Can South Africa Avoid Being Another Zimbabwe? A Short Exposition of the Expropriation Act of 2025

Embarking on a deep dive into South Africa’s evolving land reform policies is both enlightening and fraught with challenges. In recent years, debates around property rights, public interest, and just compensation have taken center stage. A key legislative development—the Expropriation Act of 2025—has sparked intense discussions about whether these new laws might steer South Africa down a path similar to that of Zimbabwe.

One of the landmark cases that shapes this debate comes from Kenya. In Nubian Rights Forum & 2 others vs. Attorney General & 6 others [2019] eKLR, the Kenyan court grappled with defining “public interest” under Article 22(2)(c) of the Constitution. The court relied on the Indian Supreme Court’s definition in Dattraj Nathuji Thaware v State of Maharashta, Indian & Others [2004], which cites Stround’s Judicial Dictionary: public interest is not about gratifying curiosity but relates to matters that affect the legal rights or liabilities of a community.

Understanding the Expropriation Act of 2025

The Expropriation Act of 2025 marks a significant departure from its 1975 predecessor. Key provisions include:

• Section 3(1): Empowers the Minister in charge of land to expropriate property for a “public purpose” or in the “public interest.”
• Section 2(1): Stipulates that expropriation must not be arbitrary or for any purpose other than a public one.
• Section 5(1)(c): Requires that any compensation offer be “just and equitable.”
• Section 8(1): Mandates that notice of expropriation be served in the owner’s preferred language.

While the 1975 Act was grounded in objective, market-based terms like “willing buyer, willing seller,” the 2025 Act employs more amorphous terms such as “public interest” and “just and equitable.” These terms, critics argue, open the door to subjective interpretations that could potentially lead to abuse.

The Perils of Amorphous Terms

The use of vague terms like “public interest” can lead to what Nick Haslam calls “concept creep,” where a concept expands beyond its original scope. Consider these points:

• Broad Interpretations: Unlike the specific idea of “public purpose” (e.g., building a road, hospital, or school), “public interest” can be stretched to justify a wide array of actions, from politically motivated land expropriations to policies that seem to serve personal agendas.
• Comparative Analysis: As observed in Zimbabwe, expropriations carried out under similarly vague principles led to land seizures without compensation, which ultimately disrupted agricultural productivity and destabilized the economy.
• Risk of Arbitrary Decisions: When compensation is determined by terms like “just and equitable,” it leaves room for subjectivity, potentially resulting in outcomes that fail to respect the rights of property owners.

Learning from Zimbabwe’s Experience

Zimbabwe’s aggressive land reform, initiated in 1998 and formalized in 2001, serves as a cautionary tale. Under the guise of public interest, vast tracts of land were expropriated without adequate compensation. The redistribution process favored political allies over experienced farmers, leading to a dramatic decline in agricultural productivity and, ultimately, food insecurity. As noted by Abimbola Adekoye, land reform driven by political expediency and emotional impulse can have catastrophic consequences. South Africa must carefully consider these lessons to avoid repeating Zimbabwe’s missteps.

Conclusion

After weighing the implications of South Africa’s Expropriation Act of 2025, it becomes clear that the use of vague legal terms like “public interest” and “just and equitable” compensation may pave the way for unpredictable and potentially damaging outcomes. While the Act aims to address historic imbalances, its ambiguous language raises concerns about future abuses and the erosion of property rights. South Africa’s challenge will be to craft and implement land reform policies that are both fair and clear—ensuring that the rights of property owners are protected while promoting social justice.

Choosing a balanced approach now is critical for South Africa’s future. The hope is that, by learning from Zimbabwe’s experience, South Africa can avoid becoming another cautionary tale in the annals of land reform.

Dr. Joshua Kembero Ogega is an Advocate of the High Court of Kenya, a legal scholar, and a partner at K.O.M. Advocates LLP.