Yet for years, politicians heading the Department of Land Affairs have been telling us the Communal Land Rights Act passed in 2004 would lift these people out of crushing poverty by converting communal lands to freehold tenure. Crudely parroting Peruvian economist Hernando de Soto, successive ministers enthused it would "unlock" wealth by allowing villagers to use their plots as collateral for loans that would fund growth. Dead capital would be magically transformed into productive capital in the form of real estate worth billions.

This is an appealing notion that has some merit. It's absurd that poor families in the Transkei living on social grants in hovels with stunning views of the Indian Ocean can't trade or lease their land like any property owner in Clifton. But this obscures the fact that there's very little cash to go round in the former homelands. Little or nothing was spent on developing infrastructure, industry or markets. Opportunities for revenue, such as concession fees, were generally monopolised by a pliant but parasitic elite propped up by apartheid security forces.

It's a dangerous game to try to predict the outcome of court processes, but I have no doubt the application brought by Webber Wenzel and the Legal Resources Centre on behalf of four rural communities to have the law declared unconstitutional will succeed. It's simply too ridiculous to remain on our statute books.

The law gives committees loaded in favour of unelected leaders executive powers to make rules on land use. These leaders often occupy their positions because they were paid or coerced to obey apartheid or colonial orders against their subjects - in short, despots who were bullied or bribed. With this law, opportunities for abuse of power for personal gain would be rife, especially with lucrative mining, logging or tourism concessions in the offing.

It goes further. Thousands of communities that have attained some form of land ownership, including through the government's restitution programme that compensated apartheid's forced removals victims, faced a very real risk of having their hard-won tenure rights eroded. In several cases, including the celebrated Makuleke community that formed a lucrative tourism joint venture in the Kruger Park, traditional authorities are already trying to muscle in on community ownership rights in anticipation of the powers the new law would confer on them.

Fortunately our judiciary is seeing through this madness. Last year, the North Gauteng High Court declared large sections of the law unconstitutional. This week, the Constitutional Court's judges could barely hide their incredulity that the department, whose very raison d'être was to reverse the effect of racist laws that prevented blacks from owning land, had drafted legislation that consigned half our citizens to a life of autocracy and second-class property rights. That this injustice was endorsed by a democratically elected Parliament lent it a legitimacy it lacked under colonial or apartheid governments.

New Land Affairs Minister Gugile Nkwinti is clearly embarrassed that he inherited this hospital pass. Last month he withdraw his opposition to the Legal Resources Centre application to declare the law unconstitutional, promising it would be scrapped or substantially reworked. Bizarrely, he refused to concede it was unconstitutional. This forced the centre to urge the court to rule on its substantive merits, lest unconstitutional elements crept back in and left millions of rural dwellers in limbo for several years more because court processes had to start from scratch.

The Communal Land Rights Act represents the greatest injustice visited on this country since the day it was decided one person's rights trumped another's because their pigmentation differed. Like apartheid, it must be consigned to the rubbish bin of history.

Stephen Hofstatter is contributing editor
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