New way for the government to expropriate land in South Africa

The Equitable Access to Land Bill is set to be published for public comment in the coming months, with the legislation intended to give a structured effect to section 25 of the Constitution.

Separate from the highly controversial Expropriation Act, signed into law in 2024, the Equitable Access to Land Bill will deal with expropriation of land in the public interest by the state for the purpose of land reform.

At a Portfolio Committee on Land Reform and Rural Development meeting on Wednesday, 18 February, progress made on this Bill was discussed.

It was revealed that the relevant policy and the Bill have been developed, with the latter submitted to the Office of the Chief State Law Advisor for a pre-certification opinion. 

The committee said the anticipated date for the opinion is February 2026, after which the Bill will be processed through the relevant structures to seek approval to publish for public comment. 

“The policy is being addressed through land redistribution reform processes, with legislative formulation underway,” the presentation stated.

It was explained that the Equitable Access to Land Bill is intended to give a structured effect to section 25 of the Constitution, which deals with property rights and the conditions under which property may be expropriated in South Africa.

This Bill will establish clear implementation principles, formalise land access planning, strengthen beneficiary selection processes, and provide an institutional framework required for consistent execution.

In the meeting, the committee was asked how this Bill differs from the controversial Expropriation Act that was signed into law in 2024 to replace the Expropriation Act of 1975.

Advocate Sello Ramasala explained that the Equitable Access to Land Bill deals with “expropriation for a public purpose in general by the state”. 

This includes all government departments, not just the Land Reform and Rural Development Department.

In contrast, under the new Expropriation Act, only the Minister of Public Works and Infrastructure is considered an “expropriating authority”, empowering him to expropriate property.

Ramasala further explained that the Equitable Access to Land Bill addresses expropriation of land in the public interest, particularly when the state acquires land for land reform purposes.

“In the Equitable Access to Land Bill, we are not reinventing the wheel on expropriation, in general. We’ll be expropriating land in terms of the Expropriation Act, but with regard to a specific focus on land reform, as the department, that’s why the Bill is written,” he said.

Controversy

The Expropriation Act, signed into law in 2024, was and remains highly controversial due to one provision that allows expropriation without compensation.

The Act gives the expropriating authority, in this case, the Public Works and Infrastructure Minister, the express power to offer nil compensation for land expropriation in certain circumstances, including public interest purposes.

Under this legislation, the authority can expropriate only for nil compensation after considering all relevant circumstances, including those specifically listed in section 12(3) of the Act.

Cliffe Dekker Hofmeyr legal experts Jackwell Feris and Charles Green previously explained that the Act makes a critical legal distinction between the two grounds for expropriation – public purpose and public interest.

“Public purpose” relates to expropriation for a specific public use. This includes the development of tangible public infrastructure, such as roads, schools, dams, and energy transmission lines.

In contrast, “public interest” is defined more broadly to include the state’s commitment to land reform and providing equitable access to natural resources to address the results of past racial discrimination.

Feris and Green said the Expropriation Act’s stipulations around nil compensation are not a blanket policy and are strictly limited.

For example, the Expropriation Act states that it may be “just and equitable” to pay nil compensation only when land is expropriated in the public interest.

Therefore, nil compensation is not an option for land expropriated for a public purpose. “It seems from the Expropriation Act that an expropriating authority or the court must consider all relevant circumstances and ensure the outcome is fair,” they said.

For these expropriating powers, the Act has been under immense scrutiny for years, with it currently facing legal action from civil rights organisation AfriForum.

In May 2025, AfriForum filed a court application in the North Gauteng High Court to challenge the constitutionality of the Expropriation Act.

AfriForum alleged that the Expropriation Act contains serious flaws and threatens South Africans’ constitutional right to private property.

“Sections and provisions of the Act contain inherent contradictions, which is why the court should declare the Act unconstitutional,” AfriForum said.

This case is set to appear before the court later in 2026.