Abstract
Land reform in South Africa and the realisation of the section 25 property clause of the Constitution of South Africa, 1996 (hereafter the Constitution) is seen as an integral step in the democratisation process as well as in the social and economic empowerment of previously marginalised groups. For many, the true test for political transformation will be whether land needs (including protection of and care for the environment) are addressed effectively and in a sustainable manner. In recent years, however, government’s addressing of land needs has become a highly controversial issue, especially where land that vests in private owners is claimed back because of its status as ancestral land. 
 
 Land reform may strongly impact on the environment and sustainable development as protected in section 24 of the Constitution since it involves vast hectares of land, other environmental media and people. Restitution of land processes in terms of section 25(7), as one of the components of land reform, often does not take key provisions contained in environmental and planning law into account. In many instances, for example, government’s restitution projects do not make sufficient provision for harmonisation with environmental principles contained in environmental law and no or limited systems exist whereby to inform and assist land restitution beneficiaries on compliance with environmental and planning law obligations in post settlement development endeavours. These limitations could, inter alia, be linked with the fragmentation of the environmental governance regime and a lack of role clarification. It may furthermore result in significant conflict between sections 24 and 25(7) of the Constitution as overarching framework legislation, and between developmental objectives contained in sectoral-specific subordinate legislation.
 The restitution of land is, amongst other policies, regulated by section 25(7) of the Constitution and the Restitution of Land Rights Act 22 of 1994 whilst section 24 of the Constitution and the National Environmental Management Act 107 of 1998 aim at protection of the environment, the prevention of pollution, the promotion of conservation, and secured ecologically sustainable development. The conditions following land restitution settlement, including the current state of the environment on land that has been restituted, provide an interesting and factual source of reference for critical analysis of environmental policy implementation in land restitution processes and post-settlement endeavours. It further allows for a critical view on the effective or futile realisation of sustainable development in national and provincial governments’ efforts to finalise claim-driven restitution of land. In order to limit the scope of this article, land restitution policy, progress with the national land restitution programme and some post-settlement accounts will be critically analysed and assessed in the light of obligations and initiatives for environmental governance derived from the legal framework concerned. A land restitution case is briefly discussed with subsequent comments and suggestions for the way forward. 
Highlights
This paper proposes that land restitution law and related government action have to make provision for environmental governance in order to contribute to the vital processes of reconciliation, reconstruction and development
Since the RLRA is key to land reform policy in South Africa and for the process of land restitution, it may be reasonable to expect of the Act to provide for the administration of matters that could contribute to environmental sustainability and equitable access of future generations to natural resources
The role of the DLA is briefly discussed as part of the institutional framework for land restitution in South Africa, and in order to contribute to a discussion on cooperative governance in land restitution
Summary
An efficient legal system is required to amend and adapt to changing needs and priorities. South Africa’s political history of apartheid impacted on society ( peoples’ rights in land), the economy and the environment. To many, the true test of the curren t national priorities of political transformation and development depends on whether land needs (including protection of and care for the environment) will be addressed effectively and in a sustainable way. In this, the South African legal system plays a substantial role. sections 24 and 25(5), 25(7), 25(8) of the Constitution of South Africa, 1996 (hereafter the Constitution) and related legislation may be of key importance for sustainable development and democratic change.. Mostert 2002 The South African Law Journal 427 indicates that “the poverty pervading many of the communities involved in restitution claims – even after successful completion of the claims – is still shocking” and that “successful claimants’ dispossession of the skills needed for using the restored land effectively, is almost never considered in settlements”. Mbao 2002 Journal for Juridical Science 111-112 lists some of the challenges with regard to law and administration in the land restitution delivery process These include, amongst others: lack of synergy between the restitution process and socio-economic development needs of successful claimants, including problems resulting from poor co-ordination between the various governmental agencies involved with issues of reconstruction and development at national and provincial levels; organisational constraints within the Commission for the Restitution of Land Rights; organisational constraints within associated government departments and weak organisa-tion of rural communities. The article concludes with some comments and suggestions for the way forward
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