On the 5th of December 2024, the Nelson Mandela Foundation filed an application in the Western Cape High Court to begin a legal process aimed at compelling the State to fulfil its constitutional obligation to ensure equitable land access. This action was deliberately undertaken on the 11th anniversary of Madiba’s passing, as a means of highlighting the urgency of addressing the land question in South Africa as well with the hope of inspiring the country’s leadership to act with the fortitude needed to resolve this longstanding issue.
According to Section 25(5) of the Constitution, “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”. We believe that the State has failed to fulfil its constitutional obligation to pass the legislation required by this section and should do so in the coming 18 months. Moreover, the content of the legislation passed should, amongst other things, define what is meant by “equitable access” to land, outline how land is to be identified and acquired as well as who the beneficiaries should be and how they are to be supported.
As an organisation that works dialogically, the Foundation's legal action arose out of convenings with stakeholders and members of the public and has been a year in the making. We have seen firsthand how convening people with strategic intent can spur action and create change, and we hope that this legal case will become another example.
Land is deeply intertwined with South Africa’s history of dispossession and is often seen as the fundamental unfinished work of the liberation struggle. Despite the passing of 30 years since the dawn of democracy, the legacy of colonial and apartheid-era land dispossession remains entrenched in society. The persistence of unequal, racialised land relations means that for the majority of South Africans, the painful legacy of dispossession persists. The pace of land reform to date has been widely criticised as inadequate, with progress falling far short of addressing the depth of historical injustices. The outcomes of current land reform efforts have been disproportionately small in comparison to the scale of the task.
We undoubtedly require an urgent shift in how the land question is approached. The focus must move away from political posturing and towards a productive legislative process that leads to comprehensive and implementable legislation. Such legislation is crucial for fulfilling the constitutional promise of land justice and putting South Africa on a corrective path of economic transformation and redress. Land reform should be seen as an economic imperative for development and progress as well as a cornerstone for routine societal functioning. Put simply, it can help deliver meaningful generational impact in both social and economic terms.
If the country continues on its current trajectory in relation to land access, it risks perpetuating a cycle of inequality that ignores the moral imperative for change. The Foundation firmly believes that South Africa can do better, and that it is the responsibility of the government and citizens alike to ensure that the promises of justice and equity are realised.
Nelson Mandela, of course, is renowned for a steely determination in the face of adversity - something which we, as a society, need now more than ever. While the pursuit of individual accumulation and comfort can and does easily preoccupy much of our daily existence, for how much longer can the privilege of the few take precedence over the pain and despair of the many? How much longer as a country will we skirt around complexities, tinkering at the margins, instead of being clear and direct about naming the things that need to be changed and then acting decisively? How much longer will constitutionalism be mobilised by groups to protect their privilege as opposed to being a tool for transformation?
More broadly, South Africa requires distributive justice, which can be described as a situation in which the benefits and burdens of society are shared equitably amongst its members. By any measure, inequality both in terms of income and wealth are now extreme in South Africa. The status quo is neither defensible nor sustainable. In such a context distributive justice becomes imperative, and giving effect to Section 25(5) of the Constitution is but one action within this broader pursuit which should be realised.
We must bear in mind that doing nothing means taking a position regarding prevailing systems and structures. It means that we are complicit in, or promoters of, the status quo. There can be no neutrality. To do nothing means that we are implicitly saying that our current trajectory is preferable compared to any alternative future. Enabling the realisation of Section 25(5) of the Constitution, on the other hand, will open a pathway to the liberatory future Madiba dreamed of and worked so hard to make possible. We call upon organisations, movements and individuals around the country to walk this journey with us.
*Dr Mbongiseni Buthelezi, is Chief Executive of the Nelson Mandela Foundation
**Dr Sumaya Hendricks is the NMF's HOD: Dialogue and Advocacy