Land reform embedded in the constitution : legal contextualisation

Pienaar, Juanita M. (2015)

CITATION: Pienaar, J. M. 2015. Land reform embedded in the constitution : legal contextualisation. Scriptura, 114(1):1-20, doi:10.7833/114-0-1116.

The original publication is available at http://scriptura.journals.ac.za

Article

Land reform is a temporal process that was embarked on in two distinctive phases in South Africa: first by way of an exploratory programme before the new constitu-tional dispensation commenced, followed by, secondly, an all-encompassing programme after April 1994. While a constitutional dimension distinguished these broad phases from each other, the second phase was furthermore characterised by having an interim Constitution for a period of time, followed by the final Constitution, which is currently still in place. With regard to land reform, the initial exploratory programme was conducted in the absence of a Constitution with a Bill of Rights. Following 1994 and the commencement of a Constitution, the interim property clause, section 28, did not provide for land reform specifically, although provision was made for the expropriation of property for public purposes. However, provision was made, specifically for the restitution of land and rights in land, but not within the property clause as such. In contrast, the final property clause, section 25 which commenced in 1997, provides for land reform in particular. This contribution explores the meaning of having land reform embedded in the Constitution generally and in the property clause specifically. To that end it becomes clear that being embedded in the property clause calls for a specific approach to and interpreting of all land reform-based and -related statutory measures and case law. It is also imperative that the structure of the property clause and the prominence of the reform-oriented clauses be taken into account when considering the property clause on the one hand and the aims and purposes of land reform, on the other. While this contribution focuses entirely on the constitutional dimension of land reform, it is also true that effective policy measures and legislation, implemented, interpreted and applied correctly, are furthermore non-negotiable to make land reform effective, although they are not analysed here.

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