The negotiated South African revolution of the 1990s inaugurated a marked shift toward strong constitutionalism: the post-apartheid Constitution comprised an extensive Bill of Rights, including substantial socioeconomic rights and constitutional duties for far-reaching redistributive measures, and established an independent judiciary under the auspices of a new constitutional (rather than, as before, parliamentary) supremacy. This way, South Africa quickly turned into a paradigmatic case of “juristocracy” (Hirschl 2004) and became imbued with an iconic indexicality for the enormous hopes for transformative justice that came to be vested in the law during the post-cold war era. Based on this progressive Constitution, the government immediately embarked upon a massive land reform in order to address persisting racial inequalities regarding access to and control of the land. Aiming at “putting land rights in the right hands under the rule of law,” as the former minister for Agriculture and Land Affairs put it in 2007 in contradistinction to ongoing extralegal land occupations in neighboring Zimbabwe, South African land reform exemplified a profound belief in “transformative constitutionalism” that was advocated as the solution to many of South Africa’s pressing political concerns. However, growing criticisms of the limited impact and slow pace of South African juristocracy in general and of law-based land reform in particular have substantially altered public discourse over the past decade, revealing a more complex and ambiguous dialectics of reckoning to be at play. Transformative constitutionalism is increasingly also portrayed as being part of the problem – or at least as suffering from “a dis/empowerment paradox” (Mnisi Weeks 2022) – that needs to be overcome in order to finally transform South Africa, which remains one of the most unequal societies in the world, in substantive and meaningful ways. This contested development is paradigmatically exemplified in the recent constitutional amendment process, designed to allow for “expropriation without compensation” in order to fast-track South African land reform, as its advocates claim. This chapter charts the contested terrain of this complex dialectic of juristocratic reckoning in order to evaluate the potentials and pitfalls of a continued project of transformative constitutionalism that increasingly has to operate in an era in which South Africa’s moment of iconic indexicality seems to be passing.

This Introduction has three objectives. The first is to situate this volume within the current phase of South Africa’s difficult engagement with land reform in particular and transformative constitutionalism in general. For this purpose, we characterise the recent debate on ‘Expropriation Without Compensation’ (EWC) and the political developments leading to the tabling, and failure, of the Constitution Eighteenth Amendment Bill. In section two, we begin with an account of the research project and conference that led to this volume and then review the book’s three-part structure and its individual chapters in relation to each other. While there are important points of convergence with regard to the contested assemblage of law, land reform and redistributive justice, there are also divergent views for probing further. In the third section, we respond to this challenge by addressing three interlinked issues that emerge from a transversal reading of the chapters, which we regard as central for the future of redistributive justice in South Africa. These are, first, the respective roles of the state, popular politics and the private sector in driving this project; second, the relative importance to be attached to productive and redistributive measures as building blocks of change; and third, the scale of the structural changes that are needed.

This chapter asks how the revitalised debate about our land question relates to the transformation of property law. Drawing on Van der Walt, Walker, Ngcukaitobi and Wilson and focusing on developments in two areas of land law – home evictions and mining rights disputes – the chapter proposes that transformation of property law requires its democratisation. It considers the two most prominent proposals that emerged from the land debate: ‘expropriation without compensation’ and ‘state custodianship’ of land. It suggests that, despite their ostensible radicality, neither of these proposals breaks with apartheid property law. Instead, embracing the notion that absolute control over land must vest somewhere, whether in private owners or the state, both mirrors and validates the basic ‘code’ of apartheid land law: the primacy of an absolute notion of ownership. In this way, the debate has been not only limited but limiting. It has diverted our attention from the central question concerning land (how to live together justly in relation to land) and set us back in realising the democratisation of property/land law that its transformation requires.