Thank you, Dr Ernst Roets for convening this conference, and to our American friends who have taken such a strong interest in what is happening in South Africa.

Your attention has brought welcome pressure on a South African government which has shown itself to be indifferent to local criticisms of its highly racialised and socialist policy agenda.

My organisation, the FMF, is a libertarian policy group which for half a century has advanced the principles of individual liberty, free enterprise, private property rights and limited constitutional government.

I have been asked to speak about the assault on private property rights in South Africa, and how it affects the United States (US)-South Africa relationship.

I will discuss threats to private property in South Africa as well as our efforts to stem the rising tide of socialism and to preserve freedom.

Constitutional Inheritance

South Africa enjoys a relatively robust private property rights framework compared to peer countries in Sub-Saharan Africa.

Section 25 of the current South African Constitution stipulates that property may be expropriated for a public purpose or in the public interest if there is payment of an amount of just and equitable compensation by the state.

However, despite the African National Congress (ANC) being one of the major role-players in the constitutional negotiations, the party has always been deeply ambivalent about private property rights.

Socialism

This is because, in addition to being a chauvinistic African nationalist organisation, the ANC is also rooted in Marxist-Leninism. This is the consequence of the intellectual influence of the South African Communist Party (SACP) which has maintained a formal alliance with the ANC since the Cold War.

The ANC views itself not merely as a political party, but as a revolutionary movement committed to the pursuit of the National Democratic Revolution (NDR), a goal laid out in its own policy documentation.

The NDR is a totalitarian agenda that seeks to consolidate political control of all spheres of South African society in the hands of the revolutionary vanguard of the ANC.

The NDR is a two-stage revolution which seeks first to acquire power via the ballot box, as it did in 1994, and then to subvert the institutions of liberal democracy to extend political control over commerce, education, the civil service, and even the courts.

Private property is a mechanism for citizens to exercise their independence from the state. Consequently, the ANC sees private ownership as anathema to its revolutionary agenda.

Expropriation Without Compensation

This is the ideological backdrop to Expropriation Without Compensation (EWC), a policy formally adopted by the ANC at its party congress in December 2017, where Cyril Ramaphosa was also elected leader of the party.

It is internationally accepted that citizens whose property is expropriated by the state ought to be appropriately compensated at a market-related price.

However, ostensibly in the name of “redress”, the ANC has sought to weaponise expropriation law to enable it to confiscate land for “nil” compensation.

To achieve EWC, the ANC initially set its sights on changing the South African Constitution – the same Constitution that it helped to introduce in the 1990s. In 2021, the ANC sought to amend section 25 of the Constitution but failed to secure the necessary parliamentary majority to do so.

This was not so much a defeat as a temporary setback for the ANC, which immediately declared that it was going to pursue EWC through other means.

It did so by passing the Expropriation Act in 2024. This legislation made provision for “nil compensation” for property expropriated by the state under an open-ended list of circumstances.

The FMF, and other like-minded civil society organisations, were not going to let this assault on the basic freedoms of South Africans go unchecked.

Last month, the Rule of Law Project – an initiative of the FMF – joined litigation in the Western Cape High Court in Cape Town to challenge the constitutionality of the Expropriation Act.

While other parties were bending over backwards trying to explain how “nil” could indeed be a form of just and equitable compensation, our legal representative Advocate Mark Oppenheimer – who joins us here today – easily demonstrated that the Act was unconstitutional by simply pointing out the plain language wording in section 25 of the Constitution.

Respondents, including lawyers for President Ramaphosa, asserted that “nil” could in fact be a form of compensation under certain circumstances. However, as Adv Oppenheimer noted, while “zero” is a number, that does not make it an "amount".

Compensation means making good on a loss or a deprivation, the FMF argued. Giving someone nothing after taking their property is confiscation, not compensation.

Taking something without paying for it is not justice – it is theft.

Land facts and falsehoods

The land debate in South Africa is founded upon several deliberate misrepresentations by the ANC.

We address these falsehoods in the Don Caldwell Memorandum on Socialism and Racial Engineering in "Post-Apartheid" South Africa, the document we have been sharing with local audiences during our time here in Washington DC.

The most widespread falsehood is that white South Africans (who make up less than 10% of the population) own 72% of the land.

This claim is drawn from the state’s 2017 Land Audit, but an investigation by the civil rights group AfriForum reveals how the figure is constructed and how it misrepresents reality.

The 72% figure does not describe South Africa’s full land surface area, but only agricultural holdings held by individuals. The Land Audit assigned the race of these individuals by inferring their identity from the name of the titleholder.

Measured against the South African land surface, individually held rural land attributed to white owners is approximately 22%. The state itself is the largest single holder, at around 23%, but the state is considered non-racial, which exaggerates the supposed “white” portion.

The remainder of the land is held by trusts, companies, community organisations, and tribal authorities. These entities were mostly excluded from the racial scorecard calculation.

The ANC’s goal, as with everything, is to achieve racial representation across every aspect of society and the economy.

According to this conception of “equity”, if whites constitute 7% of the population in South Africa, then they should only own 7% of the land.

The second falsehood is that land restitution processes have not worked and that the state has no option but to forcibly confiscate property to affect land reform.

Here it is necessary to distinguish between the concepts of restitution and redistribution.

Restitution is a legitimate form of redress for those who may have been victimised by state confiscation in the past. Making right a wrong.

Redistribution, on the other hand, is extractive and coercive.

The reality is that the state voluntarily underfunds its land reform budget and could have concluded the land reform programme years ago utilising monies it has lost to corruption alone.

Falsehood three is that there are no land seizures in South Africa. There are many.

Property invasions are driven by sophisticated criminal cartels that hijack buildings and occupy vacant land, often with direct encouragement from radical leftist groups like Julius Malema’s Economic Freedom Fighters (EFF).

Moreover, legislation like the Prevention of Illegal Eviction (PIE) Act makes it difficult to remove unlawful land invaders once they have occupied a piece of land.

The most visceral example of this is the Tygerberg Raceway, a once popular venue for motor racing in Cape Town. In July 2020, at the height of the Covid lockdowns, the raceway was entirely overrun by illegal land invaders. Today, it is a sprawling shantytown.

I would urge you to watch the viral YouTube documentary Stolen Ground – directed by Joe Emilio – to witness the scale and sophistication of violent land occupations in South Africa and the consequences for those who lose control over their land.

The fourth falsehood is that the government does not intend to use its powers of expropriation without compensation.

Unfortunately, it has already exercised this power.

In 2002, the government adopted the Minerals and Petroleum Resources Development Act, which nationalised all privately-owned minerals and petroleum in South Africa and placed it under the so-called “custodianship” of the central government. The mining industry has shrunk as a result.

The same happened with water rights in the 1990s, which are now under the control of the state. Recently the government mooted imposing racial criteria for farmers seeking water usage rights. Utterly insane levels of punitive racial engineering.

Seen in this context, the Expropriation Act is part of a broader legislative and political agenda to undermine private property rights in South Africa.

US Interests

The signing of the Expropriation Act in January 2025 was a catalyst for the Trump administration, which shortly thereafter, on 7 February 2025, issued its executive order highlighting the “egregious actions” of the South African government.

The repeal of the Expropriation Act was one of the “Five Asks” of the US government to South Africa.

Now, after a year and half of wrangling, the US government is running out of patience with South Africa.

On 15 September, US Secretary of State Marco Rubio introduced visa restrictions on targeted South African individuals.

The following day, US Ambassador to South Africa Leo Brent Bozell III posted on social media that “the time for endless ‘dialogue’ has run its course”.

The South African government – including foreign minister Ronald Lamola who spoke at an event with Bernie Sanders and other American socialists in New York earlier this week – have criticised the US government and asserted that it is South Africa’s sovereign right to pass a policy like EWC.

That might be true, but that does not insulate it from the consequences of its own policy decisions.

It is notable that President Ramaphosa’s lawyers defended the Expropriation Act in court. If President Ramaphosa were serious about meeting the Americans halfway, he could easily have taken a different approach – by choosing to abide by the ruling of the court, for example.

Alternatively, as the senior party of the Government of National Unity (GNU), the ANC could – together with its coalition partners – vote to repeal the Expropriation Act or at the very least amend the legislation to remove its unconstitutional provisions.

That the ANC refuses to do so speaks to its commitment to property confiscation.

The Trump administration is correct to highlight threats to property rights as a concern and is justified in including the repeal of EWC it as one of its asks.

The presence of such laws undermines the investment certainty of the more than 500 American companies operating in South Africa – as well as for the US government.

It also imperils South Africa’s participation in the African Growth and Opportunity Act (AGOA), US legislation which enables preferential trade access to the US market. South African agricultural and manufacturing exporters benefit greatly from this market access with little reciprocal benefit to American exporters to South Africa.

I should stress that we do not want to see South Africa excluded from AGOA.

However, AGOA eligibility requirements expressly state that participating countries must protect private property rights and uphold US security interests.

South Africa is doing neither.

We urge US lawmakers to adopt a proposal made by business group Sakeliga, which argued in a submission to the US Trade Representative that AGOA should move beyond its current binary framework (where countries are either in or out) towards a more “differentiated” approach.

This would enable sub-national government authorities, civil society groups, or even private companies who value trade with the United States to commit to non-racialism and secure property rights in order to continue enjoying trade benefits under AGOA.

An Alternative Approach

The solution to South Africa’s history of unevenly upholding property rights is to extend these rights to more people, rather than weaken the existing protections already enshrined in our Constitution.

This is what the FMF is doing through its Khaya Lam project, which seeks to provide secure title to poor South Africans who reside n formerly state-owned property, but who lack secure title to prove their ownership status.

We are proud to boast that Khaya Lam has successfully facilitated the transfer of over 26000 title deeds from municipalities to homeowners since 2010. This is unusual work for a policy think tank but demonstrates our commitment to strengthening the universal property rights of all South Africans, black and white.

How the US Can Help

My sense is that the US sincerely wishes to build a lasting and productive commercial and strategic relationship with South Africa.

It has a strong self-interest in doing so, but ordinary South Africans stand to benefit even more from healthier relations with America. The only thing standing between them is a corrupt and venal administration in Pretoria.

The US can help ordinary freedom-loving South Africans, many of whom are favourably disposed to America, by adopting a differentiated approach to its dealings with South Africa.

Whatever measures it takes should not be sweeping, but targeted at those defending or promoting racial laws, violent rhetoric or threats to private property.

There are millions of South Africans of all races who wish to build a better life for themselves in the country that they love. They will not be able to do so without a solid legal foundation of private property rights.

To our American friends, we thank you for your commitment to liberty and prosperity in South Africa.

Ansara is CEO of the Free Market Foundation.