Does the New Expropriation Act 13 of 2024 address Historical Inequalities and Promote Access to Land?
Introduction
There has been an ongoing debate on whether the new Expropriation Act 13 of 2024 addresses the historical inequalities and, if so, to what extent. The debate is prompted by, among others, the enduring legacies of the apartheid regime that are visible through unequal land ownership skewed along racial lines between white and black South Africans. The land dispossession has a long history in South Africa, but it was officially legalised in 1913 when the apartheid government passed the Natives Land Act of 1913.[1] The Natives Land Act institutionalised land segregation, reserving substantial tracts of land for white minority and confining the black majority to specified "native reserves".[2] Against this historical backdrop of legislated dispossession and spatial injustice, the introduction of the new Expropriation Act represents a critical moment in evaluating whether contemporary legal frameworks adequately confront and seek to redress these enduring legacies.
The New Expropriation Act
The new Expropriation Act aims to accomplish five objectives.[3] These include (a) allowing property to be expropriated for public use or in the public interest; (b) regulating the process for expropriation, including payment of compensation; (c) identifying specific situations in which expropriation in the public interest may be just and equitable when no compensation is provided; (d) repealing the Expropriation Act, 1975 (Act No. 63 of 1975); and (e) providing for matters related thereto.[4]
The word “expropriation” is not a foreign concept in South Africa. It has been the subject matter even during the apartheid era and the defining characteristic of Apartheid was the denial of property rights to black South Africans.[5] Also, it is a topic of great interest that has been included in the Constitution. Section 25 of the South African Constitution protects the right to property.[6] It guarantees that no one can have their property taken away from them unless it is permitted by a law that applies that no legislation can permit arbitrary deprivation.[7] It also makes clear the requirements for compensation and the circumstances under which property may be expropriated.[8]
Section 25(3)(b) of the Constitution stipulates that the determination of compensation, along with the timing and method of its payment, must be just and equitable.[9] This requirement entails achieving a fair balance between the public interest and the rights of those affected by the deprivation.[10] In making this determination, all relevant circumstances must be considered, including, but not limited to, the historical context surrounding the acquisition and use of the property in question.[11]
Many laws have been enacted concerning the expropriation of property and land restitution. One of the laws that was enacted by the state to address the question of land restitution is the Restitution of Land Rights Act 22 of 1994.[12] The South African Restitution of Land Rights Act 22 of 1994 sought to rectify the past injustices of land dispossession caused by racially discriminatory laws and practices in South Africa.[13] The Restitution of Land Rights Act 22 of 1994 established procedures for restoring land rights to individuals and communities who had lost their land after 19 June 1913.[14] To oversee the procedure, it also established the Land Claims Court and the Commission on Restitution of Land Rights.[15]
The question of whether the new Expropriation Act addresses historical inequalities and promotes access to land and natural resources remains a contentious issue. To give clarity on this, the Expropriation Act does not address land restitution. Land restitution refers to the process of restoring land or providing compensation to individuals or communities who have been deprived of their land rights due to discriminatory legislation or practices, particularly those implemented during colonisation and apartheid in South Africa. The new Expropriation Act still speaks to compensation and there is no plan on how to expedite the land restitution to address historical inequalities that are stemming from apartheid.
For instance, The Expropriation Act of 1975 applied the principle of a "willing buyer, willing seller", which required the government to compensate the market value of the property it was expropriating.[16] The new Expropriation Act still requires that the government compensate the expropriation of property, while such compensation can be nil under certain circumstances. Section 12(3) of the new Expropriation Act lists some circumstances under which expropriation without compensation may take place.[17] These include: (a) guaranteeing equitable access to natural resources, like land or water; (b) holding unused land only for speculative activity (c) government-owned land that is not being used for its primary functions and was acquired at no cost; and (c) abandoned land that is not being managed by the owner.[18]
Section 12(3) of the new Expropriation Act[19] gives effect to section 25 (3) of the Constitution[20] on how the compensation issues should be resolved. It gives guidance on how courts or arbitrators should resolve compensation issues and guarantees that expropriation under the Act is carried out within constitutional limitations. Instead of just restating section 25(2), section 12(3) ensures the actual application of the constitutional principles by incorporating them into the statutory framework.[21]
Shortfalls of the New Expropriation Act 13 of 2024
The new Expropriation Act fails to sufficiently rectify past injustices or foster equitable access to land and natural resources in South Africa. The new Act introduces the possibility for a ‘nil compensation’ to be justified under some instances and harmonizes expropriation procedures with the Constitution, but it ignores the basic injustice at the core of South Africa's land issue.[22] The exact historical conditions in which land was forcefully taken, especially through the 1913 Natives Land Act and other racially discriminatory policies are not acknowledged or addressed. The new Expropriation Act largely neglects the historical and moral claims of communities dispossessed of land through systematic oppression, as it fails to incorporate specific provisions addressing these injustices.
Rather, the new Expropriation Act emphasizes legal formalities, market-based compensation, and procedural fairness. Although crucial from a legal perspective, these procedures do not do much to alter the current situation or give land back to individuals who were dispossessed. In certain instances, the demand for "just and equitable" compensation serves to uphold existing ownership patterns that have their roots in the injustices of the colonial and apartheid eras. Additionally, the new Expropriation Act offers little room for revolutionary land reform and does not require the redistribution of privately held land that was obtained through past bloodshed.
Addressing the historical conditions under which land was forcibly taken requires that legislation, such as the Expropriation Act, explicitly engage with the legacy of racially discriminatory laws, notably the 1913 Natives Land Act. This entails embedding principles of restorative justice within the legal framework, prioritizing restitution for historically dispossessed communities, and ensuring that the history of land acquisition informs both the process and quantum of compensation. Furthermore, meaningful redress necessitates inclusive policymaking processes, institutional support for land claimants, and the formal recognition of customary and communal land rights as legitimate forms of tenure.
Conclusion
The new Expropriation does not specifically assist underprivileged or historically excluded people in obtaining land. The unique needs of black rural communities, women who have been evicted from communal land, and those who are still affected by the past of forced removals are not addressed by affirmative action. As a result, even while the Expropriation Act 13 of 2024 brings about legal and administrative advancements, it ultimately fails to fulfil its potential as a means of redress. It cannot be seen as a significant step toward land justice or equitable access to natural resources since it ignores the underlying reasons for land inequality in South Africa.
[1] Natives Land Act 27 of 1913.
[2] It is important to note that while annexation and territorial division marked the beginning of the first phase of land dispossession, both the Afrikaners and the British eventually issued declarations and passed legislation to drive Africans off their land while combining regions of White settlement. Therefore, South Africa was already heading toward spatial segregation through land confiscation by the time the Land Act of 1913 was passed.
[3] Expropriation Act 13 of 2024.
[4] Ibid.
[5] Rule of Law Project “Submission to the Constitutional Review Committee on the resolution for expropriation without compensation” (2018). 2-3.
[6] Constitution of the Republic of South Africa, 1996.
[7] S 25(1) of the Constitution of the Republic of South Africa, 1996.
[8] S 25(3) of the Constitution of the Republic of South Africa, 1996.
[9] Constitution of the Republic of South Africa.
[10] Ibid.
[11] Ibid.
[12] Restitution of Land Rights Act 22 of 1994.
[13] Ibid.
[14] Ibid.
[15] Land claims disputes, particularly those about the Restitution of Land Rights Act, are decided by the Land Claims Court (LCC), presently known as the Land Court. Overseeing the entire restitution procedure, the Commission on Restitution of Land Rights (CRLR) handles claims, mediates disputes, and offers recommendations.
[16] Expropriation Act 63 of 1975.
[17] Expropriation Act 13 of 2024.
[18] Ibid.
[19] Expropriation Act 13 of 2024.
[20] Constitution of the Republic of South Africa.
[21] Ibid.
[22] The basic injustice at the core of South Africa's land issue is the systematic eviction of Black South Africans from their land through colonial conquest, genocide, and forced relocations during the apartheid era.