Section 25 Explained: Property Rights, Expropriation, and Land Reform in South Africa

Section 25 is one of the most politically charged and complex provisions in the Constitution. It protects property rights while also enabling land reform to address apartheid's legacy of dispossession.

The Text of Section 25 (Key Subsections)

Section 25(1): General Protection of Property

"No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property."

Section 25(2): Expropriation

"Property may be expropriated only in terms of law of general application—
(a) for a public purpose or in the public interest; and
(b) subject to compensation..."

Section 25(3): Compensation

"The amount of the compensation and the time and manner of payment must be just and equitable..."

Section 25(4): Public Interest Includes Land Reform

"For the purposes of this section—
(a) the public interest includes the nation's commitment to land reform..."

Section 25(5): State's Duty to Enable Land Reform

"The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis."

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What is "Property"?

Property is defined broadly. It includes:

• Land (houses, farms, vacant land)
• Movable property (cars, furniture, equipment)
• Intellectual property (patents, trademarks, copyrights)
• Shares in companies
• Rights (e.g., mining rights, servitudes, contractual rights)

From First National Bank v Commissioner, SARS (2002):
Property includes any right with patrimonial value (economic worth).

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Section 25(1): Protection Against Arbitrary Deprivation

What is "Deprivation"?

Deprivation = Interference with property that is substantial enough to affect its use or enjoyment.

Examples:

• Zoning regulations that restrict how you can use your land
• Regulatory restrictions (e.g., environmental laws limiting development)
• Taxation

Key case: First National Bank v Commissioner, SARS (2002)

• Test for arbitrary deprivation:
  1. Is there a law of general application?
  2. Does the law serve a legitimate purpose?
  3. Is there a rational connection between the means and the purpose?

If these are met, the deprivation is NOT arbitrary.

Example: A law prohibiting development in a nature reserve is not arbitrary — it serves a legitimate environmental purpose.

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Section 25(2) & (3): Expropriation

What is "Expropriation"?

Expropriation = The state takes ownership of your property.

Key difference:

• Deprivation = Regulation or restriction (you still own it)
• Expropriation = The state takes it (you lose ownership)

Requirements for Lawful Expropriation

Expropriation is lawful only if:

1. Law of General Application

There must be a statute authorizing the expropriation.

Example: Expropriation Act 63 of 1975

2. Public Purpose or Public Interest

Public purpose:
Building infrastructure (roads, schools, hospitals)

Public interest:
Includes land reform (Section 25(4)(a))

From Section 25(4)(a):
"The public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources."

3. Just and Equitable Compensation

The owner must be paid compensation that is just and equitable.

What determines "just and equitable"?

Section 25(3) factors:

• Current use of the property
• History of acquisition and use (e.g., was it obtained through forced removals?)
• Market value
• Extent of direct state investment and subsidy
• Purpose of the expropriation

Key point: Compensation is NOT always full market value. It depends on the circumstances.

Example: If land was acquired through forced removals during apartheid, compensation may be lower (or nil).

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The 2018 Amendment Debate: Expropriation Without Compensation

Proposed Amendment (Section 25)

In 2018, Parliament proposed amending Section 25 to explicitly allow expropriation without compensation in certain circumstances.

Proposed new subsection 25(2)(b):
"National legislation must... set out specific circumstances where a court may determine that the amount of compensation is nil."

Arguments in favor:

• Land restitution for historical dispossession
• Accelerate land reform
• Address inequality

Arguments against:

• Undermines property rights
• Discourages investment
• Compensation is already flexible (can be low, but should not be zero)

Status (as of April 2026):
The amendment has been debated but not yet passed. Section 25 remains as written in 1996.

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Section 25(5): State's Duty to Enable Access to Land

"The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis."

What does this mean?

The state has a positive duty to implement land reform programs.

Three pillars of land reform:

1. Land restitution — Returning land to those dispossessed under apartheid
2. Land redistribution — Transferring land from white to black ownership
3. Tenure reform — Securing the rights of farm workers, labor tenants, and informal settlers

Key legislation:

• Restitution of Land Rights Act 22 of 1994
• Land Reform (Labour Tenants) Act 3 of 1996
• Extension of Security of Tenure Act 62 of 1997

Is the State Meeting Its Obligations?

Slow progress. As of 2020, less than 10% of farmland had been redistributed.

Courts have been reluctant to find the state in breach of Section 25(5) because it uses the reasonableness test (like Sections 26 & 27).

Key case: Residents of Joe Slovo Community v Thubelisha Homes (2010)

• The court emphasized that land reform must be pursued, but the state has discretion in how to implement it.

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Restitution of Land Rights

Who Can Claim Restitution?

Section 25(7): A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices can claim restitution.

Cut-off date: 19 June 1913 (the date of the Natives Land Act, which dispossessed black South Africans of land ownership).

Deadline for claims: Originally 31 December 1998; extended to 30 June 2019.

Forms of Restitution

Section 25(7) provides three options:

1. Restoration of the land
2. Alternative land (if restoration is not feasible)
3. Financial compensation

Key case: Alexkor v Richtersveld Community (2004)

• Issue: Did the Richtersveld community have rights to land taken by the state for diamond mining?
• Holding: Yes. The community had customary law rights to the land, which qualify as "property" under Section 25. They were entitled to restitution.
• Significance: Customary land rights are protected property rights.

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Key Cases on Section 25

First National Bank v Commissioner, SARS (2002)

Issue: Is SARS's power to attach bank accounts arbitrary deprivation?

Holding: The test for arbitrary deprivation:

1. Law of general application?
2. Legitimate purpose?
3. Rational connection?

If yes to all three, not arbitrary.

Principle: Section 25(1) protects against arbitrary, not all, deprivation.

Alexkor v Richtersveld Community (2004)

Issue: Do customary land rights qualify as "property"?

Holding: Yes. Customary rights are property rights under Section 25.

Principle: Section 25 protects indigenous land rights.

Shoprite Checkers v MEC for Economic Development (2015)

Issue: Can the state expropriate land for economic development (to benefit a private developer)?

Holding: Yes, if it serves the public interest (economic development, job creation).

Principle: "Public interest" is broad and includes economic development.

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Practical Application: How to Use Section 25

Step 1: Is There Property?

Does the right have patrimonial value (economic worth)?

Step 2: Is There Deprivation or Expropriation?

• Deprivation: Regulation or restriction (owner retains title)
• Expropriation: State takes ownership

Step 3: Is It Lawful?

For deprivation:

• Is there a law of general application?
• Is the deprivation arbitrary? (Apply the FNB test)

For expropriation:

• Is there a law of general application?
• Is it for a public purpose or in the public interest?
• Is there just and equitable compensation?

Step 4: Balancing

Section 25 balances:

• Individual property rights (protection from arbitrary deprivation)
• Social justice (land reform, restitution, equitable access)

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📚 Study Tips: Mastering Section 25

1. Know the Structure

• 25(1): No arbitrary deprivation
• 25(2)-(3): Expropriation (public purpose + just compensation)
• 25(4): Public interest includes land reform
• 25(5): State's duty to enable access to land
• 25(7): Restitution for dispossession after 1913

2. Understand Deprivation vs Expropriation

• Deprivation = You still own it, but it's regulated
• Expropriation = State takes it

3. Know the FNB Test (Arbitrary Deprivation)

1. Law of general application?
2. Legitimate purpose?
3. Rational connection?

4. Compensation is NOT Always Market Value

Section 25(3) factors allow for lower compensation (or nil) in cases of historical dispossession.

5. Link to Land Reform

Section 25 is unique: it protects property and enables land reform. Understand both sides.

6. Cite the Key Cases

• FNB (2002) — Arbitrary deprivation test
• Alexkor (2004) — Customary rights are property
• Shoprite (2015) — Public interest includes economic development

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