On the alarmist, misleading, and anti-constitutional claims made by critics of the Expropriation Act

It should be possible for citizens with radically different political views to have constructive discussions about the merits of the Expropriation Act. But this becomes difficult when criticisms are not fact based, or are just plain false.

When I heard that President Cyril Ramaphosa had signed the new Expropriation Act, I felt just a tad annoyed. Not only would I now feel obliged to study the details of the act (a boring and rather technical piece of legislation), it was also going to make it very difficult for me to stick to my New Year’s resolution to ignore (or at least not to respond to) any hysterical, uninformed, or legally questionable takes on constitutional law issues.

I managed to keep to my resolution until last week, when Donald Trump (channelling Elon Musk) falsely claimed that “South Africa is confiscating land” and then issued an executive order instructing members of his administration to “prioritise humanitarian relief, including admission and resettlement… for Afrikaners in South Africa”. (I had sadly broken my vow not to read anything about Trump and Musk less than a week into the new year.)

As I had feared, the level of the public “debate” on the merits or demerits of the act and about the constitutional validity of specific provisions in the act has been even more dire than usual. It has been made worse by the alarmist and at times false claims made about the act by right-wing (or self-proclaimed libertarian) political lobby groups like AfriForum, the Institute of Race Relations (IRR) and the Free Market Foundation (FMF).

While it is possible to make legally plausible (if not necessarily winning) arguments in support of the contention that specific provisions of the Expropriation Act are unconstitutional, these arguments remain largely unmade.

As the act is not without its faults, it should also be possible for citizens of good faith with radically different political views to have a relatively constructive discussion about the overall merits of the act and on whether it is likely to speed up land redistribution.

But this becomes difficult when criticism of specific provisions in the act are not fact-based, and when some of the claims are just plain false.

The first problem with some of the arguments about the unconstitutionality of the provisions of the Expropriation Act is the tendency to ignore or downplay those parts of the property clause that conflict with a particular libertarian conception of property that is assumed to be self-evident and uncontroversial (even pre-ideological), thus so obvious that it would be irrational to conceive of property in a different way.

In this view, property rights are conceived in more or less absolutist terms, as a private right that an owner exercises to the exclusion of all others, with limitations on the right having to be kept to the minimum.

This conception of property is difficult to square with the text of the property clause in section 25 of the Constitution. The Constitutional Court made this clear almost 20 years ago when it held in Port Elizabeth Municipality v Various Occupiers  that the property clause required a reassessment of the concept of property, thus: “To move away from a static, typically private-law conceptualist view of the Constitution as a guarantee of the status quo to a dynamic, typically public-law view of the Constitution as an instrument for social change and transformation under the auspices (and I would add ‘and control’) of entrenched constitutional values.”

Few opponents of expropriation for just and equitable compensation as agreed by the parties or determined by a court will ever mention any of this.

So it is not surprising that section 25(5) of the Constitution, which places an obligation on the state to take legislative and other measures to address the effects of past race-based land dispossession, is seldom mentioned.

Section 25(3) makes it clear that where a court has to determine the amount of compensation to be paid, the interests of the person whose property is being expropriated must be balanced against the public interest (which includes “the nation’s commitment to land reform”).

Another inconvenient subsection of the property clause that is seldom or ever mentioned by those who claim parts of the Expropriation Act are unconstitutional is section 25(8), which states that (subject to the limitation clause in section 36) none of the provision of the property clause 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”.

In other words, legislative provisions that are in conflict with specific subsections of the property clause will only be unconstitutional if they limit the rights in section 25 in a way that is not reasonable and justifiable in accordance with the limitation clause.

It is not possible to make a plausible legal argument in support of the claim that provisions of the act are unconstitutional if one ignores half of the property clause and pretends that the provisions on land redistribution do not exist.

This is why the bulk of the arguments about the unconstitutionality of aspects of the Expropriation Act are not constitutional arguments, but in fact anti-constitutional arguments disguised as constitutional arguments.

It is akin to arguing that it is unconstitutional for the Judicial Service Commission to consider race and gender when making appointments, despite the fact that section 174(2) of the Constitution requires the commission to consider the “need for the judiciary to reflect broadly the racial and gender composition of South Africa when making appointments”.

Some critics of the act also ignore the fact that it continues to require the payment of just and equitable compensation, either agreed to by the parties or determined by the courts, and thus that the “nil compensation” provision does not allow expropriation without just and equitable compensation.

This is intended to (or has the effect of) misleading the general public into believing that the payment of just and equitable compensation is no longer required. (This is also why I believe the “nil compensation” provision in the act is not one of the provisions that are vulnerable to constitutional challenge.)

It is perfectly legitimate to argue that a particular interpretation of a constitutional provision by the Constitutional Court is wrong, and to propose a different interpretation. But pretending that the text of the Constitution and the binding precedent of the Constitutional Court does not exist, and that the text happens to mean what your ideology and political strategy requires it to mean, is both dishonest and opportunistic.

A good example of the problem can be found in an article penned by Martin van Staden of the Free Market Foundation in which he argues that the “nil compensation” provision in the then Expropriation Bill was unconstitutional because it was attempting to conceal the fact that the bill provided for expropriation without compensation, which he claims is not permitted by the Constitution.

The article ignores the relevant parts of the property clause highlighted above and makes no attempt to assess whether the provision is justifiable under the limitation clause. As such, his is not a legal argument, in the sense that it is not an argument that makes any attempt to engage with the law as it stands.

I would go further and argue that it is a purely political argument presented as a constitutional argument.

Apart from the conceptual problems highlighted above, it is also worrying that some influential opponents of the Expropriation Act have made clearly incorrect or misleading claims about the act.

For example, the Institute of Race Relations has claimed that the courts are not likely to protect property owners, in part because “the government has set up a parallel court system that will deal with land expropriation disputes (and the) new land courts are held to a lower standard than regular courts and could easily be used to support the state’s power to expropriate”.

This is false.

Neither this act nor any other legislation allows the Land Court to deal with expropriation disputes. Ordinary courts will deal with expropriation matters, with appeals possible up to the Constitutional Court. In any event, the claims about the newly established Land Court are at best misleading.

The Land Court is a permanent version of the previous Land Claims Court, which was created to deal with land restitution claims, and enjoys equality in status with other high courts. Its judges are appointed by the Judicial Service Commission like all other high court judges, and the new judge president of the Land Court was almost universally praised after her interview before the Judicial Service Commission last year.

While the Institute of Race Relations might hold it to a lower standard, it is not clear why it would do so, given the high quality of at least some of the judgments from that court.

The Institute of Race Relations also claimed on social media that the act does not require a prior court order before expropriation takes place (which is correct). But it then made the startling claim that this is in conflict with section 25(2)(b) of the Constitution that says a court must approve compensation before expropriation, and that the Constitutional Court had ruled in Haffejee v eThekwini that it was unconstitutional to provide for expropriation before compensation has been approved.

The latter claims are false.

Not only does section 25(2)(b) of the Constitution not say what the Institute of Race Relations claims it says, the Constitutional Court did not rule in Haffejee v eThekwini that it was unconstitutional to allow expropriation before a court had determined the amount of compensation paid.

This “mistake” is curious, given the fact that the constitutional challenge in that case had failed, and that the court had provided a handy summary of the law which includes the following points:

• The provisions of section 25(2)(b) do not require that the amount of compensation and the time and manner of payment must always be determined by agreement or by the court before expropriation under section 25(2).
• Generally, in accordance with the provisions of section 25(3), the determination of compensation before expropriation will be just and equitable.
• In those cases where compensation must be determined after expropriation, this must be done as soon as reasonably possible, in accordance with the provisions of section 25(3).

Had the Institute of Race Relations criticised the Expropriation Act for not making clear that the determination of compensation before expropriation should be the norm, or for not setting out in some detail when this could be departed from, they would have made an honest and legally sound argument. Instead, they seem to have just made things up.

Lastly, and this is a minor issue but nevertheless one that irritates me no end, is the more broadly shared misconceptions about the signing of bills by the president.

No, people: the president does not have the power to refuse to sign a bill passed by Parliament merely because he or she does not like it or because others oppose it.

The president has a constitutional duty to sign any bill passed by Parliament – unless he or she has reservations about the constitutionality of the bill, in which case he or she may refer it back to Parliament to reconsider the clause the president believes may be unconstitutional.

In terms of section 237 of the Constitution, like all other constitutional obligations, this obligation must be performed “diligently and without delay”. If the president delays signing a bill for purely political reasons, he or she would be acting in breach of his constitutional duty.

The second widely held misconception (also among journalists) is that a bill automatically comes into operation when the president signs it. It does not.

The Expropriation Act, for one, has not yet come into operation (and is therefore not yet enforceable) as section 31 of the act states that it only “comes into operation on a date determined by the President by proclamation in the Gazette”. As of 11 February 2025, that date has not yet been gazetted by Ramaphosa (Martin van Staden from the Free Market Foundation was therefore mistaken when he claimed on Twitter that the act had been signed into operation.)

I assume the constitutionality of the act (or at least some of the provisions in the act) will be challenged in court. The strength of such a challenge would have to be assessed on its legal merits, guided by the text of the Constitution and the jurisprudence of the Constitutional Court, and not by what some opponents of the act might imagine the Constitution to say.

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