Property comes in many forms. It can be land and buildings, vehicles, furniture, or other physical things we use or own. But it also includes intangible assets, such as intellectual property (IP); for example, trademarks, patents, and copyrights. These are recognised as property and are protected under Section 25 of the South African Constitution, just like physical property.
The Expropriation Act, No. 13 of 2024, which came into effect on January 24 2025, has sparked concern and debate. While the government has given assurances about its purpose, some uncertainty remains about how it will be used.
President Cyril Ramaphosa has stated that the act is not a tool for confiscation but rather a legal framework to help achieve fair access to land in a way that aligns with the Constitution. Despite this, there is still scepticism in some quarters.
The law has also drawn international attention. Recently, some white South Africans were accepted into the US as refugees. According to reports, one of the reasons given was the belief that they are victims of race-based discrimination – including concerns about property being taken without compensation. This was understood by some as a reference to the Expropriation Act.
Given all the debate and questions around expropriation in South Africa, it is understandable that owners of IP might wonder: could my trademark or other IP rights be taken without compensation under this law?
Here are the key points to consider:
IP is excluded – the Expropriation Act does not apply to trademarks or other types of IP. The provisions dealing with compensation – including cases where compensation may be nil – apply only to land.
Limited circumstances for nil compensation – in Section 12(3), the act sets out specific cases where land may be expropriated without compensation. These include land that is unused, held purely for speculative reasons, or abandoned, or where the amount the state has invested in the land is more than its market value.
Constitutional protection remains in place – the Constitution still requires that any expropriation must be for a public purpose or in the public interest, and must be accompanied by just and equitable compensation. This applies to all types of property, including IP.
Courts will oversee the process – even in cases involving land, any expropriation must go through proper legal processes. Courts have the power to review and ensure that the law is followed and the Constitution is respected.
In short, the Expropriation Act does not allow the government to take IP without compensation. The law is focused on land and specific land-related situations. Owners of trademarks and other IP rights do not need to be concerned that these assets could be affected in the same way.
While land reform is a complex and ongoing issue, the protection of IP in South Africa remains strong and is backed by both the Constitution and the courts.
