The South African Expropriation Act is dangerous and wrong - The Critic

Marius Roodt
Over the last few weeks South Africa has had the international spotlight focused on it more than arguably any other time this century.

During the waning years of the struggle against apartheid and the transition to a multi-racial democracy the country captured the world’s imagination, with the victory of the African National Congress in the 1994 election, and the ascension of Nelson Mandela to the country’s presidency, the first black person to become South African president, being among the defining moments of the 1990s.

Since then, however, South Africa has been somewhat of a backwater. Now and then, stories might emerge into the global consciousness — sometimes they’re positive such as the successful hosting of the 2010 World Cup or the national rugby team becoming back-to-back World Champions in 2019 and 2023.

Other times they are more negative, with stories about the various infrastructure crises facing most South African cities getting coverage in major newspapers abroad in recent years.

However, in recent weeks the spotlight has shone on South Africa more intensely than at any other time this century, following accusations from US President Donald Trump that land seizures were happening and that certain classes of people were being treated poorly. While this is not true – no land seizures are happening and white South Africans are, on average, still much better off than most of their countrymen – this is part of a broader anti-South Africa move by Washington.

Other senior officials in Donald Trump’s administration, such as new Secretary of State, Marco Rubio, also trained their attention on South Africa, with Rubio saying he would not attend the G20 summit, scheduled to be held in Johannesburg in November this year, not only because of alleged land seizures, but because of South Africa’s perceived anti-American foreign policy stance.

This is not all new — people from both sides of the aisle in the US Congress have expressed concern with South Africa’s continued support for American opponents, such as Russia and Iran — in international forums.

But what has been the catalyst for claims over seizures of land is the recent signing into law by Cyril Ramaphosa of a new expropriation act.

This act replaces an apartheid-era law from the 1970s. Many people claim that the new law was needed to modernise South Africa’s expropriation policies, but there are a number of serious concerns with this new law, notably that allows the government to take property without paying any compensation for it.

This comes after a number of attempts by the government to change a clause in the South African constitution, which protects property rights. This failed in 2021, the ANC failed to secure the necessary two-thirds parliamentary majority to make this change. However, this was not because there was a strong lobby for property rights represented in Parliament. While a number of political parties opposed the change because it would weaken property rights some parties, such as the Economic Freedom Fighters (EFF), led by a former leader of the ANC’s youth wing, Julius Malema, voted against it because they felt the amendment did not go far enough. The party preferred all land to go under the custodianship of the state, with the state then deciding who can use land and for which purpose. 

This Expropriation Act has been in legislative limbo since 2004 but was finally signed into law a few weeks ago, against the wishes of a number of the ANC’s partners in the current governing coalition — a Government of National Unity (GNU) — as it’s called in South Africa. This comes after Ramaphosa signed a number of other bills into law which his coalition partners have opposed, such as one which centralises more control of schools, taking away power from parents and another which would destroy the private healthcare sector in South Africa.

When the GNU was formed after last year’s election most observers heaved a sigh of relief that parties such as the EFF, and the uMkhonto weSizwe Party (MKP) were kept out of government. The MKP, led by a former national and ANC president, Jacob Zuma, has views on land reform even more radical than the EFF, and effectively wants to rip up the country’s constitution, and return the country to some kind of rule by traditional leaders and kings. Zuma has lamented how “unAfrican” South Africa remains, which has had many observers raise their eyebrows, as Zuma was chief executive of the country for nearly ten years, and did little to change the status quo.

But back to the new Expropriation Act. Many appeasers have said that there is nothing to worry about with the new law, it simply replaces an old apartheid-era law and that guardrails against arbitrary seizures of property are in place.

However, this is simply not true.

The Act lays out four reasons where expropriation without compensation can happen but, importantly, this list is open-ended. These four instances are: where the land is held for speculative purposes and is not being used by the owner; where the land is held by an organ of the state that is not using it for its core functions; where an owner has abandoned the land by failing to exercise control over it despite being reasonably capable of doing so; and where the market value of the land is equivalent to or less than the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land. 

 The Act explicitly says that times when nil compensation can be paid are not limited to the four instances in the legislation.

Concerningly property is not only confined to land — the Constitution itself explicitly says that the term “property” is not limited to only land. This means all sorts of assets could be up for grabs, ranging from vehicles, to bank accounts, to intellectual property, to company shares.

And it is also bizarre that land held for speculation can be taken for nil compensation — buying land because you believe it might appreciate in value is perfectly acceptable. And many people invest in things which they believe will increase in value, from shares to painting to first editions of books. There is nothing inherently wrong with this and it’s strange that the Act targets the profit motive in this way.

While no land or property has been taken yet, this Act gives the government the power to do so. However, in 2018 the government did try to take a private farm — possibly as a test run for later and wider land seizures. In that year a farm in Limpopo, Akkerland, was given notice of expropriation after the owners and the government couldn’t agree on a price on the “willing buyer, willing seller” model. The government then gave the owners seven days to vacate the premises. However, they went to court and managed to have the expropriation overturned with costs, and subsequently sold the farm the following year closer to their asking price.

This was seen by many people as a “test case” for expropriation which failed then, partly because of the existing legislative framework at the time. However, now that the environment has changed a case such as the Akkerland one, could see expropriation happen, with low or no compensation.

It is also an open question whether the state needs to go around expropriating land in South Africa. The state itself is one of the biggest land owners in South Africa, whether rural or urban.

These moves by the South African government to weaken property rights are inexplicable and concerning. If the Expropriation Act is implemented as is, it will put a stake through the heart of property rights in South Africa, and end any hope that the country has of becoming prosperous.

Marius Roodt is senior analyst at the Institute of Race Relations in South Africa

https://thecritic.co.uk/the-south-african-expropriation-act-is-dangerous-and-wrong/