It is important to understand the concept of equity not only within the framework of the three documents, namely Deuteronomy, the Magna Carta and Human Rights but also to discuss its relationship with the Universal Declaration of Human Rights (UDHR); many scholars wrote about it, including, Lauren (ed. 2011). Many scholars dealt with Human Rights controversies (Foucault 1984a; 1984b; Ishay 1995, 1997:303ff), which include the tension between the (neo)-liberal and communist approach with regard to the human rights, whereby it was not only the Cold War (political) tension between the two nuclear-armed superpowers (United States and the former Soviet Union) but also between a global market economy with its universal conceptual and philosophical ideology and the local (and nationalist) economy with its practical socioeconomic concerns regarding the widening gap between the rich and the poor both global and locally in the age of the information and technology. These human rights controversies are manifested in the application of the human rights between the disadvantaged and the advantaged people in their individual and corporate capacity. In the South African situation, the triple challenge of poverty, unemployment and inequality has been getting worse ever since 1994 to this day, despite the diverse attempts that are continued to be made. This article is appealing to the role of equitable justice, which is still relevant in the South African context where it is apparent that there is a dominant ‘winner-takes-all’ global economic theory of the neoliberalism-led capitalist on the right (Fukuyama 1989:3, 8). A winner-takes-all market refers to people, products or services, whereby the top players capture a disproportionately large share of the rewards, while the rest of the performers are left with extremely little. In a winner-takes-all market, individuals are paid not according to their absolute performance, but rather according to their performance relative to their competitors (Market Business News 2023). Such an approach, if it is left unchecked, will continue not only in dominating the socialist leftist ideologies as an outdated and irrelevant ideology (Klein 2007:183f) but also in being one of the root causes of the socioeconomic injustice, inequality, unemployment and poverty, which was worsening ever since 1994.

The land question has private and public effects on people’s lives. In that regard, the land restitution and the reparation are established in South Africa. Although they are complex, if not a complicated litigation praxis in terms of policies, processes and procedures, they are distinguishable concepts with two sides of the same coin. This assession begs for clarity. After reading and reflecting on diverse scholarly work, including Zedner (1994:228–250), this article ends up with this distinction: restitution justice is a retroactive, corrective, punitive, or retributive kind of justice on behalf of the authority (state) the Court judge who focuses on righting the wrong of private (individual) cases of the victim and offender, issue a sentence, not only to punish the convicted offender as a way of exposing and expressing the seriousness of the committed crime but also to amend the wrong (the damage or loss) by compensating or paying back the victim with an aim restoring the previously agreed contract (status quo). Secondly, reparation justice is a forward-looking distributive or restorative kind of justice focusing on reconciling the convicted offender and the wronged society and her expectations. The judge focuses on restoring (strengthening) equity or balancing an equilibrium of a broken relationship or inequality gap between the disadvantaged and the advantaged. The judge determines a ‘fair share’ of the available economic resources to distribute to the disadvantaged (poor) while equipping the advantaged (rich) with the God-given sociocultural mandate for the common good, well-being, rights, interests or utility (Zedner 1994:228ff). This theoretical framework is helpful before discussing the land issues in South Africa, particularly the White Paper for Land Rights and Land Reform and redistribution. Although a brief discussion, it is important to have it as it gives the historical background of the land issues and the need for a review of an equitable justice on the land issue.

Equitable justice and section 25 of the Constitution of the Republic of South Africa 1996:

These are the words of Alfred Xuma, in his presidential address at the African National Congress (ANC) conference of 1941. It is now more than 83 years, i.e from 1941 to 2024 of continued scholarly and political debate on whether the United Nations Declaration of Human Rights and the South African Constitution is optimal, or should they be amended to address the triple challenge of poverty, unemployment and inequality? Should the substantive transformation or the revolutionary approach to justice be applied?

The role of the South African Constitutional Courts is to seek an equitable solution to address an inevitable and ever-increasing gap between disadvantaged and the historically dispossessed individuals or groups seeking restitution and/or reparation, and the advantaged individuals or groups who are fighting for their private property rights as individuals or groups (Yanou 2009:38ff; Binswanger & Deininger 1996:139; Claassens 1993:424; Lahiff 2001:5; 2007:1577ff; Weideman 2004:223). The State is to establish a conducive environment for the neoliberal free market system and channel more money to priority projects that stimulate the economic growth and lesser money towards the programmes that stimulate redistribution (The White Paper on Reconstruction and Development Sections 1.2.7, 3.2.4, 3.3.1, 3.4.5, 4.1.2, 4.1.5 and 4.2.5). Redistribution of 30% of land was either altered or postponed from original 1999 deadline to 2014 and now to 2025. Since 1994, the national budget, which was earmarked for purchasing land for redistribution, was reduced on White Paper in 1991 and 1996 (Bond 2000:132f; Cousins 2012:2; 1996 Land Reform and Labour Tenants Act. Section 2 (2) and 3 (1), 7(2), 16(1); the Settlement and Land Acquisition Grant, Section 26(1); Van Der Walt 1997:152; Yanou 2009:49).

Human rights are not and cannot be absolute, and hence there are limitation clauses including the general limitation clause in section 36 (2) of the 1996 South African Constitution and the internal limitation clauses, both of which need justifiable reasons (equitable or just measure and condition, for the expropriation of the land without compensation when it is used for the public interest and for the land reform to redress injustices brought about by colonialism and apartheid (Sec. 25 (4a) (5) and (8); Sachs 1990:7; Yanou 2009:47). However, such limitation clauses are overshadowed by the wrongly absolutised clauses, including the following: firstly, section 28 (3) of the Interim Constitution of Republic of South Africa Act 200 of 1993 (Chaskalson 1994). The State prevented the equitable sharing of the wealth to address poverty and inequality (Chaskalson 1993:389; Yanou 2009:117). The State needs capital to buy back the land to share with the poor. The State has no control over the Reserve Bank/inherited debts from the apartheid regime. Secondly, sections 25 (1), (2) and (3) of the Constitution of the Republic of South Africa is used not only to protect private property, privileges and the rights (which includes investments, market value and productive land) but also to hinder land reform and redistribution, and whenever there is appropriation of land, it should be compensated at the market price and on the basis of the willing-buyer and willing-seller principle (Hall 2004:654; Van Der Walt 1997:19, 146). The State may buy, fund and/or subsidise the properties including the land for the public’s sake including the land reform and redistribution (Chaskalson 1995:224; Ntsebeza 2007:112; Van Der Walt 1997:18, 143ff).

Common sense (2024) is ‘the basic level of practical knowledge and judgement that we all need to help us live in a reasonable and safe way’, or ‘the ability to use good judgement in making decisions and to live in a reasonable and safe way’.

This article appeals to common sense using Calvin’s view (Calvin 2006) on equitable justice to contribute to the debate about. the continued worsening position and condition of socioeconomic injustice, poverty alleviation, inequality and unemployment since 1994 to this day. It is becoming clear that the underlying ideological clashes, policy conflicts and strategic struggles, which are manifesting themselves behind the well-intended international and national programmes (Klein 2007:215), need to be addressed from an equitable justice perspective if not from a common sense perspective. The limitation clause of section 36 has a forerunner, namely section 28 (1–3) of the Interim Constitution of the Republic of South Africa 200 of 1993, which states that:

Calvin appeals to the virtue of equity (fairness) and of conscience (common sense), which are engraved within each human being and are naturally and universally accessible to all human beings (Calvin 1583; Calvin, Institutes, IV.20.16). From the God-engraved inner virtue of equity and conscience comes an urge (appeal) to love my neighbour and love myself. To practice equitable justice is basically doing three things: firstly, loving your neighbour; secondly, loving yourself; and thirdly, doing to your neighbour what you would have them to do unto you, which is to fulfill and satisfy the Golden Rule (Calvin 1948; Grabill 2006:89). It means that the all-people groups are unfamiliar with the natural law, because such a law is not only an implanted or engraved seeds of the political order, consciences nature, righteousness rule and virtue of equity in the hearts and minds of all human being which serve as an inner witness and monitor. This law renders all people no right to make excuses before God. According to Calvin this law is ontologically and supernaturally grounded as God’s special revelation and epistemologically and morality commanded to do right actions (Helm 2004:347f; Verhey 1975:86).

Among other international stakeholders, the United Nations Development Programme (UNDP 2003; 2005; 2022) work with countries such as South Africa to implement the policies, ministries, strategies and budgets to reach the Millennium Development Goals (MDGs) of reducing poverty, hunger, disease, illiteracy, child and maternal mortality, environmental degradation and discrimination against women, etc.¹ In such a context, the two international financial institutions found in Bretton Woods, New Hampshire, in 1944, namely, the International Monetary Fund (IMF) and the World Bank (WB), could no longer ignore the indebtedness of many Third World countries that in 1996, they had to re-examine and re-evaluate the Structural Adjustment Programme (SAP) with its lending conditions and prescriptions in the 1970s through to the 1990s. The process resulted in the Highly Indebted Poor Countries (HIPC) initiative and Poverty Reduction Strategy Papers (PRSP), which laid down strict economic conditions and criteria to be followed to qualify for partial debt ‘forgiveness’. The Third World debt grew from $9 billion in 1955 to $572 billion in 1980 and $217 billion in 1996 and was over $300 billion in 2004 and the figures kept on increasing.

There is a common human need for Equitable Justice, and to get a fair, just and right action, (share and/or treatment) and hence what counts as a criterion for a fair, just and right action, (share and/or treatment) is important to balance or stabilise an unequal society so that the common good (and peace) of the society is reached. The challenge, which is faced by this article, is to attempt to argue or advocate for the ultimate common good or peace that this Equitable Justice seeks to achieve, which is in turn a criterion to use to balance or stabilise an unequal society. This common good and/or peace can be in the form of a basic or common (written) contract, agreement and/or constitution, which serves as a framework to be used to view and treat people as members of society in the local, national and international level so that the victims (disadvantaged) and the offender (advantaged) receive fair, just and/or right treatment or share to balance or stabilise an unequal society (Muswubi 2023:2ff; 2024:4ff).

This article is appealing to the readers of the human rights regarding its origin, which can be traced to diverse philosophical and religious traditions among others, which ignored, if not reject the living God in their views and practice of human rights. The NP élites (economic oligarchs) with the neoliberal capitalism or Thatcherism and Reagan ideology approached the negotiation about the land reform and Reserve Bank with either/or approach and expected outcome, namely either to win or ‘no deal’ kind of approach and outcome (Ilbury & Sunter 2001:69, 116). The ‘willing-seller, willing-buyer’ formula (principle) places power in corporations and landowners’ hands that state no longer had a role to play in redistributing wealth based on ideological grounds (Klein 2007:200ff). The NP economic élites won the negotiation, and, in that way, they protected and retained their economic interests, control and ownership of the productive land in hand over the political interests, control and ownership to the ANC élites (economic oligarchs) (Ilbury & Sunter 2001:12ff, 69ff). The condition for winning the negotiations was more of the profit orientation (for the few) than the people orientation (the mass of the poor people), namely, (1) protection of privatisation of property rights clause, (2) to attract investors through free trade, (3) to create economic growth and jobs and (4) the willing-buyer, willing-seller formula (Ilbury & Sunter 2001:21–22, 65–66, 93–95,126; Klein 2007:200ff, 209; Mbeki 2005:9). According to Klein (2007:203f), the socioeconomic injustice and equality persist because ANC élites have political freedom, power and control, but not the economic freedom, power and control, which ensure that the environment for business prospers and continues to be attractive for the investment. According to Klein (2007:204), it is like ‘given the key to the house, but not the combination to the safe’.