Decolonisation, compensation and constitutionalism: land, wealth and the sustainability of constitutionalism in post-apartheid South Africa

Abstract

This paper explores the relationship between the protection of property rights and the effort to embed constitutionalism in South Africa since 1994. While the question of land will be central to the paper, property must be understood more broadly to include government’s distributive efforts in the democratic era beginning with the Reconstruction and Development Programme through the provision of various social-grant programmes to the adoption of affirmative action, black economic empowerment and preferential government procurement rules. Finally, the paper will focus on the re-emergence of the demand for land. While I acknowledge that a number of factors might hinder or promote post-colonial constitutionalism – including legal education, the need for constitutional ideas to be articulated in indigenous languages and the extent of participation in the political process – the paper focuses on the underlying political economy of colonial and post-colonial society, including the legacies of continued inequality and exclusion, to explore whether a sustainable constitutionalism is possible.