New Law against an Old State: Land Restitution as a Transition to Justice in Post‐Apartheid South Africa?

In: Development and change, Volume 45, Issue 3, p. 502-523

Abstract

ABSTRACTBased on a case study of the so‐called 'Kafferskraal' land claim, this article scrutinizes the ongoing land restitution process in post‐apartheid South Africa with regard to its capacity to provide a transition towards 'justice'. After sketching the legal and institutional set‐up of land restitution, the justice of the actual restitution process is explored with reference to conflicting interpretations by various actors involved in this exemplary case. Here, a focus on divergent understandings of what historically constituted valid rights in land as well as forms of past compensation reveals continuing discrepancies regarding the legitimacy of various property regimes. These differences, leading to divergent evaluations of 'the justice' of this claim's final outcome, are shown to be ultimately rooted in incompatible logics of exceptionality and the ordinary, which conceive of land restitution in terms of either 'law making' or 'law preserving'. The article concludes with a discussion of the implications of such a configuration of land restitution as a measure of transitional justice.