by Anthony C. Diala and Sonya R. Cotton
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.
Anthony C. Diala is the director of the Centre for Legal Integration in Africa at the University of the Western Cape. His interests are legal pluralism, comparative law, and human rights. He recently published “Peacebuilding and the interface of state law and indigenous market laws in Southern Nigeria.”
Sonya R. Cotton is a PhD candidate at University College Dublin within the ERC project, ‘Property [In] Justice,’ funded by the EU Horizon 2020 Research and Innovation Program. She recently published an article in Global Journal of Comparative Law on equality in polygamous African customary marriages.