Marcus Fumbata

According to former Deputy Chief Justice Dikgang Moseneke and prominent legal scholar Tembeka Ngcukaitobi, the Constitution of South Africa and its existing legal frameworks have never been the barrier to land reform; instead, the failure lies entirely with the government's lack of political will, corruption, and administrative incompetence. Both legal minds have argued extensively that Section 25 of the Constitution (the property clause) provides all the necessary power to achieve radical land redistribution, but those powers were simply never utilized effectively by the state. Key Arguments by Dikgang Moseneke and Tembeka Ngcukaitobi 1. The Constitution is an Enabler, Not a Barrier Expropriation without compensation was always possible: Both scholars have pointed out that Section 25 never strictly demanded "market-value" compensation. The Constitution requires compensation to be "just and equitable," which allows for zero compensation in specific, justifiable circumstances. The legal tools existed: The state always had the constitutional mandate to expropriate land for public interest and land reform, but it chose a slow, market-dependent "willing buyer, willing seller" policy instead. 2. Government Dereliction of Duty Failure to pass enabling legislation: For over two decades, the ANC-led government failed to pass a clear Expropriation Act that defined exactly how and when land could be taken for redistribution. Budgetary starvation: Land reform was never given top financial priority. The budget allocated to land reform and restitution has historically been less than 1% of the national budget. 3. Corruption and Elite Capture Farms given to the politically connected: Instead of redistributing land to the poor, farm workers, or labor tenants, many state-acquired farms were allocated to wealthy politicians, state officials, and politically connected elites. The "bureaucratic mess": The Department of Rural Development and Land Reform has been plagued by corruption, missing records, and syndicates that inflated land prices to enrich government officials and corrupt sellers. 4. The Failure of Land Restitution Unresolved claims: Decades after the 1998 deadline for lodging land claims, hundreds of thousands of claims remain unresolved due to state inefficiency. Collapsing projects: In cases where land was restored to communities, the state failed to provide post-settlement agricultural support, capital, or training, causing many commercial farms to collapse financially. Summary of the Debate When the government initiated debates to amend the Constitution to allow for "expropriation without compensation," Moseneke, Ngcukaitobi, and other legal analysts argued that amending the text was a political scapegoat. They maintained that changing the wording of the Constitution would not magically fix a broken, corrupt, and incompetent state bureaucracy. youtu.be/C_bYmbQazuo?si=XNBC…