By Daniel in Politics

South Africa's Expropriation Act: What It Actually Says, and Why It's Back in Court

South Africa's Expropriation Act was signed in January 2025 but still has no commencement date. Here is what it actually says about nil compensation, and why the DA, AfriForum and the IRR are fighting it in court.

South Africa's Expropriation Act is back in the headlines this week, and for once the story isn't a politician's speech or a party's manifesto promise. It's a courtroom in Cape Town, where the Democratic Alliance, AfriForum, the Institute of Race Relations and the Free Market Foundation are asking the Western Cape High Court to strike the law down entirely.^[1] What makes the case unusual is that the president has never actually proclaimed the Act into operation. It has sat signed on the statute books since January 2025, waiting on the one signature that would switch it on, while government and its own coalition partners fight over whether that should ever happen.

Here's what the Expropriation Act actually says, how it would work if it starts operating, and why an Act still waiting to be switched on has already managed to trigger a Trump executive order, a US aid freeze and a court battle that could run for years.

What the Act replaces

President Cyril Ramaphosa signed the Expropriation Act into law in January 2025, and it was published in the Government Gazette on 24 January.^[2] Once it takes effect, it will repeal the Expropriation Act of 1975, an apartheid-era law that let the state take property for "public purposes" like roads and dams, valued strictly on a "willing buyer, willing seller" market basis.^[3]

The new Act keeps the basic machinery (an expropriating authority must first try to negotiate a sale, and only expropriate if that fails) but changes two things that matter a great deal. First, it widens the grounds for expropriation from "public purpose" to "public purpose or in the public interest", and the Act defines public interest to explicitly include land reform.^[3] Second, it drops the old market-value test in favour of the "just and equitable" standard already written into section 25 of the Constitution, which weighs the property's current use, how it was acquired, its market value, how much the state has invested in it, and the purpose of the expropriation, rather than treating market value as the deciding factor.^[3]

How an expropriation is actually supposed to work

The process is more deliberate than the "land grab" framing suggests. An expropriating authority (a government department, municipality, or another organ of state) first has to try to reach an agreement to buy the property on reasonable terms. Only if that fails can it issue a notice of intention to expropriate, setting out an offer of compensation and giving the owner 30 days to respond, accept, ask for more detail, or dispute the amount.^[3]

Crucially, the Act says the authority may only proceed to a formal notice of expropriation once compensation has been agreed with the owner, or approved or decided by a court.^[3] If the two sides can't agree, either party can try mediation, and if that also fails, either side can take the dispute to the High Court within 180 days of the expropriation notice.^[3] This is actually one of the DA's specific complaints in the current case: its court papers argue those two requirements create an "irresolvable circularity", since compensation is supposed to be settled before the expropriation notice is issued, yet the Act's own dispute process only kicks in after that notice goes out.^[4]

The "nil compensation" clause everyone argues about

The provision that made international headlines is section 12(3), which says it "may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited to" four listed scenarios:^[3]

Land that isn't being used, where the owner's main purpose is to hold it for its resale value rather than to develop it or earn income from it
Land held by an organ of state that it doesn't need for its core functions and that it acquired for nothing
Land the owner has genuinely abandoned, despite being capable of controlling it
Land whose market value is equal to or less than the direct state investment or subsidy that went into acquiring and improving it

It's worth being precise about what this doesn't say. Nil compensation is only available where what is expropriated is land, under this specific public-interest route, not the far more common "public purpose" expropriations used for infrastructure like roads or pipelines. And "may be just and equitable" is not a blank cheque, since a court still has to be satisfied that nil compensation is actually just and equitable on the facts of a given case. Critics in the current court challenge focus instead on the phrase "including but not limited to", arguing it hands the state discretion to invent further categories of nil compensation beyond the four listed.^[5]

A law waiting on its own start date

Here is the detail that gets lost in most of the commentary. Section 31 of the Act says it "comes into operation on a date determined by the President by proclamation in the Gazette", and different sections can be switched on at different times.^[3] More than a year and a half after Ramaphosa signed it, no such proclamation has been made public, and nothing in the reporting on this week's court hearing, or in the months before it, points to a single expropriation having actually taken place under the new Act. As far as the public record shows, government has not yet flipped the switch that would let any authority actually use it.

That hasn't stopped the fight over it. Public Works and Infrastructure Minister Dean Macpherson, a DA member serving in Ramaphosa's coalition government, said within days of the signing that "there will be no expropriation of private property without compensation on my watch" and that section 25 property rights are "non-negotiable".^[6] His own party has since gone further and asked the courts to scrap the whole Act, which makes for an odd picture: a minister who administers the law, promising never to fully use the part of it his party is simultaneously trying to have declared unconstitutional.

Why Washington got involved

The Act's signing set off consequences well beyond South Africa's borders. On 7 February 2025, President Trump signed an executive order cutting foreign aid to South Africa, citing the Expropriation Act and saying the law "blatantly discriminates against ethnic minority Afrikaners", and the same order opened a path for Afrikaners to be resettled in the United States as refugees.^[7] The South African government rejected the order as factually inaccurate and dismissive of the country's history of colonial and apartheid land dispossession.^[8]

The strain has also coloured South Africa's trade relationship with Washington. The African Growth and Opportunity Act, which gives South African exporters duty-free access to the US market, was extended for another year in February 2026, and South Africa kept its place on the list for now, though its continued eligibility is not guaranteed.^[9]

What the court case is actually about

The hearing that opened in the Western Cape High Court on 3 August 2026 combines several linked constitutional challenges, brought separately by the DA, AfriForum and the IRR among others. The DA's papers name the president, the Public Works minister, the Speaker of the National Assembly and the chairs of the National Council of Provinces and nine provincial legislatures as respondents, and argue two main points: that sections 19(2) and 19(3) create the circular compensation problem described above, and that the National Council of Provinces never lawfully passed the Act in the first place, because delegates from several provinces voted without a proper mandate from their own legislatures.^[4]

AfriForum's argument is more direct: that section 25 of the Constitution requires compensation for every expropriation and simply has no category for "nil", so section 12(3) cannot stand no matter how narrowly it's drafted.^[5] The Institute of Race Relations was due to argue separately, and the Free Market Foundation has told the court that section 25 of the Constitution "plainly requires that whenever the state expropriates property, it must be subject to the payment of an amount of compensation", making nil compensation unconstitutional by definition.^[10] Government and land-reform groups such as AFRA are defending the Act, arguing that section 25 itself commits the state to land reform and that the "just and equitable" standard, including the narrow nil-compensation scenarios, is exactly what the Constitution's drafters intended when they wrote it.

Proceedings are scheduled to run through the week, with no ruling handed down yet, and whichever way the court goes, an appeal looks likely, quite possibly all the way to the Constitutional Court.

The bottom line

More than a year and a half after it was signed, South Africa's Expropriation Act still has no commencement date on the public record, and it's tied up in a court fight involving the very coalition partners meant to be governing together. Whatever the Western Cape High Court decides, it won't be the final word. What's clear already is that the loudest claims on both sides, that it licenses mass land seizure, or that it's a modest technical update, don't survive contact with the actual text. It is a narrower and more procedurally hedged law than its reputation suggests, but the fight over that "including but not limited to" is a real one, and it's the reason this Act may still be waiting for its first proclamation long after this week's hearing ends.

Sources

Written by Daniel

Daniel sharing practical, easy-to-understand information and free calculators to help South Africans make better everyday decisions. He completed his BCom degree at the University of Pretoria and studied Financial Management at the honours level.

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