This article was first published by Asset Magazine (pgs 58-64) in Issue 150 | August 2026
The Free Market Foundation (FMF)’s Rule of Law Project intervened as an amicus curiae in the High Court challenge to the Expropriation Act brought by AfriForum and IRR Legal. Our arguments were presented to the court in Cape Town on 5 August, and focus on section 12(3) of the Act. That provision purports to authorise expropriation for “nil compensation” in an open-ended range of circumstances.
The Project’s central contention relates to the plain meaning of the Constitution and its guarantees for ordinary South Africans and their property.
Section 25(2) of the Constitution unambiguously provides that property may only be expropriated “subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”
“Nil” (0) is not an amount (it is a number). The absence of payment is not payment (payment implies a transfer of value).
And to not receive a payment of an amount, can never amount to compensation (well-understood in law to mean repairing a damage or deficit).
To treat “nil compensation” as constitutionally permissible is to ignore the ordinary meaning of the words the Constitution actually uses, and amounts to employing clever wordplay to sidestep clear constitutional guarantees.
The 1990s constitutional negotiators deeply debated and clearly rejected expropriation without compensation, instead opting for a balanced approach whereby the imperative of land reform is recognised while at the same time protecting private property rights.
Government’s argument
The counsel for the President in the High Court responded that challengers to the Expropriation Act should not reach for “the dictionary to find the definition of the word compensation”. On this view, the constitutional “just and equitable” standard ostensibly overrules the requirement that an amount of compensation be paid. They argue that in appropriate cases, the just and equitable “amount” can be nil.
The Rule of Law Project’s reply is that South Africans should be wary of this kind of gaslighting from the political elite. It simply cannot be that a guarantee in a supreme Constitution which provides that ordinary property owners are by right entitled to be compensated when the state takes their property, can amount to also allowing non-compensation at the same time.
The claim that the constitutional requirement to pay compensation includes the possibility of not paying compensation is plainly incoherent, but at worst amounts to constitutional gaslighting of an Orwellian order. The government is effectively saying that 2+2=5, or 2+2=0 in this case.
Two legs
There are two distinct legs to the constitutional inquiry.
The first is section 25(2), the guarantee that there will be a payment of an amount of compensation. This is the basic right to compensation.
The second is section 25(3), which governs the determination of that amount according to the just and equitable standard that balances all relevant circumstances, including market value and the purpose of the expropriation.
Nil unambiguously fails the first leg outright because it is not an amount that can be paid. But it must also fail the second.
The market value of fixed property is virtually never zero. The radical redistributionists who support the Act should be the first to admit this, given the immense, almost unquantifiable value they attach to “The Land”. That speaks to the finite nature of this means of production. To say any land can ever be totally worthless is a non-starter.
Furthermore, the purpose of the expropriation, if genuine, elevates rather than extinguishes value. If the state truly needs that property and is eager to use the mechanism of expropriation to acquire it, clearly the state attaches a great value to it. “Nil” simply does not compute.
Extreme hypotheticals
Extreme hypotheticals such as municipal debt exceeding market value, or malicious damage by the owner reducing value to zero or even a negative figure, cannot rescue section 12(3).
Expropriation is not the mechanism designated by law for the settlement of debts or the punishment of misconduct in relation to property.
Debts must be proved and enforced through the ordinary processes of insolvency law and civil procedure in open court. Criminal wrongdoing – such as “stealing The Land”, or environmental damage – must be charged and proved according to the rules of criminal law and criminal procedure.
It is legally impermissible to sweep these matters under the catch-all rubric of expropriation. Expropriation law exists to allow the state to take property from blameless owners for legitimate government purposes, not to punish or settle debts. That is precisely why compensation is always payable: to repair the damage done to an innocent owner who had done nothing wrong.
Constitutional state
The arguments against section 12(3) of the Expropriation Act go to the core of whether South Africa remains a constitutional state under a supreme Constitution that means what it says. The counterarguments reduce, in essence, to the claim that ordinary South Africans may not rely on the plain words of the Constitution, and must instead consult “progressive” activists who will explain that the guarantee of compensation does not really mean compensation.
That is unacceptable.
Hearing of the challenge began in the first week of August 2026. On 7 August the High Court postponed further argument as not all legal teams had completed their submissions. The FMF Rule of Law Project trusts the Court will uphold the text of the Constitution.
