CAPE TOWN, Western Cape — The constitutional validity of South Africa’s Expropriation Act faced intense scrutiny on Wednesday, resulting in a notable admission from President Cyril Ramaphosa’s legal team that specific clauses within the sweeping property legislation are indeed problematic.
The high-profile hearing at the Western Cape High Court was initiated by a formidable coalition of applicants, including the Democratic Alliance (DA), AfriForum, Die Vaderland Stigting, and the Institute for Race Relations (IRR) Legal. For two days leading up to the state’s response, the applicants presented arguments asserting that core components of the new law are unlawful, cautioning that the legislation as currently written effectively paves the way for “legislated landgrabs.”
In their defense, counsel representing President Ramaphosa opened with a procedural challenge, suggesting to the bench that the current court might lack the requisite jurisdiction to rule on such a broad constitutional challenge to the Expropriation Act. Furthermore, the President’s legal team argued that any evaluation of the law’s constitutionality must be strictly viewed through the lens of broader “constitutional objectives.”
However, moving past procedural defenses, Ramaphosa’s representatives made a significant concession regarding the mechanics of the property law. Aligning with several objections raised by the applicants, the state’s legal team agreed that Sections 19(2), 19(3), and 19(4) of the act are flawed. These specific subsections govern the mandatory timeframes regarding a “notice of expropriation”—the formal period and process by which a citizen is first notified of the government’s intention to appropriate their property.
Despite the agreement on the notification timeframes, the undisputed crux of the week’s legal battle remains Section 25. This vital section dictates the framework for “just and equitable compensation.” It is within Section 25 that the highly debated concept of “nil compensation” is addressed, outlining the specific circumstances under which expropriating land in the public interest without financial remuneration might be deemed just and equitable. Additionally, the broader legislative mandate of the act includes the formal repeal of the apartheid-era Expropriation Act of 1975 to modernize connected regulatory matters.
Rather than asking the court to scrap the legislation entirely, Ramaphosa’s legal team proposed a targeted judicial remedy. Counsel requested that the court declare only the conceded problematic sections invalid, advocating for a “reading-in”—a legal mechanism used to correct or insert specific wording into the act to cure its constitutional defects.
The Western Cape High Court proceedings are scheduled to resume on Thursday as the applicants and the state finalize their arguments regarding the future of the country’s land reform framework.
