Expropriation Act case: Constitution does not have a category of no compensation, court hears

AfriForum has argued that section 25 of the constitution does not have a category of land expropriation without compensation, and the Expropriation Act should therefore be declared unconstitutional. On Tuesday, the organisation, along with the DA and the Institute of Race Relations (IRR), returned to the Western Cape High Court on the second day of arguments against sections of the Expropriation Act. AfriForum has argued that at least some sections of the Expropriation Act should be scrapped, while another section should be amended as they are unconstitutional.

The organisation has targeted section 12.3 of the Act, which outlines circumstances where land expropriation without compensation may be considered. AfriForum has taken issue with the words “including, but not limited to”, arguing that they leave the list at the discretion of the government. “I’ve already made the point, but I want to stress it: section 25 of the constitution does not have this distinction.

It does not have a category of no compensation,” argued AfriForum’s legal representative. “Section 25 prescribes a weighing-up process of relevant circumstances to get to an equitable balance between the public interest on the one hand and the interest of those affected. “Section 12.3 of the Act changes this focus.

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Instead, it starts at a category, a whole category of properties that may be expropriated for no compensation. It recalibrates almost the test in section 25.3 of the constitution, which is an object of weighing up of factors and facts and relevant circumstances.” This section of theExpropriation Actmust be declared invalid, argued AfriForum. AfriForum further argued against sections 19(2) and 19(3) of the Act, saying they contravened section 25 of the constitution.

The sections allow for land to be expropriated before a compensation amount has been agreed upon or a court has ruled on the matter. “Section 19 of the Act must be declared unconstitutional and remitted to Parliament to amend within a period of 24 months of the date of this order. Pending the amendment of section 19 by Parliament, the court must grant an interim relief by deleting the reference to notice of expropriation in the sub-sections,” argued AfriForum.

President Cyril Ramaphosa signed the Expropriation Bill into law inJanuary 2025, following a five-year process of public consultation and parliamentary deliberation. At the time, he said the Act aligns legislation on expropriation with the constitution.

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