Following an admission by President Cyril Ramaphosa that aspects of the Expropriation Act are likely at odds with the Constitution for allowing expropriations to occur ahead of court processes, the FW de Klerk Foundation has said: “While the President’s admission pertains to sections of the Act that allow expropriation to take place before the landowner can challenge the matter in court, these are not its only unconstitutional provisions.”

Daniela Ellerbeck, the Foundation’s Constitutional Rights Programme Manager, said: “Of particular concern is its provisions allowing for land to be expropriated for nil compensation which are fundamentally at odds with the Constitution. South Africa’s Constitution is clear; it requires that when any type of property is expropriated, just and equitable compensation must be paid. The Expropriation Act, however, introduces the possibility of nil compensation. The Foundation’s legal analysis demonstrates that nil compensation and just and equitable compensation are not the same.”

Executive Director Christo van der Rheede added: “The Act does nothing to tackle the real obstacles to land reform. These are corruption, lack of political will and administrative inefficiency. The Foundation believes that giving people ownership, by giving them title deeds, will unlock economic potential, restore dignity and create real opportunities for wealth creation – without undermining constitutional rights or the rule of law. South Africa should expand property rights rather than restrict and dilute them.”

The Foundation confirmed that the Expropriation Act is currently being challenged in the Cape Town High Court.