This chapter focuses on the experience of two vulnerable women and explores whether the transformative thrust, ultimately embodied in the property clause, has become a lived reality or whether it has remained a theoretical concept only. Relevant here is the Extension of Security of Tenure Act with respect to Mrs Malan and Mrs Phillips, and the role and function of land ownership compared to the rights of these two vulnerable persons. Whereas Mrs Phillips was initially successful with her informal occupational right and opposed an eviction application effectively, the Constitutional Court finally found in favour of the landowner. The eviction application was set aside by the Land Claims Court with respect to Mrs Malan, but was reinstated on appeal. Ultimately, case law analysis indicates that the binary, hierarchical approach to land ownership and ‘lesser rights’ continues to dominate property paradigms. The transformative thrust of the property clause has remained elusive, despite measures promulgated specifically to protect vulnerable occupiers. The chapter provides some suggestions as to how changes within the land reform context and the re-conceptualisation of property law may be approached. Ultimately, a transformed property system – in light of South Africa’s colonial and apartheid history – is also in the public interest.

This chapter investigates the notion of ‘justice’ that informs ‘just and equitable’ compensation in section 25 of the Constitution and questions whether this notion changed during the attempt to amend section 25. It starts off by investigating the possible meaning of ‘justice’ during the transition and interrogates the usefulness of that notion of justice in interpreting section 25. It makes the argument that the conversations bringing about the Constitution Eighteenth Amendment Bill, even though not leading to an amendment, were important to challenge the notion of ‘justice’. The adoption of this Constitution lays a secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation (Epilogue of the interim Constitution, 1993).

‘Expropriation without compensation’ has crystallised in South African discourse into a symbolic rejection of inherited privilege, with calls for a constitutional amendment that presupposes a legal constraint on the property regime. The intentions of the lawmakers in the ‘property clause’ debates of the 1990s were to craft what I term a ‘mandate for transformation’. Yet the state has failed to override property owner interests in favour of the landless. Second, the battle over ‘expropriation without compensation’ since 2018 has not been about what is written in the Constitution. Third, the counterpoint to the fixation on state power to acquire property is the right of citizens to gain access to land on an equitable basis. This under-developed idea languishing within the property clause offers the basis for constitutional claims for a right to land. Inverting attention from state powers to enact reform to citizens’ powers to claim rights, it could serve as a focal point for emancipatory politics grounded in real struggles.

Nearly three decades since democracy, equitable land reform and redistributive justice continue to elude most South Africans – especially rural women. This chapter argues that traditional leaders’ disproportionate powers account for this failure in ‘traditional areas’. Substantial data and research evidence address (1) how land is a primary site of contestation over traditional leaders’ powers and (un)accountability; (2) how traditional leaders use powers and unaccountability afforded by the apartheid government to stand in the way of democratic governance and economic progress; (3) the citizenship implications of rural people’s subjection to leadership without consultation or choice, and dispossession of ‘informal’, ‘communal’ land rights without consultation or consent, and (4) the direct tie between the impoverished systems of rural democracy and the continued and deepening impoverishment of the people (mostly women) who live in these areas. Analysis of the Itereleng Bakgatla and Ingonyama Trust cases shows how the opportunities and objectives that the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) presents for inclusive land reform remain unrealised.

Three decades after South Africa’s first democratic election, the country remains the most unequal society on earth. This reflects in part the continuing legacies of apartheid, from access to land, education and employment opportunities to the inability to address the spatial design of apartheid cities and towns. While most agree that this reality continues to detrimentally shape the life opportunities of the majority of South Africans, there is increasing evidence that it is also undermining the post-apartheid settlement – whether in the form of public protests, corruption or simply increasing disillusionment with the political and constitutional order. Since market-led reform policies have clearly failed to produce the necessary redistributive justice required to address apartheid’s legacies, it is time to explore more interventionist options. This chapter proposes a transformational tax to address the legacies of apartheid and to provide the basis for a new social contract that will further the promise of South Africa’s 1996 constitutional order. In exploring this proposal, it employs a comparative analysis of global wealth taxes to reflect on the forms and purposes of a proposed transformational tax.

The Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) (2019) argued that ‘land reform must be oriented around growing the agricultural sector to foster economic development, and not purely be an endeavour to transfer land’. Land reform should contribute to rural standards of living and national economic growth. The chapter briefly examines the relative success of commercial agriculture in recent years, despite policy and climatic uncertainties. It then explores challenges faced in smallholder agriculture and argues that joint ventures and partnerships may be one effective route for intensification of production and enhancement of rural incomes. In a context where state funding and capacity is limited, involvement by commodity organisations and private sector groupings, as well as NGOs, provides a promising way forward. It is possible to expand opportunities for commercial agriculture at the same time as drawing on skills and capital for land reform. Inputs, marketing routes and connectivity are important elements in enhancing smallholder production. Examples are taken from sugar, wool, fruit and dairy schemes that have absorbed tens of thousands of participants.

State- and market-centric approaches to land redistribution have not worked in South Africa. Instead, South Africa has an agrarian structure marked by concentrated ownership in a shock-prone globalised food system. This chapter argues climate extremes and famines require a new approach to land redistribution and food systems thinking. Critical lessons can be learned about food provisioning from pre-capitalist South Africa’s commons mode of production, which exemplified the first attempts at food sovereignty. This is a decolonial imperative. Moreover, South Africa’s globalised industrial food system is premised on the destruction of nature and has engendered several ecological rifts, including famines and continued starvation faced by many. Campaigning for a food sovereignty commons system, through democratic systemic reform and as part of the deep and just transition, represents an alternative approach to re-agrarianise South Africa on a national and local scale in a heating world. In this regard, large-scale commercial farmers and the state face the challenge of thinking and behaving like commoners to ensure land, climate and more generally ecological justice.

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.

The idea that the central issue for South Africa’s redistribution is ‘the land’ is a familiar one, but it becomes harder to sustain with each passing year, as agriculture is a small and shrinking proportion of the country’s economic output, and historic land loss just one of a great many ways that black South Africans are disadvantaged in distributive terms. Under the circumstances, it might be best to de-emphasise the focus on land and concentrate limited resources on direct measures of income support such as a basic income grant. This chapter uses a consideration of the campaign for a basic income grant in Namibia to show that there may be an alternative to the binary choice that this way of putting the problem suggests. By understanding the maldistribution of ‘the nation’s wealth’ as the product of colonialism and historical dispossession while identifying concrete and universalistic remedies via programmes of income distribution and monthly cash payments, the Namibian activists have shown a possible way to combine the righteous demand for ownership of one’s own country with a politically pragmatic and economically well-conceived campaign targeting income rather than land.

This chapter aims to pull together all the conceptual and empirical themes examined in the previous chapters and proposes a framework for institutionalising epistocracy in the broader network of police governance and accountability. The key characteristics of the framework include: broad composition, delegated authority, autonomy, and deliberative proceduralism. In Chapter 2, I provided a conceptual and philosophical justification for epistocracy, offering alternative ways of thinking about how principles and ideals of democracy and democratic policing (Marenin, 1982; Jones et al, 1996; Loader and Walker, 2007; Manning, 2010; Aitchison and Blaustein, 2013) can be weaved into a knowledge-based governance arrangement with delegated powers to hold policing to account and counterbalance policing expertise and claims to superior knowledge. Critics of epistocracy and the role of experts in public service administration and in the EU setting (Norris, 1997; Estlund, 2008; Forcehimes, 2010; Holst, 2012; Holst and Moodie, 2015; Brennan, 2016; Kratochvíl and Sychra, 2019) point to the inherent democratic deficits, while others reject epistocracy on the basis that a group of experts lack democratic legitimacy, and epistocracy is inherently exclusionist and elitist (Estlund, 2008; Holst and Molander, 2014; Gunn, 2019). I drew on the example of myriad epistocracies, epistemic communities, comitology, and expert regulatory bodies that have emerged in the field of security governance in order to plug the necessary knowledge gaps in the governance and regulation of professional bodies (Haas, 1992; Eriksen, 2011; Rosanvallon, 2011; Cross, 2015; Bevir, 2016). There is a growing body of work supporting epistocracy in specific and limited settings within an existing democratic order (Lippert-Rasmussen, 2012; Holst and Molander, 2014; Brennan, 2016; Jeffrey, 2018; Landa and Pevnick, 2020). I argued in Chapter 2 that criticisms of epistocracy can be recast as problems concerning institutional design. In the context of police governance and drawing on empirical content and my arguments in preceding chapters, I suggest broad composition as the first essential characteristic for an epistocracy. A diverse and representative group of experts, incorporating a broad range of knowledge, expertise, skills, and competencies, may be better placed to counter arguments of elitism, exclusion, and lack of representation. Traditional, ‘democratic’ local police boards were composed of disinterested councillors, who did not have a choice on which boards they would be assigned (Etherson, 2013).