Expropriation of private property in South Africa backfires
The City of Tshwane has been dealt a major blow by the Supreme Court of Appeal (SCA), which barred the metro from expropriating privately owned property to circumvent another court order.
The case arose after hundreds of unlawful occupiers settled on land owned by Summer Season Trading 63 (Pty) Ltd.
Following protracted litigation, the landowner secured an eviction order, where the City of Tshwane was directed to provide alternative accommodation to the occupiers.
However, according to Werksmans Attorneys, rather than implementing the eviction and relocation process, the city expropriated the property.
The metro contended that the acquisition was necessary to facilitate access to housing for the occupiers.
“The landowner challenged the validity of the expropriation, arguing that the city lacked the requisite statutory authority to do so,” the legal experts said.
The group also accused the city of attempting to circumvent its obligations under the eviction order.
On 29 May 2026, the Supreme Court of Appeal upheld the challenge.
“[The SCA] found that the city lacked lawful authority to expropriate the property and that the expropriation amounted, in substance, to an impermissible attempt to avoid compliance with the existing eviction and relocation orders,” the firm said.
Considering other case law, Werksmans said that this latest case demonstrates that “courts will robustly uphold ownership where the landowner has acted lawfully, and the state has failed to do so”.
“The emerging position is clear that ownership remains strongly protected in South African law,” it said.
“Compliance with statutory and regulatory requirements cannot be overlooked in the name of expediency.”
What it means for expropriation in South Africa
Bulelwa Mabasa, Head of Land Reform at Werksmans Attorneys, said the Summer Season judgment is significant on several fronts.
“First, it constitutes a clear reaffirmation that the right not to be arbitrarily deprived of property in South Africa remains firmly protected under the Constitution and cannot be replaced by administrative expediency,” she noted.
The emphasis brought by this case is that expropriation is a narrowly circumscribed power that must be exercised strictly within a valid legislative framework.
By invalidating the city’s attempted expropriation, it effectively confirmed that municipalities may not rely on broad, implied, or expedient powers, nor invoke generalised social hardship, to justify interference with private ownership outside the confines of statute and the Constitution.
The judgment is also particularly significant in its robust defence of the rule of law and the binding effect of court orders.
The SCA rejected the city’s attempt to deploy expropriation as a means of neutralising a final eviction order, emphasising that administrative action cannot trump judicial determinations.
“In doing so, the court reinforced the principle that court orders are binding and must be complied with unless and until they are lawfully set aside,” Mabasa said.
For landowners, the case presents a critical safeguard.
Once an eviction order has been properly obtained and upheld in the landowner’s favour, it cannot be indirectly undone through any subsequent state action.
The decision further underscores that municipalities bear enforceable obligations to provide alternative accommodation and to effect relocations in accordance with court orders, rather than shifting that burden onto private landowners.
“Importantly, the SCA did not disregard the realities of South Africa’s housing crisis. It acknowledged that occupiers had established long-standing communities, with homes, livelihoods, and social networks rooted in the land,” Mabasa said.
However, it drew a principled distinction between the state’s constitutional obligation to provide access to housing and the rights of private landowners.
“The primary responsibility to address homelessness rests with the state, not with individuals whose land has been unlawfully occupied,” the expert said.
Importantly, the SCA reaffirmed that section 26 of the Constitution does not entitle occupiers to remain indefinitely on privately owned land of their choosing.
“While eviction must always be just and equitable, ownership rights are not extinguished by prolonged unlawful occupation,” Mabasa said.
“This preserves the constitutional balance, and socio-economic rights are safeguarded, but not at the cost of undermining property rights or the rule of law.”
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