The legal showdown of the post-democratic era got underway this week when the Democratic Alliance, Afriforum, the Institute for Race Relations and at least one other organisation took to the Western Cape High Court to challenge the highly-contested Expropriation Act of 2024. It was a grand show of force and with so much riding on it, the litigants would no doubt source the assistance of the best lawyers money can buy.
It has been a burning topic long before the courts were approached. As far back as January last year when President Cyril Ramaphosa first announced the signing of the Act, opposers had used every opportunity to voice out their disapproval, painting the need for land restitution generally as borderline fascism and the ANC as an enabler of stale and backward policies that would culminate in another catastrophic ‘Zimbabwe’ scenario. For the DA, it was an effective schtik on the campaign trail, effectively warning in particular the affluent electorate to remember that a fragmented white vote would result in the infringement of private property rights and Zanu-PF-type land seizures. City of Johannesburg mayoral candidate Helen Zille had been harping on this note at every turn with former federal leader John Steenhuisen in faithful agreement.
For Afriforum, it offered quite a windfall – ensuring a loyal and steadily climbing membership that reportedly pumped a cool R1.6 billion into the lobby group’s kitty between the years 2019 and 2024. Over the years, the once-liberal – but now shifty – Institute for Race Relations (IRR) would plunge headlong into the narrative, churning out articles and comments that were quite openly anti-expropriation but passed off as pro-free market submissions. One could’ve believed they were in the interest of democratic principles until they started coming on so frequently and so one-sided that it became nigh impossible not to suspect some bias.
Of course, it has all worked out pretty well. Those who have found themselves spooked by the doomsday messaging have continued to fork out the membership levies or vote in the right block on the ballot, and podcasters like Renaldo Gouws or Rob Hersov have no doubt experienced unexpected popularity in their support of getting this irksome law scrapped. One could even say that Hersov’s unashamed lies during and since his high-profile interviews in the US have garnered support from MAGA headbangers whose reach has brought SA’s troubles to an altogether different audience.
But with the Presidency, Parliament and the EFF on one hand and the aforementioned entities on the other, what is however being put most to the test in these court proceedings is not just the Expropriation Act itself but the idea of the country’s Constitution and whether indeed the apex document was intended to ultimately ensure some form of restitutive justice.
On a Newzroom Afrika interview, University of the Western Cape Professor Ruth Hall suggests that the Constitution has always held the idea of transformation in mind. ‘This,’ she said, ‘is a profoundly political question. Yes, I think that the court hearings we’ll hear this week will come down to legal technicalities but actually what’s at stake here is a very political question which is the status of private property in a very, very unequal society where the property regime that we live with is one that’s founded on injustice. And so the question is what levers the state has to try and shift that.’
In their pronouncements the DA clearly sees it quite differently. They question the constitutionality of expropriation with ‘nil compensation’ and what this would mean for private property rights. Also, they take umbrage with the National Council of Province’s adoption of the bill, which they argue was done without properly adhering to the law. In the heads of argument they state that ‘persons cannot be deprived of their property rights through an incoherent, inconsistent and irrational process under a law that was adopted pursuant to an unlawful process. To do so yields grave constitutional consequences – it sanctions, through the law, an arbitrary deprivation of property.’
Afriforum’s arguments are focused on Sections 12(3) and 12(4) of the Constitution which allow for expropriation and which, according to the group, stand in contravention of Section 25 and therefore are unconstitutional and should be removed from the Act. Furthermore, they maintain that in his answering affidavits in October 2025, President Cyril Ramaphosa had accepted that Sections 19(2) and 19(3) – which allow for expropriation before compensation – were unconstitutional, therefore these should be taken back to Parliament for redrafting.
According to the IRR, the fact that the compensation process clearly favours the state immediately renders the Act as unconstitutional. They also argued that the property owner’s emotional connection to the land is something that should be factored in when it comes to a decision to expropriate. Although they accept that the state has an obligation to ensure land reform, this responsibility, they argue, should not be placed on the shoulders of the private property owner through unfair compensation.
Over the years, black opposition political parties have been set on using the ‘land question’ to undermine the then-ruling ANC’s commitment to proper economic transformation. This is one of the waves which has catapulted the EFF, MKP and like-minded entities to echelons of power. Conversely, it is this very issue that has sown divisions and mistrust in the broader SA social fibre. It is simply one of those areas in which the country, for the most part, simply has difficulty agreeing on.
Indeed, the opposers of Expropriation may well emerge victorious in the present hearings. Or things could well go the other way. But whichever way the courts rule, this remains one (if not the) of those matters that have dogged the nation over so many painful centuries that one must simply accept that they will continue to haunt us well beyond the happenings in the Western Cape High Court. One question, however, that continues to gnaw away at this writer: what of those black people who aren’t looking for rural or farmland but prefer to be in the urban centers and have no title deeds to their homes? Technically, they do not own the houses (many of them government-built) in which they live. Ah well, perhaps an ownership story for another day.
Featured image: A DA supporter outside the Western Cape High Court. Source: Democratic Alliance Facebook page.