Pre-and post-constitutional deprivation of land in South Africa: A human rights perspective

Abstract

The application of apartheid laws and practices in South Africa led to extreme inequalities relating to land ownership and use. The racially discriminating laws legitimised the dispossession of land and placed prohibitions on land ownership for the majority of the population, in particular blacks, coloureds and Indians. Though these laws were finally abolished, a new democratic South Africa faces numerous challenges such as the unequal distribution of land in the country. The first instances of deprivations and dispossessions of land in South Africa can be traced back to the colonial era. Although evidence suggest that deprivations and dispossessions occurred before 1913, there is an anomaly in the current Constitution in Section 25(7) as it only allows equitable redress to those deprived of land after 19 June 1913. The Constitution and subsequent legislation ignore the deprivations and dispossessions that occurred before 1913 and the people affected by such pre-1913 deprivations are left without any equitable redress. Using a doctrinal methodology, this study investigated the pre and post constitutional deprivation of property rights in South Africa from a human rights perspective. The study found that laws and practices that legitimised land deprivations and dispossessions are associated with colonialism as they pre-date 1913. The study further found that Section 25(7) of the South African Constitution does not provide any equitable redress to those deprived or disposed of land before 1913. The protection of those people can, however, be in terms of legislation enacted under the provisions of Section 25(8), but the government has not enacted such legislation. International law now recognises the right to property, and any equitable redress should be in line with international law principles.