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New law against an old state: land restitution as a transition to justice in post-apartheid South Africa?

Type of publication Peer-reviewed
Publikationsform Original article (peer-reviewed)
Publication date 2014
Author Zenker Olaf,
Project Land restitution and the moral modernity of the new South African state
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Original article (peer-reviewed)

Journal Development and Change
Volume (Issue) 45(3)
Page(s) 502 - 523
Title of proceedings Development and Change

Abstract

Based 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.
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