Written by: Ryan Heymans
Date: February 2025
Understanding South Africa’s Land Expropriation Act
“Expropriation”—there may not be another more hotly debated and contested word in the South African sociopolitical psyche. If you add the phrase “without compensation” to follow it, you may start to hear the beats of the drums of war ominously getting louder. So hotly contested is the notion of expropriation (with or without compensation) debated in South Africa that it almost always immediately results in political and ideological lines being drawn from the outset.
On 23 January 2025, President Cyril Ramaphosa signed, assented to, and enacted the Expropriation Act 13 of 2024, bringing finality to a 17-year process whereby the 28th parliamentary administration sought to finally repeal the Expropriation Act 63 of 1975 and enact a new Expropriation Act that is reflective of the Constitution’s spirit, purport, objectives, and transformative aspirations and intentions. Aside from constitutional and transformative imperatives, the Expropriation Act 13 of 2024 is a significant departure from the old Expropriation Act in that it explicitly makes provision for the expropriation of property without compensation.
Below, we will unpack what the enactment of the Expropriation Act 13 of 2024 means for property owners and the holders of rights in and to property in South Africa, whether the Expropriation Act 13 of 2024 addresses land reform, and the circumstances in which property rights may be expropriated without compensation.
What Does The Law Say About Expropriation Without Compensation In South Africa?
The requirement that compensation be paid when property is expropriated is embedded within the legal concept of expropriation by reason of the fact that lawful expropriation requires the payment of compensation.
However, the Expropriation Act 13 of 2024 has departed from the old Expropriation Act 63 of 1975 in that it makes provision for the payment of “just and equitable” compensation, which can be juxtaposed with the previous compensation regime of market value compensation premised on the “willing buyer, willing seller” basis. The requirement of “just and equitable” compensation was introduced into South African jurisprudence by the Constitution; as such, the incorporation of the requirement of “just and equitable” compensation in the Expropriation Act 13 of 2024 constitutes a further alignment of the Expropriation Act 13 of 2024 with the Constitution, wherein Section 12(1) of the Act mirrors Section 25(3) of the Constitution, which provides a list of the factors to be considered when determining what constitutes “just and equitable” compensation.
The factors to be taken into account for the purposes of determining “just and equitable” compensation are as follows:
- The current use of the property.
- The history of the acquisition and use of the property.
- The market value of the property.
- The extent of direct state investment.
- Subsidiary in the acquisition and beneficial capital improvement of the property.
- And the purpose of the expropriation.
The process of determining the quantum of compensation payable as “just and equitable” is conducted on a case-by-case basis, involving a thorough investigation and analysis of the facts of each case. It, therefore, follows that a determination of nil compensation is required to be guided by and be the outcome of an analysis conducted in accordance with Section 25(3) of the Constitution.
Nevertheless, in spite of the new regime introduced by the Expropriation Act 13 of 2024, there are many scholars and jurists alike who are of the view that an expropriation that is not accompanied by compensation is, in fact, not an expropriation and will accordingly not pass constitutional muster.
How Is The Expropriation Of Property In The Public Interest Connected To The Government’s Commitment To Land Reform?
The nexus between land reform and expropriation is that Section 25 of the Constitution provides for expropriation for a public purpose and in the public interest. Section 25 further provides that for the purposes of the property clause, the “public interest includes the nation’s commitment to land reform and to bringing about equitable access to all of South Africa’s natural resources, and property is not limited to land.”
The provisions of Section 25(9) of the Constitution provide further for the promulgation of legislation in order to give effect to land reform. As such, to the extent that the Expropriation Act 13 of 2024 is construed as a legislative tool to be utilised for land reform purposes, the promulgation of the Expropriation Act 13 of 2024 was, in fact, mandated by section 25(9) of the Constitution.
Accordingly, the Expropriation Act 13 of 2024 has, in furtherance of the Constitution, gone a step further than the old Expropriation Act 63 of 1975 and made provision for expropriation to be undertaken for a public purpose in addition to being undertaken in the public interest. The Expropriation Act 13 of 2004 is further reflective of the Constitution in this regard in that the definition of “public interest” is reflective of the provisions of section 25(9) of the Constitution.
The practical effect of the legislature catering for scenarios where property may be expropriated for nil compensation while at the same time expressly incorporating the Constitution’s mandate that the nation’s commitments to land reform be construed as the public interest in which property may be expropriated in the Expropriation Act 13 of 2024 is that when analysing what just and equitable compensation is, a conclusion may arise wherein, in balancing the public interests and the interests of the property owner, it is possible that one may arrive at a conclusion wherein it is just and equitable to pay nil compensation to the property owner for expropriated property.
However, it must at all times be borne in mind that the Expropriation Act 13 of 2024 only provides for expropriation without compensation in the public interest and for a public purpose in circumstances where land is expropriated and does not apply to rights in, to, and over property.
What Are The Implications And Broader Potential Of The Expropriation Act?
While concerns about expropriation without compensation have dominated the public discourse, it is important to recognise the broader potential of the Expropriation Act 13 of 2024. Beyond addressing the longstanding grievances around land ownership and distribution, the Expropriation Act 13 of 2024 could be an instrument for broader socio-economic development—unlocking land for housing, agriculture, infrastructure, and public services critical to national development.
Of course, the success of the Expropriation Act 13 of 2024 will hinge on its implementation. If used judiciously and in the spirit of the Constitution, it could be a catalyst for economic growth and social upliftment. If misapplied, however, it risks eroding investor confidence and further entrenching socio-economic divisions.
Does The Expropriation Act Represent An Evolution In South Africa’s Property Law?
The Expropriation Act 13 of 2024 represents a pivotal evolution in South Africa’s property law landscape. Born out of a protracted legislative process and constitutional imperatives, it embodies the nation’s commitment to redressing historical injustices while striving for an equitable, inclusive economy. By expressly providing for expropriation with nil compensation under carefully prescribed conditions, it attempts to balance the protection of property rights with the need for transformation and social justice.
Critics argue that the Act opens the door to economic uncertainty, while proponents see it as an essential tool for land reform and nation-building. What is clear, however, is that the Expropriation Act 13 of 2024 is here to stay—and its impact will largely depend on how the state exercises its new powers.
For property owners, investors, and stakeholders, understanding the nuances of the Expropriation Act 13 of 2024 is crucial. Sound legal advice and proactive property rights management are no longer optional but essential.
At Burger Huyser Attorneys, we specialise in property law and constitutional matters, helping clients navigate the complexities of South Africa’s evolving legal landscape. Whether you are concerned about expropriation, land reform, or property rights, our experienced team is here to provide clarity, guidance, and strategic solutions.
Contact Burger Huyser Attorneys today should you have any questions or legal concerns regarding the ever-changing landscape of South African law.
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