Statutory land and resource reform and private property in South Africa
Abstract
Statutory land and resource reform was introduced in the new democratic dispensation in South Africa in order to redress the injustices brought by Apartheid during the largest part of the twentieth century. This process has, however, had an effect on existing property rights which are based on a hierarchical system of rights with ownership as the pinnacle right - in terms of this system ownership has an absolute character in that it is essentially an unlimited right protecting the holder thereof. The research question that was examined in the study is to what extent legislation concerning land and resource reform - introduced by the new political dispensation in 1994 - has affected the existence of private property rights in South Africa. The research report starts with a theoretical study on the common law concept of ownership during the twentieth century and the manner in which the character of this concept was changed by a vast body of legislation and policies under the Apartheid regime. This is followed by a study of the concept of property rights under the democratic constitutional dispensation, with the focus on Section 25 of the Constitution of the Republic of South Africa, 1996. Although Section 25 provides a certain degree of protection to property rights, it also compels the government to develop legislation to ensure that land and resource reform takes place with the aim of redressing the injustices of the past. The next part of the study focuses on the legislation that was developed in order to fulfil this obligation and the extent to which the implementation thereof restricts existing rights to property. It was found that although statutory land reform measures have an influence on the absolute and complete character of property rights (in particular ownership), it does not threaten the existence of these rights. Legislation pertaining to resource reform, on the other hand, has a much more drastic effect on owners' rights and is indicative of a decline in private property rights with regard to natural resources.
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