AfriForum has argued that when the government starts 'interfering with balance', it will end up with undercompensation.
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AfriForum has argued that section 25 of the constitution does not have a category of land expropriation without compensation, and the Expropriation Act should therefore be declared unconstitutional.
On Tuesday, the organisation, along with the DA and the Institute of Race Relations (IRR), returned to the Western Cape High Court on the second day of arguments against sections of the Expropriation Act.
AfriForum has argued that at least some sections of the Expropriation Act should be scrapped, while another section should be amended as they are unconstitutional.
Nil compensation ‘unconstitutional’
The organisation has targeted section 12.3 of the Act, which outlines circumstances where land expropriation without compensation may be considered. AfriForum has taken issue with the words “including, but not limited to”, arguing that they leave the list at the discretion of the government.
“I’ve already made the point, but I want to stress it: section 25 of the constitution does not have this distinction. It does not have a category of no compensation,” argued AfriForum’s legal representative.
“Section 25 prescribes a weighing-up process of relevant circumstances to get to an equitable balance between the public interest on the one hand and the interest of those affected.
“Section 12.3 of the Act changes this focus. Instead, it starts at a category, a whole category of properties that may be expropriated for no compensation. It recalibrates almost the test in section 25.3 of the constitution, which is an object of weighing up of factors and facts and relevant circumstances.”
This section of the Expropriation Act must be declared invalid, argued AfriForum.
Return Expropriation Act to parliament
AfriForum further argued against sections 19(2) and 19(3) of the Act, saying they contravened section 25 of the constitution.
The sections allow for land to be expropriated before a compensation amount has been agreed upon or a court has ruled on the matter.
“Section 19 of the Act must be declared unconstitutional and remitted to Parliament to amend within a period of 24 months of the date of this order. Pending the amendment of section 19 by Parliament, the court must grant an interim relief by deleting the reference to notice of expropriation in the sub-sections,” argued AfriForum.
President Cyril Ramaphosa signed the Expropriation Bill into law in January 2025, following a five-year process of public consultation and parliamentary deliberation. At the time, he said the Act aligns legislation on expropriation with the constitution.
The Act also states an expropriating authority must attempt to reach an agreement on the acquisition of the property before resorting to expropriation – except in circumstances where the right to use property temporarily is taken on an urgent basis in terms of a provision in the legislation
‘Interfering with balance’
The organisation further argued that when the government starts “interfering with balance”, it will end up with undercompensation.
“Undercompensation is not compensation. Undercompensation can never be equitable compensation, and the constitutional standard is that it is either fair and equitable or it is not.
“That’s the stark division that you would have in these cases: if you end up with undercompensation, what you are getting is unjust and inequitable compensation, and that is the consequence of tilting the balance,” argued the organisation.
‘Administrator not a judge’
It further argued against leaving the process in the hands of an administrator who will have to decide on whether a property in question is unused and not generating income that the owner is holding on to for the future.
The argument that the process can end up in a court of law was not consolation either, as the damage would have already been done by then.
“This is not about a corrupt administrator; it’s not about somebody who’s looking to take a chance; it’s about the honest administrator who is sitting there and trying to do a difficult job, and he’s told, ‘But the legislature told me that this is really important; I can’t just ignore it’.”
“What you have created is a system which opens up the honest administrator to doing a difficult job being placed in a position where he or she is looking and going, ‘But parliament told me these factors are important, what do I do with that?’
“The important point to make is that it’s not good enough to say, but there’s going to be court at the end of the process because the really important decision has been made by an administrator. The Constitutional Court had pointed out repeatedly that an administrator is not a judge.
“When you place a matter before a judge, you can have an expectation that the judge can apply things in a lawful manner; you can’t have that assumption with an administrator and not because we have a lack of faith in administrators, but because administrators aren’t judges and administrators work under a lot of pressure.”
