Expropriation Act misunderstood: a closer look at De Vos’ critique and its flaws - Daily Maverick

Anthea Jeffery  
Pierre de Vos’s attack on the Institute of Race Relations (IRR) and other supposedly “right-wing” or “libertarian” organisations for their allegedly “false” and “dishonest” criticisms of the Expropriation Act of 2024 is long on invective but short on accurate analysis (“Constitutional nuances lost in alarmist, misleading debate around the Expropriation Act”, Daily Maverick, 11 February 2025).

Like many other commentators intent on playing down the true import of the act, Professor De Vos pretends that the act applies solely to land. Yet the “property” to which the act applies is defined as “property as contemplated in section 25 of the Constitution”. And Section 25(4) of the Constitution expressly states that “property is not limited to land”.  

Professor De Vos further assumes that the underlying purpose of the act is to “speed up land redistribution”. However, since the act extends to property of all kinds — including bank savings, pension rights and patent rights — the expropriations it authorises will often have nothing to do with land.

He claims that the IRR’s criticisms of the act “ignore half the property clause” in the Constitution by overlooking those parts of Section 25 that emphasise the need for increased “access” to land and provide for restitution to those dispossessed under apartheid laws.

In particular, he adds, the IRR has disregarded sub-section 25(8) of the property clause. This states, in essence, that the parts of Section 25 that lay down requirements for valid expropriations may not “impede the state from taking legislative and other measures to achieve land, water and related reform”.

However, this applies only where a “departure” from these clauses is “justifiable” under Section 36 of the Constitution, which allows limitations on guaranteed rights provided these comply with relevant criteria.

Two points arise here. The first, ignored by Professor De Vos, is that sub-section 25(8) does not apply to expropriations of the many types of property (patent rights and pension savings, for example) that fall outside the ambit of “land, water and related reform”.

Implicit assumption
The second is his implicit assumption that the justification requirement in Section 36 is easily met in the land reform context. Yet Section 36 makes it clear that guaranteed rights may be limited only where this is “reasonable and justifiable” in all the relevant circumstances. This test is difficult to meet where “less restrictive means” are available to achieve the government’s underlying purpose. And less restrictive means to improve land reform can readily be found.

As the High Level Panel of Parliament reported in 2017, the land acquisition costs the Expropriation Act is intended to reduce are not the main reason for land reform failures. Rather, the most pressing problems include an absence of secure title (which the act will exacerbate) and inadequate state support, along with “increasing evidence of corruption by officials (and) the diversion of the land reform budget to elites”.

Fixing these problems is the priority — and these “less restrictive means” need to be embraced before draconian rules on expropriation are enacted.

De Vos also accuses the IRR of making “false claims” about the Constitutional Court judgment in the Haffejee case. However, it is Professor De Vos’s summary of the judgment that misleads by ignoring its most important feature.

In Haffejee NO and others v eThekwini Municipality and others the Constitutional Court was asked to rule on the meaning of Section 25(2)(b) of the Constitution. This states that “property may be expropriated only in terms of law of general application… (and) subject to compensation, the amount of which and the time and manner of payment of which have… been agreed by those affected or decided or approved by a court” (my emphasis).

This wording indicates that the determination of compensation, whether by agreement or through the intervention of the courts, must always precede an expropriation. In the Haffejee case, however (as the IRR has repeatedly pointed out in its submissions and petitions on the bill), Judge Johan Froneman declined to interpret the provision in quite so categorical a way.

Instead, he recognised that there could be exceptional circumstances — “urgent expropriation in the face of natural disaster is one example” ‚— in which it would be “difficult, if not impossible, to determine just and equitable compensation” prior to expropriation.

As a general rule, however, he went on, “the determination of compensation… before expropriation will be just and equitable” (my emphasis). Moreover, in those few cases where there was no choice but to determine compensation only after expropriation — “in cases like natural disasters, as mentioned above” — this would have to be done “as soon as reasonably possible”.

Meaning distorted
Professor De Vos omits the court’s repeated reference to “natural disasters” as illustrating the exceptional circumstance in which the determination of compensation may legitimately take place “only after expropriation”. By leaving out this essential context, he distorts the meaning of the passage from the judgment he quotes.

Professor De Vos further criticises the IRR for saying that “the government has set up a parallel court system that will deal with land expropriation disputes” — and that 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”.

He claims that this assessment is “false” but omits to mention the various ways in which the Land Court differs from other high courts. In the Land Court, for example, two lay assessors — who need not have “any legal qualifications”, according to the act — will be able to overrule a presiding judge on all questions of fact (though not on questions of law).

In practice, many of the disputes before the Land Court will turn primarily on questions of fact, which inadequately qualified and potentially partisan assessors will be empowered to decide against the contrary view of the presiding judge.

The Land Court is also empowered to depart from the usual procedural rules in other ways. The high courts generally apply a formal and adversarial system of adjudication, but the Land Court is instead authorised to “conduct any part of any proceedings on an informal or inquisitorial basis”.

In addition, the Land Court may apply different rules on the admission of evidence. In dealing with land restitution cases, the court is permitted to “admit evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law”.

The court is also authorised to take account of “hearsay evidence regarding the circumstances surrounding the dispossession of a land right” and to “give such weight” to this evidence as “it deems appropriate”.

A parallel system will thus indeed apply, with the Land Court following different — and diminished — procedural and evidentiary rules in important spheres.

Professor De Vos further asserts that the Land Court will not deal with expropriation cases at all, not even those involving land. He is correct that no legislation currently gives it this power, as the list of statutes over which the Land Court has jurisdiction was drawn up before the Expropriation Bill had been signed into law and will have to be changed to give it this power.

Judicial Service Commission
However, his belief that the Land Court will have no role in deciding expropriation cases will come as a surprise, it seems, to both the Judicial Service Commission (JSC) and two judges it interviewed, for appointment as president (Judge Zeenat Carelse) and deputy president (Judge Susannah Cowen) of the new court.

During her interview, Judge Carelse was asked “whether the Constitution currently allows for expropriation without compensation” and replied “in the affirmative”.

Asked the same question by the JSC, Judge Cowen said the Constitution clearly “permitted nominal compensation” and could yield “a zero balance” when previous state subsidies to white farmers were “calculated against market value”.

These questions to both candidates would hardly have been relevant if expropriation cases were not to come before the new court.

Professor De Vos also makes much of the president’s obligation to give his assent to bills adopted by Parliament without delay. But this does not apply where the president has — or ought to have — reservations about the constitutionality of a bill.

Procedurally flawed
In this instance, Parliament’s adoption of the Expropriation Bill was procedurally flawed: if only because necessary provincial voting mandates had not been obtained, as the Democratic Alliance is now arguing before the courts.

In addition, much of the substantive content of the statute is constitutionally suspect too, if only because many of its clauses are impermissibly vague and so conflict with the rule of law.

The criticisms made by Professor De Vos may seem superficially plausible, but they crumble on examination. This presumably explains why he relies so much on ad hominem attack, accusing the IRR of being a “right-wing” organisation, of “misleading the general public”, of being “dishonest and opportunistic”, of making “false” claims on many points, of “making things up” rather than providing “an honest and legally sound argument”, of spreading “misconceptions” about the president’s obligation to assent to bills, and of presenting “purely political argument… as a constitutional argument”.

This last, of course, is what Professor De Vos is himself doing in playing down the dangers of the Expropriation Act, pretending that it deals solely with land, and endorsing the politicised view that the main purpose of the Constitution is to promote “transformation” – even though that word features nowhere in the constitutional text.

Dr Anthea Jeffery holds law degrees from Wits, Cambridge, and London universities. Since 1990, she has worked for the South African Institute of Race Relations, where she is Head of Policy Research. She is the author of ten books, including Business and Affirmative Action; The Truth about the Truth Commission; Peoples War: New Light on the Struggle for South Africa; and Chasing the Rainbow: South Africas Move from Mandela to Zuma.

https://www.dailymaverick.co.za/opinionista/2025-02-26-expropriation-act-misunderstood-a-closer-look-at-de-vos-critique-and-its-flaws/