Chained Communities: A Critique of South Africa’s Approach to Land Restitution

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 20^th 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.