The Western Cape High Court is hearing arguments that cut to the heart of South Africa’s unresolved constitutional settlement. At stake is not merely the technical meaning of compensation under property law, but a far older and more fundamental question: who holds legitimate sovereign title to South African land, and from where does that authority derive?
The legal challenge itself appears straightforward. AfriForum, the Democratic Alliance, the Institute of Race Relations and other applicants have brought constitutional challenges to the Expropriation Act 13 of 2024. AfriForum contends that provisions permitting nil compensation violate Section 25 of the Constitution by creating statutory circumstances allowing property expropriation without any payment. The Presidency disputes this reading, arguing that the Act preserves the constitutional requirement that compensation must be “just and equitable”, with nil compensation available only when circumstances warrant it.
Additional reference context is available at https://iol.co.za/news/opinion/2026-08-10-reclaiming-sovereignty-what-the-afriforum-court-challenge-reveals-about-south-africas-land-question/.
Beneath this dispute over statutory interpretation lies a question that the 1996 Constitution never fully resolved. The Constitution contains an internal contradiction. Section 25(1) protects existing property rights against arbitrary deprivation, while Section 25(5) requires the state to take reasonable measures enabling equitable access to land. This split has driven the land reform impasse for three decades. The dispossessed received promises of reform. Those holding property at the time of constitutional negotiations received protection for existing title, despite histories shaped by conquest, forced removals and apartheid dispossession.
Understanding this contradiction requires examining how Western sovereignty itself developed. Sovereignty is commonly understood as supreme authority over territory and freedom from external control. Yet that definition obscures the genealogy of Western sovereignty, which developed through conquest, domination and the conversion of military victory into lawful title. Jean Bodin linked sovereignty directly to war and demonstrated how conquest could become a lawful basis for authority. John Locke, while criticizing unjust conquest, developed theories that facilitated colonial dispossession by classifying land as “waste”. Through legal doctrine, violence was systematically converted into title, conquest into sovereignty and dispossession into property.
The post-1994 transition did not complete decolonisation. It managed the inheritance of conquest through constitutional compromise. The new order incorporated the conquered into a legal structure while leaving the original question of sovereign title unresolved. This explains the failure of the willing-seller, willing-buyer model of land reform. That approach transformed the recovery of dispossessed land into a market transaction. The people from whom land had been taken without compensation were expected, through the state, to purchase it back. The model recognized existing owners as lawful title holders entitled to payment while placing the historical origin of ownership entirely outside the transaction.
The debate over expropriation without compensation emerged directly from this contradiction. Heinz Klug argues that Section 25 already contains sufficient flexibility because compensation must be just and equitable and must take account of the history of acquisition, current use, market value, state investment and the purpose of expropriation. Yet Lungisile Ntsebeza identifies the political limits of this framework. Formal legal possibilities have existed alongside a market-led land reform programme that has delivered painfully slow transformation.
The Expropriation Act must be located within this history. It does not establish an unrestricted programme of land seizure. Section 12(3) identifies specific circumstances in which nil compensation may be just and equitable. This is the provision AfriForum has placed under direct constitutional attack. Its counsel argues that Parliament has effectively introduced through ordinary legislation something that the Constitution itself does not establish. The Presidency argues that the section supplies guidance within the existing constitutional standard and leaves courts as the final arbiters of compensation disputes.
The importance of the case extends beyond technical interpretation. It demonstrates how quickly even limited attempts to alter property relations activate powerful political and legal resistance. That resistance has moved beyond South Africa’s borders. On 7 February 2025, United States President Donald Trump issued an executive order attacking South Africa’s land policy, suspending aid and presenting Afrikaners as victims of race-based discrimination. The order followed international lobbying around the Expropriation Act and represented an extraordinary intervention by a foreign state into a domestic legislative debate.
For a country whose dispossession arose through colonial power, the internationalisation of the land question raises its own sovereignty problem. A democratic state may possess formal legislative authority while remaining exposed to economic and geopolitical pressure when its policies threaten entrenched property interests.
The deeper jurisprudential question concerns the historical source of existing title itself. Mogobe Ramose’s formulation, “I conquer, therefore I am the sovereign”, exposes the violence beneath modern sovereignty in South Africa. Conquest did not disappear when military conflict ended. It structured land ownership, political authority and legal title. Ndumiso Dladla extends this analysis by arguing that Blackness itself emerged as a political identity through conquest, fear and enforced obedience. Kenneth Nunn’s description of law as a Eurocentric enterprise helps explain this transformation. Western law presented itself as neutral and universal while carrying a cultural worldview organized around hierarchy, abstraction and domination.
A post-conquest jurisprudence must begin with the original wrong. Redistribution can transfer parcels of land while leaving the legal foundation of ownership untouched. Restitution asks a prior question: what was taken, from whom was it taken, and what does justice require in response? The Azanian Philosophical Tradition provides the political foundation for such an inquiry. Joel Modiri describes this tradition as decolonizing and abolitionist in its orientation towards the South African colonial state form. It insists that liberation remains connected to the recovery of unencumbered sovereign title to territory.
Ubuntu supplies the ethical and ontological foundation for this framework. The maxim motho ke motho ka batho understands human existence through relationality. Land within this worldview exceeds its market value. It carries memory, dignity, community, political belonging and life itself. Ramose’s statement that “the land is life” speaks directly to the limits of treating dispossession primarily as a property transaction. Ubuntu also provides the principle molato ga o bole: a wrong does not perish. Colonial dispossession cannot expire while its material consequences continue to determine access to land, wealth and political power.
This analysis further examines how the restitutive principle ad repetendas res, the recovery of what was taken, changes the starting point of land justice inquiry.
The case now before the Western Cape High Court captures the unresolved tension at the centre of South African constitutionalism. AfriForum asks the court to protect what it understands as Section 25’s constitutional compensation framework. The state asks the court to affirm Parliament’s attempt to give practical meaning to just and equitable compensation. The court will decide those legal questions. The historical question will remain. South Africa still has to decide whether land reform begins with existing title or with the dispossession that produced it. Until that question is confronted, the country will continue trying to resolve conquest through laws that inherited conquest’s property relations. The struggle over the Expropriation Act therefore reaches beyond compensation. It returns the nation to the unfinished question of liberation: the recovery of land, sovereignty and the political dignity of the dispossessed.