Authored By: Xola Zoleka
University of KwaZulu-Natal
Introduction
The root cause of South Africa’s land question lies in the systematic dispossession brought by colonialism and apartheid. The Natives Land Act 27 of 1913 confined the indigenous majority to 7% of the land (later expanded to 13% under the 1936 Act), while the Group Areas Act 41 of 1960 and forced removals displaced millions, entrenching a racially skewed agrarian economy. By 1994, approximately 72% of commercial farmland remained in white hands.
Section 25 of the 1996 Constitution was deliberately crafted as a compromise: it prohibits arbitrary deprivation of property (s 25(1)), authorises expropriation only for a public purpose or in the public interest with “just and equitable” compensation (ss 25(2)–(3)), yet expressly mandates the state to take “reasonable legislative and other measures” to foster equitable access to land and redress the injustices of the past (ss 25(4)–(8)).1
Three decades later, land reform has faltered. Market-led “willing buyer, willing seller” policies, coupled with inadequate post-settlement support, bureaucratic inertia, and underutilisation of transferred land, have delivered far below the 30% redistribution target. Diagnostic reports confirm that only about 10–25% of commercial farmland has been effectively redistributed or transferred, with high failure rates among beneficiaries and persistent inequality.2 Against this backdrop, President Cyril Ramaphosa assented to the Expropriation Act 13 of 2024 on 20 December 2024 (published in Government Gazette 51964 on 24 January 2025). The Act repeals the apartheid-era Expropriation Act 63 of 1975 and, for the first time in ordinary legislation, expressly contemplates nil compensation in defined circumstances under s 12(3).3
This article argues that, although the Expropriation Act 13 of 2024 modernises procedure and aligns compensation with the constitutional “just and equitable” standard, its nil-compensation provision grants excessive executive discretion, insufficiently safeguards legitimate expectations and investment-backed interests, and fails to confront the deeper structural failures that have stalled land reform. In consequence, it risks arbitrary deprivation, contrary to s 25(1), while offering only marginal acceleration of the transformative project in ss 25(5)–(8). The article first examines the constitutional and statutory framework, then analyses the nil-compensation clause, and finally assesses its compatibility with s 25.
Legal Framework
Section 25 embodies the Constitution’s transformative ethos. Subsections (1) to (3) protect existing property rights through procedural and substantive safeguards: expropriation must occur by law of general application, serve a public purpose or public interest, and attract compensation that reflects “an equitable balance between the public interest and the interests of those affected,” having regard to all relevant circumstances, including market value, current use, history of acquisition, and state investment.4 Subsections (4)–(8) elevate land reform to a constitutional imperative, recognising that “public interest” includes the nation’s commitment to equitable access and the redress of past racial discrimination.
The Constitutional Court has consistently demanded a context-sensitive, non-arbitrary approach. In First National Bank of SA Ltd t/a WesBank v Minister of Finance, the Court insisted that deprivation must be procedurally fair and rationally connected to a legitimate purpose, establishing the foundational methodology for assessing arbitrariness under s 25(1).5 Subsequent jurisprudence in Mkontwana v Nelson Mandela Metropolitan Municipality and Agri SA v Minister for Minerals and Energy affirmed that s 25 protects legitimate expectations while permitting transformative measures, but never endorsed outright confiscation as a default.6
The 1975 Act’s market-value bias rendered it ill-suited to post-apartheid redress. Successive governments therefore relied on voluntary market acquisitions, which proved expensive and slow. The failed 2018–2021 attempt to amend s 25 shifted the battleground to ordinary legislation. The 2024 Act provides a uniform procedural code — notice, consultation, negotiation, mediation, and court determination — applicable to all organs of state. Section 12(1) and (2) mirrors s 25(3). Section 12(3) then states:
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 —
(a) where the land is not being used, and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from the appreciation of its market value;
(b) where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;
(c) notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), where an owner has abandoned the land by failing to exercise control over it despite being reasonably capable of doing so; and
(d) where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land.7
The open-ended phrasing (“including but not limited to”) and the public-interest (rather than stricter public-purpose) trigger mark the Act’s innovation.8
Analysis of the Nil-Compensation Provision
Section 12(3) attempts to operationalise the equitable-balance test in s 25(3). Its proponents contend that the four listed scenarios are narrowly tailored, that judicial oversight remains intact, and that nil compensation will arise only in exceptional cases.9 The South African Human Rights Commission correctly observes, however, that the Act is procedural only; it does not itself discharge the positive obligations under s 25(5) and cannot substitute for substantive redistribution legislation.10
Three interlocking flaws undermine its constitutional soundness. First, the “including but not limited to” formula vests expropriating authorities — often municipalities with documented governance failures — with broad interpretive discretion. Distinguishing “speculative” holdings from legitimate investment, or “abandonment” from temporary neglect, invites subjective assessment and potential abuse. Second, by anchoring nil compensation in the broader “public interest” rather than the narrower “public purpose,” the Act widens the gateway for redistributive takings without the heightened scrutiny historically required. Third, while the Constitutional Court has accepted that just and equitable compensation may fall below market value, it has never sanctioned nil compensation as a presumptive category. The Act’s explicit listing therefore risks tilting the s 25(3) balance impermissibly toward the state.11
These concerns are not abstract. AfriForum has launched constitutional challenges in the High Court (North Gauteng and Western Cape), arguing that the provisions are vague, substantively unconstitutional, and incompatible with s 25(1).12 Earlier municipal attempts at nil compensation foreshadow how authorities may test the new boundaries.
It is submitted that the nil-compensation clause, though procedurally superior to its 1975 predecessor, fails to confront the root causes of land-reform failure: inadequate post-settlement support, elite capture of redistributed land, and the absence of complementary legislation that would proactively identify and acquire suitable land rather than rely on reactive expropriation. By focusing on exceptional nil-compensation scenarios rather than systemic redistribution, the Act risks symbolic politics over substantive justice, chilling investment and eroding the rule-of-law confidence that s 25(1) exists to guarantee.
Conclusion
The Expropriation Act 13 of 2024 represents a procedural advance that finally retires the outdated 1975 regime and expressly aligns compensation with the constitutional standard in s 25(3). Yet its nil-compensation provision in s 12(3), with its open-ended discretion and public-interest trigger, grants the executive latitude that risks arbitrary deprivation contrary to s 25(1) and does little to remedy the structural failures that have stalled land reform since 1994.
It is submitted that the Act falls short of the equitable balance demanded by the Constitution. Parliament should amend s 12(3) to render the listed circumstances exhaustive, or introduce rebuttable presumptions favouring compensation where owners demonstrate legitimate expectations or substantial private investment. More fundamentally, the state must enact dedicated redistribution legislation that tackles the root causes — post-settlement support, spatial targeting, and beneficiary capacity-building — rather than treating expropriation as a panacea. Until the Constitutional Court provides authoritative guidance and complementary measures are enacted, the framework, though procedurally modernised, leaves property rights vulnerable in ways that may ultimately frustrate rather than fulfil s 25’s transformative promise.
Reference(S):
Primary Sources
Constitution of the Republic of South Africa, 1996.
Expropriation Act 13 of 2024 (Act No 13 of 2024).
Cases
Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC).
First National Bank of SA Ltd t/a WesBank v Minister of Finance 2002 (4) SA 768 (CC).
Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC).
Secondary Sources
South African Human Rights Commission, Position Paper Regarding the Expropriation Act (No 13 of 2024) and its Limits in Fulfilling Section 25(5) of the Constitution (11 June 2025) available at the SAHRC website (accessed 25 March 2026).
AfriForum, ‘AfriForum launches court challenge to have Expropriation Act declared unconstitutional’ (2 March 2026) available at AfriForum’s website (accessed 25 March 2026).
High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, Report (November 2017).
Footnote(S):
1 Constitution of the Republic of South Africa, 1996, s 25.
2 High Level Panel Report (2017) and subsequent government statistics (e.g., DALRRD reports indicating limited effective transfer and high failure rates); see also analyses showing redistribution covering roughly 10–25% of commercial farmland with persistent challenges.
3 Expropriation Act 13 of 2024, assented to 20 December 2024, published GG 51964 of 24 January 2025.
4 Constitution of the Republic of South Africa, 1996, s 25(3).
5 First National Bank of SA Ltd t/a WesBank v Minister of Finance 2002 (4) SA 768 (CC).
6 Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC); Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC).
7 Expropriation Act 13 of 2024, s 12(3) (exact text from the consolidated Act).
8 Ibid; see also commentary noting the shift from public purpose to public interest.
9 See parliamentary and government statements on the Act’s safeguards.
10 South African Human Rights Commission, Position Paper Regarding the Expropriation Act (No 13 of 2024) and its Limits in Fulfilling Section 25(5) of the Constitution (11 June 2025).
11 See Constitutional Court jurisprudence on just and equitable compensation.
12 AfriForum court applications in the North Gauteng High Court (filed 2025/2026) and Western Cape High Court proceedings (March 2026).
