What is the Expropriation Bill

The bill repeals the pre-democratic Expropriation Act of 1975 and sets out how organs of State may expropriate land in the public interest for varied reasons, according to the South African Presidency.

Explaining it further, Agricultural Business Chamber CEO Theo Boshoff, said expropriation is merely a tool that the state has when it needs to acquire the property of a private individual.

"Most governments in the world have this power, including the US, where it is called the state’s right of eminent domain. The reasoning behind this power is that there must be a last resort means for the state to acquire private property when needed for public purposes," he said.

"By definition, it is against the owners’ will but compensation must be paid. For example, the building of a dam, a highway, electricity pylons or even the creation of a national park cannot be put off if an individual refuses to sell their property. There must be a deadlock breaking mechanism so that the individual does not hold the public good at ransom," Boshoff said.

US law of eminent domain

In the US there is a huge body of caselaw setting out the process and the compensation that is payable. In South Africa, this Act sets it out. Expropriation is never the ‘go-to’ and the Act explicitly states that property can only be expropriated if reasonable attempts to buy the property have failed. It is a procedural law that sets out ‘how’ and expropriation must take place, it does not set out ‘why’ the state needs property.

Boshoff said the 'why' is more complex. He said as with the US, there are ‘public purpose’ reasons set out in multiple pieces of legislation.

"This includes infrastructure developments for instance. The more complex issue is ‘public interest’. South Africa’s Constitution allows the state to acquire land, and if need be, expropriate, in the public interest. Whilst there is no closed definition of what public purpose means, the constitution does state that it includes land, water and related reform. Our Constitution is transformative in the sense that it seeks to redress the results of past, racial discrimination," he stated.

In South Africa, land ownership is part of the Constitution’s affirmative action measures, addressing the country's dark history of racially motivated land dispossession.

Three-pronged approach

Boshoff said the Constitution therefore sets down a three-pronged approach to normalise land ownership patterns in South Africa by providing secure tenure to those whose tenure is legally insecure - past homeland areas for example - allow the decedents of those who were dispossessed to submit a claim for the state to return their ancestral land and various other programs to facilitate ‘equitable access’ to land.

"This is deemed to be in the public interest in South Africa. For the past 30 years, the state has been implementing programmes whereby it seeks to purchase land to redistribute it to previously disadvantaged persons. This is the ‘why’. Purchase and sale is likely to remain the primary mode of acquisition but where the state and the owner cannot reach agreement, the state can use its powers to expropriate the land," he said.

He added that it is important to firstly understand the Expropriation Act for what it is, a procedural piece of legislation which does not grant new powers but which rather sets down a uniform procedure and means to calculate compensation.

"Secondly, understand that expropriation is not equal to land reform, expropriation is merely a means of last resort where the state needs to acquire private property for a variety of public needs. Finally, understand that land reform in South Africa is part of the reconciliation process. It is a programme that has been running for 30 years as a means to fulfil the fundamental right of previously disadvantaged persons to access land on an equitable basis," Boshoff said.

Reaction to Trump's announcement

President Cyril Ramaphosa said the recently adopted Expropriation Act is not a confiscation instrument, but a constitutionally mandated legal process that ensures public access to land in an equitable and just manner as guided by the constitution.

He added that he looked forward to engaging with the Trump administration over South Africa's land reform policy.

"We are certain that out of those engagements, we will share a better and common understanding over these matters," Ramaphosa said.

Meanwhile, Department of International Relations and Cooperation Minister, Ronald Lamola urged Trump advisors to deepen their understanding of South African policies.