The question of whether white South Africans, particularly Afrikaner farmers, qualify for refugee status under international law has gained renewed attention following U.S. President Donald Trump’s 2025 executive order, which proposed granting asylum to white South Africans based on alleged persecution linked to land reform policies. The legal debate centers on whether South Africa’s land expropriation policies constitute persecution under the 1951 Refugee Convention and whether such policies align with principles of property rights and expropriation laws recognized globally.
This article examines the international legal framework for refugee status, the legality of South Africa’s land reform policies, and the comparative application of expropriation laws, including the U.S. use of eminent domain.
International Refugee Law and Its Application to White South Africans
Definition of a Refugee Under the 1951 Refugee Convention:
The 1951 Refugee Convention, as amended by the 1967 Protocol, defines a refugee as a person who:
- Has a well-founded fear of persecution due to race, religion, nationality, political opinion, or membership in a particular social group.
- Is outside their country of nationality and unable or unwilling to avail themselves of its protection.
To qualify as refugees, white South Africans must demonstrate that they are being persecuted on the basis of a protected characteristic and that South Africa is unable or unwilling to provide them protection.
Persecution Standard in International Law
The concept of persecution under international law requires more than general hardship or unfavorable policies. The United Nations High Commissioner for Refugees (UNHCR) defines persecution as a “severe violation of human rights that threatens life, freedom, or fundamental dignity.” This standard requires state actions that target a group with systematic oppression, legal discrimination, or violence.
Application to White South Africans
White South Africans do not meet the persecution threshold required to qualify as refugees. While land reform policies may impact some landowners economically, economic loss alone does not constitute persecution under the 1951 Refugee Convention. White South Africans still enjoy full citizenship rights, legal protections, and access to political representation. The South African government has not enacted policies that deprive white citizens of their fundamental rights or subject them to state-sponsored discrimination or violence.
Moreover, the South African legal system provides avenues for landowners to challenge expropriation decisions through the courts, ensuring that legal safeguards remain in place. Thus, claims of racial persecution do not align with the legal definitions required to establish refugee status.
South Africa’s Land Reform Policies and Legal Expropriation Framework
South Africa’s land reform policies are part of broader efforts to redress historical injustices that resulted from colonial and apartheid-era land dispossession. The Expropriation Act of 2024 provides the government with the legal authority to acquire land for public purposes or in the public interest, with compensation determined through a just and equitable process. Contrary to some claims, the act does not exclusively target white landowners, nor does it permit the arbitrary seizure of private land without due process. The law specifies that expropriation without compensation may occur only in specific circumstances, such as land that is abandoned or underutilized, land acquired for purely speculative purposes, or land that poses health or safety risks.
Land ownership in South Africa has long been shaped by historical racial disparities. Under colonial rule and apartheid, Black South Africans were systematically deprived of land ownership rights through policies such as the 1913 Natives Land Act, which restricted Black land ownership to just 7 percent of the country’s land, despite them being the majority population. To address these past injustices, land reform efforts have included voluntary land sales, redistribution programs, and, in some cases, expropriation. These initiatives aim to achieve a more equitable distribution of land resources, ensuring that historically marginalized groups gain access to land ownership opportunities.
Legal Safeguards in the Expropriation Process
South Africa’s land expropriation policies operate within a constitutional and legal framework that provides landowners with the right to challenge expropriation decisions in court, receive just and equitable compensation where applicable, and engage in legal negotiations before any land acquisition is finalized. These legal protections reinforce the rule of law and ensure that land reform is conducted through a structured legal process rather than arbitrary seizures.
Comparing South Africa’s Expropriation Act and U.S. Eminent Domain
Legal Foundations of Land Seizures
Both the United States and South Africa have legal frameworks that allow for government acquisition of private land for public use. In the United States, the principle of eminent domain is enshrined in the Fifth Amendment of the U.S. Constitution, which states:
“Nor shall private property be taken for public use, without just compensation.”
This power allows the government to acquire private property for infrastructure projects such as highways, railways, and government facilities. While eminent domain is intended to serve public interests, its application has been legally contested, particularly when land is seized for projects that benefit private entities or when landowners dispute whether the government’s proposed compensation is fair.
Similarly, South Africa’s Expropriation Act of 2024 provides a legal basis for land acquisition in cases where the land is needed for public purposes. The South African government has justified land expropriation as a mechanism to correct historical land dispossession resulting from colonial and apartheid-era policies. While compensation is generally required, the law allows for land to be expropriated without compensation in specific cases, such as when land is abandoned, underutilized, or acquired for speculative purposes.
Despite their shared legal mechanisms, the intent and historical context of land seizures in the two countries differ significantly. In the United States, eminent domain has traditionally been used for development and national security, while in South Africa, land reform efforts are aimed at redressing past racial inequalities in land ownership.
Impact on Affected Landowners
The practical effects of land seizures in both countries have sparked controversy. In the United States, Trump’s administration invoked eminent domain primarily for the construction of the U.S.-Mexico border wall, leading to legal battles between the federal government and private landowners. Many affected property owners, particularly in Texas’ Rio Grande Valley, challenged the government’s right to take their land, citing inadequate compensation, disruptions to private and agricultural land use, and concerns about whether the border wall truly served a legitimate public purpose.
By contrast, South Africa’s land reform policies focus on redistributing land that was historically taken from Black South Africans under apartheid and colonial rule. While white landowners may be affected by expropriation, South Africa’s constitution guarantees due process and legal recourse, ensuring that landowners can challenge expropriation and negotiate fair compensation. In both contexts, landowners have turned to the courts to assert their property rights, reflecting the broader tensions between government authority and private ownership.
Government Justifications for Land Acquisition
In the United States, the Trump administration justified land seizures for the border wall by citing national security and immigration control as primary concerns. The government relied on the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which grants broad authority to acquire land for border infrastructure. Critics of the policy questioned whether the wall truly served a public benefit, especially since portions of the border already had physical barriers in place.
South Africa’s government, in contrast, frames land expropriation as a tool for economic justice and social stability, aimed at addressing entrenched racial disparities in land ownership. The rationale is that the country’s land ownership patterns remain largely unequal due to past laws like the 1913 Natives Land Act, which prohibited Black South Africans from owning land in most parts of the country. While Trump’s use of eminent domain focused on restricting migration and strengthening border security, South Africa’s land reform policies are designed to broaden land access for historically marginalized communities.
Compensation and Legal Recourse
Both the U.S. and South African legal systems require compensation for landowners, but key differences exist in how compensation is determined and implemented. Under U.S. eminent domain laws, landowners have the right to challenge the amount offered by the government in court. However, under Trump’s administration, some landowners lost access to their land before compensation agreements were finalized, leading to prolonged legal disputes. In some cases, the government seized land first and paid landowners later, sparking allegations of unfair treatment.
South Africa’s Expropriation Act of 2024 also mandates compensation, with exceptions for land that is abandoned, underutilized, or acquired for speculation rather than active use. The law allows landowners to challenge expropriation decisions through legal avenues, ensuring that they have an opportunity to contest valuations and negotiate terms. Unlike in the U.S., where eminent domain is typically used for infrastructure projects, South Africa’s land expropriation is framed as a corrective measure aimed at achieving long-term social and economic reform.
Effects on Indigenous and Disadvantaged Communities
Trump’s use of eminent domain for the border wall disproportionately affected Indigenous communities and protected lands. Some land seized for the project included sacred Indigenous sites and federally protected wildlife reserves. The administration waived environmental and historic preservation laws to fast-track construction, prompting opposition from Indigenous groups and environmental organizations.
In South Africa, land reform policies are designed to return land to historically displaced communities rather than displace new ones. Unlike Trump’s policy, which took land from individuals and communities with longstanding ownership, South Africa’s policies aim to restore land rights to those who were forcibly removed under apartheid.
Conclusion
Under international law, Afrikaners do not qualify for refugee status under the 1951 Refugee Convention. To be considered refugees, individuals must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group, with no access to protection from their home country. South Africa’s land reform policies, including expropriation, do not constitute racial persecution but rather an effort to address historical land inequalities stemming from apartheid-era policies. White South Africans continue to have legal protections, political representation, and access to judicial remedies, making them ineligible for refugee status under international legal standards.
The comparison between South Africa’s Expropriation Act and the United States’ eminent domain laws highlights the broader legal principles governing land acquisition for public purposes. Both countries allow for government intervention in property rights, with legal frameworks ensuring due process and compensation in most cases. However, while the U.S. primarily invokes eminent domain for infrastructure and national security, South Africa’s land reform efforts are aimed at correcting historical injustices related to racial land dispossession. Despite differences in intent, both systems reflect the global legal practice of state land acquisition, demonstrating that expropriation is not unique to South Africa.
Ultimately, debates surrounding land expropriation and eminent domain underscore the balance between property rights, government authority, and historical redress. While controversial, these legal mechanisms are widely used across jurisdictions and do not, in themselves, constitute persecution under international law. The selective framing of South Africa’s land reform policies as discriminatory ignores similar legal principles in other nations, including the United States, where eminent domain remains a recognized and frequently utilized governmental power.
