Chained Communities: A Critique of South Africa’s Approach to Land Restitution
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Date
2021
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Abstract
In its quest to restore land to millions of its citizens dispossessed under colonial
and apartheid regimes, South Africa adopted a Restitution of Land Rights Act and set up
a Land Claims Court in 1994 and 1996, respectively. This article uses select judgments of
the Land Claims Court to critique the interpretative mindset of judges and the ideological
neutrality of certain definitions in the Restitution Act. It argues that the colonial legacy of
legal positivism and 20th century anthropological imagery inhibits the access to justice of
dispossessed Africans living on the periphery of land rights. It uses the word ‘chained’ to
describe communities whose restitution of land rights depends on their ability to
(re)imagine themselves through a judicial prism of fossilized colonial ideas of traditional
structures, lineage, and unbroken practices. The article recommends measures for
promoting a South African legal culture that is sensitive to legal pluralism, mindful of
indigenous law’s flexibility, and distrustful of undue standardization that stifles people’s
access to justice.
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Keywords
Legal positivism, Land restitution, Pluralism, South Africa, Indigenous law
Citation
Diala, Anthony C (with Sonya R. Cotton) ‘Chained Communities: A Critique of South Africa’s Approach to Land Restitution’ African Studies Quarterly 20:3 (2021) pp. 73-86