Testing the Transformative Premise of the South African Land Claims Court: A Comparison of Land Claims Court, Supreme Court of Appeal and Constitutional Court Land Rights’ Decisions, 1996–2024

In recognition of the centrality of ‘the land question’ during South Africa’s negotiated transition, section 25 of the Constitution is one of the longest clauses in the Bill of Rights. Although often referred to as the ‘property clause’, it outlines a new, transformed land regime that provides for land restitution and tenure security to redress colonial-apartheid’s legacy of in-access to land and insecure land rights of the black majority in South Africa. To adjudicate restitution and land tenure-related disputes, a specialised Land Claims Court (LCC) was established in 1996. The rationale for establishing a separate, specialised land court related to post-apartheid concerns that allowing the apartheid-tainted pre-existing courts to oversee land disputes would be anti-transformational. Thus, the LCC — along with the Constitutional Court, also established in 1996 — became a critical component of the post-apartheid institutional machinery for tackling apartheid’s legacy. Sharing the premise of other transitional justice specialised land courts, the expectation was that the LCC would adjudicate transformatively in the interests of advancing access to land to historically dispossessed and disadvantaged groups. Almost 30 years after the establishment of the LCC, this article examines this hypothesis through a comparative analysis of five cases that have been heard by the LCC, the Supreme Court of Appeal and the Constitutional Court between 1996 and 2024. Finding that the LCC has failed to realise its transformative mandate, the article offers some tentative conclusions about the LCC’s conservatism and what this means for the role and functioning of courts in advancing social change, especially in emerging democracies.