Colonialism rarely dies; it mutates. Its uniforms change—from khaki to suits, from passbooks to policy papers—but the arrangement it protects remains the same: some live on the land, others live off it. Post-apartheid South Africa knows this intimately. Political rights were won; material power was not. Three decades on, the democratic state is asked to perform a contradiction: celebrate equality while administering an economic geography built to deny it. The debate over land reform—especially over compensation below market value, and in narrow cases at nil—turns on whether we still seek permission from the very market that grew fat on dispossession. Frantz Fanon warned that colonialism is not only a system of force; it is a pedagogy that trains the colonized to accept the master’s ledger as the measure of justice.^[1] If decolonization begins with unlearning that pedagogy, then the first act is conceptual: stop asking the market to ratify the undoing of the market’s crimes.

The visible record of “progress” is often written in statistics—GDP figures, credit ratings, and investor notes—but the more honest ledgers are cadastral maps and household budgets. Who owns productive land? Who earns from it? Who is confined to its margins? The answer has not changed enough since 1994 to be confused with justice. The apartheid spatial order—townships beside lush farms, informal settlements abutting gated estates—survives in subtler forms, reinforced by prices that presume yesterday’s violence and by legal habits that mistake deference for stability. To frame this as a failure of effort is to misread a machine as a moral fable. It is a system doing precisely what it was designed to do: pay compound interest on past theft.

The law is not powerless in the face of this inheritance. The South African Constitution contains, in Section 25, a carefully balanced architecture that secures property while expressly authorizing transformation.^[2] Public purpose and public interest are legitimate grounds for expropriation, and the public interest is defined to include land reform and equitable access to natural resources.^[3] Compensation must be “just and equitable,” a standard that directs decision-makers to weigh multiple factors: the property’s current use, how it was acquired, the extent of direct state investment and subsidy, the market value, and the purpose of the expropriation.^[4] The order of these words matters. Market value is in the list, but it is not a trump card. Justice—not price—is the guiding star.^[5] Section 25 also clarifies that “property” is not limited to land and that nothing in the property clause may impede legislation aimed at redressing the results of past racial discrimination, subject to general constitutional limits.^[6] In other words, the text does not instruct the state to buy justice at retail. It authorizes repair.

Judicial interpretation has reinforced this structure. Courts have repeatedly resisted the superstition that “full market value” is the constitutional floor in every expropriation. They have instead read Section 25 as it was written: a call to strike an equitable balance between the public interest—including the explicit project of land reform—and the interests of the affected owner.^[7] Market value can be decisive in some cases, but never because the Constitution worships a number printed by yesterday’s inequities. This is not legal radicalism; it is legal literacy. The difference between a valuation exercise and a justice exercise is the difference between arranging chairs and building a house.

If the law already authorizes repair, why has land reform moved so slowly and at such cost? Part of the answer is institutional muscle-memory. The dominant policy approach after 1994 followed a market-led model known as “willing buyer, willing seller.”^[8] It was marketed as efficient and “modern,” but in practice it turned restitution into a slow retail transaction where sellers set terms and the state spent years building complex valuation dossiers and farm plans to justify paying yesterday’s beneficiaries of power at today’s inflated prices. What was framed as neutral economics functioned as a political veto. The result was predictably thin: low volumes, high costs, and fragile outcomes for new owners who were too often left without the support needed to succeed. This is not evidence that land reform is impossible; it is evidence that reform constrained by market mercy delivers market results.

The narrative battlefield matters as much as the legal one. Market orthodoxy casts colonially rooted property titles as morally innocent and constitutionally absolute, while depicting claims of the dispossessed as unruly demands for “free land.” In that frame, the state’s role is to compensate the beneficiaries of past dispossession at the very prices shaped by that dispossession—and then congratulate itself for being “investor friendly.” That is not reconciliation; it is indemnification. It is also historically amnesiac. The market in land was never neutral terrain. It was fenced by law, irrigated by public investment, and policed by pass systems and guns. To pretend that this market now speaks with the voice of natural fairness is to ask the victim to purchase the return of stolen goods at the thief’s store.

A more truthful approach starts where the Constitution starts: with purpose. “Just and equitable” is not a license for arbitrariness; it is a standard that demands reason-giving, transparency, and proportionality. Decision-makers can and should ask: How was this property acquired? What public investments created its present value? What social goods—housing, agricultural livelihoods, ecological restoration—justify the taking? How does the chosen level of compensation align with those purposes, the history of acquisition, and the equitable balance Section 25 demands? In many cases, this analysis will point to compensation below market value; in a narrow band of cases—abandoned land, speculative holdings, or properties whose value is largely the product of direct state investment—nil compensation may be the just and equitable figure. The aim is not to punish; it is to refuse to pay a premium to perpetuate an injustice.

None of this dispenses with the rule of law. On the contrary, legality is the condition for repair without violence. Owners are entitled to notice, reasons, and recourse; the public is entitled to clarity about objectives, methods, and outcomes. A justice-first program should therefore be built on open, reviewable guidance: a transparent methodology for weighing Section 25’s factors; clear discounts where the evidence shows direct state-created value; explicit attention to acquisition history; and published rationales that connect the chosen compensation figure to constitutional purpose. Courts remain the backstop, ensuring that the equitable balance is more than a slogan. This is how constitutional text becomes practice.

The policy context has begun to shift. New legislation on expropriation sets out a standardized process for takings in the public purpose and public interest and identifies narrow instances in which compensation may justly be nil.^[9] The aim is administrative clarity, not a blank cheque. Predictably, this has been met with alarmism—predictions of mass seizures, capital flight, and racial vendettas. But the alternative to a lawful, transparent framework is not stability; it is drift. A polity that cannot address structural inequality through law will face cycles of anger that law will be too timid to channel. Investors understand this more keenly than the pundit class: political risk is driven less by assertive, rule-governed reform than by chronic, unaddressed injustice.

Two further points bear emphasis. First, valuation is only half the task. Transfer without capability is a trap. A serious program of land reform must bundle expropriations with support: extension services, access to water and infrastructure, fair-term credit, and market pathways. The goal is not hectares on a spreadsheet; it is dignified livelihoods. Where redistributive projects have failed, it is often because recipients were handed land without the means to make it flourish. That is not an indictment of beneficiaries; it is an indictment of a state that tried to settle a moral debt with paperwork. Second, transparency protects everyone. Publish the pipeline of candidate properties, the purposes for which they are targeted, the proposed compensation ranges with factor weightings, and post-award performance metrics. Make the methodology legible enough that a farmer, a judge, and a journalist can follow the chain of reasoning from Section 25’s factors to the number on the page. A republic cannot run on whispers.

Common objections dissolve under this light. “This will scare investors” confuses appetite for quick returns with appetite for stability. What rattles capital is not lawful reform but a social order that continually threatens to tip. “You can’t take what people legally own” confuses apartheid legality with constitutional legitimacy. The point of a transformative constitution is precisely to authorize repair where prior law manufactured present injustice. “Paying less than market value is unfair” presumes that the market’s number is a neutral truth rather than a price printed inside the architecture of exclusion and subsidy. “Nil compensation equals confiscation” ignores that “nil” is contemplated only in narrow, reviewable circumstances where justice demands it. None of these objections engage the actual law; they defend a moral order by misdescribing a legal one.

What, then, would courage look like? It would look like a Cabinet that treats Section 25’s text as a mandate, not a ceiling. It would look like regulators issuing detailed, consultative guidance on “just and equitable” compensation and then updating it in public when courts refine the tests. It would look like municipalities and provinces using expropriation for social housing and public infrastructure where negotiations predictably fail, and defending those decisions with clear, evidence-based reasons. It would look like Parliament pairing expropriation powers with budgeted support for post-transfer success rather than announcing symbolic targets and starving implementation. And it would look like a judiciary that continues to police process while showing the constitutional confidence to recognize that market value is not the measure of all things.

There is a quieter reason to move now. Every year that passes calcifies inequality into common sense. Children grow up believing that the golf estate was always meant to be where it is, that the informal settlement belongs where it spreads, that certain surnames are naturally attached to certain deeds. A transformative constitution loses its persuasive power when the world it promised to change refuses to budge. Fanon insisted that decolonization is not a metaphor. It is the transfer of material power under law.^[10] South Africa already has the law. What remains is to use it without apology. Success will not be a headline or a court citation. It will be the young farmer working soil her grandparents were expelled from; the township family moving into well-located housing because the city finally claimed land for the public good; the community whose clinic and school no longer depend on a donor’s whim. It will be a budget that reflects constitutional purpose rather than marketing slogans. It will be a politics that stops treating the market as a confessor and starts treating it as one factor in a broader moral calculus the Constitution already wrote down.

The choice is not between chaos and caution. The real choice is between the quiet violence of drift and the demanding work of repair. Drift is easy: commission another study, hire another consultant, negotiate another “willing buyer, willing seller” deal that transfers little and teaches less. Repair is harder: it requires the courage to say that justice is not whatever the appraiser’s spreadsheet says it is. But a democratic order worthy of its name cannot subcontract moral judgment to price signals. The Constitution did not. Against market mercy stands a simple claim: that the people who were denied land by law should not be denied justice by price. If the new South Africa means anything, it must mean this. The text allows it. The courts can oversee it. The public—tired of symbolism—deserves it. The rest is politics, which is to say, the willingness to act.

^[1] Frantz Fanon, The Wretched of the Earth 61 (Constance Farrington trans., Grove Press 1963) (1961); Frantz Fanon, Black Skin, White Masks 17–19 (Charles Lam Markmann trans., Grove Weidenfeld 1967) (1952)

^[2] S. AFR. CONST., 1996, § 25(1)–(4), (8).

^[3] S. AFR. CONST., 1996, § 25(2), (4)(a).

^[4] S. AFR. CONST., 1996, § 25(3)(a)–(e).

^[5] S. AFR. CONST., 1996, § 25(3); Msiza v. Director-General, Dep’t of Rural Dev. & Land Reform, 2016 (5) SA 513 (LCC) (S. Afr.).

^[6] S. AFR. CONST., 1996, § 25(4)(b), (8)

^[7] Msiza v. Director-General, Dep’t of Rural Dev. & Land Reform, 2016 (5) SA 513 (LCC).

^[8] Edward Lahiff, ‘Willing Buyer, Willing Seller’: South Africa’s failed experiment in marketled agrarian reform, 28 Third World Quarterly 1577 (2007).

^[9] Expropriation Act 13 of 2024 (S. Afr.), § 12(3)–(4), 51964 Gov’t Gazette (Jan. 24, 2025).

^[10] Frantz Fanon, The Wretched of the Earth 35–36, 44 (Constance Farrington trans., Grove Press 1963) (1961)