The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa

2014 ◽  
Vol 39 (04) ◽  
pp. 902-937 ◽  
Author(s):  
Bernadette Atuahene
Keyword(s):  
South Africa ◽  
Procedural Justice ◽  
South African ◽  
Transitional Justice ◽  
Institutional Arrangements ◽  
The South ◽  
Communication Breakdowns ◽  
Land Restitution

One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land restitution commission officials to sustain a conversation with each other had the greatest effect on whether respondents believed that the land restitution process was fair. The study also contributes to the existing literature by exploring the institutional arrangements and resources necessary to facilitate communication and to overcome any communication breakdowns encountered.

The Engagement of Beneficiaries in Farm Governance of Restituted Land through the Communal Property Association Model: The Ideal Versus the Reality of Beneficiary Farms in South Africa

2019 ◽  
Vol 16 (2) ◽  
Author(s):  
Mokoko Piet Sebola ◽  
Malemela Angelinah Mamabolo
Keyword(s):  
South Africa ◽  
South African ◽  
Land Reform ◽  
Farm Management ◽  
The South ◽  
African Government ◽  
Communal Property ◽  
Farm Ownership ◽  
Land Restitution ◽  
Communal Property Associations

The purpose of this article is to evaluate the engagement of farm beneficiaries in South Africa in the governance of restituted farms through communal property associations. The South African government has already spent millions of rands on land restitution to correct the imbalance of the past with regard to farm ownership by the African communities. Various methods of farm management to benefit the African society have been proposed, however, with little recorded success. This article argues that the South African post-apartheid government was so overwhelmed by political victory in 1994 that they introduced ambitious land reform policies that were based on ideal thinking rather than on a pragmatic approach to the South African situation. We used qualitative research methods to argue that the engagement of farm beneficiaries in farm management and governance through communal property associations is failing dismally. We conclude that a revisit of the communal property associations model is required in order to strengthen the position of beneficiaries and promote access to land by African communities for future benefit.

scholarly journals From South Africa to Sri Lanka: Prospects of Travel for ‘Transformative Constitutionalism’

2020 ◽  
Vol 15 (1) ◽  
pp. 45-68
Author(s):  
Dinesha SAMARARATNE
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Institutional Design ◽  
Constitutional Reform ◽  
The South ◽  
African Experience ◽  
Comparative Constitutional Law ◽  
Layered Approach ◽  
Post War

AbstractWhat lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience? What conditions allow experiences of transformative constitutionalism to travel? In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.

scholarly journals Truth and reconciliation: Should the key notions be revised?: Experiences from South-Africa and Rwanda

Temida ◽  
2002 ◽  
Vol 5 (4) ◽  
pp. 33-44
Author(s):  
Heidy Rombouts
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Truth And Reconciliation Commission ◽  
The South ◽  
Reconciliation Commission ◽  
Truth And Reconciliation ◽  
Precise Meaning ◽  
Fact Finding

Both the South African Truth and Reconciliation Commission and the Gacaca tribunals, which started recently in Rwanda, are framed in terms of truth and reconciliation. But what does the truth mean? What does reconciliation mean? It can be argued that searching the truth has a very precise meaning - namely determining the details of what factually happened. And it is in this sense that most people understand the search for the truth. However it can be questioned whether this fact-finding is what the search for truth aims at in a context of transitional justice. .

Compromise and Deliberation: a Rhetorical View of South Africa’s Democratic Transformation

2004 ◽  
Vol 43 (2) ◽  
pp. 145-166
Author(s):  
Philippe-Joseph Salazar
Keyword(s):  
South Africa ◽  
South African ◽  
Public Deliberation ◽  
The South ◽  
History Of ◽  
Post Colonialism ◽  
A Site ◽  
Democratic Transformation ◽  
Land Restitution

The South African ‘‘compromise’’ remains unique in the history of post-colonialism (if it belongs at all to that category, which is open to debate). Ten years after Mandela’s election to the presidency, and his calm refusal of personal self-perpetuation, in contrast to most presidencies in most western-style democracies, South Africa remains somewhat of an aporia. However, the South African anchoring in compromise as constitutive of democracy unveils a concept and a practice of reconciliation which are akin to ‘‘compromise’’ yet stand out as uniquely ‘‘rhetorical’’, especially in the tension between a judicial vision of public deliberation and public deliberation itself. This article focuses on land restitution as a site for deliberative coming-together.

scholarly journals Culture and Procedural Justice in Transitioning Societies

2011 ◽  
Author(s):  
Landon Hancock ◽  
Tamra d’Estrée
Keyword(s):  
Procedural Justice ◽  
South African ◽  
Transitional Justice ◽  
Retributive Justice ◽  
Truth And Reconciliation Commission ◽  
Local Culture ◽  
The South ◽  
Reconciliation Commission ◽  
Truth And Reconciliation

In any transitional justice mechanism there are tradeoffs between the search for retributive justice and the practical limitations on what can be accomplished. To date, this tension has been discussed in reference to internationally established norms of justice, which the authors argue are limited in the extent to which they can explain why certain mechanisms—such as the South African Truth and Reconciliation Commission or Rwanda’s gacaca courts—have been considered successful. We argue that mechanisms that have a high overlap between local culture and elements of procedural justice are perceived as more fair and just, even to those who may not benefit—or indeed may be burdened—by their operation.

scholarly journals Settler Colonialism and the South African TRC: Ambivalent Denial and Democratisation Without Decolonisation

2021 ◽  
pp. 096466392110227
Author(s):  
Augustine S.J. Park
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Settler Colonialism ◽  
The South ◽  
Field Of Study ◽  
Empirical Examination ◽  
Quarter Century ◽  
Recent Scholarship

In the quarter-century since it began its work, the South African TRC has been endlessly debated. At the same time, a field of study emerged centred on settler colonialism, and settler colonial analyses have become established in transitional justice. South Africa’s TRC, however, has escaped examination through the lens of settler colonialism. Typically, settler colonialism in South Africa is treated as an historical phase; however, recent scholarship emphasises South Africa’s colonial present. Following these insights, this article: (1) establishes the relevance of a settler colonial lens for interpreting the South African TRC by demonstrating the settler colonialism of apartheid; (2) provides an empirical examination of the TRC’s Report. The Report acknowledges settler colonialism while advancing a series of denials, producing ‘ambivalent denial’; (3) explores the implications of ambivalent denial. Specifically, ambivalent denial contributes to democratisation without decolonisation by enabling settler denial and failing to address settler colonial structures.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

Moral Subjectivity and Affective Deficit in the Transitional State

2015 ◽  
Vol 59 (4) ◽  
pp. 66-82
Author(s):  
Christiaan Beyers
Keyword(s):  
South African ◽  
Transitional Justice ◽  
The State ◽  
Colonial Era ◽  
Land Claim ◽  
Transitional State ◽  
Social Fact ◽  
Political Resource ◽  
Legal Subjects ◽  
Land Restitution

In the context of transitional justice, how does the reinvented state come to be assumed as a social fact? South African land restitution interpellates victims of apartheid- and colonial-era forced removals as claimants, moral and legal subjects of a virtuous 'new' state. In the emotional narratives of loss and suffering called forth in land claim forms, the state is addressed as a subject capable of moral engagement. Claim forms also 'capture' affects related to the event of forced removals as an unstable political resource. However, within an ultimately legal and bureaucratic process, the desire for recognition is typically not reciprocated. Moreover, material settlements are indefinitely delayed due to political and institutional complications. The resulting disillusionment is counterweighed by persistent aspirations for state redress.

Exploring the South African Government Communication on Land Expropriation without Compensation

2020 ◽  
Vol 72 (1-3) ◽  
Author(s):  
Lungisani Moyo
Keyword(s):  
South Africa ◽  
Food Security ◽  
South African ◽  
Small Scale ◽  
South African Government ◽  
Eastern Cape ◽  
The South ◽  
Land Expropriation ◽  
African Government ◽  
Government Communication

ABSTRACT This paper used qualitative methodology to explore the South African government communication and land expropriation without compensation and its effects on food security using Alice town located in the Eastern Cape Province South Africa as its case study. This was done to allow the participants to give their perceptions on the role of government communication on land expropriation without compensation and its effects on South African food security. In this paper, a total population of 30 comprising of 26 small scale farmers in rural Alice and 4 employees from the Department of Agriculture (Alice), Eastern Cape, South Africa were interviewed to get their perception and views on government communications and land expropriation without compensation and its effects on South African food security. The findings of this paper revealed that the agricultural sector plays a vital role in the South African economy hence there is a great need to speed up transformation in the sector.

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