Reimagining Land Restitution in South Africa: Toward a Plural Tenure Model Grounded in Indigenous Custodianship

1. Introduction:

Three decades after the Constitution of the Republic of South Africa was adopted, the promise of land restitution remains only partially realised.[1] The Bill of Rights envisioned redress for dispossession, yet the dominant tools of reform, such as statutory restitution, market-based land acquisition and formal title registration, have often failed to restore the social, cultural and economic relations severed by colonial and apartheid dispossession.[2] The result is a persistent separation between legal form and lived reality. Simply defined, registered title is treated as the primary mechanism of justice even where communal custodianship has historically governed land use and belonging. However, this disconnect is not just a technical issue. It reveals a deeper understanding of land that views it as a product not something people share. The implications are twofold: first, restitution processes that focus on technicalities such as hectares and deeds rather than the social repair, second the commercializing of communal tenure through market style ownership and inadequate post settlement support. The task at hand for law and policy is to change restitution so that it recognizes multiple legitimate tenure forms and places custodial, customary systems on an equal footing with registered ownership. South Africa’s land restitution project remains incomplete because its legal frameworks continue to privilege Eurocentric ideologies of property and market mechanisms over communal, custodial relationships to land.^[3] This article argues for a plural tenure approach that recognizes living customary law and the ethic of Ubuntu as central to restitution, governance and post settlement support.^[4] It places recent Constitutional Court jurisprudence and legislative developments within a decolonial frame and proposes concrete legal and institutional reforms to make restitution more restorative than transactional. This article further argues that true land justice requires a decolonial reconstruction, a process that does not reform existing law but changes the knowledge landscape as a whole. By centralising living customary law and the philosophical principle of Ubuntu, South Africa can move toward a plural tenure approach.

2. Ways of knowing:

  2.1   From Resource Control to Custodianship

Colonial and apartheid systems didn’t just take away land, they uprooted entire ways of knowing and relating to it.[5] While many African communities viewed land as a vibrant web of social, spiritual and inter-generational ties, colonial law introduced a “resource ontology” that stripped land down to mere property that could be bought and sold. This erasure of knowledge has serious implications such as legal systems trained in Roman, Dutch and English property laws struggling to handle claims that are deeply rooted in communal practices.[6] To truly decolonize our approach, we need to make two important shifts. First, the law must effectively recognise living customary law as a dynamic with practice based norms that govern land in rural communities rather than fossilised, state codified “official” customary law that colonial administrators produced. Second, legal reasoning must be informed by African normative resources such as Ubuntu, which foregrounds relationality, dignity and mutual responsibility. Together, these moves reframe restitution as a process of social remembering rather than a mere transfer of assets.  

2.2 Market Based Restitution and its shortcomings

The “willing seller and willing buyer” approach has fallen short of delivering justice. Research from PlAAS indicates that since 1994, only 11% of commercial farmland has changed hands, which is a long way from the 30% goal.[7] At this rate, achieving land justice could take almost fifty years. Looking at districts like Waterberg, it becomes clear that many beneficiaries end up with land but without the necessary support after settlement. This lack of assistance leads to poor performance, with 70-90% of reformed farms facing significant challenges. This evidence proves that the transactional approach views restitution as a mere exchange rather than a true restoration. Ultimately, what is really needed is a custodianship model, where land is seen as a shared community asset rather than just a commodity or product.

2.3 Consent as Custodianship

South African courts have made significant strides in decolonial jurisprudence. In the landmark case of Alexkor Ltd v Richtersveld Community, the Constitutional Court recognized that customary rights are a right of substantive ownership, distinguishing indigenous title from common law.[8] Subsequent cases such as Maledu v Itereleng Bakgatla Mineral Resources and Baleni v Minister of Mineral Resources reinforced the idea that communities must provide their consent.[9] This means to not just be consulted before any land can be taken under the Interim Protection of Informal Land Rights Act.[10] In Bhe v Khayelitsha, the court invalidated the practice of male primogeniture but replaced it with common law succession rules, reflecting judicial mimicry.[11] However, in cases like Shilubana v Nwamita and Gumede v President of RSA, the Court recognised the evolution of customary norms, thereby bolstering the concept of living jurisprudence.[12] This shift in doctrine empowers indigenous custodianship, particularly in the face of extractive industries and state formalization efforts.

3. Ubuntu and its relation to property

At the heart of the plural tenure approach is the philosophy of Ubuntu. In his article, Ramose states that Ubuntu is “the metaphysical foundation of African law”.[13] In his view he insists that Ubuntu, beautifully summed up in the phrase “umntu ngumuntu ngabantu’’, takes a stand against the idea of individualism that pits us against one another. In the case of PE Municipality v Various Occupiers, Justice Sachs emphasized that property rights should not take priority over human dignity.[14] By rethinking restitution through the lens of Ubuntu, we can see it as a way of healing the divines within our communities, connecting the living, the deceased, and those yet to come. This relational perspective reshapes our understanding of property, turning it into a concept of belonging rather than exclusion. Ubuntu also serves as a guiding principle when interpreting statutes such as the Interim Protection of Informal Land Act.[15] Courts have read the provisions regarding consent in light of Ubuntu, affirming that communities must be active participants in decisions affecting the inhabited land. This philosophy insists that land is not merely an economic resource but a site of belonging and generational continuity. Therefore, by linking land to generational justice, Ubuntu reframes tenure as custodianship for those yet to come, aligning South Africa with other indigenous philosophies, for example, Sumak Kawsay, a philosophy in Ecuador which embodies the Kichwa people’s vision of life and restoration of ancestral knowledge and wisdom. To summarize, this makes Ubuntu a moral compass and a practical governance principle for the proposed plural tenure.

4. Governance and the Mogale judgement

4.1 Analysis of rural governance

Governance in rural areas in South Africa is debated topic. The Traditional and Khoi-San Act (TKLA) aimed to consolidate power within traditional councils, effectively handing the authority to make decisions to chiefs and other recognized leaders.[16] This approach is linked to the colonial and apartheid era practices of indirect rule, where tribal authorities were used to exercise control over rural communities. By favoring a top-down leadership model over a participatory democracy, the TKLA undermines the constitutional ideals of agency and equality for those living in rural areas.

4.2 Analysis of the Mogale judgment

In the case of Mogale v Speaker of National Assembly, the Constitutional Court struck down the TKLA, citing a lack of consultation with the communities it affected.[17] The court made it clear that genuine participation is not just a box to check; it’s a fundamental constitutional necessity. Rural citizens are not mere subjects of traditional authority but are active participants in governance with rights that must be respected. This ruling reinforces the idea that land and governance should be managed from the ground up, based on community consent and involvement. From an analytical perspective, Mogale marks a significant shift in legal thinking. It sends a strong message that the Court will not accept laws that reinforce arbitrary control over communal land governance. Instead, it champions the proposed plural tenure approach. This means that governance should reflect living customary law that is based on consensus and adaptable, rather than strictly hierarchical. The ruling also emphasizes the philosophy of Ubuntu, maintaining that dignity and collaborative participation should shape governance structures. The implications of this ruling are extensive. First, it compels the state to create laws that honor community “stewardship” instead of imposing authority from above. Second, it lays a legal foundation for resisting exploitative projects like mining that only negotiate with traditional leaders while ignoring community consent. Ultimately, it places rural governance within the larger context of social justice and equity.

5. Lessons across the globe: Namibia, Zimbabwe, Latin America

As a point of departure for this section, it is important to note that South Africa’s land and governance struggles are not isolated, however, they resonate throughout the Global South.

In Namibia, communal land tenure is often sidelined by official frameworks. While the Communal Land Reform Act of 2002 did acknowledge communal land rights, it ultimately placed power in the hands of state-appointed traditional leaders instead of communities themselves.[18] This has sparked tensions between land ownership and custodianship, mirroring South Africa’s ongoing debates about whether land reform should empower local communities or simply reinforce existing elites. Namibia’s situation shows that recognizing rights on paper without real community involvement can end up perpetuating colonial power dynamics.

In Zimbabwe, the fast-track land reform initiative from the early 200s returned millions of hectares to those who had been dispossessed, but it fell short in establishing the custodial frameworks necessary for sustainable productivity and democratic governance.[19] The lack of clear tenure security and participatory structures resulted in declining agricultural output, power struggles and governance issues. Zimbabwe’s experience highlights that while land redistribution can provide land, it does not guarantee livelihoods, emphasizing the importance of a restorative approach to restitution rather than a redistributive one.

On the other hand, Latin America presents examples of pluriversal law. In Bolivia and Ecuador, indigenous movements have successfully integrated communal custodianship into their constitutional frameworks. Bolivia’s 2009 Constitution acknowledges indigenous autonomies and communal land ownership.[20] While Ecuador’s 2008 Constitution embraces the concept of Sumak Kawsay, which promotes collective wellbeing and ecological responsibility.[21] These frameworks go beyond mere redistribution, recognizing land as a source of heritage, identity and intergenerational trust. They serve as powerful examples of how constitutional design can create plural tenure systems that honor indigenous philosophies.

These comparative experiences really shine a light on the intricate and often tricky nature of land reform and governance in various settings. Namibia shows that even when communal land rights are officially recognized, if communities are not truly empowered, hierarchical authority can still take root. Zimbabwe, which serves as a cautionary tale about the dangers of retribution without proper oversight. In contrast, Latin America offers a more hopeful perspective where indigenous philosophies are integrated into legal frameworks, fostering a pluralistic approach that supports communal stewardship and ecological care. When we look at these examples together, it becomes clear that true land reform is not just about shifting ownership it is a complex journey that integrates law, governance, culture and sustainability.

6. Progressing towards a Globalectics Pluriversality

Ngũgĩ wa Thiong’o’s concept of Globalectics envisions a world where multiple epistemologies and legal systems “coexist without being subordinated to Eurocentric dominance”.[22] It rejects the idea of a single universal framework and instead affirms the pluriverse (many worlds) of knowledge and law interacting. For South Africa, this means recognising customary law and common law as equal partners, not as hierarchical layers where one dominates the other.

This vision requires a profound transformation of legal education. Universities must become pluriversities, institutions accountable to the Global South and responsive to indigenous jurisprudence. This entails integrating African languages, oral traditions and community-based practices into curriculums so that law students learn not only Roman-Dutch principles but also the living customary law that governs millions of South Africans. Such a shift would dismantle epistemic hierarchies and affirm that indigenous jurisprudence is not supplementary but foundational. Analytically, this concept challenges the coloniality of knowledge in law. It insists that restitution and plural tenure cannot succeed if legal education continues to reproduce Eurocentric ideas of property, sovereignty and contract. Instead, law should be approached as a conversation among systems, where Ubuntu, consensus-based customary practices and indigenous philosophies coexist with statutory and constitutional frameworks.

The implication of this shift is immense. First, it would empower communities by recognizing their legal traditions within both academic and judicial settings. Second, it would nurture legal experts who are knowledgeable in both indigenous and western legal languages, fostering true pluralism in governance. Lastly, it would place South Africa’s land reform within a broader global decolonial movement, aligning it with the Latin American constitutional innovations like Sumak Kawsay in Ecuador and indigenous autonomies in Bolivia.

7. Conclusion: Restitution as Continuous Reconstruction

Land restitution is not a finite legislative act but a ceaseless process of decolonial reconstruction.

These strategic shifts are essential:

• Privileging use over title:
• Supporting living customary law

Ultimately, restitution must restore humanity and sovereignty, not merely redistribute hectares. By adopting a plural-tenure approach rooted in Ubuntu, South Africa can strive for a society where land is not just owned but shared, lived and cherished, making it a true legacy for past, present, and future generations.

Reference(S):

Table of Cases

Alexkor Ltd v Ritchtersveld Community [2003] BCLR 1301

Bhe v Magistrate Khayelitsha [2005] SA 580

Gumede v President of RSA [2009] SA 152

Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2019] BCLR 53

Mogale v Speaker of National Assembly [2023] BCLR 1099

Port Elizabeth Municipality v Various Occupiers [2005] SA 217

Shilubana v Nwamita [2007] SA 432

Table of Legislation

Bolivia (Plurinational State of)’s Constitution of 2009 (Bolivia)

Communal Land Reform Act 2002 (Namibia)

Constitution of Ecuador 2008 (Ecuador)

Constitution of the Republic of South Africa 1996 (South Africa)

Interim Protection of Informal Land Rights Act 1996 (South Africa)

Traditional and Khoi-San Leadership Act 2019 (South Africa)

Bibliography

Adams Nathan, ‘Can #Budget2025 bring about land justice? Something has got to give, says PLAAS’ (University of the Western Cape, 14 March 2025) https://www.uwc.ac.za/news-and-announcements/news/can-budget2025-bring-about-land-justice-something-has-got-to-give-says-plaas accessed 17 July 2026

Bennett, Customary Law in South Africa (reprint, Juta 2004)

Serges Kamga, ‘Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa’ (2018) 18 African Human Rights Law Journal 625

Mogobe Ramose, African Philosophy through Ubuntu (1999)

Mogobe Ramose, ‘African perspective on justice and Race’ (2001) 3 Polylog: Forum for intercultural Philosophy

Michael Reinders, Decolonial reconstruction: A framework for creating a ceaseless process of decolonising South African society (University of Pretoria 2019) https://repository.up.ac.za/ accessed 19 July 2026

Isaac Shai, ‘The right to development, transformative constitutionalism and radical transformation in South Africa: Post colonial and de colonial reflections’ (2019) 19 African Human Rights Law Journal 494

Ngugi Wa Thiong’o, Globalectics: Theory and the Politics of Knowing (Columbia University Press 2012)

[1]  Constitution of republic of South Africa, 1996

[2] TW Bennet, Customary law in South Africa (reprint, Juta 2004) 10

[3] MB Ramose, ‘African perspective on justice and Race’ (2001) 3 Polylog: Forum for intercultural Philosophy

[4] SD Kamga, ‘Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa’ (2018) 18 African Human Rights Law Journal 625

[5] MB Ramose, African Philosophy through Ubuntu (1999) 49-51

[6] Reinders MB, *Decolonial reconstruction: A framework for creating a ceaseless process of decolonising South African society* (University of Pretoria 2019) https://repository.up.ac.za/ accessed 19 July 2026.

[7] Nathan Adams, ‘Can #Budget2025 bring about land justice? Something has got to give, says PLAAS’ (University of the Western Cape, 14 March 2025) https://www.uwc.ac.za/news-and-announcements/news/can-budget2025-bring-about-land-justice-something-has-got-to-give-says-plaas accessed 17 July 2026

[8] Alexkor Ltd v Ritchtersveld Community [2003] BCLR 1301

[9] Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2019] BCLR 53

[10] Interim Protection of Informal Land Rights Act 1996

[11] Bhe v Magistrate Khayelitsha [2005] (SA) 580

[12] Shilubana v Nwamita [2007] SA 432 and Gumede v President of RSA [2009] SA 152

[13] Supra (n 5)

[14]  Port Elizabeth Municipality v Various Occupiers [2005] SA 217

[15] Supra (n 10)

[16] Traditional and Khoi-San Leadership Act 2019

[17] Mogale v Speaker of National Assembly [2023] BCLR 1099

[18] Communal Land Reform Act 2002

[19] I Shai, ‘The right to development, transformative constitutionalism and radical transformation in South Africa: Post‑colonial and de‑colonial reflections’ (2019) 19 African Human Rights Law Journal 494, 500

[20] Bolivia (Plurinational State of)’s Constitution of 2009

[21] Constitution of Ecuador 2008

[22] N Wa Thiong’o, Globalectics: Theory and the Politics of Knowing (Columbia University Press 2012) 6