By Lehlohonolo Lehana.
Civil rights group Afriforum is challenging the constitutionality of a law that will allow for expropriation of property without compensation.
The court application comes hours before President Cyril Ramaphosa and US leader Donald Trump hold talks where they may discuss the legislation.
Ramaphosa signed the Expropriation Bill into law in January after months of debate in parliament due to opposition from the Democratic Alliance (DA) party, which is part of the coalition government.
The act repeals the apartheid-era Expropriation Act 63 of 1975, and aims to align expropriation law with the constitution.
The act says that property must not be expropriated arbitrarily or for a purpose other than a public purpose or in the public interest.
Public purpose means by or for the benefit of the public. For example, expropriating property to build roads, schools and hospitals. Public interest is broader and includes the nation’s commitment to land reform.
“Arbitrary” would usually mean without reason or justification.
The act further requires that an expropriating authority – an organ of state or person empowered by the act or any other legislation – must first try to reach an agreement with the owner to acquire the property on reasonable terms before considering expropriation.
This gives some power to a landowner, even though expropriation does not normally require consent. The act also says a specific expropriation must always be authorised by a law.
AfriForum contends that the Act contains “serious flaws” and ‘inherent contradictions,” particularly highlighting Section 12(3).
Section 12(3) of the act refers to “nil compensation” – when nil rand (monetary) compensation may be paid. There is no explicit reference to nil compensation in the current wording of section 25 of the constitution. It’s a new thing in the Expropriation Act.
However AfriForum believes opens the door to potential abuse of public power by any expropriating authority, including poorly managed local municipalities.
Ernst van Zyl, Head of Public Relations at AfriForum, emphasized that the ANC’s leadership has consistently stated the Act’s intention is to enable expropriation without compensation.
“We assured our members and the public at the beginning of the year that we would fight this dangerous act both domestically and internationally,” said Van Zyl, also noting the attention brought to the issue by Trump.
He concluded that this court case represents AfriForum’s “most important local battle” in safeguarding private property rights.