South Africa’s New Land Reform Law Advances

South Africa's Land Law: A Nation Confronts Its Past

A political tempest is swirling around South Africa's leader, Cyril Ramaphosa, after he endorsed the contentious Expropriation Act. This legislation gives the government power to procure land from private individuals, in some specific instances without monetary payment to its owners, aiming to correct historical inequalities. The act immediately provoked strong reactions, both within the country and on the international stage.

Domestically, supporters of the legislation view it as a vital tool for social justice. It seeks to accelerate land reform, a promise made at the dawn of democracy over three decades ago that has proceeded at a glacial pace. Yet, it has also stirred considerable opposition from advocacy organizations and political movements, who argue that the law jeopardizes the fundamental principle of property rights and could destabilise the economy. This division highlights the profound challenges South Africa faces in navigating its complex legacy while forging a more equitable future.

The Lingering Shadow of Apartheid

The foundation of South Africa's unequal patterns of landholding runs deep, anchored in more than a century of discriminatory legislation. The Natives Land Act of 1913

 was a cornerstone of this dispossession, severely limiting land ownership for black South Africans and reserving the lion's share of territory for the white minority. This historical injustice created a landscape where, even three decades after apartheid's dismantling, the ownership of private farmland remains overwhelmingly concentrated in white hands.

Following the transition to democracy in 1994, the government under Nelson Mandela introduced an initiative for land reform. The program's foundation was a "willing-buyer, willing-seller" model, which depended on the government buying land at market rates from owners willing to part with it for redistribution. However, critics have long argued that this policy has been excessively slow and prohibitively expensive, failing to make a significant dent in the inherited patterns of inequality. The new Expropriation Act is a direct response to these frustrations.

Ramaphosa's Precarious Political Path

President Cyril Ramaphosa's greenlighting of the Expropriation Act places him on a political tightrope. For the African National Congress (ANC), his political party, this legislation represents a "significant milestone" in fulfilling a foundational promise of transformation. The slow pace of land reform has been a persistent source of public anger and a key vulnerability for the ruling party. It faces immense pressure from more radical factions to accelerate the process of redressing historical imbalances.

This pressure is most prominently embodied by the Economic Freedom Fighters (EFF), a party calling for more aggressive measures like the wholesale nationalisation of land. The EFF has criticized the new act as a "legislative cop-out," arguing it is not nearly sufficient to dismantle the legacy of apartheid. The government under Ramaphosa, therefore, must navigate a treacherous path between fulfilling its transformation mandate and reassuring anxious investors and property owners about the nation's economic stability.

Decoding the Expropriation Act

Contrary to some alarmist interpretations, the new Expropriation Act does not authorise a blanket seizure of private property. It repeals the outdated 1975 Expropriation Act and establishes a new legal framework that aligns with South Africa’s post-apartheid constitution. The legislation empowers various state bodies, from national to local authorities, to acquire property for a "public purpose" or in the "public interest" after trying to reach a negotiated purchase with the owner.

The most contentious element is the provision for "nil compensation" in certain, narrowly defined situations. This is distinct from the broader concept of taking land with no recompense, often termed EWC. Legal professionals emphasize that nil compensation is not the default but a possibility under specific circumstances. The law is designed to give the government more leverage in acquiring land for critical public needs, including the long-awaited program for land reform.

Defining 'Public Interest'

The government’s power to take land under the new act hinges on the concepts of "public purpose" and "public interest." The term "public purpose" is relatively straightforward, covering the acquisition of land for public infrastructure like roads, schools, dams, or power lines. This is a standard power, known as eminent domain in jurisdictions like the US, that governments worldwide possess to facilitate development for the collective good.

The term "public interest" is broader and more central to the law's reformist agenda. The Act clarifies that public interest explicitly includes "the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources." This definition, drawn directly from Section 25 of the constitution, provides the legal foundation for acquiring land specifically to address the injustices of past dispossession.

The Specifics of Nil Compensation

The possibility of offering "nil compensation" is the most debated feature of the legislation, but it applies only in a restricted set of circumstances. Legal professionals have clarified that this measure would not affect farmland that is actively being cultivated. Instead, the Act outlines specific scenarios where a court might find it just and equitable to provide no payment for the land itself.

These situations include land an owner retains purely for speculative purposes without using it, or land that has been abandoned by a proprietor who has neglected to manage the property. Another instance is when state-owned entities hold land that is not being used for their core functions. Crucially, even in these cases, lawyers suggest that payment would likely still be due for any buildings or other improvements to the property.

From Market Value to 'Just and Equitable'

A fundamental shift introduced by the Expropriation Act is moving away from market value as the sole determinant of payment. The previous 1975 Act mandated compensation based on a "willing-buyer, willing-seller" principle, which effectively meant market price. The new legislation replaces this with the constitutional standard of "just and equitable" compensation, a principle that has been part of the law in South Africa since 1994 but not consistently applied in expropriation cases.

This "just and equitable" calculation requires a court to balance the needs of the public against the interests of the affected owner. It considers several factors beyond market value, including the property's current use, how it was acquired, and the extent of any state investment or subsidy in its improvement. This approach could result in compensation below market rates, making land acquisition more affordable for the state.

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Legal Safeguards and Court Challenges

The Expropriation Act contains important procedural safeguards to protect property owners. The legislation explicitly states that the government cannot take property arbitrarily. Before any expropriation can occur, the state authority must first attempt to negotiate an agreement with the owner on reasonable terms. This ensures that compulsory acquisition is a last resort.

Furthermore, any owner who is not satisfied with the process or the compensation amount has the right to dispute the decision in court. This right to judicial review is a cornerstone of the act's alignment with constitutional principles. The main opposition party, the DA or Democratic Alliance, has already filed a legal challenge, arguing the Act is unconstitutional on both procedural and substantive grounds and seeking to have it nullified.

The International Reaction

The legislation has drawn significant international attention, most notably from Donald Trump, the former United States President. He has publicly condemned the law, framing it as a discriminatory policy aimed at seizing land from white farmers. These statements have created diplomatic friction, with Trump threatening to reduce assistance to South Africa and imposing tariffs, actions that have caused significant concern given the country's reliance on US trade benefits and health funding.

The government of South Africa has firmly rejected these criticisms, stating the legislation is designed to address historical inequities and is not targeted at any single racial group. The minister for Public Works, Dean Macpherson, has stressed the need for calm and reasoned discussion to explain the facts to international partners. Nevertheless, the controversy has raised fears among investors about the security of property rights, potentially impacting foreign direct investment.

Domestic Opposition: The Democratic Alliance

South Africa's largest opposition party, which is the Democratic Alliance (DA), stands firmly against the new legislation. The party's Federal Council passed a motion rejecting the concept of "nil compensation," vowing to fight it through the courts. The DA argues that empowering the administration to take property without payment is a dangerous overreach that threatens the economic stability of the nation.

However, the DA's position is nuanced. While it rejects nil compensation, the party does support the constitutional principle of "just and equitable" compensation being decided by a court. The DA is currently pursuing a judicial review of the Expropriation Act in the High Court, challenging its constitutionality. This legal battle highlights the deep ideological divisions within the politics of South Africa over how to balance redress with property rights.

A Divergent Voice from the Public Works Minister

In a complex political twist, the minister tasked with implementing the Expropriation Act, Dean Macpherson, is a member of the opposition DA. Despite his party's official stance, Macpherson has publicly stood by the legislation, calling it a "dramatic improvement" on the old 1975 act because it includes greater safeguards and court oversight. He has sought to reassure investors that there will be no arbitrary land grabs.

Macpherson has argued that taking property for public use is a standard tool used by governments worldwide for economic development and infrastructure. He believes the legislation can help the state overcome obstacles like extortion. While acknowledging some concerns, he has stated that any contradictions within the act are "resolvable." His position underscores the profound rifts not only between parties but also within them as they grapple with this emotive issue.

The Case of Eskom: A Tool Against Extortion

Dean Macpherson, the Public Works Minister, has highlighted the struggles of Eskom, the state-run power utility, to illustrate the practical need for the new legislation. Eskom plans a massive expansion of its transmission network to address South Africa's severe energy crisis, requiring access to thousands of kilometres of land. However, these vital infrastructure projects are often hampered by speculative land deals.

Macpherson provided an example where individuals, allegedly colluding with officials, bought land on a planned route for one million rand and subsequently asked for twenty million rand from the state. He questioned whether it was "just and equitable" for the public to pay such an inflated price. In his view, the Expropriation Act provides a necessary tool to prevent the government from being subjected to extortion, ensuring that essential projects can proceed in the broader public interest.

Urban Decay: Johannesburg's Hijacked Buildings

The application of the Expropriation Act extends beyond rural farmland to urban areas facing decay. President Ramaphosa has pointed to the significant quantity of abandoned and "hijacked" buildings in the inner city of Johannesburg as a prime example. Many of these properties have been deserted by their owners, are not paying municipal rates, and have been illegally occupied, contributing to urban collapse.

Dada Morero, Johannesburg's mayor, has expressed his intention to employ the new legislation to take control of these derelict structures. The city has identified nearly 100 such buildings and plans to repurpose them for the "public good," such as providing accommodation for the thousands of individuals on the housing waitlist. This demonstrates the government's intent to employ the Act to address not only land reform but also pressing urban housing and renewal challenges.

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A Question of Compensation for Urban Ruins

Even when buildings are considered abandoned, the matter of compensation remains complex. Legal experts Thomas Karberg and Bulelwa Mabasa have suggested that while the land itself might be taken with nil compensation, payment would likely still be required for the physical structures on it. This nuance complicates the process of taking over derelict urban properties.

In many cases, the proprietors of these abandoned buildings are untraceable, with some reportedly residing in countries like Germany and the UK. This presents a logistical challenge for the state. According to legal procedure, if the owners cannot be located, the government is obligated to deposit the determined compensation amount with the High Court's Master. This ensures the funds are held in trust in case the owners or their heirs eventually come forward to claim them.

The Farmers' Perspective: Pragmatism Amid Fear

While the spectre of land seizures has caused widespread fear in the agricultural sector, some perspectives are more pragmatic. Jaco Kleynhans from the Solidarity Movement, a prominent lobby group representing the Afrikaner community, has expressed his opposition to the legislation, stating it could "destroy" certain businesses. However, he also conveyed a belief that it would not result in "large-scale expropriation of farmland."

Speaking at a panel discussion, Kleynhans remarked that he doesn't see that outcome within the text's wording. This statement, coming from a representative of a community deeply concerned about property rights, adds a significant layer of nuance to the debate. It suggests that even though the risks are taken seriously, some agricultural stakeholders do not interpret the law as an immediate existential threat to their operations, focusing instead on its specific legal provisions.

Concerns from the Property Sector

The South African Property Owners Association has voiced strong objections to specific aspects of the new legislation. The association finds the clause allowing for no payment for land held for "speculative purposes" to be particularly "irrational." They argue that speculating in land is a legitimate business activity for many landowners, who do not get the land without cost and incur substantial holding expenses.

The group has made it clear that it expects the law will be "abundantly tested" in the nation's courts. This signals that the business community is preparing for a protracted legal battle to challenge the constitutionality and practical application of the Act. Their stance ensures that the implementation of the law will face rigorous scrutiny from the commercial property sector, adding another layer of complexity to the government's reform agenda.

The Unsettled Claims: A Decades-Old Backlog

A powerful driver behind the push for the new Expropriation Act is the immense backlog of unresolved land claims. According to a land expert at the University of the Western Cape, Professor Ruth Hall, a great number of such claims are still pending. The Commission on the Restitution of Land Rights reported in late 2024 that over 5,700 claims lodged before the 1998 deadline were still outstanding.

This slow progress has been a source of profound frustration and has fuelled the narrative that the post-apartheid land reform process has failed. Deputy President Paul Mashatile acknowledged the challenge, stating that the administration has allocated billions of rand to settle claims through initiatives like Project Kuyasa. However, with only a few hundred claims being settled annually, the existing system is seen as inadequate to address the scale of historical injustice.

Labour Tenants and a Legacy of Servitude

The complexities of land reform are starkly illustrated by the situation of labour tenants. This system, a remnant of a feudal past, involves people, overwhelmingly black, working on farms without cash wages. In exchange for their labour, they are allowed to reside on a section of the owner's property and raise their own livestock. This practice effectively ties them to the land in a state of dependency.

The government's stated goal is to give ownership of the land these tenants occupy to the workers themselves. Land expert Professor Ruth Hall argues it is not fair to expect the government to pay the full market value for this land, given the history of unpaid labour that has enriched its owners. The new legislation, by moving away from a strict market-value compensation model, is seen as a crucial "bargaining chip" to finally resolve these deeply inequitable arrangements.

The Radical Flank: The Economic Freedom Fighters

While some groups condemn the Expropriation Act for going too far, others criticise it for not going nearly far enough. The EFF or Economic Freedom Fighters, led by Julius Malema, represents the most vocal radical flank in the land debate. The party has consistently argued for the wholesale nationalisation of all land, placing it under state custodianship.

From this perspective, the new legislation is a "legislative cop-out" that fails to fundamentally alter the colonial and apartheid-era property structures. The EFF’s unwavering stance on taking land without payment for all land keeps immense political pressure on the ANC. It forces the ruling party to demonstrate concrete progress on reform, lest it be outflanked by more radical voices who command significant support among those dispossessed by the previous regime.

Legislative Limbo and an Uncertain Future

Despite President Ramaphosa signing it into law, the Expropriation Act is currently in a state of suspension. The President has not yet set a start date for its rollout, and it is not yet in effect. This delay is likely influenced by a combination of factors. On the international front, the government is wary of further antagonising the United States while trying to secure favourable trade relations.

Domestically, the Act faces a determined legal challenge from the Democratic Alliance, which is seeking to have it declared unconstitutional. This combination of external pressure and internal opposition means the government is proceeding with caution. The future of this landmark legislation remains uncertain, caught between the urgent need for historical redress and the powerful political and economic forces resisting fundamental change.