AfriForum’s court application to have certain sections of the Expropriation Act – which, among other things, enables expropriation without compensation – declared unconstitutional is being heard in the High Court in Cape Town starting Monday (3 August). Meanwhile, IRR Legal, a division of the Institute of Race Relations, has joined AfriForum’s case as a co-applicant.

AfriForum cited President Cyril Ramaphosa, the Minister of Public Works and Infrastructure, the Speaker of the National Assembly, and the Chairperson of the National Council of Provinces as respondents in the matter; subsequently, the EFF and the Minister of Land Reform and Rural Development applied to be admitted as respondents as well. Separate court applications against the Expropriation Act brought by the DA and the Vaderlandstigting are being heard alongside that of AfriForum and IRR Legal.

According to Kallie Kriel, CEO of AfriForum, his organisation has appointed a top-tier legal team ready to challenge the Expropriation Act in court. “Fighting expropriation without compensation is not only in the interest of landowners; it is in the interest of everyone in the country. The example of Zimbabwe clearly demonstrates the destructive impact that the disregard for property rights has on a country and its entire population. The only people who stand to benefit from this legislation are a small political elite. Meanwhile, the poor – falsely portrayed as the intended beneficiaries – will be hit hard by unemployment, hyperinflation, and rising poverty. The millions of Zimbabweans fleeing to South Africa due to poverty serve as proof of the devastating consequences that disregarding property rights has for everyone,” Kriel explains.

Kriel points out that implementing the Expropriation Act in its current form will have far-reaching consequences. For instance, a landowner’s property could be expropriated without compensation before a court has ruled on the validity and amount of the expropriation. Consequently, a landowner – having already lost their land and source of income – would have to fight the expropriation in court at their expense for approximately five years, given the time it takes to bring a contested case before the court.

“Most landowners lack the funds to engage in a protracted legal battle against the state, which litigates using taxpayers’ money,” Kriel adds.

According to Ernst van Zyl, AfriForum’s Head of public relations, the ANC’s top leadership has repeatedly made it clear that they remain committed to their mission of expropriation without compensation. “The only thing standing in their way is this court case,” he concludes.

AfriForum’s arguments in court

AfriForum argues that Sections 12(3), 12(4), and 19(8) of the Expropriation Act should be scraped and Section 19(2) amended, as these sections are unconstitutional.

According to AfriForum, Sections 12(3) and 12(4) aim to enable expropriation without compensation, even though it is in contravention of Section 25 of the Constitution, which stipulates that expropriation is subject to, among other things, just and equitable compensation. The ANC’s attempts to amend the Constitution failed. AfriForum, however, contends that there is now an attempt to circumvent the Constitution unlawfully through unconstitutional legislation.

Section 12(3) of the Act lists several examples of expropriation where no compensation need be paid. However, the use of the phrase “including, but not limited to” leaves this list open-ended, placing no limits on the instances where expropriation may be applied. AfriForum argues that this provision is unconstitutional. The organisation maintains that this section would even allow municipalities to devise their own reasons for expropriation without compensation and expropriate land without compensation even before the matter could be tested in court. AfriForum’s position is that compensation must always be determined in terms of Section 25 of the Constitution – considering the facts of the specific case, whether through agreement between the parties or by the courts – and not through open-ended legislative categories.

AfriForum’s court application also demonstrates that Sections 19(2) and 19(3) are in contravention of Section 25 of the Constitution, as these sections allow for land to be expropriated before a compensation amount has been agreed upon or a court has ruled on the matter. According to AfriForum, both the President and the Speaker have essentially acknowledged the unconstitutionality of these sections in their court papers by proposing that alternative wording be read into the act. AfriForum requests that these sections be referred back to Parliament for proper reformulation. Pending such an amendment, AfriForum is willing to accept an interim reading-in order – in accordance with the President’s proposed approach – to ensure that compensation is agreed upon or determined by a court before expropriation takes place.

AfriForum’s court papers also argue that Section 19(8) should be struck from the Act. This section stipulates that, notwithstanding Section 18 of the Superior Courts Act, an appeal against a court ruling on compensation does not prevent the expropriating authority from proceeding with the expropriation. This constitutes an irrational and unnecessary interference with the carefully formulated Section 18 of the Superior Courts Act and its subsections, which provide, among other things, for the suspension of the execution of judgments pending an application for leave to appeal.