By Lehlohonolo Lehana.
President Cyril Ramaphosa has admitted under oath that article 19 of the controversial Expropriation Act is ‘vague and contradictory’, because it erroneously states that expropriation may take place before the landowner has had the opportunity to contest the matter in court.
Civil Rights Organisation AfriForum and other parties are seeking to have the Expropriation Act declared unconstitutional in the Cape Town High Court.
The respondents include President Cyril Ramaphosa, Public Works Minister Dean Macpherson, the National Assembly Speaker, and the Chairperson of the National Council of Provinces.
AfriForum argues that the Expropriation Act, which Ramaphosa signed into law on 20 December 2024, contains serious flaws.
In the court papers, they argue that section 19(2) and (3) of the Expropriation Act are vague and contradictory, which renders it unlawful.
“Section 19(2) and (3) of the act is irrational. The provision contains an absurdity relating to the period by which a disputed expropriation can be resolved by a court. This absurdity renders the entire Act inoperable. The Act must accordingly be declared invalid in its entirety. Alternatively, section 19(2) and (3) should be declared invalid to the extent of its inconsistency with the Constitution,” said all aggrieved parties.
In terms of section 19(2) and (3), if the expropriating authority (government) and the property owner do not agree on the “amount, time and manner of payment of compensation” they can attempt to settle the dispute through mediation.
“If the mediation fails, either party may institute court proceedings within 180 days of the notice of expropriation to decide “the amount, time and manner of payment of just and equitable compensation”. Alternatively, the property owner may request the expropriating authority to institute legal proceedings within 90 days of the notice of expropriation, which the expropriating authority must then institute within 180 days of receiving such a request.
They further argue that the Expropriation Act threatens South Africans’ constitutional right to private property.
Ramaphosa in his affidavit, admits that if you read article 19 of the Expropriation Act together with other articles, it creates a “circular process” that can declare these provisions “void” because they are so “vaguely” worded.
He asked the court to “remedy the unconstitutionality” of the article by “reading in” amendments to the articles.
In the replying affidavit, Kallie Kriel, CEO of AfriForum, welcomed Ramaphosa’s acknowledgement that parts of the Expropriation Act are unconstitutional.
However, Kriel argues that, due to the extent of the amendments proposed by Ramaphosa, the courts are not in a position to amend the legislation.
Ramaphosa should have asked parliament to correct the unconstitutionalities before he signed the bill into law on 20 December 2024.
AfriForum argues that the court should declare the Expropriation Act unconstitutional in its entirety.
Alternatively, the unconstitutional parts thereof should be referred back to parliament to make amendments.
Ramaphosa’s admissions confirm that he and the ANC have been telling lies by dismissing concerns about the unconstitutionality of the Expropriation Act, “Kriel said.
In terms of Section 80 of the Constitution, one-third of members of parliament can refer an Act to the Constitutional Court for review within 30 days of signing.
While the Expropriation Act allows for nil compensation in particular circumstances, legal experts and agricultural economists have argued this does not mean that expropriation without compensation is inevitable. Lawyer Tembeka Ngcukaitobi said, the Act remains subject to section 25 of the Constitution, which requires compensation to be just and equitable.
Meanwhile President Donald Trump, within ten days after Ramaphosa announced that he had signed the Expropriation Act, declared that he would impose punative measures against South Africa.
In February, Trump ordered that US financial aid be cut to South Africa for the country’s “unjust racial discrimination”.
In his order, Trump cited the alleged confiscation of white-owned land, as well as South Africa’s filing of a genocide case against Israel over its war on Gaza at the International Court of Justice (ICJ) in December 2023.
“In shocking disregard of its citizens’ rights, the Republic of South Africa (South Africa) recently enacted Expropriation Act 13 of 2024 (Act), to enable the government of South Africa to seize ethnic minority Afrikaners’ agricultural property without compensation,” the order read.