The Legal Crisis of Land Restitution in South Africa: A Critical Analysis

Abstract

This article argues that land dispossession of the indigenous people (the Khoikhoi and the San) and the black communities in South Africa started long before 1913. The first process of land dispossession commenced when the first Dutch settlers arrived at the Cape of Good Hope in 1652. Thereafter, conquest and colonial settlement of the Dutch and later the British became the standard methods of land dispossession before the promulgation of the Natives’ Land Act 27 of 1913. In actual fact, this Act among others, legitimised, entrenched and legalised the pre-1913 land dispossession. In addition, this obnoxious piece of legislation engendered another form of aggressive land dispossession coupled with brutal forced removals. It is against this backdrop that this article contends that section 25 (7) of the Constitution of the Republic of South Africa, 1996 restricts the right to restitution to the 19 June 1913 contrary to the principles of equality and justice. As a result, it excludes the descendants of the communities and persons dispossessed before 1913 from the entire constitutional scheme of restitution. Furthermore, section 25 (7) fails to take into account all-inclusive history of land dispossession in South Africa. In doing so, it perpetuates the injustices of the past. Therefore, this article submits that given South Africa’s sad history of land dispossession, section 25 (7) should be amended to allow (the descendants of the co