Daily Maverick
Dailymaverick logo

Op-eds

Op-eds

Cutting through the maze of disinformation – a guide to land reform in South Africa

Cutting through the maze of disinformation – a guide to land reform in South Africa
Cherryl Walker
By Cherryl Walker
17 Feb 2025
Facebook
0
Let’s be clear: there is no provision in our constitutional order for the arbitrary confiscation of white-owned land, nor any serious suggestion that the current government plans to pursue such a strategy.

How to sort through the exhausting mix of misinformation, ignorance, bigotry, mistrust and fear that informs so much of the commentary (at home and abroad) on the state’s constitutional power to expropriate land, including for land reform? 

A useful place to start is with some basic information about the state’s powers of expropriation and what the Expropriation Act that President Cyril Ramaphosa signed into law in January actually covers.

First, as many others have pointed out, there is no provision in our constitutional order for the arbitrary confiscation of white-owned land, nor any serious suggestion that the current government plans to pursue such a strategy.

There is a constitutional commitment to land reform, because of the country’s extreme history of racially targeted land dispossession and exclusion, which left most of South Africa’s land in white hands in 1994, and the state is legally empowered to acquire land for this (and other) purposes, including through its powers of expropriation.

Second, expropriation is not the only or even the preferred way by which the government can acquire land. To date, the ANC’s land reform programme has favoured an approach to land acquisition based on a “willing seller-willing buyer” model (with uneven and disputed but not negligible results in terms of the total number of restitution claims formally settled since 1994, the hectares transferred and the rands paid in financial compensation to former landowners as well as many land claimants).

Third, the Expropriation Act that President Ramaphosa signed into law (after a lengthy parliamentary process) does not confer unprecedented powers on the government.

It replaces the apartheid-era Expropriation Act of 1975 and is an attempt to bring the state’s legitimate powers to expropriate land in line with section 25 of South Africa’s Constitution.

This empowers the state to expropriate property “for a public purpose or in the public interest”, but makes it clear this is not an unchecked power. It must be exercised in terms of the rule of law, and any act of expropriation is subject to due process, the payment of “just and equitable compensation” and judicial review.

‘Public interest’


“Public purpose” is defined broadly in terms of “benefit to the public” (examples of which could include expanding a protected area or building a school or highway). “Public interest” is defined as including “the state’s commitment to land reform” and efforts to bring about equitable access to the country’s natural resources.

Fourth, the state’s power to expropriate is not peculiar to South Africa. In the US the equivalent power is called “eminent domain”, which “refers to the power of the government to take private property and convert it into public use”, subject to the payment of “just compensation to the property owners”.

South Africa’s current Expropriation Act is thus not a new or fundamental assault on private property. It restates the high-level constitutional principles enshrined in Section 25 of the Constitution, including the need to balance competing interests and the recognition of market value as one of the issues to consider in determining “just and equitable” compensation.

It reprises many of the provisions of the 1975 Expropriation Act while adding some that arguably strengthen the standing of a landowner facing expropriation — for instance, the use of mediation.

It comes after a lengthy parliamentary process in which the EFF’s championing of a constitutional amendment that would have provided for “expropriation without compensation” and potentially cleared the way for the nationalisation of land ultimately failed.

Acceptance of these broad points should be the starting point for any serious debate on the evolving relationship between property rights, land reform and justice in this country, and anyone who doubts their accuracy should read the relevant legislation.

The real challenges around the Expropriation Act come when high-level commitments to “just and equitable compensation” have to be applied to land matters in practice, particularly but not only when the land in question is subject to a land claim or other land reform project.

Similar tensions can erupt in relation to the assertion of mining rights or conflicts over the siting of roads or electricity pylons or mass housing projects, etc.

A particular flashpoint is the section in the Expropriation Act that states that “just and equitable compensation” could lead to a determination of “nil compensation” for expropriated landowners in certain circumstances, i.e. to an outcome in which no financial compensation gets paid to the expropriated landowner.

Failed bid


This provision gives legislative form to a legal argument that gathered traction in policy circles in response to the EFF’s ultimately failed bid to amend the Constitution to facilitate “expropriation without compensation”.  

But here, too, a read of the actual provisions of this section of the act should make it clear that they do not authorise the arbitrary seizure of land by the state at no cost to itself. Rather, what this section does is identify four instances where “nil compensation” could be deemed “just and equitable”:

  1. The land in question is not being used by the landowner and was acquired mainly for speculative purposes.

  2. The land in question is owned by a state entity but is not being used to advance the core functions of that entity, and was acquired by it for “no consideration”.

  3. The land in question has been abandoned by the landowner who failed to exercise control over the land “despite being reasonably capable of doing so”.

  4. The land in question has benefited from state investments that exceed or match the market value of the land (i.e. the landowner has already been a beneficiary of state funds).


Many critics of the government seem to have accepted that there could be justification for “nil compensation” in cases corresponding to the scenarios listed above. However, some remain concerned that the act does not explicitly limit this possibility to these four scenarios and thus leaves an opening for government officials to use additional, currently opaque but less reasonable considerations to justify “nil compensation” in expropriation cases.

Part of the challenge lies in bridging the gap between the provisions in law that are necessarily written in broad, general terms and the multitude of actual cases where these provisions have to be interpreted and applied, each case involving a particular mix of circumstances, interested parties and often disputed local histories.

A further problem is that the years of State Capture have left trust in the government at a particularly low ebb. “Land” remains an emotive issue at many levels, and apart from the sentiments that may be attached to particular pieces of land, there are major differences across the political spectrum about the direction of land reform and its contribution to either resolving or aggravating other pressing concerns around economic development, job creation, food security, rapid urbanisation, social justice and more.

Whether further justifications materialise for when nil compensation may be “just and equitable” remains to be seen, but the thrust of the relevant section makes it clear that privately owned land that is being used productively and has not benefitted from significant state investments in the past is not a target.

“Nil compensation” is not the state’s default position and, as the Presidential Advisory Panel on Land Reform and Agriculture noted in 2019, “it is highly unlikely and improbable that there could be a plethora of circumstances that would lead to zero compensation” (p72).  Furthermore, any administrative determination of “nil compensation” would still be subject to due process and judicial review.

Substantive disagreements


Ultimately, substantive disagreements around whether compensation in a particular case has met the constitutional standard of “just and equitable” would have to be adjudicated by the Constitutional Court. There is good reason to expect it will take a measured approach to sifting through all the considerations in making such a ruling. Hopefully test cases that will guide the interpretation and possible refinement of the Expropriation Act more generally will be forthcoming fairly soon.

That said, litigation is time consuming and expensive, so some — perhaps many — potentially revealing cases may never reach the court and people who lose out as a result may feel aggrieved.

Given the very different perspectives on the scope and effectiveness of the current land reform programme, the court’s rulings on the expropriation cases that do reach it are also not guaranteed to find ready acceptance across all sectors of society.

These are problems for any democracy. They do not, however, render the Expropriation Act itself an extreme, unjust or racist attack on property rights and/or a particular social group, as a dispassionate reading of the text must establish. DM

Cherryl Walker is an Emeritus Professor of Sociology at Stellenbosch University. She is the author of several books, including “Landmarked. Land Claims and Land Restitution in South Africa” (Jacana Media and Ohio University Press). She is the co-editor with Olaf Zenker and Zsa-Zsa Boggenpoel of the open access publication, “Beyond Expropriation without Compensation: Law, Land Reform and Redistributive Justice in South Africa” (Cambridge University Press).

Categories:

Tags: