Court Challenges State's Power to Seize Property Without Compensation

CAPE TOWN HIGH COURT PUTS EXPROPRIATION ACT UNDER CONSTITUTIONAL MICROSCOPE

A full bench of three judges in Cape Town is conducting a five-day hearing into the constitutional validity of the Expropriation Act, a statute that grants the state authority to seize property without compensation under specified conditions. The proceedings place Parliament, the Presidency, and several oversight and advocacy institutions in direct legal confrontation over whether the Act conforms to the Constitution’s property rights framework.

The case draws together competing institutional actors with sharply divergent positions. The Democratic Alliance, a governing coalition member, has filed arguments alongside AfriForum and the Institute of Race Relations Legal, while Vaderland Stigting, representing farming interests, has also submitted papers. Ranged against them, the Presidency, Parliament, and the Economic Freedom Fighters are mounting counter-arguments in defence of the legislation.

The DA’s challenge centres on procedural rationality rather than the compensation question itself. The party argues that section 19 of the Act contains a logical impossibility that renders the entire statute irrational and therefore unconstitutional. Section 19 establishes a dispute resolution process requiring parties to approach a court after receiving a “notice of expropriation”, yet only a court can issue such a notice. The DA contends this creates a temporal paradox: the 180-day period specified in section 19(2) cannot commence because the triggering event can only occur after court proceedings have already begun.

“If a notice of expropriation can only be issued after a court determines the disputed compensation, then the 180-day period in section 19(2) will never commence,” the DA argues in its heads of argument. The party further contends that this procedural defect violates section 25(1) of the Constitution, which prohibits arbitrary deprivation of property, including through arbitrary procedures. Without a functioning dispute resolution mechanism in sections 19(2) through 19(4), the DA maintains, the entire Act becomes inoperable and must be declared invalid.

The DA has also challenged the voting process used by the National Council of Provinces when ratifying the Bill. The party questions whether provincial delegates from Limpopo, the Eastern Cape, Gauteng, Mpumalanga and the Northern Cape possessed lawful authority to vote on behalf of their provinces. In Limpopo, the party notes, the legislature raised 19 recommendations on the Bill that were not adopted before the vote. In the Eastern Cape, the legislature had not deliberated on the Expropriation Bill before voting occurred at all.

By contrast, AfriForum and IRR Legal mount a different constitutional challenge, directly contesting the “nil compensation” provisions in sections 12(2)(e), 12(3), and 12(4) of the Act. These sections permit expropriation without compensation when it “may be just and equitable” and “in the public interest”. IRR Legal argues that these provisions are “fundamentally incompatible” with section 25 of the Constitution, which requires an equitable balance between public interest and the interests of affected property owners.

“In terms of section 25(3) of the Constitution, the consideration of an ‘equitable balance’ must determine and weigh an affected person’s interests in the expropriated property, and the public interest, with regard to the purpose for which the State seeks to expropriate the property,” IRR Legal submits. The organisation contends that property owners face a “double hit”: mandatory alienation of their land combined with deprivation of compensation. AfriForum raises similar concerns and invokes international law, arguing that customary international law does not permit expropriation without compensation.

President Cyril Ramaphosa’s legal team acknowledges problems with section 19 but proposes a remedy of “reading-in” rather than invalidating the entire statute. Under this approach, the court would supply new wording that Parliament would subsequently adopt to amend the legislation. Ramaphosa’s lawyers emphasise the transformative purpose of the Act, arguing that land reform is essential for structural change, equality, dignity and social justice. The President also notes that the Act replaces the outdated Expropriation Act of 1975, which predates the current constitutional order.

National Assembly Speaker Thoko Didiza has defended the legislation in court papers, arguing that the Act “does not contradict section 25” but rather “gives concrete legislative content to it”. Didiza emphasises that section 12 uses “non-automatic language”, employing the word “may” rather than mandating nil compensation, and that each case must be evaluated individually with courts serving as the ultimate arbiter in disputed compensation matters. For detailed analysis of each party’s constitutional arguments, see https://www.dailymaverick.co.za/article/2026-08-05-unpacked-each-partys-arguments-in-the-expropriation-act-case/

The Economic Freedom Fighters, intervening in the case, argues that the contested sections align with the Constitution. EFF leader Julius Malema contends that section 25(8) of the Constitution explicitly permits the state to take measures to achieve land reform and redress past racial discrimination, and that property rights and land reform are not constitutional opposites.

The court will continue hearing arguments through Friday. Amicus curiae submissions from the Free Market Foundation’s The Rule of Law Project and the Association for Rural Advancement, which represents labour tenants and farm dwellers, are still to be heard. Whether the bench ultimately opts for surgical reading-in or wholesale invalidation will determine not only the Act’s fate but the scope of Parliament’s authority to legislate on property rights going forward.