South Africa’s post-1994 expropriation history and current Act are vastly different animals from the one Fikile Mbalula sought to reassure the Americans about.

According to Mbalula, while the African National Congress (ANC) “understand[s] that fear [of being expropriated] we must gently remind [the American ambassador] that South Africa has no such history – except, of course, for the brutal land dispossessions carried out against the Black majority under colonialism and apartheid”.

That statement is false. After 1994, the ANC in government expropriated both mineral rights and water rights from their owners without compensation. It is currently pursuing a process to expropriate medical aid schemes. It is also, privately, considering a scheme to seize pension funds and roll these into a single state-directed fund – a social-security version of its proposed National Health Insurance scheme.

It is important to address the question of property rights without caricature. Section 25 of our Constitution prohibits arbitrary deprivation of property. It explicitly states that “no law may permit arbitrary deprivation of property”.

Mbalula then said, “The 2024 Expropriation Act does not authorise indiscriminate confiscation or arbitrary seizures of private property. In fact, it restricts nil compensation to four narrowly defined situations: ‘land speculation, abandoned land (or buildings), unused state land … and land where past state subsidies and investment equal or exceed the market value’.”

That statement is also false. The Act is open-ended to the extent that it can seize not just land in circumstances beyond those listed for less than its market value, but any other property as well, including the investments contributed by foreign investors.

The trouble for Mbalula is that firms considering investing in South Africa actually do their due diligence. America did not reach these conclusions on the Expropriation Act because “AfriForum told them”; they actually read the Act! And so do scores of other firms that consider South Africa as an investment destination.

It is no good to say, as Mbalula did in his op-ed, that many American and other firms already invest in South Africa. That is correct, of course, but what matters more is that many did not because they saw the investment environment as too much of a risk. And the evidence for that is quantitative and unchallengeable and lies in the investment rate, which, at just under 15% of GDP, is around half of what it should be and what South Africa’s peers record.

But the best counter to Mbalula and the government is this: if you are not planning to seize anything for less than market value, then why not send the Act back to Parliament to make plain what is just and equitable in any free society: that the state cannot take property for less than its market value? And if Mbalula and his colleagues in the government won’t do that, you can be pretty sure that their assurances to the Americans were empty and that they want to keep the option open to use the Act to take things from investors without paying for them, as they have already done on more than one occasion since 1994.