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oa Constitutional Court Review - Unpacking Section 25 : what, if any, are the legal barriers to transformative land reform?

Volume 9 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183

 

Abstract

The ‘land question’ has undoubtedly become the issue at the centre of South African politics. This is largely because, notwithstanding various government efforts since 1994 to redress access to land and align contested property regimes in the public interest, the white minority continues to own a disproportionally large amount of land. The untransformed pattern of ownership of (and access) to land has become a potent symbol of the broader failures of South Africa’s transition from apartheid. At the heart of the current political deliberation has been contestation over s 25 of the Constitution, the ‘property clause’, which is widely perceived to be an impediment to transformation and has been reviewed for amendment. Reflecting an increasingly uneasy bundle of imperatives from redistribution and restorative restitution, through customary land use, to private property ownership, it is unclear what any amendment will look like. At the same time as there are calls to repeal private property ownership, many poor people and communities are appealing to the government to speed up private title processes, and property owners (black and white), as well as traditional authorities, are demanding greater, rather than less, protection of their property rights. Against this backdrop, instead of interrogating what has (and has not) been achieved since 1994 or whether s 25 is optimal, this article examines the extent to which the current legal frameworks and judicial interpretation thereof are likely to constitute a hindrance to any government wishing to pursue transformative land reform. In doing so the article seeks to contribute towards a more nuanced understanding of the fault lines between the legal realm and the socio-political realm, as relating to the question of transformative land reform.

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/content/journal/10520/EJC-19f0d16db1
2019-12-01
2020-09-29

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