Not new or dangerous – The Mail & Guardian

Date:


Graphic Tl Tembeka Land Page 0001

(Graphic: John McCann/M&G)

Despite the apparent public controversy, the concept of expropriation is neither new nor dangerous. In fact, the authority to expropriate private property is necessary for a functional state, based on the rule of law and constitutionalism, especially where the economy is structured to preserve private property. 

Without this power, it is difficult to see how the state can deliver basic services. The alternative to the power of expropriation is the abolition of private property and its replacement with nationalisation.

This is because, in its essence, the power of expropriation, which vests exclusively on the state, is designed to enable the state to acquire a specific property from a private owner to fulfil a public function. 

Our expropriation laws are no different. And have never been. The Union of South Africa and the apartheid regimes both had expropriation laws to enable the state to execute public works programmes.

The latter point is really one of history. Today’s critics of expropriation have tended to forget their own history in which deprivation of property through expropriation created racial concentrations of property, which has produced the prevalent property racism that defines South Africa’s economy.  

If expropriation has always been part of our social and economic structure, what is the debate about then? Let us start with the basics.

The Expropriation Act of 2025 intends to repeal and replace the 1975 Act of the same designation. The 2025 Act differs from its predecessor in at least two important respects, namely that expropriation may be undertaken in the public interest and for public purposes. 

The term “public interest” is a constitutional term, which is intended to include the goal of land reform to redress the apartheid and colonial land patterns, which reflect marginalisations and land discrimination.

In the second aspect, the 2025 Act introduces a novel concept of compensation for the owner of property, not based on “willing seller, willing buyer”, but on “justice and equity”, terms which are slippery and have never been capable of precise legal or economic definition, despite many attempts at attaining precision. 

While exhorted by market fundamentalists, willing seller, willing buyer in expropriation contexts is something of a fiction or a myth. The act of expropriation, by definition, is about an unwilling seller selling to a single buyer, namely the state, not out of choice, but through legal compulsion.

The same can be said of justice and equity. Yet for a restorative Constitution, such as ours, the idea of property justice is not an abstract or a theoretical one, but the concrete notion of redress for what was lost in the brutal and genocidal wars of colonial conquest. 

Equity is also not self-explanatory. In the property context, it is fair to see the term as distinct from equality: the idea that everybody who is similarly situated should receive the same legal treatment.

The term of equity is used to signal the deliberate intent to remove barriers to equality and to actively take steps towards the empowerment of the disadvantaged.

That means a starting point which accepts present inequalities and intentionally treats people situationally, and then takes corrective steps. Otherwise “blindness to colour” arguments simply entrench existing inequalities.

So the addition of justice and equity into the expropriation discourse is a highly momentous one: it instructs the state to address property racism.    

Yet more explanation is warranted. What will happen in practice?

Expropriation takes place in two stages. Stage one is the actual expropriation in which the state notifies the owner of its intention to acquire their property, the reasons therefore, the amount of compensation proposed and when the expropriation will take place. Such notice must invite the owner to comment.

An owner has the right to object, including the right to approach a court for judicial review of the decision to expropriate. 

Crucially, such decisions are also subject to judicial control under the administrative justice provisions of our Constitution and legislation. In this sense, while the state has the power to decide on the expropriation, it has no power to decide its legality.

This is a function of the supremacy of the rule of law: judges and not politicians have the final say over the legality of administrative decisions. 

Stage two is the determination of the amount of compensation. The Constitution requires agreement on the amount of compensation between the owner and the state and failing agreement judicial determination on specified items: the amount, the time and manner of payment. 

The Act permits compensation at below market value, including nil compensation, a subject which has triggered much controversy. Since the power of the state under the Act is constrained to the mandate of the department of public works, the scope of this Act is actually narrow. 

Section 3 states that the power of the minister of public works and infrastructure to expropriate “applies to property which is connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state, in terms of the Minister’s mandate”. That mandate is the provision of accommodation and other needs of the state. 

Hence this is not a general land reform law, but a limited law, to enable the state to acquire property for its own uses, as has always been the case. Instances of “nil compensation” will therefore arise in negligible cases. Where they do arise, there will be fierce expert economic and legal contests as to their justifiability. 

The installation of courts as final arbiters of the final amount — if any should be paid — itself means that the Act cannot be described, to borrow from social historian and political activist EP Thompson as “a bad law made by bad legislators”, even if it does not yet pass for a good law.

Whether this Act will be a good law depends on whether it is interpreted with common sense and applied with compassion. 

There are some problems with the Act: vagueness and ambiguities in some terms, apparent contradictions and circularity, which is a function of the deep proceduralism emblematic in the Act. For instance, the Act says that either the owner or the state may approach the court in the event of a dispute concerning compensation.

The question, then what if no one does? Does it mean that the expropriation stalls? The Act should have made a choice, in imposing the duty on the state, at all times to approach the court to decide compensation if there is no agreement. 

And the Act contains at least 17 discrete steps before a final decision can be taken to expropriate property. And this excludes courts and their own procedures, thus making the process of expropriation unduly cumbersome. There are many more, and space constraints do not permit for elaboration. The point is that those shortcomings in the Act do not rise to the level of unconstitutionality.

There is a final note. This is not a law to solve the crisis of land injustice. It does not pretend to be. Nor will this Act abolish private property rights. Claims along these lines are mischievous. For property rights holders, nothing dangerous will come of it.

For the landless, their aspirations of an end to property racism have not been fulfilled. Now another thing must happen. Another law. Another round of controversy. Yet the march towards freedom remains. 

Tembeka Ngcukaitobi is the author of Land Matters: South Africa’s Failed Land Reforms and the Road Ahead.





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