South Africa must adopt a human rights-based approach to land reform

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Underutilisation

The right to land extends beyond ownership—it includes the ability to productively utilise land to improve the livelihoods of people. A key challenge in the land reform process has been the underutilisation of restituted land. To prevent land from lying fallow, thorough assessments must be conducted before land claims are finalised. Plans for land use and community support should be in place before transfer occurs, to ensure the long-term viability and sustainable use of the land.

The enactment of the Expropriation Bill into law by President Cyril Ramaphosa earlier this year has pushed land reform into the center of public discourse. The new Expropriation Act replaces the apartheid-era Expropriation Act of 1975 and outlines the legal framework for the government to expropriate private property for public purposes or in the public interest, setting rules for how compensation should be determined. While the act generally mandates fair compensation, it also allows for certain cases in which no compensation may be paid, provided it is deemed just and reasonable.

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While there is consensus on the need to undertake a land reform programme to rectify the racially skewed land ownership patterns resulting from centuries of colonialism and decades of apartheid, there is a sharp divergence of opinion on the appropriate approach to land reform. Of importance is to ensure that the land reform process does not further compromise human rights, but that it reinforces and restores dignity.

The constitutionality of the Expropriation Act, in particular the provisions dealing with expropriation with nil compensation is yet to pass constitutional muster in the country’s courts after several parties vowed to institute litigation.

Forcibale removals

Thousands of communities who have been forcibly removed from their ancestral land are still waiting for restorative justice as their land claims have yet to be settled, while many property owners fear that the operationalisation of the Expropriation Act - in particular the provision of nil compensation - will trample upon their rights to property. There is therefore a need to strike a delicate balance between the aspirations and hopes of the indigenous communities that are waiting for their claims to be settled and the fears of property owners who are anxious about possible arbitrary expropriation.

The ability to access, own, and productively use land is central to efforts to restore dignity, security, and drive social and economic development.

As South Africa moves forward with land reform, it is crucial to ensure that policies and implementation strategies uphold human rights, drive inclusive economic participation, and promote the development of communities across the country, to improve the livelihoods of people across communities.

Land reform remains an essential element for the realisation of many human rights. In recognition of the fundamental role that land ownership plays in driving sustainable economic growth, Setou notes that the United Nations has included land in the eight targets and 12 indicators of the Sustainable Development Goals.

Therefore, strengthening land tenure rights, particularly for those living on communal land is essential for ensuring that local communities play a central role in land reform decision-making. Secure land tenure will not only empower individuals by allowing them to use land as collateral, but also attract private-sector partnerships to enable communities to participate in local economic development.