Re-defining national sovereignty : the key to avoid constitutional reform? Reflections on the 2011 Green Paper on Land Reform

Rudman, Annika (2012-01)

CITATION: Rudman, A. 2012. Re-defining national sovereignty : the key to avoid constitutional reform? Reflections on the 2011 Green Paper on Land Reform. Stellenbosch Law Review = Stellenbosch Regstydskrif 23(3):417-437.

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The results of post-apartheid land reform in South Africa have for a substantial period of time prompted scholars to ask key questions about the ability of law to achieve social change. Change in this case translating into an equal (based on race) distribution of agricultural land and in turn the role of the distribution of such land in combating poverty. With the imminence of the centenary of the notorious Native Land Act 27 of 1913, which dispossessed millions of black South Africans, issues of land reform are contentious and high on the agendas of both the government and civil society. Currently most of the deadlock in implementing and rejuvenating the existing reforms is linked to the perceived limitations within the Constitution of the Republic of South Africa, 1996 itself and the apparent difficulties in amending it. Therefore, one possible alternative way of rectifying the massive inequalities in the distribution of agricultural land is to try to fashion new discourses, which could expand the state's ability to undertake the necessary reforms. This article sets out to explore what appears to be one such (new) discourse, as introduced in the Green Paper on Land Reform of 2011, focusing on how the concept of state sovereignty can be used or misused, defined or re-defined to suit the determinations of a state, such as South Africa, in agrarian reform. This article emphasises the possible links between different theories on state sovereignty (internal and external) and agrarian reform for agricultural purposes; and the way in which the idea of state sovereignty can act as a vehicle for hard-line agrarian reform when all else appears to have failed. This article furthermore attempts to highlight some alternative avenues in constitutional interpretation to furnish new routes out of the current stalemate; focusing on remedies which currently are under explored and deserve more scholarly attention.

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