From terra nullius to terrible delay in land restitution and rights

Mail & Guardian

3 days ago

South Africa's land reform journey is still shaped by the legacies of colonial conquest and apartheid.
(Madelene Cronjé)
During colonisation and apartheid, the law was used as a weapon to justify the seizure of African land. For many black people dispossessed of their property, the promise of land restoration in democratic South Africa has remained out of reach. Two of the most important legal tools for land reform are the land restitution system and the new Expropriation Act. Both are failing.
Many human rights organisations such as the Centre for Applied Legal Studies continue to support individuals and communities who filed land claims decades ago through the land restitution system. These people were promised a legal route to reclaim their land under the Restitution of Land Rights Act. Despite following all the rules and processes, many of these claims have been stuck in government systems all this time.
One of the major issues lies with state institutions such as the Regional Land Claims Commissions. Even when claims are legally recognised and published in the
Government Gazette
, delays are all too common. Families are often left waiting for years for proper land mapping, valuation reports or final decisions. Many receive conflicting information or no updates at all. In some cases, land is sold or transferred without their knowledge, even while their claim is still active. This is not just poor service delivery; it is a serious failure of justice.
The courts have noticed this too. In a case known as
Mvelase vs Director-General of Rural Development and Land Reform
, the land court ruled that the department of rural development and land reform had failed not just land claimants, but the constitutional promise of land reform for all people in South Africa.
Legal experts such as Hans Jurie Moolman agree. In his 2025 article on the history of land reform law, Moolman
These issues are not limited to the land restitution system. In January 2025, the Expropriation Act was signed into law. This sets out how the government can expropriate land in the public interest including in some cases without paying compensation. This Act is not about restoring land to people who were dispossessed under apartheid laws but about broader land reform and addressing a long history of inequality.
The Act sets out clear procedures, such as the need for negotiations, access to courts and guidelines for when no compensation might be appropriate. It also replaces outdated apartheid-era laws and applies to all levels of government.
The African Commission on Human and Peoples' Rights has
But the law is measured, not radical. It offers a framework that leans toward caution, not bold and true, tangible change. Can a law so careful in its wording and limited in its scope truly undo centuries of land dispossession? While it might be a step forward on paper, its ability to bring about real justice depends on how it is used.
The Constitution, in section 25, protects property rights and allows for land reform. But it does not clearly deal with the historical injustice of how land was taken in the first place. It avoids legalising past land theft but it also doesn't go far enough to reverse its consequences. As a result, when the state hesitates to act boldly, and when departments fail to carry out their duties, the law's promise remains unfulfilled.
The Expropriation Act is being challenged in court by AfriForum, a group that argues the law threatens constitutional rights, investor confidence and the economy. Their opposition does not come in the language of conquest, but of constitutionalism. They do not argue that land should never return to black hands, but that doing so threatens 'order'. It is a familiar tactic of preserving historical privilege using the language of rights and legal stability.
This is where the heart of the land reform struggle lies. The law appears to move us towards justice, but those who benefit from injustice often use the same law to defend their position. Courts become places where transformation must ask for permission, where property rights are treated as untouchable and where dispossession is never fully named.
South Africa's land reform crisis is not just about gaps in the law, but about how the law is implemented, and who it really serves. Too often, government departments rely on narrow, market-based approaches that care more about protecting property than correcting injustice. In the end, the very systems designed to bring about change end up reinforcing the status quo.
Until state institutions are rebuilt with integrity and intent, until the legal system is willing not just to manage the legacy of conquest but to disrupt it, the gap between law and justice will remain. And many will continue to wait, not because their claims are unclear, but because the system still does not know how to recognise their truth.
The work ahead is not only legal, but also political, social and deeply historical. We need to continue to rethink the foundations of South Africa's land laws and challenge the colonial values that still shape them. Restitution and land reform cannot just be technical processes. They must be about restoring dignity, correcting injustice and returning land to those who were unjustly robbed of it.
Blossom Matizirofa is based in the Home, Land and Rural Democracy programme at the Centre for Applied Legal Studies, Wits University.