Few pieces of legislation have generated as much public debate in recent years as the Expropriation Act of 2024. Since President Cyril Ramaphosa signed it into law in January 2025, the legislation has become the subject of constitutional challenges by the Democratic Alliance and AfriForum, while prompting widespread debate about what it could mean for property rights in South Africa.
More than a year later, though, the Act has still not come into operation.
Although it was signed into law and published in the Government Gazette, section 31 provides that the Act only comes into operation on a date determined by the President by proclamation in the Government Gazette. Legal commentators note that the required commencement proclamation has not been issued.
That means South African courts have not yet had an opportunity to interpret the new legislation.
One recent Supreme Court of Appeal (SCA) judgment has, however, attracted considerable attention. This is not because it interprets the new Act – it does not – but because commentators on property law and constitutional law say it illustrates constitutional principles that are likely to remain central once the legislation becomes operational.
Those principles matter because the new Act does not replace the Constitution’s protection of property rights. Instead, it is intended to give legislative effect to section 25 of the Constitution, which regulates when property may be expropriated, requires expropriation to be for a public purpose or in the public interest, and provides that compensation must be just and equitable.
The legislation may change. The constitutional framework does not.
What changes once the new Act comes into operation?
The Expropriation Act of 2024 is intended to replace the Expropriation Act of 1975, legislation enacted long before South Africa adopted its constitutional democracy.
Its purpose is not to create new constitutional principles. Those already exist in section 25 of the Constitution.
Instead, the Act provides the statutory framework for how organs of state must exercise their expropriation powers. It sets out who may expropriate property, the procedures that must be followed, how compensation must be determined, and the rights of property owners throughout the process.
One of its most widely debated provisions is section 12(3), which identifies circumstances in which nil compensation may be just and equitable.
That provision has generated significant public attention. Legal commentators have consistently pointed out, however, that it does not create an automatic right for the state to acquire property without compensation. Whether compensation is payable, and in what amount, remains subject to the Constitution, and, where disputes arise, ultimately falls to the courts to decide.
The Act also strengthens procedural protections for owners. Before property may be expropriated, the expropriating authority is generally required to attempt negotiations, issue a notice of intention to expropriate, consider any objections, and, if it decides to proceed, issue a formal notice of expropriation. Property owners retain the right to challenge the legality of the expropriation and the amount of compensation.
Those procedures may be new. The constitutional principles against which they will ultimately be judged are not.
The dispute before the SCA
The case before the SCA arose after hundreds of unlawful occupiers settled on privately owned land near Bronkhorstspruit in Gauteng.
After purchasing the property in 2006, Summer Season Trading 63 (Pty) Ltd spent years trying to resolve the situation. When negotiations failed, it approached the courts for an eviction order.
The High Court ultimately ordered that the occupiers be evicted and directed the City of Tshwane to provide alternative accommodation before the eviction could take place. That order became final after both the SCA and the Constitutional Court refused applications for leave to appeal.
Instead of implementing the relocation process, the municipality decided to expropriate the property, arguing that acquiring the land would allow it to accommodate the occupiers where they already lived.
Summer Season Trading challenged the decision. It argued that the municipality lacked the statutory authority to expropriate the property for that purpose and was attempting to avoid complying with the eviction order.
The SCA agreed.
In a judgment delivered on 29 May 2026, the Court found that the City had not identified legislation giving it the authority to expropriate the property for the stated purpose. It also concluded that, in substance, the expropriation was aimed at avoiding compliance with the existing eviction and relocation orders.
Those findings formed the foundation of the Court’s decision.
Why lawyers are paying attention
For property law specialists, the judgment is significant because of what it says about the limits of public power.
In an analysis published by Werksmans Attorneys, Bulelwa Mabasa, director and head of land reform, and candidate attorney Samkelo Ntuli describe the decision as a reaffirmation that protection against arbitrary deprivation of property remains embedded in section 25 of the Constitution.
They say the judgment reinforces the principle that expropriation is a narrowly circumscribed power that must be exercised within a valid legislative framework. In their view, municipalities cannot rely on broad or implied powers, or invoke generalised social hardship, to justify interference with private property outside the confines of legislation and the Constitution.
Mabasa and Ntuli also point to the Court’s examination of the purpose underlying the expropriation. They say the judgment demonstrates that courts will scrutinise not only whether the correct procedures were followed, but also whether an expropriation power is being exercised for the purpose authorised by legislation.
In the Summer Season case, they note, the Court concluded that the City’s attempt to expropriate the land was directed at avoiding compliance with the eviction and relocation orders rather than pursuing a lawful expropriation within the appropriate statutory framework.
Their analysis goes further.
They argue that the judgment should be read alongside other recent decisions demonstrating that courts will protect ownership where landowners have complied with the law, while expecting both public authorities and private parties to adhere strictly to the statutory frameworks governing property rights.
For Mabasa and Ntuli, the common thread running through the case law is that ownership rights remain strongly protected, but their enforcement depends on compliance with the applicable legal framework.
A constitutional law perspective
Paul Mudau, Associate Professor in the Department of Public, Constitutional, and International Law at the University of South Africa, reads the judgment through a slightly different lens.
Writing for the Dullah Omar Institute, he argues that the SCA did not reject expropriation as a legitimate tool for addressing South Africa’s housing challenges. Instead, the Court rejected how the City of Tshwane sought to exercise that power.
“The SCA rejected this approach, not because expropriation for housing purposes is inherently illegitimate, but because of the manner in which it was pursued.”
Mudau says one of the City’s principal difficulties was that it relied on the Local Government Ordinance of 1939 and the Expropriation Act of 1975 rather than the Housing Act, which contains a specific statutory mechanism for municipalities to acquire land for housing development, subject to prescribed safeguards.
In his view, if the City had relied on the appropriate legislative framework and demonstrated that the expropriation formed part of a broader housing programme, it may have presented a stronger legal case.
That, he argues, is an important distinction.
The judgment should not be understood as preventing municipalities from using expropriation to pursue housing objectives. Instead, it illustrates that public authorities must rely on the correct statutory powers and exercise those powers within the legal framework created by Parliament.
Although Werksmans and Mudau approach the judgment from different perspectives, they both identify legality as the central theme running through the Court’s reasoning.
Why this judgment is still relevant
At first glance, it may seem odd that lawyers are drawing lessons from a judgment decided under legislation that is about to be replaced.
The explanation lies in the Constitution.
The Summer Season judgment was decided under the Expropriation Act of 1975 because the events giving rise to the dispute occurred years before the Expropriation Act of 2024 was enacted.
The SCA was therefore never asked to interpret the new legislation.
What it did consider, however, were constitutional principles that continue to apply regardless of which statute governs the expropriation process.
Throughout its judgment, the Court examined whether the municipality had identified a lawful statutory source for its powers, whether it had exercised those powers for the purpose authorised by legislation, and whether expropriation could be used to avoid complying with existing court orders.
Those questions flow directly from the constitutional principle that public power must be exercised lawfully.
That is why both Werksmans and Mudau regard the judgment as relevant beyond its immediate facts. Although their analyses differ in emphasis, both conclude that the Court’s reasoning was anchored in legality and constitutional compliance rather than in the particular wording of the 1975 Act.
The same constitutional framework underpins the Expropriation Act of 2024.
The new Act introduces a different statutory framework and new procedures. It does not replace the constitutional standards against which expropriation powers will ultimately be assessed.
What the judgment does – and does not – tell us
That distinction is important.
The Summer Season judgment is not a guide to how every dispute under the Expropriation Act of 2024 will be decided.
It does not interpret the Act’s new procedures.
It does not consider the circumstances in which nil compensation may be just and equitable.
It does not decide how future courts will apply provisions that are unique to the new legislation.
Those questions remain unanswered because the Act has not yet come into operation.
What the judgment does provide is a clear illustration of how the SCA approached the exercise of expropriation powers under South Africa’s constitutional framework.
It shows a court examining whether the state relied on the correct statutory authority, whether it exercised that authority for the purpose authorised by legislation, and whether it acted consistently with the rule of law.
Those are principles that derive from the Constitution itself.
For that reason, legal commentators believe the judgment remains relevant even though it was decided under the 1975 Act.
Exactly how those constitutional principles will be applied once the Expropriation Act of 2024 becomes operational – and once its provisions come before the courts – is a question that still awaits its first judicial answer.
