- No, South Africa is not currently confiscating land - despite claims from US President Donald Trump.
- If you're looking for land expropriation and associated human rights abuses, instead look to the 1913 Natives Land Act, which dispossessed millions of black South Africans.
- There are no records of expropriation without compensation by South Africa's democratic government. And the recently signed Expropriation Bill includes safeguards - even under its nil compensation clauses.
US President Donald Trump has waded into South Africa's land reform debate, claiming in social media posts and later directly to the press that the country is "confiscating land", "treating certain classes of people very badly", and "doing some terrible things, horrible things".
These remarks have reignited concerns about misinformation surrounding South Africa's land policies.
But how much land has South Africa expropriated without compensation since 1994 using expropriation policies?
The answer: none.
If you want to look for the most obvious example of what Trump calls a "massive human rights violation" relating to the unjustified takeover of land, you'll need to go back to the 1913 Natives Land Act that dispossessed thousands of black families of their land without compensation.
And while South African President Cyril Ramaphosa recently signed the Expropriation Bill into law, the claim that the present-day government actively and arbitrarily confiscates land without compensation is without base.
Are land confiscations with or without compensation new?
South Africa's land expropriation policies date back much further than the present democratic government, which came to power in 1994.
The Expropriation Act 63 of 1975 provided for "the expropriation of land and other property" but did not permit the confiscation of land without compensation.
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And long before this, the Native Lands Act was promulgated to forcibly remove black people from their land.
Trump's use of the word "confiscation" implies that this is a new policy and land is actively being seized arbitrarily and without due process or adequate compensation.
This is not the case and would need to have occurred in the short timeframe between Ramaphosa signing the bill and today - a legal impossibility, says Bulelwa Mabasa, head of the land reform practice at Werksmans Attorneys.
Like many land reform programmes worldwide, South Africa's policy has, until now, been based on a willing buyer, willing seller model. This allows the government to purchase land at market-related prices.
"South Africa's constitutional framework makes a provision for expropriation with compensation as a general rule, and it makes expropriation with just and equitable compensation, which is a very specific formula.
"So, nowhere in our law, before this new act came along, did we ever have a law that allowed expropriation without compensation or deprivation of property in the democratic dispensation," says Mabasa.
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Are land confiscations ongoing?
South Africa's updated Expropriation Act has made some allowances for expropriation without compensation, but only in specific cases. These include where land is abandoned, if it is unused state-owned land, or if it has been acquired illegally.
"The new act introduces circumstances that could lead to expropriation without compensation, but they would still need to follow the formulation of Section 25(3) of the Constitution.
"They still have to look at the reason for the expropriation, the current value and use of the property, whether there have been any direct state investments, and the history of the acquisition, for example," says Mabasa.
No land has yet been expropriated under this law, and expropriation without compensation is not legally permitted to be arbitrary - it is subject to stringent constitutional oversight and required justification in the public interest.
South African courts will have the final say in cases where the expropriation results in a dispute. Trump's inference that there is widespread land expropriation or grabs has no substance and is misleading.
How much land has the South African government confiscated post-democracy, and for what purposes?
Like many governments, democratic South Africa has expropriated land. This has been under the willing buyer, willing seller model at "just and equitable compensation, which could be less than market value, less or even more than market value".
"Often, what the government has used has been a higher standard of compensation", says Mabasa.
Where the post-1994 administration has expropriated land under this policy, it has typically been used to build public infrastructure such as roads, highways, train lines and stations, and clinics.
Mabasa said:
Just because we now have those instances spelt out in the act, there's no reason why it would be a free-for-all.
"The government will still need to follow a process and can only consider instances where land has been lying fallow, not being used, where the landowner is not traceable, and where the land poses safety or health risks to people."
Mabasa also says there are instances where some people have been holding onto land for decades and may not reside in the country, or they might be owners in terms of the deed registry, but they've since abandoned it.
The act also applies to state organs with land they own in terms of their balance sheets, but which they don't need to own to fulfil their core functions.
Under what circumstances will government be able to expropriate land without compensation, and what protection measures are in place?
If, under the new act, the government decides to initiate the expropriation procedure, several constitutional fail-safes are in place to protect the citizens from those seeking direct enrichment.
The government needs to supply a high burden of proof for the process to proceed, which engages several departments and follows clearly defined steps.
"No provisions allow expropriation to disturb a residential family, farming operation that is working, or a commercial enterprise. This legislation is quite benevolent in that it does not target a certain race or class.
"It's quite blind to one thing and one thing only: Is the land being used? Is it productive? Does it serve a legitimate purpose? And does the state require that land so their nation can benefit from it?" says Mabasa.
