An Analysis of Post-apartheid Land Reform Interventions Fostering Restoration of Dignity and Equality in South Africa

An Analysis of Post-apartheid Land Reform Interventions Fostering Restoration of Dignity and Equality in South Africa L.L.M. candidate Molatelo SEBOLA1 Professor Kola O. ODEKU2 Abstract This article discusses constitutional, legislative and policy frameworks strategically introduced post-apartheid era to foster land expropriation reforms that would restore dignity, equity, equality and justice to the forcefully dispossessed Black South Africans from their land during the pre-colonial and apartheid regimes. More importantly, even though the colonial and apartheid settlers metamorphosised into rulers expropriated land without compensation, the Constitution of the Republic of South Africa 1996 has brough about various interventions that seek to ensure that the land that was forcefully taken should be returned to the right owners. This proposition has continued to generate fierce debates in the country. While some pundits have asserted that the Black majority now in charge of governance, should use postapartheid laws to expropriate land without compensation, there have been stiff resistant from the white minority who are both the owners of vast land and at the same time exercising right of possession and occupation respectively. It is against these competing interests that this paper postulates that in order to restore the dignity of the dispossessed and forcefully removed Black South Africans from their rightful land, there is need to look at the constitutional imperatives as well as equity and justice based on the post-apartheid frameworks that are available to ensure that the past apartheid land dispossession and injustices are redressed, and the wrongs committed are remedied. Keywords: land justice, inclusivity, equality, post-apartheid, constitutional imperatives. JEL Classification: K30, K33, K38 1. Introduction The land question in South Africa, as well as its socioeconomic transformation related matters, remain crucial in public debates aimed at generating different development trajectories in the confined context of land reform. The land issue has typically cantered on land tenure and livelihoods, rather than agrarian development and land justice. 3 The topic of land reform and restoration remains unsettled in South Africa's legal framework. One of the aspects of land reforms which bothers on land expropriation without compensation has become a mantra in the offices of government leaders to the extent that it has lost its gloss and glamour in the eyes of vast majority of civilians. The promises of transformation and land reform to achieve redistributive justice through meaningful and advantageous means have been mostly unfulfilled, this contrasts with a backdrop of broad and far-reaching understanding.4 The need to amend Section 25 of the Constitution of the Republic of South Africa 1996 (Constitution)5 to concede land expropriation without compensation has dominated South African public discussions for many years. Thus, in 2019, parliament approved the resolution to modify the Constitution to unambiguously permit expropriation, an “Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution” 6 subsequently started engaging in the legislative process to engender these changes that are put forward.7 The current intellectual discourse 1 Molatelo Sebola - Faculty of Management and Law, School of Law, Department of Public and Environmental Law, University of Limpopo, South Africa, . 2 Kola O. Odeku - Faculty of Management and Law, School of Law, Department of Public and Environmental Law, University of Limpopo, South Africa, . 3 Mudau, J. “Land Expropriation Without Compensation in a Former Settler Colony: A Polemic Discourse” (2021) 18/3 African Renaissance at 163-183. 4 James, D. Gaining ground?: Rights and property in South African land reform (2007, Routledge-Cavendish). 5 The Constitution of the Republic of South Africa, 1996. 6 Parliament of South Africa “Ad Hoc Committee to initiate and Introduce Legislation amending Section 25 of the Constitution” (last accessed 22 March 2022}. 7 Stellenbosch Institute for Advanced Study “Compensation through Expropriation without Compensation? Constitutional Amendment, Land Reform and the Future of Redistributive Justice in South Africa,” available at https://stias.ac.za (last accessed 29 April 2022). Perspectives of Law and Public Administration Volume 12, Issue 4, December 2023 598 on land expropriation with or without compensation provides an ample opportunity to raise important questions insofar as the colonial and apartheid legacy of land dispossession is concerned. This is an opportunity not only to look at the crucial issue of land expropriation with or without compensation but to ask a question of paramount importance, in essence; what does “Land” mean to people of South Africa? This is a question which must be answered in consideration of a preponderance of circumstances, together with what has transpired in the past. For some people land means security of tenure and farming, whereas to some, land means wealth and opportunity for business. However, from a perspective of constitutionalism and or transformation, land means dignity, equality, freedom, and property rights for everyone.8 The South African post-democratic era, the Constitutional dispensation has moreover resuscitated debates about the content of ownership of land. Even though the 'property clause' incorporates the perpetuity of the neoliberal land ownership paradigm, its provisions illustrate categorically that arguments against land reform; achieved through expropriation without compensation are no longer viable, if they were ever viable. In the new constitutional framework, the property clause limits the circumstances and method of property deprivation and expropriation, while preserving the permanent value of neoliberal land ownership. In essence, section 25(8) of the Constitution generally provides that the state may depart from any provision in the section in question, for so long as that departure is compliant with section 36(1) of the Constitution. 9 Consequently, section 25 expressly mandates reform, insofar as access to land, sanitation, water, and other natural resources are concerned, indicating a strong desire for a more socially accountable form of ownership in the future. It uses property (and its preservation) to achieve a society based on the values outlined in section 1(a) of the Constitution. For purposes of this contribution, we consider transformative constitutional dimensions of using post-apartheid laws to redress the historical land injustices which underpins the present inegalitarian society of South Africa. 10 2. Background The issue of land ownership disparities in South Africa is deeply rooted in the history of land dispossession as well as racial segregation. 11 South Africa has a sad history of dispossession. The story of land deprivation is a narrative in which many indigenous people (...truncated)