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On Thursday (February 6), US Secretary of State Marco Rubio said he would not attend the G20 summit in Johannesburg this year, saying South Africa was doing “very bad things” – including “expropriating private property.”
Rubio was likely referring to the South African government’s Expropriation Act, 2024, enacted in January this year. The Act aims to provide a new procedure for the government to acquire or “expropriate” private property from landowners without their consent “for a public purpose or in the public interest”.
US President Donald Trump recently threatened to cut aid to South Africa, stating that the country was “confiscating land” and “treating certain classes of people VERY BADLY”. In response, South African President Cyril Ramaphosa said on X that the Act was part of “a constitutionally mandated legal process that ensures public access to land in an equitable and just manner as guided by the constitution.”
“South Africa, like the United States of America and other countries, has always had expropriation laws that balance the need for public usage of land and the protection of rights of property owners,” he added. How did such laws come about and how have they evolved? We explain.
Though South Africa, the US and India have unique histories and paths towards independence, they have common roots in European colonisation that influenced their laws. One example is governments widely using compulsory land acquisition and expropriation laws, also known as “eminent domain”.
The phrase can be traced to the legal treatise De jure belli ac pacis (On the Law of War and Peace), written by Dutch scholar Hugo Grotius in 1625. He used the term “dominium eminens” (“supreme lordship” in Latin) and explained it thus: “The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity…but for ends of public utility.”
Essentially, Grotius claimed that the state is the ultimate owner of all property and if there is a “public utility” in a particular land, the rights of private owners can be stripped away for its utilisation for public purposes. This concept travelled across the world through European colonists, eventually codified into written laws such as the Land Acquisition Act, 1894, in India and the Expropriation Act, 1975, in South Africa.
Following an attempt at rebellion from some barons, King John of England signed a royal charter termed the “Magna Carta” in 1215, granting civil rights to the English people. It became a landmark in history, marking the first time a written document said the King was subject to certain provisions and implying he was not above the law. The charter also said citizens’ right to hold property could not be taken away “except by the lawful judgment of his (the King’s) peers or by the law of the land”.
The requirement for land to be acquired only through a “due process of law” (a phrase later added to the Magna Carta) has influenced property rights in former colonies. In the United States, for instance, the Fifth Amendment was introduced in 1791 shortly after the US Constitution came into effect. It states that no person shall be deprived of their property “without due process of law” and no private property shall be “taken for public use, without just compensation” (also called the “Takings Clause”).
Section 25 of the South African Constitution states: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”. It clarifies that property can only be legally acquired if it is “for a public purpose or in the public interest” and the landowner is compensated.
Similarly, the Constitution of India initially recognised the right to own property as a fundamental right under Article 19, which said all citizens have the right “To acquire, hold and dispose of property”. This was further protected under Article 31, which stated that property could not be taken possession of or acquired for public purposes unless “the law provides for compensation for the property taken possession of or acquired”.
However, in 1978 these rights were removed from the fundamental rights chapter. Instead, Article 300A was introduced later, stating, “No person shall be deprived of his property save by authority of law”.
In all three countries, their Constitutions recognise (or previously recognised, in the case of India) that governments must only acquire private property when it serves a public use or purpose, and landowners must be compensated in such situations.
How has land acquisition evolved in these countries?
Though the bare texts of the Constitutions of South Africa, India and the US share their origins to some extent and have similarities, the influence of governments and social inequalities have resulted in unique ways of governing land acquisition:
Several laws detail land acquisition provisions in specific cases, including the construction of highways, atomic energy plants and the preservation of national monuments. For over a century, however, the overall subject of land acquisition was governed by the Land Acquisition Act, 1894. It allowed the government to acquire land for “a public purpose” in exchange for compensation to the landowner. However, it only addressed the concerns of the landowner and not other affected families in the area. To address this, Parliament enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and the old law was repealed.
The 2013 Act speaks of land acquisition for industrialisation and infrastructure development, and seeks to establish a “humane, participative, informed and transparent process for land acquisition”. Aside from compensation for landowners, the Act also requires authorities to conduct a Social Impact Assessment to determine who will be affected by the acquisition, with provisions on compensation, rehabilitation and resettlement.
Land acquisition has gradually steered towards encouraging private investment, intending to encourage economic growth. For instance, in the case of Kelo v. City of London (2005), the US Supreme Court ruled that efforts to acquire property to facilitate private economic development would fulfil the “public use” requirement.
This ruling caused controversy and in response, several states including Alabama, Delaware, and Texas passed laws restricting the use of eminent domain to acquire private property.
Following the end of apartheid in the early ’90s and the introduction of the new Constitution, the South African government adopted a “Willing Seller, Willing Buyer” approach to buy land from white landowners and redistribute it to the native majority. However, this was criticised for failing to meet its goal. Edward Lahiff, a professor at Ireland’s University College Cork, wrote that roughly 86% of total agricultural land was white-owned by the end of apartheid. According to the latest land audit in 2017, this number has only dropped to 72% in the decades since.
The new law clarifies the power to expropriate property may not be exercised unless the authority “has without success attempted to reach an agreement with the owner or holder of a right in property for the acquisition thereof on reasonable terms”.
In these circumstances, the law contains provisions for acquiring property while paying “just and equitable” compensation. This also includes situations where “It may be just and equitable for nil compensation to be paid” if it is expropriated in “the public interest”. It allows “urgent expropriation” for public purposes or interest, though only temporarily (no longer than 12 months).
