Confronting the Shortcomings of Land Restitution in South Africa—Arguments for a Positively Framed Property Clause: The German Example

Section 28 of the Interim Constitution of the Republic of South Africa paved the way for the inclusion of a property clause in South Africa’s final Constitution by providing for the constitutional protection of property. It was worded positively in so far as it explicitly guaranteed the right to acquire and hold rights in property. This positive formulation of South Africa’s draft property clause resembled the German property clause. Several problems were identified that would potentially arise out of such a positively formulated property clause. Subsequently, the final property clause in section 25 of the 1996 Constitution is negatively worded. This paper argues that a negatively framed property clause has had far-reaching and unintended consequences for land restitution as beneficiaries have no positive obligation to utilise land productively. Section 25 should be phrased positively so that it becomes easier to enact legislation and implement policies that encourage active, positive and productive utilisation of land. The German property clause is a good reference point to this effect.