President Cyril Ramaphosa signed the Expropriation Act into law at the end of January 2025. Below, we have provided simple answers to basic questions regarding how the Act works, what some of its risks are and how it poses a danger to the property rights of ordinary South Africans. If there are any other questions you’d like answered, please e-mail us on ewcfaq@irr.org.za and we’ll add your question and answer if it is helpful.
Q: Does the Expropriation Act only apply to land?
A: No, anything can be expropriated under the Expropriation Act.
The Act says that “property” is what the Constitution says it is. The Constitution says “property is not limited to land” (S25 (4) b.).
Property is anything that can be owned, so it can include a house, a painting, shares, gold coins, land, a patent right, a trademark, a business, a bicycle, pension savings, a record collection, a mine etc. The state can expropriate any of those things, and anything else that can be owned, by using the Expropriation Act.
Q: Can the state expropriate your property without paying compensation?
A: The Expropriation Act says that land can be expropriated without compensation.
Whether land includes improvements – such as buildings on the land – remains uncertain (see below).
When any other form of property is expropriated, the state must pay compensation. But that could easily be less than market value and you probably won’t be compensated for direct financial losses. See below for how much compensation you can get: “If I get expropriated with compensation, how much compensation will I get?”
Also note the custodianship risk described below: “What hidden danger lurks in how the Expropriation Act defines “expropriation”?”
Q: Are there any limits on what types of land can be expropriated without compensation?
A: Any type of land can be expropriated without compensation. The Act lists four circumstances when “nil” compensation may be paid. But the list is incomplete – meaning that a court could recognise or consider other circumstances that are not listed.
Q: Does land expropriation only apply to farms and rural land?
A: No, land expropriation can be applied to any land in South Africa, no matter whether it is rural or urban.
Q: Is tribal trust land exempt from expropriation?
A: No, the Expropriation Act applies to all land and all other forms of property.
Q: In the Expropriation Act, does “land” also include buildings or other improvements on the land?
A: That is not entirely clear. Sub-clause 12(3) refers to nil compensation being paid where land is expropriated in the public interest. This sounds like it refers to land alone. But at common law, “land” includes everything attached to the land, like a house or a barn or a pool. Advocate Uday Naidoo suggests that when Parliament made this law, it understood that “land” usually includes all improvements. Because this has not been explicitly excluded, there is some doubt about what is really meant.
Q: If I’m black, am I safe from being expropriated?
A: No, any owner of property can be expropriated, no matter their race. Some black people have previously had their land expropriated without their knowledge (the notice of expropriation never reached them, but the state took ownership in any event.)
Q: What hidden danger lurks in how the Expropriation Act defines “expropriation”?
A: The government has twice used a legal trick to expropriate property without paying: with water resources in 1998 and with mineral resources in 2002. It did this by saying it was placing these resources in the “custodianship” of the state so that the government could use them for the benefit of the people. Former owners nevertheless lost the powers and benefits of ownership without receiving any compensation.
The way the Expropriation Act defines “expropriation” leaves this loophole open. A future law – for example, a “Land Custody Act” – could place all land in the custodianship of the state without compensating any landowner for their loss. To keep using their land, former owners would then have to apply to a state agency for a land use licence. This is what happened after water resources and mineral resources were taken into state custodianship. State custodianship has also been the source of much corruption and dysfunctionality.
Q: If an expropriating authority decides to expropriate me, how will I find out?
A: The expropriating authority must serve you with the relevant notices: first a notice of intention to expropriate (to which you must respond within 30 days) and then a notice of expropriation. These notices must be served on you either at an agreed address or by both registered and electronic mail. That e-mail delivery is needed too is an important recent improvement to the Act, given declining efficiency at the South African Post Office.
Q: What’s the difference between a notice of intention to expropriate and a notice of expropriation?
A: If you’re being targeted for expropriation, you will first receive a notice of intention to expropriate. This is the state alerting you that it is considering expropriating you and telling you what compensation it considers just and equitable.
If it decides to go ahead, it will send you a notice of expropriation, which details when and how you are going to get expropriated and how much compensation you are going to get.
Q: How quickly can someone get expropriated?
A: The Act says that first the expropriating authority must serve you with a notice of intention to expropriate. You will have 30 days to respond. If you object to the compensation offered, the expropriating authority can still proceed with the expropriation “within a reasonable time” (not clearly specified) after “considering” your objection.
However, the Act is confusing here: one clause says the state must first get a court order approving or deciding the amount of compensation, but another clause says it has 180 days from the date of the notice of expropriation to apply for this court order.
You cannot be expropriated – and lose ownership of your property to the state – before the notice of expropriation has been served on you.
However, expropriation can happen very soon after service. For instance, you could get served with a notice of expropriation on a Monday and the expropriation – the loss of your ownership to the state – could take place the next day (Tuesday) if that is what is written in the notice of expropriation.
The expropriating authority will obtain ownership of your property on the day of the expropriation. The right to possess the property will pass to the expropriating authority on the date stated in the notice of expropriation – which could be the day after ownership passes, if the expropriating authority is in a rush.
Q: What’s the difference between ownership and possession?
A: You own something when it belongs to you and you can, for example, sell it if you want. You possess it when it is in your control.
For example, when you drive a rental car you have possession of it – but you do not have ownership, and you are not allowed to sell it.
Q: If I get expropriated with compensation, how much compensation will I get?
A: Ideally you should get at least market value plus compensation for any direct financial losses. But instead the Act says the following:
The amount of compensation must be just and equitable reflecting an equitable
balance between the public interest, the interests of those affected, including an owner,
holder of a right a morgagee (sic), having regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
That means that market value is just one of the factors the expropriating authority will consider when determining how much compensation to offer you. It could easily abuse the list of “relevant circumstances” (plus any others it can think of) to offer you less than market value. It is unlikely you will receive compensation for any direct financial losses (the old Expropriation Act of 1975 included compensation for direct loss, but this has been omitted from the current Act).
Q: If I receive a notice of expropriation, does this mean a court has already checked the notice and confirmed it is legal?
A: No, it appears an expropriating authority can issue a notice of expropriation without a court ever having seen it (the Act is internally contradictory on this question). If you do not agree to the amount, time and manner of payment, the dispute gets referred to mediation. If it cannot be resolved by mediation, then either party can ask a court to decide – but only after the notice of expropriation has already been issued (within 180 days of the date of the notice of expropriation).
If you are the owner objecting to the amount, you will have to show the amount is not appropriate. That is difficult to prove because the criteria used to arrive at an amount are vague. Adding to the trouble, it is unclear who bears the costs of litigation.
Q: If I get expropriated with compensation, how long will it take until I get paid?
A: The Act says you get paid “on the date… agreed to by the parties or as decided or approved by a court”. But if there is a delay in payment, this does not prevent the right to possession passing to the expropriating authority. So an expropriating authority could take control of your property while your payment is still stuck in the system. The state is often very late in paying what it owes even to suppliers of goods and services.
Q: The Expropriation Act gives two justifications for an expropriation, “for a public purpose” or “in the public interest”. What’s the difference?
A: “Public interest” specifically relates to land and natural resources in the context of land reform and “equitable access” to natural resources.
“Public purpose” is very broad and gives the state the power to expropriate property for “any purposes connected to the administration of any law” where the property will be “used by or for the benefit of the public”.
The “public purpose” rationale is generally used in expropriating land for roads or airports. However, this wording is so wide that it could also be used, for instance, to expropriate a factory that emits too much carbon dioxide, in conflict with the Climate Change Act.
The formulations in the Act are as follows:
“public interest” includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources in order to redress the results of past racial discriminatory laws or practices;
“public purpose” includes any purposes connected to the administration of any law by
an organ of state, in terms of which the property concerned will be used by or for the
benefit of the public;
Q: If my land gets expropriated and I still owe the bank money for it, who pays the bank?
A: You, as owner, remain responsible for paying back the loan. If you receive some compensation from the state, this must generally be used to help repay the loan. But even if the compensation is nil, you must still repay the loan in full. If people fail to repay loans because they can’t afford it, this could harm the banks and even trigger a banking crisis.
Q: If an expropriating authority sends someone to check the suitability of my land for expropriation, can I refuse them access?
A: Yes. They are not allowed to enter without written authorisation from the expropriating authority, which they have to keep with them at all times while on your property in addition to a written identification document. But they also need written authorisation from you as the owner or occupier of the property. So as the owner or occupier you can refuse to give them written authorisation. In that case the expropriating authority will have to obtain a court order to gain access.
Q: Is South Africa the only country that has an Expropriation Act?
A: No, these are common around the world. But they have to be written in a way that strictly limits the ability of the government to wield this very substantial power to the detriment of ordinary citizens and businesses. South Africa’s Expropriation Act has many provisions that give the state too much power. The IRR has pointed out these flaws to the president and even given advice on how to make the Expropriation Act better – and compliant with the Constitution.
Q: As long as I don’t get expropriated, why should I worry about the Expropriation Act?
A: The Expropriation Act is written in a way that makes investors and businesspeople nervous about investing in South Africa. This means the economy won’t grow and unemployment will go even higher. It will make the Rand weaker and push up interest rates, making petrol more expensive, pushing up the cost of other goods, and making South Africa’s economy less competitive. All of these things will affect you, even if you are not the one who gets expropriated.
Q: How is the Expropriation Act a threat to South Africa’s democracy?
A: Because the Act gives the state so much power, it can use this power to intimidate people by threatening them with expropriating their property. This means people will become afraid to speak freely or to engage politically.
Q: Why worry – the ANC government will use its power of expropriation responsibly.
A: Perhaps it will, but in practice and by its own admission it has often been both inefficient and corrupt. In addition, a future government might not be an ANC government. It could be one with even less respect for property rights, such as an EFF government or an MK government. This law gives the government a lot of power, and if the government is controlled by a party you don’t particularly like or trust that should make you worried.
Q: How could an expropriating authority abuse its expropriating power for extortion and blackmail?
A: We could see the emergence of an expropriation mafia that threatens people and businesses with expropriation and offers to make the threat go away if it is paid off. Because of the many vague provisions and uncertainties in the Expropriation Act, some people will prefer to pay in the hopes that this will remove the threat.
Q: Will the courts protect me from being expropriated (or getting too little compensation)?
A: Probably not. The courts often side with the state rather than with the individual when it comes to these matters.
The government has also set up a parallel court system that will deal with land expropriation disputes, among other things. The new land courts are held to a lower standard than regular courts and could easily be used to support the state’s power to expropriate.
Q: Is anybody fighting this?
A: Yes, the IRR has been fighting against the ANC’s attempts to introduce a bad expropriation law for over a decade. The IRR will continue fighting by taking the government to court.
Q: Can I help the fight?
A: Yes, you can help by donating to the IRR by clicking on the red Support the IRR button on the website. Your contribution will be used towards legal costs and the cost of campaigning publicly against the Expropriation Act, in South Africa and abroad.
You can also get involved directly by signing the IRR’s petition to show your support, as well as by writing letters to the newspaper, calling in to radio talk shows, appearing on podcasts, speaking to representatives of the political party you support, contacting the president’s office and other media outlets and officials to make your objections known.
You can read the Expropriation Act here and the IRR’s 2024 petition to the President here.
