The Social Obligation Norm as the Framework for Land Restitution in South Africa
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This research project proposes that the social-obligation norm of ownership should be adopted as the ethic on which land restitution is carried out in South Africa. While there exists a subtle and indirect appreciation of the social-obligation norm in South African constitutional property law, this is veiled by the respect given to the classical liberal conception of ownership which gives more regard to an owner's ius abutendi and subsequently, accepts that owners can do as they please with their property as long as they do not break any law. Of course, South Africa no longer adheres to such a classical liberalist approach to ownership. An adherence to classical liberalist views of ownership has arguably, led to the neglect of arable restituted land. To this effect, the Constitution as well as the Restitution of Land Rights Act 22 of 1994 (RLA) need to clearly and more positively express the social-obligation norm of ownership in order to promote productive and sustainable utilisation of cultivable restituted land. The thesis argues that the current failures of the land restitution programme are linked to the absence of a social-obligation norm in the RLA as well as the negatively framed Property Clause in the South African Constitution. Even the envisaged changes to the land restitution process as outlined in the 2011 Green Paper on Land Reform as well as in the Property Valuation Act, will not solve the current problems of wasteful neglect of land. The thesis therefore suggests that a positive expression and formulation of the social-obligation norm in the RLA as well as in the Property Clause will promote active, sustainable, productive, and optimal utilization of all cultivable land acquired through the country's land restitution process. This will assist with meeting the developmental aspirations for the rural economy as envisaged in chapter six of the National Development Plan 2030. Furthermore, utilising the land productively through the socialobligation norm is an expression of Ubuntu, a key constitutional theme in South Africa. The experiences of Brazil and Germany deserve special analysis. This is because the socialobligation norm occupies a prominent and positive place in the constitutional property law of both these countries. Further, both countries respect private ownership of property as long as the property is utilised in a manner that permits others to flourish and improve the quality of their life.
- Doctor Legum - LLD