The Western Cape High Court will today begin to hear three separate constitutional challenges to the Expropriation Act, which is one of the main points of contention in the diplomatic standoff between SA and the US, reports News24.

The DA, AfriForum, and Vaderland Stigting all argue that the Act, in its present form, does not pass constitutional muster and must be struck down, reports News24.

AfriForum argues sections 12(3) and 12(4) of the Act, which allow for nil compensation to be paid for expropriated land, should be scrapped for undermining property rights enshrined in section 25 of the Constitution. Although this section lists the circumstances in which this may apply, such as where land had been abandoned, it also states that the provision is ‘not limited to’ only such instances.

This means, AfriForum contends, that the list is open-ended.

The DA challenges the constitutionality of the process by which the legislation was passed, as well as the rationality of sections 19(2) and (3) of the Act.

Section 19 sets out the process by which the courts may be asked to intervene to determine compensation if the expropriating authority and the affected party do not agree. It states ‘either party may, within 180 days of the date of the notice of expropriation, institute proceedings in a competent court for the court to decide or approve the amount, time and manner of payment’ of compensation.

The DA argues this is where irrationality arises, because, in the same Act, an expropriation notice can only be served after a court has determined just and equitable compensation.

Section 8(3)(g) requires a notice of expropriation to include ‘the amount of compensation agreed upon or approved or decided by a court under section 19’.

The provisions then become circular.

‘If a notice of expropriation can only be issued after a court determines the disputed compensation, then the 180-day period in section 19(2) will never commence. The trigger event for the 180-day period – the expropriation notice – will never occur before parties go to court,’ the DA submits in its heads of argument.

Time limits serve an essential purpose in the legislation, the party continues, because they prevent delay tactics and provide finality.

The irrationality impacts rights enshrined in sections 25 (property), 33 (fair administrative action) and 34 (access to courts) of the Constitution, the party argues.

It cannot be remedied by severing section 19(2) to (4), the DA says, because then the whole Act falls apart for lack of a path to resolving disputes. Therefore, the legislation must be declared invalid.

According to News24, in his heads of argument, President Cyril Ramaphosa concedes section 19(2), (3) and (4) are problematic.

Ramaphosa agrees that the relevant provisions should be declared invalid, but argues the legislation can be remedied by severing the reference to ‘within 180 days of the notice of expropriation’ and reading in wording which would make clear that if a dispute about compensation is not settled by consensus or mediation, either party may approach the court within 180 days from the date the mediation ended.

As to the passage of the Act through the legislature, the DA contends section 65(2) of the Constitution was flouted because only five of the nine provincial legislatures deliberated and voted on the conferral of a final mandate to delegates to the NCOP.

For this reason, too, the party argues, the Act must be declared invalid.

A political settlement between the two biggest parties in the ruling coalition would provide a shortcut to legal certainty and a case to be made in ongoing diplomatic negotiations with Washington that concerns about the legislation had been addressed.

It is one of the Trump administration’s five demands for a reset of troubled bilateral relations.

See also a Business Day report

Full News24 report