All eyes on Macpherson over Ekurhuleni expropriation case

Public Works and Infrastructure Minister Dean Macpherson is facing scrutiny over past remarks that no one’s land would be confiscated under his watch as the minister overseeing the Expropriation Bill.

In January, Macpherson vowed: “As the Minister of Public Works and Infrastructure, there will be NO expropriation of private property without compensation on my watch.”

“The guarantee of property rights under Section 25 of the Constitution is not up for debate and is non-negotiable.”

Yet South Africa’s first major court test of expropriation without compensation is already unfolding. Over the weekend, reports emerged that legal battles around the property’s expropriation are now underway.

In 2019, the City of Ekurhuleni expropriated a 34-hectare property for a housing project without paying the owner, despite its minimum R30 million valuation.

The property, Portion 406 of the Farm Driefontein 85 IR, measuring 33.68 hectares, was expropriated through a municipal notice published on 6 February 2019, with R0.00 compensation, which the owner has challenged.

Observers say the outcome could set an important precedent for the interpretation of Section 25 and the government’s new Expropriation Act of 2024, which broadened state powers to acquire land without compensation.

The Act falls under the mandate of the Department of Public Works and Infrastructure, headed by Macpherson, which oversees the procedures and guidelines for expropriation as outlined in the legislation.

Macpherson allegedly provided the President with a legal opinion before he signed it “that there were issues with the Bill that rendered it unconstitutional.”

The Ekurhuleni expropriation case

The notice, issued under the Housing Act and the Expropriation Act of 1975, took effect on 30 April 2019, when ownership and possession of the land formally passed to the municipality.

The owner, Business Venture Investments 900 (Pty) Ltd, lodged a compensation claim of around R30 million in April 2019. In response, the City filed its position a year later.

On 17 April 2020, then-city manager Dr Imogen Mashazi confirmed that Ekurhuleni was offering nil compensation (R0.00), arguing that this amount was “just and equitable” under Section 25 of the Constitution.

In its written “offer”, the City said the land had been vacant for decades, purchased within a group of related mining companies at below market value, and held “for speculative purposes.”

It further argued that the owner suffered “no financial loss” from the expropriation.

By contrast, the municipality cited a need to address housing shortages affecting more than 11,900 households in 123 informal settlements across its jurisdiction.

Critics, however, highlight various stalled housing mega-projects in the city, such as Thembisa’s 3,510-unit development, now incomplete and stripped of fittings, despite R371 million already spent.

Mzwandile Masina, a former executive mayor of Ekurhuleni, intended to “test the limits of Section 25 of the Constitution.”

He claimed the expropriation was in the “public interest” to challenge the interpretation and application of Section 25, particularly regarding expropriation without compensation. 

The metro has also asked the court to declare the 1975 Expropriation Act unconstitutional because it requires compensation at market value.

Earlier this year, President Cyril Ramaphosa signed the new Expropriation Act, which amended the 1975 Act to facilitate expropriation at zero compensation.

However, it has not been gazetted yet as it is hamstrung by legal challenges.

Yet, after the signing of the Expropriation Act, the former Ekurhuleni mayor and now ANC MP said that “this is our first step towards transformation and land reform.”

“Our second and final destination is to repeal section 25 of the Constitution itself.”

Overall, the owner of the property rejected these claims, pointing to independent valuations of up to between R30 million and R64 million, arguing that township development plans were already underway when the expropriation took place.

The dispute has dragged on for more than six years, with the municipality facing several cost orders in the process.

The case is now scheduled for court-directed mediation in October 2025 and an 18-day trial in February 2026.

Dangerous precedent – Sakeliga

Business interest non-profit Sakeliga said that if the Driefontein expropriation without compensation is left to stand, it would have far-reaching economic, political and social consequences.

“Economically, valuations for all similar properties would have to be adjusted downward, constituting a loss to all direct and indirect, local and international holders of interest in such properties.”

“Politically, one should expect severe strain on the current coalition government and also within political parties in the coalition or aspiring to be in future local and national coalitions.”

“Socially, allowing this expropriation without compensation to stand would quickly invite other state entities in South Africa to attempt the same and worse, and would embolden the organisers of illegal land invasions to unprecedented degrees,” said the group.

Sakeliga said the City of Ekurhuleni’s approach shows how costly and burdensome it is for property owners to resist expropriation without compensation.

Even if successful, owners face legal fees, management time, years of uncertainty, and public scrutiny. The City, like many state entities, remains unfazed despite cost orders against it in its plans, said Sakeliga.

His party condemns it, but the minister keeps mum

Macpherson, whose department oversees the implementation of the act, did not respond to Newsday’s queries on the matter. Comments will be added if received.

Although, Macpherson’s party, the Democratic Alliance (DA) issued a statement “condemning in the strongest possible terms the decision by the ANC-controlled City of Ekurhuleni to expropriate private land without paying a cent in compensation.”

“In the passage and signature of the Expropriation Act, the ANC wants to dramatically widen the purview of expropriation, and keep the window for land restitution open indefinitely,” the party previously said.

Party spokesperson Willie Aucamp said outstanding municipal rates do not justify the City’s unconstitutional attempt to seize property without compensation.

He condemned support for the move, calling it a threat to democracy, the economy, and livelihoods.

The DA said it will “defend the rule of law and protect private ownership,” continuing to oppose the Act in court.

However, it remains unclear how party member Macpherson will do so.