

Well, for a start, legal experts point out an expropriation act is a necessary piece of law. Expropriation is ubiquitous; it is used by governments everywhere to secure land for public purposes, like for railway sidings or schools. Where the landowner and state reach an impasse, the state can expropriate the land – usually with fair compensation.

The 1975 law that was on South Africa’s statute books until last week made provision for such expropriation, and at market value. The problem is that the 50-year-old act was inconsistent with South Africa’s 1996 constitution.

Under the constitution, expropriation can also take place in the public interest – including for the purposes of land reform. It’s a necessary feature in a country with a history of dispossession and racially skewed land ownership patterns.

Second, the constitution introduces the notion of expropriation at below market value. It does this by providing for “just and equitable” compensation. In this, it weighs the public and private interest, and considers a set of circumstances including market value and the use of the land.

As such, the new law in prescribed situations allows certain deductions to be made from what is deemed a property’s market value – for example, if past subsidies were paid to the landowner, or if the land has been abandoned – to come to an ostensibly fair value. A legal expert reckons that it will only be in very limited circumstances that zero or nominal compensation will be paid because the state has to justify why that individual is alone bearing the brunt of the public interest, and why this is just and equitable.

Finally, the law needs to be consistent with section 33 of the constitution, which provides for procedural fairness of state actions. To this end, the new law signed last week by Ramaphosa provides clear guidelines for expropriating land – a step-by-step framework for the expropriation process.  

And yet, there is a real misconception around the new law: that it will somehow fast track the country’s sluggish land reform programme. This has been fuelled by the ANC, but it’s a huge assumption — particularly since expropriation is a cumbersome administrative process, never mind the legal action that is likely to flow from it.

Besides, even with existing legislation, the ANC’s action on land reform is so badly out of kilter with its promises that they’re not even in the same race.

‘Elite capture’

Nelson Mandela, in 1994, pledged that 30% of productive land would be redistributed within five years. Yet a full thirty years later, Ramaphosa proudly noted in his 2024 state of the nation address that 25% of land had been redistributed. So, not exactly shooting the lights out. Then there’s the issue of whether transferred land continues to be used productively, or is allowed to go to ruin.  

The ANC would have you believe the issue has been a legislative one. It has blamed the constitution; previously tabled a constitutional amendment to allow for expropriation without compensation; and tabled numerous iterations of the Expropriation Bill.

The truth is far more damning: as former president Kgalema Motlanthe’s high level panel into the land question pointed out in 2017: “A populist blaming of the constitution is a useful distraction from the real reasons for our thoroughly unsatisfactory land reform outcomes thus far.”

The real reason why land reform has been so poor, the panel pointed out, is a lack of political will, “elite capture of redistributed land” (including, in mineral-rich areas, by “a triad of corrupt officials, venal traditional leaders and mining capital”), as well as policy confusion, corruption and the complexity of restitution.

The ANC-led government has also been loath to use the mechanisms at its disposal to expropriate land at below market value. In 2013, we saw the perverse outcome of that foot dragging when the state all but blew through the Land Claims Commission’s entire annual budget by paying R1bn – R300m more than it originally offered – for the MalaMala game reserve in Mpumalanga. 

And despite what it tells voters, government isn’t even prioritising land reform. The budget allocated to the entire agriculture, land reform and rural development department was just 1.4% of the state’s spending for 2024/25, as the Legal Resources Centre points out. To add insult to injury, the allocations for land redistribution and restitution were slashed by about R380m for that year.

So for all the talk of land expropriation and the law around it, the ANC has done precious little to implement its own policies using the perfectly capable existing laws.

If anything, it’s taken three decades to repeal an apartheid-era law that’s in conflict with a progressive constitution largely because this issue has been a political football – both in general debate (the false equivalence between redress and fears of “another Zimbabwe”), and in ANC politics. 

Bracing for court

Back in 2008 – five years before the MalaMala debacle – Thabo Mbeki’s government was already under pressure to speed up land reform. Early that year, his executive tabled a bill in parliament calling for “just and equitable” compensation, making clear that the expropriating authority “may determine a value below market value”.

That legislation went nowhere, because it didn’t allow for adequate recourse through the courts. But if that seemed an easy fix, nothing happened.

Instead, as Jacob Zuma took control of the ANC in 2009, the party withdrew the bill – and, with it, overt reference to expropriation below market value. The new iteration of the bill, first lodged in 2013, simply referred to “a just and equitable compensation”, though implicit in this is expropriation below market value. It’s unclear why this happened, though one could speculate that this was Zuma’s attempt to charm the business sector, and particularly white farmers wary of his populist inclinations. 

Redistribution ground to a halt: whereas in 2007/08 about 500,000ha of land was transferred through redistribution, that was closer to zero in 2015/16, according to Motlanthe’s panel. For the ANC’s constituency, this was a problem.

Fast-forward to 2017, and Zuma had become increasingly populist. In his February state of the nation address – much as he later did with free tertiary education – he went off-script to punt “expropriation without compensation” for the first time. He called for the same thing when opening the house of traditional leaders later that year. 

At the time, Zuma was on the ropes; state capture had dented his credibility and he needed to shore up support. The establishment of the EFF in 2013 – with its own populist push for the nationalisation of land – had also eaten into the ANC’s support on the left.

Land reform had become a flashpoint for the ANC, and there was talk of people coming to blows over the issue at the December 2017 elective conference. Ramaphosa only scraped a win at that conference, defeating Nkosazana Dlamini Zuma, but there was sufficient support to see the party adopt land expropriation without compensation as its official policy. Despite Zuma being recalled as president in February 2018, later that year the Expropriation Bill – the one enacted last week– was released, now including the potentially incendiary phrase “nil compensation” for the first time.

It took almost six years to wend its way through parliament, before landing on Ramaphosa’s desk. It languished there another 10 months before he suddenly found his pen last week.  

As commentators such as Natasha Marrian pointed out on BusinessLive this week, by signing the law the president is shoring up his own support and silencing critics accusing him of “pandering to the DA”. An added bonus for Ramaphosa, as Marrian writes, is that it puts the DA on the back foot at the cabinet lekgotla this week, where it is now fighting on two fronts: expropriation and National Health Insurance (though the Basic Education Laws Amendment Act will also loom large). 

The DA is preparing to challenge the expropriation legislation in court, and the Freedom Front Plus has said it will be doing the same.

But a legal expert Currency spoke to reckons it’s unlikely a court will find it unconstitutional; there was extensive public participation, the department of public works considered that input, and legal advice was sought. More likely, they reckon, is that legal challenges could arise when it comes to implementing the act.

However that legal tussle plays out, it remains to be seen whether the ANC will actually push forward with expropriation – something it hasn’t shown much appetite for in the past. 

Still, rather than using this law to score political points and pretending it’s a panacea for its glacial pace of land reform, perhaps it should simply get on with doing the hard work on the ground – and that includes making sure farms stay productive. 

Sign up to Currency’s weekly newsletters to receive your own bulletin of weekday news and weekend treats. Register here.

Shirley de Villiers

With a background in political science and over a decade in journalism, Shirley de Villiers brings a unique perspective to her writing. As a former deputy editor of the Financial Mail, her columns have become known for their wit and insight. Shirley’s ability to distil complex scenarios into compelling narratives makes her a must-read for anyone interested in South Africa’s political landscape.

Latest from Opinion

AI boom, equity bust ahead?

When an innovation wave hits, investors assume today’s leaders will reap the rewards indefinitely. DeepSeek shows that’s not necessarily true…

Don't Miss