Property rights and the powers and functions of traditional leaders are two areas within the Constitution of South Africa that have yet to be tested through judicial interpretation.

On the occasion of the 30th anniversary of the adoption of the Constitution, South Africa is called upon to reflect on the basics that underpin our democracy.

It can be argued that most of the Constitutional provisions have been tested and re-tested through implementation, policy refinement and astute judicial interpretation.

There are, however, a few areas that seem to defy certainty. Two of them stand out.

The first is on property rights, especially as they apply to land. In the words of then Deputy Chief Justice Dikgang Moseneke at a conference organised by Mistra and other partners in 2014:

"In 20 years, [the Constitutional] Court has not resolved even one case of land expropriation under the property clause... [and] the courts have never been called upon to give meaning to the property clause in the context of land expropriation or to decide on what is a just and equitable compensation. One would have expected that a matter so pressing as land use, occupation or ownership would pre-dominate the list of disputes in the post-conflict contestation."

The second and related issue pertains to the powers and functions of traditional leaders. And it is an issue that has assumed the character of...