The Constitutionality of the Expropriation Act 13 of2024: A Critical Analysis of South Africa’s LandReform Legal Framework

1. Introduction

 On 20^th of December 2024, President Cyril Ramaphosa signed the Expropriation Act 13 of 2024 into law, marking a watershed moment in South Africa’s ongoing land reform journey.[1] In order to bring South Africa’s land expropriation system into compliance with the 1994 constitutional democracy, the Act repealed the pre-democratic Expropriation Act of 1975.[2] The law quickly became a flashpoint for intricate discussions concerning foreign connections, historical injustice, constitutional rights, and land reform. Civil rights movements, political parties, and agricultural unions were among the many groups that fiercely opposed the Act and threatened or actually filed legal challenges.[3] Human rights organizations and land justice groups have applauded the Act as a vital step in redressing the historical wrongs of land dispossession during the apartheid era.[4] This article critically examines the constitutionality of the Expropriation Act 13 of 2024, analyzing the legal challenges brought against it, the constitutional framework within which it operates, and its implications for South Africa’s transformative constitutional project.

2. Historical Context and the Genesis of the Expropriation Act

The land dispute in South Africa has its roots in the country’s history of colonialism and apartheid. The majority Black people was systematically deprived of their land rights by the 1913 Natives Land Act and later laws, resulting in a profoundly unequal structure of land ownership that still exists today.[5] Section 25 of the Constitution of the Republic of South Africa, 1996, which upholds the right to property while also requiring land reform, aimed to correct this historical injustice.  Section 25(5) of the Constitution provides that “the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”[6] Long before South Africa adopted constitutional democracy, the Expropriation Act of 1975 was passed, governing expropriation for almost fifty years. However, it was heavily critiqued for not adhering to the constitutional framework and for failing to adequately answer the demands of land reform.[7] Therefore, the 2024 Act was designed to replace this outdated statute with a framework that would allow the state to expropriate land in the public interest while providing fair compensation.[8] Additionally, the Act permits the expropriation of property for public use or in the public interest, and it governs the process for doing so, including the payment of compensation.[9] Crucially, the Act contains provisions for expropriation without compensation under specific conditions, such as when land is bought with government assistance, abandoned, or underused.[10] This clause has been the main focus of legal challenges and controversy.

3. South African Case Law on Expropriation and property Rights:

The Constitutional Framework Established in First National Bank v SARS:

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service is the fundamental judicial decision on the interpretation of Section 25 of the Constitution. The Constitutional Court created an analytical framework for judging whether state intervention with property qualifies as an expropriation or a deprivation in this historic ruling. According to the Court, expropriation is a “particular form, in the narrow sense, of deprivation” and there are “appropriate circumstances where it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation.”[11] The Court outlined the steps in a Section 25 property analysis, which calls for a court to first ascertain if property has been deprived and then to assess whether the deprivation was arbitrary. If the deprivation qualifies as an expropriation, it must meet the conditions outlined in Section 25(2) to (3).[12] Furthermore, three requirements for lawful expropriation were established by the First National Bank case: firstly, a law of general application, secondly, a law that was passed with a “public purpose” or is otherwise in the “public interest”, and thirdly, if the law calls for the payment of compensation that is constitutionally permissible.[13] The Court further stated that “there are appropriate circumstances where it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation.”[14] The claim that expropriation without compensation is not inherently unlawful but rather must be fair and just in the given situation has been supported by this principle.

The Distinction Between Deprivation and Expropriation in Agri SA v Minister for Minerals and Energy

The Constitutional Court reexamined the difference between deprivation and expropriation in Agri South Africa v Minister for Minerals and Energy. The legal issue in the case was whether the mining and Petroleum Resources Development Act 28 of 2002 had taken away preexisting mining rights at the time it went into effect.[15] Agri SA contended that the MPRDA violated Section 25(2)(b) of the Constitution, which mandates that any expropriation be subject to the payment of compensation, by expropriating some existing rights and failing to provide for compensation.[16]

According to the CC, expropriation is different in that it involves the state acquiring property.[17] According to Froneman J, proprietors’ rights to freely sell, lease, or sterilize their mineral rights had been acquired by the state.[18] Since the state had not obtained possession of the mineral rights, the Court rejected the challenge, concluding that the MPRDA did not amount to expropriation. The Agri SA case is important because it demonstrates that not all property rights violations qualify as expropriations that need to be compensated. If deprivation is not arbitrary and serves the public interest, the state may manage property rights without paying compensation.

Competing Rights in Land: Maledu v Itereleng Bakgatla Mineral Resources

In Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another, the CC addressed a disagreement between landowners and organizations that had been granted mining rights on the same property.[19] Due to the racial discriminatory legislation that prohibited them from holding their land, the thirteen families of the Lesetlheng village were forced to leave the land they had purchased a century earlier, although they were still entitled to their property rights.[20]

The Court found that mining firms had not, as required by law, consulted, negotiated, or sought the consent of the informal land rights holders.[21] The Court emphasized that the communities’ consent was necessary for the award of mining rights on territory inhabited by mine-host communities.[22] The Maledu case emphasizes the necessity of consultation and consent, as well as the significance of safeguarding the rights of vulnerable populations in land-related problems. The Expropriation Act 13 of 2024 must guarantee that expropriation does not unjustly disadvantage disadvantaged groups, hence this idea is pertinent to the Act.

4. The Legal Challenges: AfriForum and the Democratic Alliance

AfriForum’s Constitutional Challenge:

AfriForum, a civil rights organization, has been leading the case against the Expropriation Act. AfriForum challenged the Act’s constitutionality in a May 2025 application to the North Gauteng High Court in Pretoria.[23] The organization contends that the Act should be ruled unconstitutional because it violates the constitutional right to private property.[24] Moreover, the issues facing AfriForum are complex in nature. Firstly, the organization argues that the Act is invalid due to inherent contradictions in some of its parts and clauses.[25] Secondly, AfriForum has contested President Ramaphosa’s signing of the Act into law, claiming that the promulgation’s procedural elements were unconstitutional.[26] Thirdly, the organization argues that the Act compromises the authority and independence of courts as well as the constitutional protection of property rights, the right to access courts, and the right to just administrative action.[27] Additionally, AfriForum has claimed that the Act is unnecessary, will negatively impact the economy, endanger South Africa’s food security, and harm racial relations.[28] According to the organization, the Act poses a “serious threat to the constitutional right to private property in South Africa.”[29] AfriForum CEO Kallie Kriel argued that the Act “undermined constitutional protection of property rights, the right of access to courts and the right to just administrative action, as well as impairing the authority and independence of courts”.[30]

The Democratic Alliance’s Challenge

The Democratic Alliance also filed a complaint against the Act in the Western Cape High Court filed papers contesting the Act on procedural and substantive constitutional grounds. The party contends that the Act is unconstitutional on both a procedural and substantive basis.[31] The DA contends that the Act’s provisions permitting expropriation without compensation pose a danger to investor trust and property rights. The party has declared that it would continue to oppose expropriation without compensation and that it opposes the Expropriation Act on constitutional grounds.[32] From a procedural standpoint, the DA contends that five of the final mandates from provinces in the National Council of Provinces were illegal and that the Act’s promulgation was invalid. Additionally, the party has claimed that many provisions of the Act are unreasonable and ought to be repealed.[33] However, in the  First National Bank case the court further clarified that “there are appropriate circumstances where it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation.[34] This principle has been used to support the claim that compensation is not inherently unlawful but rather needs to be fair and just in the circumstances in question.

5. Other Opposition and Potential Challenges

In the AgriSA case, a farmers’ union, has declared that if unconstitutional terms are not revised, it will not hesitate   to go to South Africa’s highest court.[35] Currently, several applicants are challenging the Act’s constitutionality, particularly regarding its enactment, execution, and possible applications.[36] With one MP calling the Act “a direct attack on the constitutional rights of South Africans,” opposition parties have banded together to oppose it.[37]

6. The Constitutional Framework: Section 25 and Expropriation

The Expropriation Act’s validity must be evaluated in light of Section 25 of the Constitution. Thus, expropriation is acknowledged by the Constitution as a necessary tool for the state to obtain property for public use or for public benefit, provided that fair compensation is given.[38] Crucially, compensation is not always required by the Constitution. According to Section 25(3), the amount of compensation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, taking into account all pertinent circumstances, such as the property’s current use, its acquisition history, and the amount of direct state investment and subsidy in the property’s acquisition and beneficial capital improvement.[39]

The Expropriation Act of 2024 puts this constitutional framework into practice. The Act stipulates that just and equitable compensation must be paid, expropriation without compensation is only permitted in specific situations, such as land that has been abandoned or is not being used, or land that has been bought with public subsidies. [40] Moreover, In Haffejee NO and Others v eThekwini Municipality and Others the Constitutional Court held that the determination of compensation need not precede an expropriation, compensation can in principle be determined after expropriation.[41] The court reasoned that expropriation is not constitutionally valid until compensation has been determined, but the determination can occur after the taking of property.[42] This directly relates to the Expropriation Act 13 of 2024, which establishes compensation in line with the Constitution’s Section 25 (3). The Haffejee case affirms that, as long as the compensation is fair and reasonable, the Act’s framework for calculating compensation following expropriation is constitutionally admissible. The Act has been applauded by the African Commission on Human and Peoples’ Rights, which has noted that it brings South Africa’s legal system into compliance with both international human rights norms and Section 25 of its Constitution.[43] However, critics contend that the Act exceeds constitutional limits. According to Anthea Jeffery of the South African Institute of Race Relations, the 2013 Expropriation Bill “cannot pass constitutional muster under the Bill of Rights.”[44] Some have called the Act “grossly unconstitutional” and a breach of the property clause of the Constitution.[45]

7. International and Investment Law Implications

The Act raised concerns about property rights and the stability of investments. Investors have expressed concerns about property rights, investment stability, and a possible increase in wealth emigration, according to legal practitioners.[46]Additionally, concerns emerge regarding the Act’s effect on foreign investment as well. While some contend that the Act and international law regulations for foreign investment are in line with Section 25 of the Constitution, others contend that the Act poses a threat to foreign investment.[47]

8. Conclusion

The nature and extent of property rights in South Africa’s constitutional democracy are fundamentally brought into question by the Expropriation Act 13 of 2024’s constitutionality. On the one hand, the Act fulfills the constitutional duty of land reform and addresses the historical injustices of land dispossession during the apartheid era.[48] The Act harmonizes South Africa’s legal system with both international human rights norms and Section 25 of the Constitution.[49] Expropriation without compensation is only permitted under specific conditions, and it guarantees fair and just restitution.[50] On the other hand, the Act poses significant questions regarding investor confidence, the rule of law, and the protection of property rights. Critics contend that the Act compromises the right to just administrative action, the ability to access courts, and the constitutional protection of property rights.[51] Both a “direct attack on the constitutional rights of South Africans” and a “great threat to the constitutional right to private property” have been used to characterize the Act.[52]

Important guidance on the constitutional foundation for expropriation can be found in the South African case law mentioned above. Expropriation without compensation may be acceptable in some situations if it is fair and right, according to the First National Bank case. Not all property deprivations qualify as expropriations that call for compensation, as the Agri SA case demonstrated. Compensation can be decided upon following expropriation, according to the Haffejee case.

South Africa’s land reform process and constitutional democracy will be significantly impacted by the outcome of the constitutional challenge to the Expropriation Act. The Act will give the state a legal framework to expropriate land in the public interest, even if no compensation is given, if it is sustained.[53] Land reform will suffer greatly if the Act is overturned, and it could be necessary for the legislature to reconsider the Act while keeping constitutional compliance in mind.[54] The courts will ultimately decide whether the Expropriation Act is constitutional, weighing the conflicting interests of property rights, land reform, and the rule of law. The Act is an attempt to promote social fairness and land reform, as stated by the African Commission on Human and Peoples’ Rights.[55] Critics contend that the Act must also adhere to the concepts of reasonable and equitable compensation as well as the Constitution’s safeguards for property rights.[56] The future of property rights in South Africa will be shaped by the approaching constitutional hearing in August 2026, which will be a pivotal point in the country’s land reform process.[57]

Reference(S):

[1] Expropriation of  Act 13 of 2024. See also European Parliament, ‘ Answer given by High Representative/ Vice President Kallas on behalf of the European Commission’ ( 20 May 2025) E-001331/2025.

[2] MS Law-Now, ‘The Expropriation Act 13 of 2024’ (13 February 2025) https://cms-lawnow.com/en/ealerts/2025/02/the-expropriation-act-13-of-2024 accessed 21 July 2026.

[3] Ernst van Zyl, ‘Court challenge launched to declare Expropriation Act unconstitutional – AfriForum’ (Politicsweb, 21 May 2025) https://www.politicsweb.co.za/news/court-challenge-launched-to-declare-expropriation-act-unconstitutional-afriforum accessed 21 July 2026.

[4] SAHRC, ‘Media Statement: SAHRC position on the Expropriation Act (NO. 13 of 2024) and its limits in fulfilling Section 25(5) of the Constitution’ (18 June 2025) https://www.sahrc.org.za accessed 21 July 2026.

[5] Natives Land Act 27 of 1913.

[6] The Constitution of the Republic of South Africa, 1996.

[7] CMS Law -Now (n 2).

[8]  Expropriation Act 13 of 2024, preamble.

[9] Expropriation Act 13 of 2024, s 2.

[10] Expropriation Act 13 of 2024, s 12 (3).

[11] First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service [2002] ZACC 5, 2002 (4) SA 768 (CC) para 57.

[12]First National Bank (n 11) para 46.

[13] ‘When does State Interference with Property (Now) Amount to Expropriation? An Analysis of the Agri SA Court’s State Acquisition Requirement (Part II)’ (scielo.org.za). See also First National Bank (n 11).

[14] First National Bank (n 11).

[15] Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9, 2013 (4) SA 1 (CC).

[16] Abid.

[17] Agri SA (n 15) para [78].

[18] Agri SA (n 15).

[19] Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another [2018] ZACC 41, 2019 (2) SA 1 (CC).

[20] Maledu (n 19).

[21] Maledu (n 19) para [102].

[22] Maledu (n 19).

[23] van Zyl (n 3).

[24] AfriForum, ‘AfriForum launches court challenge to have Expropriation Act declared unconstitutional’ (Press Release, 21 May 2025).

[25] Van Zyl (n 3).

[26] Ibid.

[27] AfriForum (n 24).

[28] AgriSA disappointed by expropriation bill, warns of risks to agriculture and food security’ (FreshPlaza, 24 January 2025) https://www.freshplaza.com accessed 21 July 2026.

[29] Van Zyl (n 3).

[30] AfriForum (n 24).

[31] Democratic Alliance, ‘Against The Expropriation Act: How and Why the DA is fighting it’ https://www.da.org.za/fighting-expropriation-act accessed 21 July 2026.

[32] Ibid.

[33] Zoleka Qodashe, ‘DA argues parts of Expropriation Act irrational and should be nullified’ (EWN, 11 February 2025) https://www.ewn.co.za accessed 21 July 2026.

[34] First National Bank of SA Ltd/ a Wesbank v Commissioner, South African Revenue Service [2002] ZACC 5, 2002 (4) SA 768 (CC) para 57.

[35] AgriSA (n 28).

[36] European Parliament (n 1).

[37] Opposition parties unite against Expropriation Act’ (News24, 2025).

[38] CMS Law-Now (n 2).

[39] Constitution, s 25(3).

[40] Expropriation Act 13 of 2024, s 12(3).

[41] Haffejee NO and Others v eThekwini Municipality and Others [2011] ZACC 28,2011 (6) SA 134 (CC) par 1.

[42] Haffejee (n 41).

[43] African Commission on Human and Peoples’ Rights, ‘Resolution on the Expropriation Act 13 of 2024’ (2025).

[44] Anthea Jeffery, ‘The Expropriation Bill and the Constitution’ (South African Institute of Race Relations, 2013).

[45] AfriForum (n 24).

[46]CMS Law-Now (n 2).

[47]Ibid.

[48] SAHRC (n 4).

[49] African Commission on Human and Peoples’ Rights (n 43).

[50] Expropriation Act 13 of 2024, s 12(3).

[51] AfriForum (n 24).

[52]Van Zyl (n 3 ).

[53] ‘Court admits land justice movements as friends of the court in Expropriation Act challenge’ (Conviction, 5 March 2026) https://www.conviction.co.za accessed 21 July 2026.

[54] Democratic Alliance (n 31).

[55] African Commission on Human and Peoples’ Rights (n 43).

[56] CMS Law-Now (n 2).

[57] Conviction (n 53).