The DA has hauled the government to court over the Expropriation Act, underscoring the deep ideological divide in the government of national unity (GNU) and adding fuel to the diplomatic fire between SA and the Trump administration, which has cited the legislation to halt aid funding to SA.
DA federal council chair Helen Zille likened the legislation to the dark days of apartheid, saying that it echoes the infamous laws that allowed the then government “to forcibly remove communities from their land, often with inadequate compensation or none at all”.
Late last month, President Cyril Ramaphosa signed into law the bill, repealing an apartheid-era law of 1975, allowing the state to seize land in the public interest and drawing sharp criticism from the DA, whose membership of the GNU is crucial for the set-up to function.
The bill has thrust SA into the international spotlight, drawing the attention of US President Donald Trump, who misleadingly used its passage to justify pulling the plug on aid to SA, saying it is a violation of human rights against white Afrikaners.
The court papers name as a respondent public works & infrastructure minister Dean Macpherson, who also serves as the DA’s provincial chair in KwaZulu-Natal. Macpherson has publicly refused to implement the legislation.
The DA opposed the legislation while it underwent the parliamentary process during the sixth administration. Macpherson’s refusal to implement it is yet another pressure point for the 10-member coalition government over policy.
The DA’s legal challenge centres on the act’s constitutionality. Holding six ministries within the GNU, the DA argues “no government in a democratic country should be given such sweeping powers to expropriate property without compensation”.
“In the current Expropriation Act, we reject the ANC trying to smuggle in further powers of expropriation without compensation in an act that is meant to provide for expropriation in circumstances where the state needs to develop infrastructure such as roads, railways and dams,” Zille says in court filings.
“Every country has legislation to ensure that the state can, with fair compensation, build public infrastructure, but this act goes too far outside these accepted international norms.”
The DA wants the high court in Cape Town to declare the act invalid in its entirety, arguing that the legislation is vague and contradictory and does not comply with the constitutional requirements.
Zille argues that subsections two and three of section 19 of the Expropriation Act lack logical coherence — or are irrational and absurd in legal parlance — creating confusion and certainty in determining compensation.
Under the disputed section, if the government and the property owner cannot agree on the compensation for expropriated land, they can try to resolve the issue through mediation. If mediation fails, either party can go to court within 180 days to have the court decide the compensation amount and payment amount. Alternatively, the property owner can ask the government to start court proceedings within 90 days and the government must do so within 180 days of receiving the request.
“The act is unworkable given the irrationality in section 19. The act cannot operate without reasonable clarity on when a court can and should determine compensation. The consequence is that the entire act is invalid if section 19 is invalid. There are various ways in which parliament may cure the unconstitutionality,” Zille says in the court papers. She also highlights procedural missteps, saying the adoption of the act did not follow constitutional processes.
“The DA’s challenge to the act is both substantive and procedural, and includes [that] the process of adopting the act did not conform to the constitution,” Zille says.
“Five out of the seven provinces that voted for the act in the National Council of Provinces did so without obtaining a provincial mandate in the manner prescribed by law and regulations. [Also] the act is vague and contradictory in several clauses, which renders it unconstitutional,” she says.
Once feared as a harbinger of economic doom and two decades in the making, the act could be seen as a victory for social justice activists despite carrying the risk of political discord.
Business leaders, under Business Unity SA, have expressed cautiously positive views, saying the act includes enough safeguards to prevent arbitrary land grabs.
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