There is an enduring crisis that has dogged South Africa’s restitution landscape for three decades, playing out before the Land Court. It is largely an invisible issue but an important one: justice that is, in practice, contingent on the resources available to prepare a claim, rather than its merits.
Whether one is tasked with representing a landowner who is opposing the validity of a land claim or a land claimant community that bears the onus of proving the validity of a claim before the Land Court, the outcome is predictably and frustratingly the same. By the time a matter is referred to the Land Court, the landowner’s side is typically trial-ready, with expert historian, anthropologist, valuer and surveyor reports compiled, witness statements filed and submissions made.
Juxtaposed against this scenario is a brief held on behalf of a land claimant community whose members are often burdened with an ill-equipped, inexperienced and unprepared legal team. Regularly, the land claimant community may not have the same legal practitioner for the duration of the case. Then there is the non-payment of fees, which can result in legal practitioners abandoning their briefs.
Where a legal practitioner is appointed to represent the community, it is most likely a junior lawyer, with inadequate experience in land, property, administrative and constitutional law. Matters that ought to proceed to trial fester for years. Landowners cannot discharge their opposition in any meaningful way as these cases are repeatedly held over. The result is that restitution cases languish before the court for years, with uncertainty slowing down meaningful investment or development on claimed land.
Ironically, the court tasked with clearing this backlog and advancing land reform is hamstrung by the same social disparities that land matters bring into sharp relief.
I was part of the Expert Presidential Advisory Panel on Land Reform and Agriculture, one of several platforms that advocated for enhancements to the then Land Claims Court. The Land Court was consequently significantly strengthened by the Land Court Act through the appointment of a judge president and permanent judges.
The elevation of the court gave it the same status as a high court to eliminate structural delays, reduce case backlogs and enforce judicial oversight. The enhancement also included the extension of the court's jurisdiction to hear broader land matters.
Yet, week after week, cases are delayed, postponed or left to stagnate because one side is not ready to proceed. Justice, in this environment, becomes contingent not on the merits of a claim but on the resources available to prepare it.
Restitution litigation is not ordinary civil litigation. It demands deep expertise in land tenure systems, historical research methodologies, constitutional interpretation, valuation of complex land rights and, often, engagement with customary law systems. The concern is that without dedicated training, specialist units and sustained funding models, state-funded structures are not positioned to carry the weight of restitution litigation at scale. The result is predictable: uneven representation, delayed matters and cases that cannot be meaningfully advanced.
Section 25(7) of the Constitution guarantees that any person or community dispossessed of property after 19 June 1913 because of past racially discriminatory laws or practices is entitled to restitution or equitable redress. Yet the reality raises a difficult question: Can the promise be realised if a litigant who bears the onus of proving the validity of a land claim is structurally under-supported in the forum designed to resolve such claims?
The Commission for the Restitution of Land Rights carries an immense administrative and investigative mandate. However, even where claims are investigated and referred to court, the judicial phase becomes a bottleneck that the commission cannot resolve. The structural under-resourcing of claimant communities affects the quality and accuracy of the research and pre-litigation preparation that is later required to strengthen or bolster cases in court.
The system must confront an uncomfortable truth: without an intentional, effective and well-resourced system of legal and institutional support built on skill and expertise, restitution will continue to fall short of its constitutional promise. A court process that is formally fair but structurally imbalanced risks producing outcomes that are legally sound yet socially incomplete.
What is required is a deliberate strengthening of the support architecture surrounding claimants. This could include dedicated restitution litigation units with specialist legal teams; ring-fenced funding for expert historical, valuation and anthropological evidence on behalf of claimants; and structured partnerships between the state attorney system and independent specialist practitioners, supported by targeted capacity-building in land restitution jurisprudence.
The imbalance has consequences that extend beyond the courtroom. For landowners, prolonged and uneven litigation affects the ability to achieve certainty and finality in relation to property rights. Prolonged and uneven litigation creates uncertainty with real-world implications: it affects land development decisions, infrastructure investment, agricultural planning and broader economic confidence in land tenure stability.
To achieve meaningful justice, the gap in preparation, resources and institutional support must be addressed directly as a central feature of reform. Until then, restitution risks becoming a space where cases are slowly eroded by imbalance, delay and institutional fatigue — a cost that the constitutional project of land reform cannot indefinitely carry. When cases are effectively decided based on which party is better resourced, the development of the law becomes unintentionally distorted.
The result is a jurisprudence that is thinner than it ought to be. Rich, durable legal doctrine depends on fully argued cases, properly tested expert evidence and adversarial balance that allows for meaningful interrogation of competing narratives. Where the balance is absent, restitution law risks being shaped by procedural inequality rather than substantive clarity. In this sense, the lack of adequate legal representation for claimant communities is an institutional failure in the restitution and restorative justice project because it affects the integrity of the legal reasoning that emerges from the disputes.
Bulelwa Mabasa is a director and head of land reform at Werksmans Attorneys.