South Africa May Soon Take Land Without Compensation

But one farmer says that the troubled republic faces bigger immediate challenges

South Africa's President Cyril Ramaphosa gestures as he addresses Africa National Congress (ANC) delegates at the National Recreation Center in Johannesburg on July 29, 2022, during the first day of the party's National Policy Conference. Phill Magakoe/AFP via Getty Images

South Africa’s National Assembly passed legislation on Sept. 28 that would allow the government to seize land without paying the owners, a practice known as “expropriation without compensation.”

“This thing is emotional. We cannot deny it,” South African farmer Herman J. Roos said in a Sept. 29 message to The Epoch Times.

He noted that the law wouldn’t change Article 25 of South Africa’s constitution—a more radical move that the ruling African National Congress (ANC) has frequently advocated.

The Expropriation Bill, the latest effort toward land reform in a racially and economically divided nation, is still awaiting approval from the National Council of Provinces.

It would then need the signature of South African President Cyril Ramaphosa, who has publicly supported expropriation without compensation for years.

The legislation passed over the objections of several minority parties.

Notably, the National Assembly is dominated by the country’s ruling party, the left-wing ANC.

It controls more than 57 percent of the seats in the 400-seat chamber. The second-largest party, the centrist Democratic Alliance, controls less than 21 percent of seats, followed by the openly communist Economic Freedom Fighters at a little less than 11 percent of seats. The right-populist Freedom Front Plus, known for its opposition to expropriation without compensation, has just 2.38 percent of the body, or 10 seats.

Groups representing black farmers in the country have typically favored expropriation without compensation, as noted in a report from the U.S. Department of Agriculture.

That’s against the backdrop of mass landlessness among the supermajority of South Africans who are black or colored (a specific multiracial category in the country). Years after the end of apartheid and its racial restrictions on land ownership, much of South Africa’s land remains concentrated in the hands of white farmers.

A file image of South African President Frederik W. de Klerk and African National Congress (ANC) representative Nelson Mandela at a joint press conference on Aug. 7, 1990, in Pretoria, South Africa. Alexander Joe/AFP/Getty Images

The new legislation would repeal the country’s 1975 law on land expropriation, which requires both the buyer and seller to be willing. Critics of that law point out that it dates from the apartheid era.

Under the new law, the government could take land “in the public interest” without compensating its owner in certain limited circumstances—for example, when the land is being held speculatively and not being cultivated. In those cases, uncompensated seizure could ultimately be considered “just and equitable,” according to the legislation.

Yet in practice, expropriation without compensation wouldn’t necessarily be easy. Cases could be held up in the justice system.

“The state has always had the power to expropriate land at minimal costs, depending on the circumstances,” Sue-Mari Viljoen, a law professor at South Africa’s University of the Western Cape, told The Epoch Times in an Oct. 4 email. “It now stipulates that the state may pay nil Rand [South Africa’s currency], provided that it is justified, and a court would have to verify such justification.”

Children play near a farm in Limpopo Province, South Africa, on Oct. 31, 2017. Gulshan Khan/AFP/Getty Images

Public Works Minister Patricia de Lille, a member of the left-wing, environmentalist party Good, denied that the legislation would lead to the mass redistribution of private property “without fair procedures or equitable compensation.”

“Many times, those against the Expropriation Bill have been people who were never subjected to laws that stripped people of their property or rights to own property,” she said during a Sept. 28 parliamentary debate over the measure. “It is our responsibility to correct the historic injustice of land ownership patterns in South Africa.”

‘It Is a Clear Warning’: Farmer

Although he’s deeply troubled by the legislation, Roos thinks his country and sector face more pressing issues, at least for now.

One is the price of energy, which has risen precipitously. The power grid has started to fail. Frequent outages, lasting hours at a time, are now the norm.

Soweto residents picket near the entrance to state entity Eskom Offices at Megawatt Park in Midrand, near Johannesburg, South Africa, on June 9, 2021, because of the ongoing electricity disruptions. Phill Magakoe/AFP via Getty Images

In an Oct. 4 interview with The Epoch Times, Roos said unreliable electricity interferes with irrigation. That, in turn, damages crops.

“You need to irrigate between two to three inches a week just to have enough water put down so that you can have your crop grow properly, but now, you can’t put down one inch properly,” he said.

Roos’s second-greatest challenge is fertilizer. When Russia started cutting off the gas to Europe, fertilizer giants, such as Norway’s Yara, began to cut production.

South Africa’s difficulties don’t end with agriculture.

The country may soon be financially gray-listed by the Financial Action Task Force. That could scare off vital foreign investment.

South Africa’s persistently high unemployment rate, currently at higher than 33 percent, is another major problem. So is the frequency of violent crime, including the brutal murder of farmers.

Crosses are planted on a hillside at the White Cross Monument, each one marking a white farmer killed in a farm murder, on Oct. 31, 2017, in Ysterberg, near Langebaan, South Africa. Gulshan Khan/AFP via Getty Images

Yet, even amid these issues and worries of a worldwide recession, Roos doesn’t expect an economic slowdown to crater the demand for farm products such as his own: “There will always be a need for food.”

He doesn’t discount the potential for more aggressive efforts at land redistribution by the ruling party, up to and including a change to the constitution.

“It is a clear warning of the intention of what the ANC wants to do,” Roos said.

Viljoen also sees it as a signal to farmers, although she said “active farmers” likely need not worry.

“I think that landowners should be a bit more cautious of how they deal with their property. To let valuable land stand vacant and unused for years/decades might now be viewed as irresponsible use when we are struggling to give effect to land reform and housing imperatives,” she wrote.

Why Expropriate?

The debate over expropriation has much to do with how South Africa’s 1996 post-apartheid constitution treats private property.

Its Bill of Rights references “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” That language embeds specific historically contingent redistributive aims into its fundamental definition of property.

While the U.S. Bill of Rights does allow for eminent domain, its Fifth Amendment requires “just compensation.” That amendment also clarifies that people can’t be deprived of property without due process.

Responding to the ANC’s pro-expropriation rhetoric, the libertarian Foundation for Economic Education stated in 2018 that “the property rights of all South Africans are at risk, as one cannot truly have property rights so long as the government can arbitrarily take land away.”

Other commentators, such as Viljoen, see the justice of expropriation without compensation.

Her recent law article on the push for expropriation, “Wasting Land Amid Landlessness,” suggests that “the state is not only allowed, but perhaps even ordained to overthrow and overtake ownership, with a stewardship vision, in line with the Constitution.”

Roos believes that the ANC is caught between the idea of democracy and the idea of communism.

A file image of Jacob Zuma at a rally celebrating the South African Communist Party's 85th anniversary in Pietermaritzburg on July 30, 2006. Zuma served as South African president from 2009 to 2018. He was also the president of the African National Congress (ANC) between 2007 and 2017. Alexander Joe/AFP via Getty Images

He pointed out that the Soviet Union trained many of the ANC’s exiled leaders during the apartheid period.

Roos worries that redistribution won’t end until “all property is transferred to the government.” He cited the nationalization of land in neighboring Mozambique after it became independent from Portugal.

The Epoch Times contacted representatives for the Economic Freedom Fighters, the ANC, and Freedom Front Plus for comment. None of them responded by press time.