South Africa’s Expropriation Act mirrors eminent domain rules in the United States and other countries.
n Feb. 7, the White House issued an executive order that the U.S. government would immediately promote the “resettlement of Afrikaner refugees escaping government-sponsored race-based discrimination, including racially discriminatory property confiscation.” The order followed on the heels of a tarmac press conference in which U.S. President Donald Trump nebulously threatened to cut off all funding to South Africa because of their new policy of “confiscating land, and treating certain classes of people very badly.”
In his Feb. 6 announcement officially withdrawing from the upcoming G20 meeting in Johannesburg, Secretary of State Marco Rubio made similar statements.
These claims echo statements by Trump advisor and South African-Canadian-American billionaire Elon Musk. Musk has alleged that a government campaign has targeted the property and threatened the physical safety of white South Africans for years, despite widespread evidence to the contrary. No such campaigns exist, and South Africa has instituted no widespread or arbitrary land seizures. So why does this talking point keep coming up – and why the sudden executive action to withdraw an estimated $440 million in U.S. aid for AIDS prevention?
It’s because of a misinterpretation of South Africa’s Expropriation Act, signed into law in January 2025 by President Cyril Ramaphosa. Here’s what you need to know.
First, what is South Africa’s Expropriation Act?
While many activists in South Africa and elsewhere have decried the Expropriation Act as the government rejecting the private property regime, it is important to note that democratic constitutions around the world reserve powers of expropriation for the public interest (known popularly in the U.S. as eminent domain). For example, South Africa’s 1994 constitution, the U.S. Constitution’s 5th amendment, and the constitutions of Spain, Germany, India, and Australia, among many others, explicitly reserve expropriation powers.
The Expropriation Act (2024) requires that expropriation powers be used “for a public purpose, or in the public interest” and that such expropriations are “subject to compensation” as either agreed upon or approved by courts. There are, however, two main ways in which the Expropriation Act (2024) differs from earlier acts. First, it delineates the conditions of “public interest” more broadly. In the act, the public interest includes “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” While critics may claim this definition is uniquely expansionist, this language is taken directly from the South African constitution (sec 25) and reflects a long-standing rhetorical and legal commitment of the democratic state.
Secondly, the act establishes the threshold for uncompensated expropriation. Section 12 of the act outlines the “nil compensation” conditions as land taken in the public interest where 1) the land is not being used for development or commercial purposes, 2) where the state holds the land, but does not require it in future, 3) where the land has been abandoned, or 4) where the value of the land is exceeded by the value of current state investments in the land.These conditions are very limited, and do much to protect individual landowners. But these conditions have been the subject of controversy since the bill’s inception because they establish a threshold for expropriation of land without compensation.
The push for land policy changes in South Africa was a long time coming
The 2024 Act repeals a 1975 apartheid-era law by the same name that established the system of willing buyer-willing seller, which has governed South Africa’s efforts to more equitably distribute land since democratization in 1994. The 1975 Act allowed the government to negotiate the purchase of land from owners on behalf of willing buyers, who are recipients of government grants.
Given that South Africa, under both colonial and apartheid governments, had instituted sweeping seizures of Black-owned land for the ruling white minority, land ownership patterns in the country were extremely skewed. In 1994, when the country transitioned to democratic rule, 86% of agricultural land was owned by white South Africans – who, at the time, made up less than 11% of the population. Between 1994 and 1998, people directly affected by earlier land seizures (between 1913 and 1993) could petition through the courts to have land bought from unwilling sellers, or receive the market value of the land in cash as a direct redress for past deprivation. However, many South Africans criticized these restitution and redistribution programs as slow, inept, and overly politicized.
Public frustration over the lack of meaningful change in land ownership patterns through either restitution or redistribution has been growing since the late 2010s. The efforts to pass a new bill to overturn the apartheid-era legislation have been ongoing since 2020, and this bill passed the legislature in March 2024.
South Africa’s May 2024 elections brought to power the first coalition government in South Africa since 1996. Headed by Cyril Ramaphosa and his African National Congress Party, the coalition includes 11 parties (7 with cabinet positions), including the center-right Democratic Alliance, the largest opposition party in recent elections. While the legislature that passed the Expropriation Act was not under this current Government of National Unity (GNU), the government that will now implement it is made up of parties representing more than 70% of all voters in South Africa’s 2024 general election.
Given that the bill was passed through the legislature before the establishment of the GNU, some coalition members have raised objections. The center-right Democratic Alliance called for more procedural hurdles to nil compensation, while the right-wing Freedom Front Plus threatened legal action over the bill. The non-coalition left-wing Economic Freedom Fighters also criticized the bill for not going far enough. While there is some debate as to why it took Ramaphosa nearly nine months to sign the bill into law, a clear land policy has been a goal of Ramaphosa’s government and of his party for many years.
Why South Africa’s land act isn’t like Zimbabwe’s
Many critics of the Expropriation Act, especially those with direct ties to South Africa, will bring up the “Fast Track Land Reform” program in Zimbabwe that took place in the early 2000s as a cautionary tale of government abuses. Both countries experienced white-minority rule that created vast inequalities in land ownership through forced removals, land seizures, and privileging ownership for a small population of whites.
But land redistribution programs in Zimbabwe were managed exclusively by the presidency, which empowered select loyal groups of private citizens to march on white-owned agricultural lands and force out the owners and their families and employees. Land seizures in Zimbabwe often resulted in violence against both employees and owners of farms. Managed entirely through executive branch action in a largely undemocratic context, expropriations in Zimbabwe proceeded without the oversight of either the legislature or the courts.
South Africa’s Expropriation Bill (2024) is radically different. Unlike Zimbabwe’s land program, the South African legislation specifies narrow conditions under which nil compensation might be mandated, and outlines explicit procedures for judicial oversight and petition for landowners. South Africa has not empowered anyone outside of government to execute land seizures. And it’s important to note that South Africa’s democratic legislature passed this bill, which had multi-party support.
Reality check: What the Expropriation Act actually does
Many critics of the Expropriation Bill have framed it as a radical break with legal precedent, but much of the legal framework of the bill comes directly from the South African constitution, and is in line with international practices. The key difference – the establishment of standards for expropriation without compensation – is narrowly tailored and constrained by the courts.
The bottom line? The accusations by Musk, Rubio, and Trump that South Africa’s government will conduct widespread confiscations of land under the Expropriation Act are unfounded, both legally and in practice. Additionally, South African groups that have been particularly prominent in pushing for international attention and criticism of the Expropriation Bill have been quick to respond, saying that they have not accused the government of large-scale racially motivated expropriations, and they do not want refugee status. In fact, they would like to stay in South Africa. Nevertheless, the removal of all aid and development partnerships is likely to have far-reaching consequences for public health in South Africa, in particular.
Carolyn E. Holmes is an assistant professor of political science at The University of Tennessee, Knoxville. She is the author of The Black and White Rainbow: Reconciliation, Opposition, and Nation-Building in Democratic South Africa (University of Michigan Press, 2020). She writes in her professional capacity, but does not represent the University of Tennessee, or speak on its behalf.
| Themes |
| • Access to natural resources • Advocacy • Dispossession • Farmers/Peasants • Human rights • International • Land rights • Norms and standards • Security of tenure |
