The Case for Retaining the Cutoff Date for Land Restitution Claims (Section 25 (7) of the Constitution)
Section 25 (7) of the Constitution established the right of individuals and communities who were deprived of property after 19 June 1913, as a result of past racial laws, to either restitution of their property or equitable redress.
It is now being debated whether the cutoff date is appropriate or whether it was a compromise made in 1994 which should now be rescinded if sufficient support can be found in Parliament. At present, the ANC would need the co-operation of other parties to muster two thirds of the votes necessary for a constitutional amendment. The EFF has already promised to make its supporters available for such a move.
Historical research has demonstrated that many actions depriving people of property before 1913 were illegal at the time and that many more were morally repugnant from to-day's perspectives. Any deontological (rights based) defense of the cutoff date must fail, though it is far from clear where such an argument would end up if the date were removed.
This leaves a utilitarian question to be answered. From the perspective of South Africa as a whole, each citizen counting for one, would the benefits of removing the cutoff date outweigh the costs? We think the costs would outweigh the benefits for the following reasons:
The innovation of the 1913 Land Act was to import the principle of segregation into South Africa's land law. However, the facts on the ground had been established in large measure before that, principally by the conquests and annexations of the nineteenth century. It is sometimes possible to re-open what was done in the nineteenth century[1] in terms of rights of occupation, but there has been much voluntary movement[2] between then and now.