Why nil compensation under the Expropriation Act can survive section 25 while its court procedure may not

Introduction

South Africa’s property clause has been argued over for so long that it gets hard to remember what the current fight is actually about. Section 25 of the Constitution already lets the state expropriate for a public purpose or in the public interest, provided the compensation is just and equitable (Constitution of the Republic of South Africa, 1996, s 25). A 2021 attempt to amend it so that compensation could expressly be nil died in the National Assembly on 7 December 2021 (Boggenpoel, 2024). Then the Expropriation Act 13 of 2024 turned up. Section 12(3) of that Act says nil compensation may be just and equitable for certain land, and the President signed it in January 2025 (Expropriation Act 13 of 2024, s 12; South African Government, 2025).

Since then the Act has had a rough ride. The Democratic Alliance, AfriForum together with IRR Legal, and Vaderland Stigting each challenged it in the Western Cape High Court, and the consolidated applications were argued from 3 August 2026 (EWN, 2026; IOL Cape Argus, 2026). The dispute is political as much as legal. Ekori (2025) notes that the whole debate has been running under the government of national unity, with local and international figures attacking the newly signed statute. The Act is also not yet the operative law, as far as anyone can tell. Section 31 leaves commencement to a presidential proclamation, and the sources checked for this paper turned up none, which would mean the 1975 Act still governs real expropriations (Cliffe Dekker Hofmeyr, 2025; Farmers Weekly, 2025).

This paper takes a position. It argues that the nil compensation provisions are easier to defend under section 25 than their loudest critics and their loudest supporters both assume, because the Act keeps the duty to pay (Lubbe and Du Plessis, 2021) and leaves the final amount to a court, whatever the symbolism of the phrase (Hall, 2024). The more exposed part of the Act is the machinery in section 19 for getting a compensation dispute in front of that court. The paper looks first at what section 25 already allows, then at the Act and the litigation, then at section 12, and then at section 19, before pulling the threads together.

What section 25 already allows

When it comes to compensation, the text of section 25 is more flexible than the slogans around it. Subsection (1) bars arbitrary deprivation of property, subsection (2) allows expropriation for a public purpose or in the public interest, subject to compensation that has been agreed or decided or approved by a court, and subsection (3) lists five circumstances to weigh, of which market value is only one (Constitution of the Republic of South Africa, 1996, s 25). The Constitutional Court has treated expropriation as a subset of deprivation in First National Bank ([2002] ZACC 5), and in Agri South Africa ([2013] ZACC 9) it refused to find an expropriation where the state had not acquired the core of what the owner lost. Brand (2024) concludes that the state can already take a good deal without paying, through deprivation and through exceptional expropriation, so the constitutional text is not what has held land reform back.

Whether a zero figure is permitted for an actual expropriation is where the writers part ways. Lubbe and Du Plessis (2021) record that the Joint Constitutional Review Committee split on exactly this, with one camp saying section 25 already allows nil compensation if the state can justify it and a court can review it, and the other saying the clause has to be amended. They prefer the first camp. In their account nil compensation keeps the duty to pay and stays under ‘just and equitable’ review, while ‘without compensation’ would turn expropriation into confiscation and sit badly with international law. Du Plessis (2024) lands in a similar place from a different direction, arguing that the word ‘just’ can be read in light of the aim of changing who holds land, which needs no amendment at all.

Van Staden (2021) is the sharpest dissenter. His argument is that compensation and expropriation are conceptually joined, so a draft amendment speaking of cases where the amount is ‘nil’ may simply relabel expropriation without compensation, and he reports that Parliament’s own legal advisers accepted the two phrasings differ very little. That is a fair worry about wording, and a real one in its own right. It bites hardest on a constitutional amendment that would have removed the court’s role, and a bit less on a statute that leaves the court where it was. Nkondo (2021) comes at the whole thing from the other end, treating expropriation without compensation as a matter of social justice that grows out of the liberation struggle and is needed if continued marginalisation is to be avoided.

Courts have been cautious in practice, whatever the theory says. Boggenpoel (2024) points to Msiza, where the Land Claims Court set compensation at R1,500,000 against an agricultural market value of R1,800,000 and the Supreme Court of Appeal put the figure back to R1,800,000. Her reading is that judges keep returning to market value as the anchor and struggle to justify moving far from it. Hall (2024) adds that court tests of ‘just and equitable’ compensation have been so rare that the standard is largely untested. So nil compensation is arguably available on the text, but nobody really knows what a judge would do with it, and that gap matters for everything that follows.

The Act, its status and the litigation

The Expropriation Act repeals the 1975 statute and gives national, provincial and local authorities a single framework. An authority may not expropriate arbitrarily, and outside urgent cases it must first try, and fail, to agree terms with the owner (South African Government, 2025; Expropriation Act 13 of 2024, s 2). Disputes can go to mediation or to the courts. The President assented on 23 January 2025 and the Act was published in the Government Gazette the next day. Commencement is another story. Section 31 says the Act comes into operation on a date the President determines by proclamation, and different provisions may start on different dates (Expropriation Act 13 of 2024, s 31). Farmers Weekly (2025) reported in October 2025 that the FW de Klerk Foundation had confirmed no date was set, and nothing found for this paper suggests that changed.

The litigation is more tangled than the headlines suggest, and it helps to be clear about what has actually been decided. A ruling of 12 May 2026 by the Deputy Judge President dealt only with interlocutory business, admitting the Economic Freedom Fighters as a party and a further amicus curiae, and it did not decide whether the Act is valid (Afriforum NPC v President of the Republic of South Africa [2026] ZAWCHC 218). The merits were argued in August. The DA says the National Council of Provinces process was defective because some provincial delegations voted without valid mandates, and that section 19 is circular. AfriForum goes after sections 12(3), 12(4) and 19(8) and wants section 19(2) amended. IRR Legal takes a different line, accepting that nil compensation may suit exceptional cases such as a road or hospital that benefits the owner (IOL Cape Times, 2026). By early October coverage described the application as heard in August without reporting a decision (IOL Cape Argus, 2026).

Section 12 and the constitutional test

Section 12(3) says it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances including, but not limited to, four situations. These are unused land held mainly for market appreciation, land an organ of state holds without needing it and acquired for no consideration, land the owner has abandoned by failing to control it, and land whose market value is no more than the present value of direct state investment or subsidy. Section 12(4) adds that nil may be just and equitable where a court or arbitrator sets compensation under the Land Reform (Labour Tenants) Act (Expropriation Act 13 of 2024, s 12). The draft Bill that Boggenpoel (2024) examined carried a fifth situation, land posing a health, safety or physical risk, and that ground does not appear in the enacted text.

Read against section 25(3), this whole thing looks less radical than it sounds. Direct state investment and subsidy in acquiring and improving the property is one of the five factors the Constitution itself names, and current use and the history of acquisition are two more (Constitution of the Republic of South Africa, 1996, s 25). The Act mostly takes factors that were already in the Constitution and says that in some circumstances they can push the figure to zero. That matches the Lubbe and Du Plessis (2021) argument that nil compensation keeps the duty to pay, remains subject to ‘just and equitable’ review, and has to pass the limitation test in section 36. Ekori (2025) goes further, concluding that the Act is consistent with section 25 and with the international rules protecting foreign investors, and noting that the Act generally requires just and equitable compensation and allows nil only in some cases, abandonment being one.

None of that makes the provisions bulletproof, of course. Boggenpoel (2024) notes that the list is open-ended, so the expropriating authority keeps a wide discretion that, in her view, needs statutory guidance, and she asks why labour tenants are singled out in section 12(4) when restitution claimants are not. The first situation, where the owner’s main aim is to profit from rising value, depends on what an owner intended, which is hard to prove and easy to argue about. Van Staden’s (2021) fraus legis point still has some life, because if officials treated the list as a presumption then ‘nil’ would work as a label for ‘without’. But the Act says ‘may’, no situation produces zero automatically, and the amount can be taken to a court, so the label problem is smaller than it would be under the failed amendment.

My view is that sections 12(3) and 12(4) will probably survive if a court reads them as permissive and case-specific, with every zero figure open to review. There are two cautions. One is that nobody can be certain, since no ruling on the merits has been reported (IOL Cape Argus, 2026). The other is that the clause may be legally safe partly because it is hard to use. If courts keep anchoring on market value, as Msiza suggests (Boggenpoel, 2024), nil compensation could stay a theoretical option for years. Pienaar (2024) offers a related warning from a different corner of property law, finding that a hierarchical view of ownership, in which the owner’s rights outweigh lesser ones, still dominates, so that protection for vulnerable occupiers depends on case-by-case balancing and comes out patchy and hard to predict. Provisions with big ambitions do not always change what judges actually do.

Section 19 and the weaker point

Section 19 is the chapter that gets a disputed amount to a court. If the parties cannot agree, either may apply to a competent court within 180 days of the date of the notice of expropriation, or the disputing party can ask the authority within 90 days to bring the proceedings, which the authority must do within 180 days of the request. A court may extend these periods for good cause, and an appeal against the amount does not stop the expropriation at the approved figure unless an interim interdict is granted on compelling prospects of success (Expropriation Act 13 of 2024, s 19). The difficulty the DA identifies is that the notice of expropriation is supposed to state the agreed or court-approved compensation, so the clock starts from a document that may not be capable of existing yet (IOL Cape Times, 2026; Expropriation Act 13 of 2024, s 8).

It would be wrong to say the problem is that ownership can pass before compensation is fixed. In Haffejee the Constitutional Court held that section 25(2)(b) does not require the amount to be settled before an expropriation takes effect, though settling it first will generally be just and equitable and, when it is done later, it must happen as soon as reasonably possible ([2011] ZACC 28). The Act’s choice to vest ownership on the date of expropriation and to let disputes run on without stopping possession does not look suspect in itself (Expropriation Act 13 of 2024, ss 9 and 15). What can go wrong is basically whether the sequence can actually be run from start to finish, and whether an owner can reach a court at all.

Here the government’s own position is revealing. In papers filed in the Western Cape challenge the President accepted that sections 19(2), (3) and (4) were flawed, allowed expropriation before an owner could challenge it in court, and might be void for vagueness, and asked the court to read in words to cure the defect (Farmers Weekly, 2025). In August 2026 the Presidency and the National Council of Provinces were still arguing that the law should stay in force with a reading-in remedy, while Parliament’s counsel said section 19(8) applies only once a court has already fixed compensation and does not abolish appeals (EWN, 2026; Business Day, 2026). The DA’s position, as reported in 2025, is that a court cannot amend the Act itself and that a finding of invalidity would send it back to a Parliament that looks different from the one that passed it (Farmers Weekly, 2025).

Taken together, the reports suggest the dull provision is the real risk (Farmers Weekly, 2025; EWN, 2026). The headline debate has been about whether a zero can ever be just and equitable, and the answer seems to be yes, sometimes, subject to review. The question that could actually sink parts of the Act is whether an owner told compensation is nil has a workable route to contest it. There is a sequencing problem too. If the DA succeeds on the provincial mandates argument the whole Act would presumably fall and the section 12 debate would never get reached (IOL Cape Times, 2026). A court is far more likely to find a defect in drafting or in process than to say nil compensation is beyond section 25, which is why I would put more weight on section 19 than on section 12.

Conclusion

Nil compensation under the Expropriation Act is probably more compatible with section 25 than the political temperature implies. The Act keeps the duty to pay, grounds several of its listed situations in factors the Constitution already names, and leaves the amount open to court review, which is the line Lubbe and Du Plessis (2021) and Du Plessis (2024) draw between nil compensation and plain confiscation. The Van Staden (2021) objection remains useful as a check on how officials apply the list, though it is a weaker objection to this Act than to the amendment that failed in 2021. Section 19, by contrast, looks like the real constitutional weak point, and the President’s own concession in the litigation points the same way (Farmers Weekly, 2025).

Even a clean bill of constitutional health would not deliver much land, though. Brand (2024) and Hall (2024) both point to funding, administrative capacity, policy direction and political will as the things that have held reform back, and Zenker and Walker (2024) read the failed 2021 amendment as a starting point for asking who should carry reform, how productive and redistributive aims should be balanced, and how deep the change has to go. The pending ruling in the Western Cape could settle the narrow legal questions. It will not settle those bigger ones, and the Act on its own was never going to.

Reference list

Boggenpoel, Z.T. (2024) ‘Politics or principle? Making sense of the expropriation without compensation debate’, in Zenker, O., Walker, C. and Boggenpoel, Z. (eds.) Beyond expropriation without compensation: law, land reform and redistributive justice in South Africa. Cambridge: Cambridge University Press, pp. 35-54. doi:https://doi.org/10.1017/9781009380829.006

Brand, D. (2024) ‘Setting our transformation sights too low: land reform, “expropriation without compensation” and “state custodianship of land”‘, in Zenker, O., Walker, C. and Boggenpoel, Z. (eds.) Beyond expropriation without compensation: law, land reform and redistributive justice in South Africa. Cambridge: Cambridge University Press, pp. 118-140. doi:https://doi.org/10.1017/9781009380829.010

Du Plessis, E.W.J. (2024) ‘The “justice” in “just and equitable” compensation’, in Zenker, O., Walker, C. and Boggenpoel, Z. (eds.) Beyond expropriation without compensation: law, land reform and redistributive justice in South Africa. Cambridge: Cambridge University Press, pp. 71-94. doi:https://doi.org/10.1017/9781009380829.008

Ekori, A.H. (2025) Expropriation without compensation constitutionality debacle and foreign investment protection in South Africa. South African Mercantile Law Journal, 37(2), pp. 127-146. doi:https://doi.org/10.47348/samlj/v37/i2a1

Hall, R. (2024) ‘The Constitution’s mandate for transformation: from “expropriation without compensation” to “equitable access to land”‘, in Zenker, O., Walker, C. and Boggenpoel, Z. (eds.) Beyond expropriation without compensation: law, land reform and redistributive justice in South Africa. Cambridge: Cambridge University Press, pp. 143-164. doi:https://doi.org/10.1017/9781009380829.012

Lubbe, H.J. and Du Plessis, E.W.J. (2021) Compensation for expropriation in South Africa, and international law: the leeway and the limits. Constitutional Court Review, 11(1), pp. 79-112. doi:https://doi.org/10.2989/ccr.2021.0004

Nkondo, M. (2021) ‘Land expropriation without compensation: a case of social justice?’, in Ndlovu-Gatsheni, S.J. and Ngcaweni, B. (eds.) The contested idea of South Africa. London: Routledge, pp. 193-205. doi:https://doi.org/10.4324/9780429340857-11

Pienaar, J.M. (2024) ‘The tale of two women: is the transformative thrust embodied in the property clause a theory or a lived reality where land reform is concerned?’, in Zenker, O., Walker, C. and Boggenpoel, Z. (eds.) Beyond expropriation without compensation: law, land reform and redistributive justice in South Africa. Cambridge: Cambridge University Press, pp. 95-117. doi:https://doi.org/10.1017/9781009380829.009

Van Staden, M. (2021) Fraus legis in constitutional law: the case of expropriation “without” or for “nil” compensation. Potchefstroom Electronic Law Journal, 24, pp. 1-31. doi:https://doi.org/10.17159/1727-3781/2021/v24i0a10406

Zenker, O. and Walker, C. (2024) ‘Beyond expropriation without compensation: law, land reform and the future of redistributive justice in South Africa’, in Zenker, O., Walker, C. and Boggenpoel, Z. (eds.) Beyond expropriation without compensation: law, land reform and redistributive justice in South Africa. Cambridge: Cambridge University Press, pp. 3-32. doi:https://doi.org/10.1017/9781009380829.004

Legislation and case law

Afriforum NPC v President of the Republic of South Africa and Others (Economic Freedom Fighters Intervening) [2026] ZAWCHC 218 (12 May 2026), Western Cape High Court. Available at: https://www.saflii.org/za/cases/ZAWCHC/2026/218.html (Accessed: 18 October 2026).

Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9; 2013 (4) SA 1 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2013/9.html (Accessed: 18 October 2026).

Business Day (2026) Speaker says compensation appeals should not halt expropriations, 7 August. Available at: https://www.businessday.co.za/news/2026-08-07-speaker-says-compensation-appeals-should-not-halt-expropriations/ (Accessed: 18 October 2026).

Cliffe Dekker Hofmeyr (2025) Investor: don’t be alarmed by Expropriation Act, 2025, Dispute Resolution Alert, 3 February. Available at: https://www.cliffedekkerhofmeyr.com/en/news/publications/2025/Practice/Dispute-Resolution/dispute-resolution-alert-3-february-investor-dont-be-alarmed-by-expropriation-act-2025 (Accessed: 18 October 2026).

Constitution of the Republic of South Africa, 1996. Available at: https://www.gov.za/documents/constitution/chapter-2-bill-rights (Accessed: 18 October 2026).

EWN (2026) Land reform minister’s lawyers to take floor in Expropriation Act challenge, 7 August. Available at: https://www.ewn.co.za/2026/08/07/land-reform-ministers-lawyers-to-take-floor-in-expropriation-act-challenge (Accessed: 18 October 2026).

Expropriation Act 13 of 2024, Government Gazette, 24 January 2025. Available at: https://www.saflii.org/za/legis/consol_act/ea13o2024207/ (Accessed: 18 October 2026).

Farmers Weekly (2025) Ramaphosa admits Expropriation Act has legal flaws, 21 October. Available at: https://www.farmersweekly.co.za/agri-news/south-africa/ramaphosa-admits-expropriation-act-has-legal-flaws/ (Accessed: 18 October 2026).

First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service [2002] ZACC 5; 2002 (4) SA 768 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2002/5.html (Accessed: 18 October 2026).

Haffejee NO v eThekwini Municipality [2011] ZACC 28; 2011 (6) SA 134 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2011/28.html (Accessed: 18 October 2026).

IOL Cape Argus (2026) Macpherson defends R1.66m legal bill in Expropriation Act challenge, 5 October. Available at: https://iol.co.za/capeargus/news/2026-10-05-macpherson-defends-r166m-legal-bill-in-expropriation-act-challenge/ (Accessed: 18 October 2026).

IOL Cape Times (2026) Legal battle over Expropriation Act: property rights at stake in court, 5 August. Available at: https://iol.co.za/capetimes/news/2026-08-05-legal-battle-over-expropriation-act-property-rights-at-stake-in-court/ (Accessed: 18 October 2026).

South African Government (2025) President Cyril Ramaphosa assents to Expropriation Bill, 23 January. Available at: https://www.gov.za/news/media-statements/president-cyril-ramaphosa-assents-expropriation-bill-23-jan-2025 (Accessed: 18 October 2026).