Land Seizure Law Faces Court Test Over Compensation Guarantees

South Africa’s Western Cape High Court took up the constitutional challenge to the Expropriation Act on Tuesday, its second day of hearings on legislation signed into law by President Cyril Ramaphosa in January 2025. AfriForum, joined by the Democratic Alliance and the Institute of Race Relations, pressed the court to strike down several sections of the Act, arguing they conflict with the constitutional framework governing property rights.

The sharpest challenge targets section 12.3, which sets out circumstances under which land may be expropriated without compensation. AfriForum’s legal representative argued the constitution simply does not recognise that category. “Section 25 of the constitution does not have this distinction. It does not have a category of no compensation,” the representative told the court. The constitutional design, as AfriForum reads it, requires a fact-specific weighing of public interest against the interests of affected property owners, aimed at an equitable outcome. Section 12.3, the organisation contends, short-circuits that process by starting from a predetermined list of properties eligible for zero-compensation seizure rather than conducting the analysis the constitution demands.

Additional reference context is available at https://www.citizen.co.za/news/south-africa/courts/afriforum-expropriation-act-court-case-against-no-compensation/.

The phrase “including, but not limited to” in section 12.3 drew particular scrutiny. AfriForum argued that formulation hands the government open-ended discretion to expand the circumstances for no-compensation expropriation without further legislative constraint, and called for the section to be declared invalid.

Beyond section 12.3, AfriForum challenged sections 19(2) and 19(3), which allow expropriation to proceed before compensation amounts are agreed or determined by a court. The organisation argued these provisions breach constitutional requirements and proposed that Parliament be given 24 months to amend section 19. As interim relief, it asked the court to remove references to expropriation notices from those subsections pending revision.

The Act itself followed five years of public consultation and parliamentary deliberation. It also requires expropriating authorities to attempt negotiated property acquisition before resorting to expropriation, except in urgent circumstances involving temporary use rights.

A second line of argument focused on compensation adequacy. AfriForum warned that when government tilts the constitutional weighing process, the result is undercompensation rather than fair compensation. “Undercompensation is not compensation. Undercompensation can never be equitable compensation, and the constitutional standard is that it is either fair and equitable or it is not,” the representative argued. The organisation framed this as a binary: outcomes falling short of equitable standards are, by definition, unjust, a direct consequence of shifting the balance away from property owners.

A third concern centred on administrative discretion. AfriForum objected to vesting consequential decisions in administrators tasked with determining whether properties are unused, unproductive, or held speculatively. The organisation acknowledged that judicial review remains available, but argued it provides insufficient protection because the critical determination happens at the administrative stage, before any court becomes involved. “An administrator is not a judge,” the representative stressed, noting that while judges can be expected to apply law lawfully, administrators work under pressure and without judicial independence. By the time a court reviews the decision, the most important call has already been made outside judicial oversight.

The government has characterised the Act as consistent with constitutional expropriation principles. Whether the court agrees, and whether Parliament faces a 24-month window to rewrite key provisions, now turns on how the Western Cape High Court reads the constitutional text against the sections AfriForum has placed before it.