The Commission emphasises the importance of distinguishing between legal instruments that enable administrative procedures and those that substantively achieve constitutional obligations.

Section 25(5) of the Constitution mandates the State to take reasonable legislative and other measures, within its available resources, to foster conditions that enable citizens to gain access to land on an equitable basis. Since the enactment of the Constitution, no legislative measures have been taken by the State to give effect to Section 25(5) of the Constitution. The State’s continued failure to enact specific legislation to give effect to Section 25(5) of the Constitution enables a prevailing context of policy incoherence regarding land rights.

This legislative void has led to the implementation of land redistribution initiatives in a disjointed and inconsistent manner, often lacking coordination and strategic focus. As a result, these initiatives have been ineffective in achieving the intended goal of equitable land access and have been prone to inefficiencies and mismanagement.

 In its formal Position Paper, which is accessible on the SAHRC website, the Commission cautions that:

 “allowing these continued references to the Expropriation Act as a mechanism for land redistribution to continue undisputed, may allow the State to claim compliance with Section 25(5), while in reality failing to address spatial and economic inequalities sustained by landlessness.”

The Commission supports all legal and policy reforms that support and advance justice and redress in land access. This includes championing changes to existing laws and policies to address historical injustices, land dispossession, and inequality, particularly among marginalised communities.

The Commission recognises that land is a fundamental resource tied to economic empowerment, cultural identity, and social well-being. Access to land is crucial for individuals and communities to secure livelihoods, build wealth, and sustain their families. Beyond its economic value, land carries profound cultural heritage significance, serving as a foundation for traditions, and social cohesion. As such the Commission continues to receive number complaints regarding access to land. Some of the prevalent complaints relate to people complaining about lack access to land for residential and agricultural purposes, delay in land redistribution, farm evictions, denial to access their gravesites in farming communities and the destroying of gravesites.

The Commission remains committed to playing a role in ensuring that legislation that will inform land redistribution in South Africa is finally enacted.

Link to SAHRC position on the Expropriation Act

ISSUED BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION