AFRA Defends the Constitutionality of the Expropriation Act

From 3 to 7 August 2026, the Legal Resources Centre will appear in the Western Cape High Court, representing the Association for Rural Advancement, AFRA, in AfriForum’s constitutional challenge to various provisions of the Expropriation Act 13 of 2024. This case is one of three constitutional challenges to the Act that have been consolidated and set down to be heard together.

While raising other challenges to the expropriation procedure prescribed in the Act, AfriForum’s principal challenge focuses on sections 12(3) and 12(4), which identify certain circumstances in which it may be considered just and equitable to award nil compensation for the expropriation of property. AfriForum argues that these provisions are unconstitutional and seeks to have them, together with other provisions of the Act, declared invalid.

AFRA has been admitted as amicus curiae in support of the constitutionality of the Act and agrees with the state respondents’ contention that the challenged provisions are consistent with the Constitution. Its submissions emphasise that the Constitution does not only protect property rights against interference, but also requires redress through land reform. AFRA recognises that inflated costs are among the factors contributing to the slow pace of land reform in South Africa and argues that reduced or nil compensation in just and equitable circumstances, while not a complete solution, can assist in advancing land reform.

In its submissions before the Court, AFRA will advance the following arguments:

First, section 25 of the Constitution contains a constitutional imperative to advance restitutionary equality and supports a progressive understanding of property rights. The property clause should be interpreted accordingly, taking into account the Constitution’s clear commitment to facilitating land reform and equitable access to land.

Second, awarding reduced or nil compensation will not remedy all the shortcomings in South Africa’s land reform programme. However, this does not mean that the calculation and determination of compensation are not themselves impediments to effective land reform that the state can and should address.

Third, section 25(3) of the Constitution requires the purpose of an expropriation to be considered when determining just and equitable compensation, allowing for a differentiated approach to the calculation of compensation. Whether land is being expropriated for land reform purposes is therefore a relevant consideration when compensation is calculated.

Fourth, sections 12(3) and 12(4), which identify circumstances in which it may be just and equitable to award nil compensation, have a limited application and do not prescribe nil compensation in any particular instance. Both provisions are constitutional and do not seek to circumvent or prevent an individual assessment of each proposed expropriation.

Fifth, the reference in section 12(4) to awards of compensation under the Land Reform (Labour Tenants) Act 3 of 1996 is constitutionally permissible. The Expropriation Act is clearly intended to operate as a framework applicable to expropriations under different statutes. Moreover, the expropriation of land to provide labour tenants with access to land may constitute a situation in which the circumstances demonstrate that nil compensation would be just and equitable, particularly where the labour tenant already occupies the land. Landowners who benefited from generations of uncompensated labour should not also benefit from compensation by the state.

Sixth, several international and foreign authorities emphasise the broad discretion afforded to states in determining their own expropriation laws. Furthermore, key authorities from the United Nations, the African Commission, the United Kingdom, Germany and Canada demonstrate that reduced or nil compensation may be permissible in appropriate circumstances.

Finally, the defects in the Act relating to the procedural requirements for expropriation are clear errors that can be resolved and remedied without invalidating the Act as a whole.

Ultimately, AFRA seeks to demonstrate that permitting nil compensation in circumstances where it is just and equitable is constitutionally permissible. The Act simply seeks to give practical effect to what section 25 of the Constitution already provides. In doing so, the Act represents a small but important step towards advancing the equitable distribution of land while continuing to provide fair protection to existing landowners.