SA’s Land Expropriation Act is constitutional

5 February 2025 by Guest

South Africa’s much talked-about Expropriation Act is something that should be looked at in the context of its painful past wherein land was a commodity not afforded to the majority.

Last week, President Cyril Ramaphosa signed into law the Expropriation Bill, which sets out how organs of State may expropriate land in the public interest for varied reasons.

In a statement, The Presidency said the new legislation, which repeals the pre-democratic Expropriation Act of 1975, aligns expropriation processes with the Constitution.

Section 25 of the Constitution recognises expropriation as an essential mechanism for the state to acquire someone’s property for a public purpose or in the public interest, subject to just and equitable compensation being paid.

Honorary Professor of International Relations at the University of the Witwatersrand, Professor John Stremlau, gave his thoughts on the signing into law of the act which is the culmination of a five-year process of public consultation and Parliamentary deliberation.

“It is constitutional, reflecting a long-standing asymmetry between white ownership in the majority of the land and black ownership for the majority of the people being confined to marginal lands and so there is that position that is reflected in the document. But it’s not precipitous in any way and calls for due process,” he told SAnews.

The Act allows for the State to expropriate land in the public interest – subject to just and equitable compensation.

This as the recently signed act, drew the ire of the United States of America President, Donald Trump.

Reports this week emerged that the US President has moved to halt future funding to South Africa as his administration investigates allegations of “land confiscation” – following President Ramaphosa’s assent of the Expropriation Act.

US funding to South Africa is related to PEPFAR (US President’s Emergency Plan for AIDS Relief) Aid and constitutes some 17% of the country’s HIV/AIDS programme.

The Professor further stressed that South Africa “has a right of eminent domain…overriding private property.”

This as Minister Lamola earlier told SAnews that expropriation laws are not unique to South Africa.

“We trust President Trump’s advisors will make use of the investigative period to attain a thorough understanding of South Africa’s policies within the framework of a constitutional democracy. This approach will promote a well-informed viewpoint that values and recognises our nation’s dedication to democratic ideals and governance,” the Minister said.

The New York Times The Learning Network defines eminent domain as the right of the state to take private property for public use adding that the Fifth Amendment that was added to the Constitution of the United States requires that just compensation be made.

“And South Africa is struggling to overcome the apportioning of land to the settlers and not to the natives. I didn’t think that the parts that I read were in any way unreasonable and reflected the painstaking negotiations…with the communities to reassure those who have properties that they will be full compensated, but, and that at the same time they may be subject to pressures from the government but also government land. It strikes me as a very reasonable approach and I don’t mind being quoted on that,” said the Professor.

Stremlau added that “there are Americans like me who are offended by Trump’s arbitrariness.”

The expert’s comment come on the heels of a Presidency statement stating that the Act is “not a confiscation instrument, but a constitutionally mandated legal process that ensures public access to land in an equitable and just manner as guided by the Constitution”.

The Act states that property may not be expropriated arbitrarily or for a purpose other than a public purpose or in the public interest.

SA-US relations

Asked about whether the act will likely sour relations between South Africa and the US, Stremlau said: “America is a complicated place, and there are Americans like me who are offended by Trump’s arbitrariness.”
“It is very much about where the body politic will land as is the case here. And President Ramaphosa should be congratulated for a Government of National Unity.”

On whether the alarm bells raised by the US could see South Africa kicked out of the African Growth and Opportunity Act (AGOA), he said he was hopeful that cool heads will prevail.

AGOA is a unilateral trade preference scheme that provides qualifying sub-Saharan African countries with duty-free, quota-free access into the United States market.

“Congress has by a partisan majority supported the AGOA but South Africa is a standout nation because it is a middle income country and AGOA is intended for poor African countries. South Africa has been a critical member of AGOA and I would hope that cool heads would prevail,” he said.

Since its enactment in 2000, AGOA has been at the core of US economic policy and commercial engagement with Africa. The act is an initiative of the United States and is aimed at giving duty-free market access for producers in eligible countries in sub-Saharan Africa.

He further added that “colleagues” at the Department of International Relations and Cooperation have “a really tough job ahead.”
“I wouldn’t be second guessing them; I think the country should get behind them. But the average South African voter cares about pocketbook issues and getting a job, that has got to be President Cyril Ramaphosa’s total preoccupation,” he said.
Earlier, Public Works and Infrastructure Minister Dean Macpherson reiterated government’s stance on the Act, stressing that no one in South Africa will “have their land confiscated”.

“The Expropriation Act sets out a clear legal framework under which expropriation may take place, always with due process and court oversight,” Macpherson said, adding that the Government of National Unity will always put the interests of South Africa first.

Professor Stremlau’s comments come ahead of the seventh administration’s first State of the Nation Address (SONA) which President Ramaphosa will deliver before a joint sitting of the National Assembly and the National Council of Provinces on Thursday, 6 February.

In mapping out South Africa Inc’s path for the year ahead, President Ramaphosa will reflect on the year that was and is likely to include legislation that has been passed, including the Expropriation Act.

“Americans respect what South Africa is trying to do in the aftermath of the terrible Apartheid era,” said Stremlau. –SAnews.gov.za

Neo
Wed, 02/05/2025 – 14:32

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