The DA are not taking EWC seriously

by Robert Duigan | Sep 30, 2025

The ANC will not respond to reason or decency. But they do respond to threats - the DA should use the Expropriation Act against them

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If we know DA strategy at this point, the vast majority of it is concerned with public perceptions. This is not to say that they totally ignore the practical – they do have a tidy little legal argument against the Expropriation Act.

But their strategy is largely technical and procedural, and leaves open the door to let the ANC (or for that matter, any of the numerous black nationalist parties that occupy 2/3rds of the legislature) try again.

Yet there is a very decisive strategy they could take which would force their hand. EWC is a potential existential threat, and should be treated with that gravity. That means taking on challenges that appear frightening, but the DA’s tepid Plan A has no backup plan – almost as if they have no desire to win.

On the technicalities

In their statement on the matter, the DA explain their legal argument, which focuses on the procedural aspects. Essentially, they argue that the government’s consultation process was insufficient, and that it is internally inconsistent:

⁠The process of adopting the Act did not conform to the Constitution. Five out of the seven provinces that voted for the Act in the National Council of Provinces, did so without obtaining a provincial mandate in the manner prescribed by law and regulations; and
⁠The Act is vague and contradictory in several clauses, which renders it unconstitutional.

But this doesn’t look like much of a slam dunk – after all, the consultation period lasted five years, and the five provinces in question were fully ANC-controlled, leaving little chance that any of the MPs were unbriefed on their voting instructions, especially considering that the framework for the Second Phase of the National Democratic Revolution was declared in 2012, and EWC was adopted as party policy in 2017, immediately upon Ramaphosa’s acceptance of the party presidency.

Arguing that they violated procedure in this way would be the equivalent of declaring a person non-existent because of a typo on their ID. It’s certainly possible that the ConCourt would entertain this sort of argument, but their attitude toward land reform would suggest a tendency to approach the spirit of the law in this case rather than shaving it down to the letter.

The argument that the Act is vague and contradictory has some merit, of course. Several clauses seem to be constructed to give as broad license to the state as possible. But this does not mean they are vague, just that they are broad, and designed to enable abuse. But that level of cynicism about “redress” is never entertained in court, even when it is warranted.

Section 12(3) allows zero payment for expropriation if land is “not being used” and held for “speculation,” or is “abandoned” despite being “reasonably capable” of control, or if market value is less than state subsidies. These terms are clearly open to abuse, and could facilitate land invasions on private property, even more than they are already. Terms like “public interest” includes land reform and equitable resource access, while “public purpose” covers government administration. This is also broad enough to allow extensive abuse. After all, public interest is entirely subjective, and any utilitarian argument could justify just about any act of redistribution. Section 5(1) Requires considering “all relevant circumstances” for property suitability and compensation, making the whole exercise a raw calculation of imminent utility, rather than considering property rights as being right per se.

Section 20 permits temporary expropriation (up to 12 months) in “urgent and exceptional circumstances” like disasters, bypassing normal procedures. The notice and objection processes in Sections 7 and 8 seem to contrast with Section 20’s allowance for bypassing these in “urgent” cases. One could say this is a contradiction, but all legal systems make these provisions, and we have

Expropriation also comes before court appeal, and Section 19 allows extensions for court proceedings on “good cause shown,” but “good cause” is undefined, potentially causing arbitrary delays or denials. This means that there is no reason to think that victims of this process can ever achieve a modicum of justice, but that sense of justice is not shared by the majority of the population, who support race-based expropriation without compensation, more so than they do compensation.

Some may claim Section 12(1), which mandates “just and equitable” compensation based on factors like market value, contradicts Section 12(3) allows nil compensation in certain cases. But who is to say zero, or even negative compensation (say, owing the state for “repairs” and “capital improvements”) is unfair? No legal principle prevents it.

Strict 30-day claim periods for unregistered rights undermine appeal provisions, where expropriation can proceed unless an appeal has “compelling prospects of success,” certainly risks exclusion of valid claims, but then the state can always point to court appeals as a means of legal redress.

The apparent “contradictions” don’t seem directly contradictory to me, they just seem draconian and unfair, but that, as it goes, is up for debate, and isn’t obviously true by definition. The only real question here is whether the law is constitutional, and that, I’m afraid, is not something we can place much hope in.

A “strong” constitution

The second point is somewhat more substantial to the average observer. But here too, we can find some flaws.

After all, the Constitution doesn’t in fact offer any protection to any rights if the government is acting in the name of redress. S29(2)(c) explicitly allows one’s children’s rights to be taught in their own language to be curtailed for this purpose.

But even the Bill of Rights itself includes a fundamental principle which calls for the unlimited eradication of any legal right for purely ideological ends:

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

In other words, much like the following clause in Chapter 9 – “(5) Discrimination […] is unfair unless it is established that the discrimination is fair” – the restriction of our rights is entirely at the discretion of the judges.

Other legal systems place some form of limitation of the powers of the court, but our Constitution functionally places only two – that the law serve the pursuit of material equality, and “redress” – vengeance upon the white minority, into perpetuity.

Our legal system has been fairly tolerant of discrimination against other minorities too, and for sure, the Coloured population is more economically vulnerable. And in time they will have to reckon with the consequences of our failure to stand up for ourselves, and by extension, their rights too.

The use of the Constitution as a defence against any form of abuse has resulted in fairly limited victories. Whenever an increase in the strictness of racial quotas has been checked by the courts, they have simply resumed under a different scheme.

There is an assumption however, that there is a survivable level at which the advances of this program of “redress” will settle, and society will become harmonious enough that the existence of this discrimination will no longer matter.

But mathematically that isn’t possible. As one sharp maths wizard on X observed a week or two ago:

1. By 2030 companies will be fined up to 10% of revenues if they don’t meet targets

2. They can be fined repeatedly for non compliance

3. Targets limit white males at 4% for entry level positions

4. Firstly, companies will need to fire employees to meet this target

5. Secondly, it will be almost impossible for new entrants to enter the market as most companies will already be over their targets

6. New entrants will compete against those who were fired

7. This will accelerate emigration of white population reducing their national % further

8. This is circular as 4% will be reduced to reflect lower population representation

9. Process will repeat until 4% reduces to 3%, again to 2% etc

10. Steady state will only be achieved when population is 0% of total population

11. It will be illegal to hire any white employees

He accompanied these observations with a helpful mathematical model:

A weaker constitution

While we’re deviating into racial quotas, you might be wondering what the point is. What is most noticeable, is that the DA has done nothing to stop this – at least nothing with any hope of permanent success.

And even when handed a limited but significant victory on a platter, they push it away – Sakeliga won a remarkable victory in the Constitutional Court in 2022, when Justice Zondo pointed out a little loophole in the procurement laws, which demonstrated that, at least insofar as the public supply chain is concerned, there are other constitutional and legislative principles which trump racial quotas, and therefore can supersede them.

They have shown no interest in testing its applicability these past three years, any more than they showed interest in the Peoples Bill, which would have handed them the right to declare provincial autonomy over policing, railways, and any other significant government functions.

Since they took over various departments in the GNU, they have largely rubber-stamped policies put in place by the ANC in the months and years leading up to their takeover, from education to agriculture.

I am reminded of an interview with Helen Zille some years ago when the problems with cadre deployment were being confronted in the northern Metros, where they had been failing to exert discipline on the city staff and management. She was asked whether she would be getting rid of ANC appointments, and responded that that would be to mirror the policy of cadre deployment itself, and therefore was out of the question.

Of course, this must all be read in context of her 12-year long plan to merge the DA into the ANC, so that no political opposition could ever disturb the penetration of globalised governance into the heart of South Africa.

And so I can say with absolute certainty that they would not dream of taking my own gambit, but for what it’s worth, it’s fairly simple. The ANC does not regard the law with a great deal of respect, but they do respect a show of force.

Trading blows

And so, we return to the Expropriation Act. Its first test has come this year with the announcement of a pending court case following the 2019 seizure of a R30 million property in Ekurhuleni. The victim’s lawyers will be running their best strategy of course, but the damage is already done – the property has been taken, and now the victim must seek restitution.

But this will not be the last time they try – the expropriation was undertaken before the passage of the Expropriation Act, and so any legal arguments which come from it either way will not be guaranteed to create a precedent which overrules it.

But one could force the ANC to repeal the act, by using it against them. They have taken the well-calculated gamble that the DA wouldn’t dream of trying anything actually effective, and knowing that they cannot break the 4.5% ceiling of support among the black electorate, they can’t prove any threat at the ballot box.

But if the ANC’s provincial offices, their high-ranking members’ holiday homes, their donor trust’s fixed assets, and their motorcades were seized, they would be forced to wait for a court date, often a process that takes several years. Besides, the law applies across government spheres, so they could also seize national government assets.

The point is not that these will stick, but that they will prove so disruptive that they will be forced to address the law in its fundamental substance – the fact that assets can be seized before the courts rule on it is especially galling, and runs contrary to any sense of humane state conduct.

One would not even need to confiscate more than one major property at a time, to raise the temperature enough to negotiate. This was how the ANC negotiated the handover of power in the early 90s after they were unbanned and the apartheid laws were suspended – haggling on the table, handguns under the table.

If the ANC decide to play that game at this late stage, they would be unable to boil the frog – they would be forced to catch 4.5 million slippery subjects jumping out of the reach of their legal grip. Solidariteit and AfriForum have enough infrastructure at their disposal that letting the rule of law fall by the wayside would open the country up to a dramatic transformation.

The upside here is that while the safe road may be appealing, it leads only to terminal decline. The rough path is dangerous, but it will lead either to partition or to true reform.

But this is just a pipe dream, so long as we keep voting for the liberals.

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