President’s expropriation law admissions signal battles to come

President Cyril Ramaphosa has admitted that an important part of the Expropriation Act, which allows Expropriation Without Compensation (EWC), is “in error”.

However, there are three major warnings in relation to this admission.

First, there have been misleading reports that Ramaphosa admitted that this part of the law is “unconstitutional”, which he did not do.

Second, Ramaphosa doubled down on his support for EWC.

Third, Ramaphosa submitted a fake “transformation” claim of the sort the IRR has repeatedly warned against.

Ramaphosa defends “error”

Ramaphosa admitted an “error” in section 19 of the Expropriation Act, but also said he “defends” it. This is confusing.

Section 19 governs the process for disputed expropriations, starting the clock for when owners can go to court from “the date of the notice of expropriation”. The latter document is served only near the end of the expropriation process, and “determines” the moment when property is taken as well as the “amount” that is “compensated”.

Setting "the date" after which people can go to court so late is a fatal flaw in the law. It allows the state to complete an expropriate first and only go to court afterwards.

The Constitution requires the opposite. In Haffejee the Constitutional Court held that disputed expropriations must “generally” be decided in court “before” they can be executed.

The IRR pointed this out to Ramaphosa in a petition before he signed the law. It also noted that the president “must” send a draft law back to Parliament for reconsideration if he has any “reservations” about its constitutionality under section 79(1) of the Constitution. Section 19’s error was one obvious reason for “reservation”.

But Ramaphosa signed anyways.

Now, under oath, Ramaphosa has admitted, in effect, that the IRR was right. He stated that the words in section 19 of the Expropriation Act are “absurd” and “circular” and that “the legislature” passed them “in error”.

Understandably, many reporters have assumed that this must mean the President has also admitted that he personally made a mistake, failing his constitutional duty, by signing an unconstitutional law without first calling for review.

For example, one BusinessTech headline stated, “Cyril Ramaphosa admits Expropriation Act is unconstitutional”. The article’s body included the claim that Ramaphosa “has admitted under oath that Sections 19(2), (3), and (4) of the new Expropriation Act are unconstitutional”.

But that is inaccurate reporting. Ramaphosa did not make that admission.

Instead, he swore to the following in his affidavit specifically regarding “section 19(2), (3), and (4) of the Expropriation Act. I defend the provisions and ask that the DA application [to declare them unconstitutional] be dismissed” [emphasis added].

So how can Ramaphosa admit that the provisions are “in error”, while also “defending” them?

He asked the court to believe that the words “the date of the notice of expropriation” do not mean “the date of the notice of expropriation”, but actually “imply” two totally different, earlier dates.

“In conclusion, the challenge to section 19(2), (3) and (4) should be dismissed if the Court implies the proposed words in section 19(2) and (3) as submitted”, he wrote [emphasis added].

What Ramaphosa gains by defending the “error” in this way is an attempted excuse for his own failure. But what is lost is the basic principle that words in laws have meanings.

Doubling down on EWC

The most important aspect of President Ramaphosa’s legal arguments remains that he has doubled down on support for EWC on an open list of unconstitutional circumstances, which include passive land investment for the purpose of earning a profit, which is equivalent to people buying non-dividend-bearing shares on the stock exchange. That is terrifying to investors.

According to data from SARB, fixed new investment rates have dropped since 2022, and are now so low they are back at 2006 levels. Ramaphosa is partly responsible.

Transformation

Ramaphosa claimed in his affidavit that “emphasis on private property rights…will defeat the transformation objective of the Constitution”.

But this is a mistake. The kind of “transformation objective” offered by Ramaphosa’s defence of the indefensible is not constitutional. It is a way to take a bad situation, which the apex court has called a “colossal crisis” in land administration, and make it worse, especially for those who cannot afford airplane tickets.

By contrast South Africa’s Constitution is a system for real transformation, which includes systematic poverty reduction through investment-driven, long-term growth. Our Constitution promises to protect owners from state predation, emphatically, which is one of many constitutional promises the President should try to keep without equivocation.

Media contact: Gabriel Crouse, IRR Legal Executive Director Tel: 082 510 0360 Email: gabriel@irrlegal.org.za

Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za