This article was first published by BBrief on 3 September 2026
Through its Rule of Law Project, the Free Market Foundation (FMF) participated as an amicus curiae (friend of the court) in the constitutional challenge to the Expropriation Act, heard from 3 to 7 August before the Western Cape Division of the High Court in Cape Town. The substantive challenge was principally brought by AfriForum, IRR Legal, and the Vaderland Stigting, while the DA made a primarily procedural case, with the FMF appearing alongside other civil society organisations participating in the proceedings.
The FMF was ably represented by Adv Mark Oppenheimer and Adv Kessler Perumalsamy, who made compelling and well-substantiated submissions to the Court on the constitutional implications of the Act.
Unsurprisingly, the FMF’s participation has attracted the familiar accusation that it is a “white” institution defending “white interests” and that its opposition to the Expropriation Act amounts to a denial of the historical deprivation of black South Africans’ private property rights.
This accusation is, of course, false.
The FMF fully acknowledges the historical injustices relating to property ownership. It also believes that legitimate claims arising from historical dispossession can, and to some extent already have, been addressed through the existing restitution processes.
Moreover, the FMF’s commitment to expanding property rights is demonstrated by its own work. Its Khaya Lam Land Reform Project is specifically dedicated to advancing tenure reform by working with conveyancers, municipalities, and private sponsors to help disadvantaged South Africans living in council-owned rental stock secure title deeds for their properties. With formal title, these properties can become economic assets that allow them to build wealth.
The political origins of the Expropriation Act
What the familiar accusation of historical denialism should not obscure is the fact that the Expropriation Act has not emerged in a vacuum.
It is the culmination of a political project being pursued by the African National Congress (ANC) to grant the state the power to expropriate property without compensation. A major turning point came at its 54th National Conference in December 2017, where it adopted a resolution supporting land expropriation without compensation.
It would subsequently work with the Economic Freedom Fighters (EFF) to try and amend section 25 of the Constitution to expressly enable the expropriation of land without compensation. This attempt ultimately failed in December 2021 when the two parties could not agree on state custodianship of land and consequently failed to secure the two-thirds majority required.
Following this failure, President Cyril Ramaphosa publicly stated that the ANC would pursue land expropriation without compensation through ordinary legislation, thereby circumventing the need for a constitutional amendment. Parliament subsequently passed the Expropriation Act, replacing the old Expropriation Act of 1975. In January 2025, the President signed the Act into law.
It was against this backdrop that the FMF made its submissions to the Court, challenging the constitutionality of the Act on several grounds.
The FMF’s constitutional challenge
First, most states across the world have expropriation powers to facilitate the construction of public infrastructure, but it is commonly accepted that citizens whose property is expropriated by the state should be appropriately compensated at a market-related price.
Section 25(2) of the Constitution acknowledges this principle and clearly stipulates that the state may only take property in the public interest and subject to compensation, the amount of which must be agreed upon or decided by a court, while the time and manner of payment must also be determined. As Adv Oppenheimer pointed out, the words “compensation”, “amount”, and “payment” are important: together, they indicate that some form of compensation must follow an expropriation by the state.
These requirements are plainly incongruent with section 12(3) of the Expropriation Act, which empowers the state to expropriate property for “nil compensation” in an open-ended set of circumstances. As Adv Oppenheimer emphasised, nil may be a number, but it is not an amount. Taking property without compensation is therefore confiscation, not expropriation.
Crucially, section 25(2) has its roots in the broader history of the drafting of section 25 of the Constitution, which formed an important part of the negotiated settlement in which the ANC rejected the notion of expropriation without compensation.
Second, the FMF argued that legislation must bear a rational connection to a legitimate governmental purpose and that section 12(3) fails this test.
Even if “nil compensation” could somehow constitute “just and equitable” compensation, the FMF submitted that the government had not explained why it was specifying a rand value (R0) that “may” apply under certain circumstances.
Sections 12(1) and 12(2) already set out the factors to be considered in determining just and equitable compensation, requiring a balance to be struck between competing interests. Section 12(3), however, effectively allows that balancing exercise to result in no compensation being paid at all. Why?
Third, Adv Perumalsamy argued that the Act is inconsistent with customary international law. He pointed out that section 39(1)(b) of the Constitution requires courts, when interpreting the Bill of Rights, to consider international law.
The FMF submitted that South Africa’s obligations under various bilateral investment treaties (BITs) and other international agreements could require the state to compensate foreign nationals whose property is expropriated under section 12(3). Yet a South African whose property was expropriated under the same provision could receive no compensation.
The FMF argued that this would create an unjustifiable distinction between foreign and South African property owners. It therefore urged the Court to interpret section 25 consistently with customary international law, as required by section 39(1)(b) of the Constitution.
The importance of civil society
While the proceedings are ongoing and the judges are yet to rule, it is encouraging to see private property rights finally have their day in court in the face of a brazen attempt by the state to grant itself the power to expropriate property without compensation.
The FMF is proud to be one of the organisations standing up for private property rights within a civil society that is becoming an increasingly important sphere for resisting harmful state policy through the courts, which, while not perfect, remain an important avenue for holding power to account.
It is organisations like the FMF that should be supported so they can continue playing this important role.
