Theo Boshoff, CEO of Agbiz, has once again sought to calm nerves in the agricultural sector amid ongoing property policy turbulence, especially the fallout from the controversial new Expropriation Act. This is unwise, given the political reality of the Act.
Speaking at a recent Agbiz media roundtable, Boshoff highlighted the sector’s apparent resilience, despite challenges like so-called “misinformation” surrounding the new Act.
While his exact remarks around the Act are not available online, the sentiment aligns with an earlier presentation in the year when he downplayed the risks of expropriation without compensation (EWC, or simply confiscation), portraying it as little more than a procedural update with limited scope for uncompensated takings. Farmers and investors, he implies, have little to fear from the new South African property law.
False assurances
As always, these reassurances warrant scrutiny. Boshoff’s optimistic interpretation echoes similar views from his Agbiz colleagues.
In 2023, I responded to Annelize Crosby’s dismissal of concerns over the then-Expropriation Bill, arguing that its provisions perverted the very purpose of expropriation and undermined the constitutional imperative for the payment of an amount of compensation. It was then beyond clear already that the state was weaponising the institution of expropriation.
More recently, in January 2025, I critiqued chief economist Wandile Sihlobo’s bullish stance on the legislation, highlighting how its mechanisms for nil compensation and coerced “negotiations” posed grave threats to property rights, regardless of purported safeguards.
Boshoff’s position follows a familiar pattern: the Act merely standardises procedures, replaces an outdated 1975 law, and allows nil compensation only in narrow, “just and equitable” circumstances. He stresses that expropriation remains a “last resort” after failed negotiations, with disputes resolved in court, and he insists that it does not open floodgates for widespread land reform without payment.
This reading, however, is overly sanguine. It underestimates both the Act’s textual vulnerabilities and the political context in which it will be applied.
Overly sanguine
Section 25 of the Constitution unambiguously requires the payment of an amount of compensation, which is to be determined in a way that reflects a balance of interests and relevant factors. Market value has historically (and rightly) been the baseline, often supplemented by additional payments (like solatium) to acknowledge the involuntary nature of expropriation.
So-called “nil compensation” – directly enabled by section 12(3) of the Expropriation Act – obviously breaches this standard. Zero cannot be not an “amount” for the purposes of compensation; nor can it be a “payment” since it involves no transfer of value; nor can it be “compensation”, for it does not restore owners to their prior position.
Framing outright confiscation as “nil compensation” is a semantic sleight of hand that cannot disguise its substance: unconstitutional uncompensated seizure.
Listed circumstances
Proponents like Boshoff point to the Act’s listed circumstances for nil compensation as restrictive. These, firstly, are overly broad and subjective.
Holding land for speculative purposes, for example, could only conceivably be a problem if South Africa did not have a thriving trade in fixed property. It is as if the drafters of the Act reached for their political science textbooks with their thought-experiments of “what if one capitalist bought up all land and just sat on it?”
In our everyday society, speculation is a normal part of the investment economy. People buy houses, land, cars, and so forth, often with the outright intention of having them appreciate in value before being sold again. The political elite is engaged in a campaign to delegitimise this conduct, and we should not stand for it.
But more importantly, the Act’s listed circumstances are mere examples of when EWC could take place: they are not exhaustive. Under any circumstances, if the state believes it is in the “public interest”, it may “expropriate at the amount of nil compensation”.
Abuse
Moreover, the requirement for prior negotiations does not preserve voluntariness.
If talks fail – more often than not because the state offers unacceptably low amounts of compensation – the expropriating authority can unilaterally determine compensation, potentially at zero, and proceed. Owners are left with the burdensome option of litigation, where costs and delays deter all but the most wealthy and resolute.
The law must guard against this and set market value, at least, as the bare-minimum that the state must always pay.
Most property owners by far do not have pockets as deep as the state’s to prosecute an extended court battle. This alone must mean the end of “the courts will help” line of defence.
Boshoff compares the new Act favourably to the old, noting enhanced consultation and alignment with constitutional standards.
This overlooks how the law expands opportunities for abuse.
As Boshoff notes, hundreds of pieces of legislation already empower petty state actors to expropriate property. But now the new Expropriation Act provides a handy, uniform framework that explicitly legalises what we would only a year ago have called “robbery” – nil compensation – which is an insulting departure from constitutional standards.
That Boshoff and others (like Dean MacPherson at Nampo this year) focus so persistently on the “public purpose” dimension of expropriation rather than “public interest” ignores the political reality that South Africa exists in. (Boshoff notes that the Department of Public Works, rather than Land Reform, is the sponsor).
The African National Congress (ANC) and its allies have made it abundantly clear that the Act will be used as a tool of redistribution (not to mention retribution) and not mere public improvement. This is not a value-neutral piece of legislation that exists in a vacuum.
Learn from history
History cautions against trusting mere procedural safeguards in a political environment hostile to private property.
South Africa has a track record of legislation eroding ownership rights, certainly during Apartheid, but more recently: the National Water Act of 1998 effectively expropriated private water rights without compensation, the Mineral and Petroleum Resources Development Act of 2002 nationalised all mineral rights in exchange for weaker leasehold-type authorisations (in other words: nil), and the 2015 “Protection” of Investment Act stripped foreign investors of protections afforded under bilateral investment treaties.
These were justified as necessary reforms, much as in the current Act. Courts have often deferred to the state, as in the Constitutional Court’s Agri SA ruling upholding “custodial” taking of minerals. The South African judiciary are not firebrand defenders of property, which is unfortunately an impression that the Act’s Pollyannas seek to generate.
The failed 2018-2021 attempt to amend section 25 explicitly for confiscation purposes reveals just how seriously the political elite takes its anti-property intentions. Though the amendment was abandoned after a household dispute between the ANC and the Economic Freedom Fighters, the Expropriation Act achieves exactly the same thing in substance through statutory means.
The cherry on top is that the Act was assented to under the Government of National Unity, with a supposedly pro-property minister responsible for the expropriation portfolio.
Bedrock of constitutionalism
Property rights are the bedrock of constitutionalism, diffusing power and preventing its concentration in state hands. Few things are as important to constitutionalism in practice as a property-owning citizenry.
Property confiscation, even if rarely invoked, renders the legal guarantee of ownership precarious and contingent on political favour. This will chill investment, as prospective owners weigh the risk of future takings. Agriculture, reliant on long-term capital in land and improvements, is particularly vulnerable. Why commit resources to farms if the state can seize them for “public interest” reasons without meaningful reparation?
Boshoff rightly celebrates the Agri-sector’s achievements: record maize and soybean harvests, high numbers in exports, and so on. More than anything, this manifests why South Africa should guard its farming community jealously. It is one of the things our country, and our continent, must be immensely proud of.
But to bank on these successes continuing as the state becomes more flagrant in its watering- down of property rights is irresponsible. The state has already begun to “test” whether EWC can happen under the Constitution as it presently stands, and not a word of resistance or condemnation has come from the supposed pro-property minister.
Downplaying the risks of confiscation might in the short-term assuage the concerns of Agbiz’s members and clients – and this no doubt partly motivates Boshoff, Sihlobo, and Crosby, who do not want their constituency panicking – but it breeds complacency. The principle was ceded in places like Zimbabwe and Venezuela with no organised resistance, spiralling predictably into widespread confiscation which devastated agriculture and their entire economies.
South Africans cannot afford such naïvety.
Public demand for radical land reform is painfully low – successive Institute of Race Relations polls show that land reform is prioritised by fewer than 3% of voters – and yet the Expropriation Act is now on the books, ready for ideological abuse. Agbiz, representing agribusiness, has a duty – like all constitutionalists – to confront this squarely, not soothe with pacifying statements.
Theo Boshoff should reconsider his assurances. The Expropriation Act is incompatible with constitutionalism. We can have one or the other, but not both.
To safeguard the agricultural miracle that Boshoff praises, the sector must demand repeal or fundamental amendment of the Expropriation Act, insisting on compensation that truly reflects justice and equity: at least market value, paid promptly.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend