Law of the Land: Restitution Practices in the New South Africa

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Professor Olaf Zenker is a leading social anthropologist, working at the Department of Social Sciences, University of Fribourg, Switzerland on a multi-dynamic political and legal anthropological research study entitled ‘Land restitution and the moral modernity of the new South African state’. This project, funded by the Swiss National Science Foundation (SNSF) through an Ambizione Fellowship, focuses on the complex, nuanced and often problematic issues associated with land restitution in modern post-Apartheid South Africa.
Apartheid rule was implemented shortly after the Second World War. This political project served to further segregate South African communities based on race, ethnicity and culture, resulting in a marked difference compared to before its implementation. During this period (1948-1991), successive governments implemented laws which have predominantly benefitted white minorities, often at the direct expense of their black counterparts. In the 1980s, the political system came under significant pressure from members of the international community. Many world leaders, including Ronald Reagan (1981-1989) and Margaret Thatcher (1979-1990), publicly supported Apartheid rule despite different public opinion on the matter. The increasingly greater media presence of a wide variety of figures, from civil rights campaigners to social justice advocates, brought this system to the greater attention of large public audiences and contributed to the eventual end of Apartheid rule.
Aerial photograph of the farm ‘Kafferskraal’.
Legitimate land: restitution in post-Apartheid South Africa
Professor Olaf Zenker’s work draws attention to the practice of nation-wide land dispossession and unequal redistribution, in which the colonial state seized lands owned by members of South Africa’s black community both before and during Apartheid. Officials redistributed these properties, passing them into the ownership of the state’s white ruling class. Following the collapse of the regime in 1991 and the election of the African National Congress (ANC) three years later, successive new state governments have worked to redress these discriminatory policies. To this end, the government passed the Restitution of Land Rights Act (Act 22 of 1994). Following this legislative change, the Commission on Restitution of Land Rights with its hierarchy of Land Claims Commissioners was established. This law also set up the Land Claims Court (LCC) to hear claims from those impacted by the land distribution policies and to make rulings based on merit.
The ‘Kafferskraal’ file at the Claims Court (LCC).
Contesting justice: the Kafferskraal land dispute
Prof Zenker’s political and legal anthropological project ‘Land restitution and the moral modernity of the new South African state’ is conducted within the context of these restitution processes. For six years (2010-2016), he carried out comprehensive multi-sited ethnographic fieldwork. Over a fifteen-month period, Prof Zenker investigated four distinct types of land claim applications, and their engagement with the two key bodies, the LCC and the Commission on Restitution of Land Rights. These were chosen to construct a diversified sample that would comprehensively capture the overall restitution process.

Within the field of land restitution, essentially concerned with the making and unmaking of past injustices surrounding the former homelands, this leads to thorny questions: who is to qualify as a true victim of apartheid and thus is in need of current redress? Quote_brain

One land claim investigated over this period was the so-called ‘Kafferskraal’ land claim. This case demonstrates the potential for historical land rights to be later dispossessed and legitimate a land claim. The claimants (and ultimately the state in its jurisdiction) have a profoundly different understanding than the white landowners, calling into question what constitutes ‘justice’. The structure of the restitution process does not lead to a true exchange of points of view and reconciliation between the different sides but instead to an antagonism that survives the court case and causes persistent feelings of injustice on the side of the white landowners. Land restitution thus fails to produce an overall transition to more justice between black claimants and white landowners (Zenker, 2014).
White claimants and the fateful frontier of former KwaNdebele
Land restitution has been strongly linked to former homelands. Prototypical rural claims are those of communities that lost their rights in land when being forcibly relocated to reserves, and they now aspire to return to their former homes and lands from their despised ‘homelands’. However, white farmers, who were also dispossessed (although usually compensated) by the Apartheid state in its endeavour to consolidate existing homelands, have also lodged restitution claims. One example is the white land claimants affected by the consolidation of former KwaNdebele. Such cases highlight the contested issue of whether or not white people should be entitled to lodge a restitution claim to undo the injustices of colonialism even though they categorically benefitted as members of the white race under colonialism. While the courts have clarified that these claims are legal and need to be solved on an individual basis, the moral legitimacy of such claims continues to be disputed by state bureaucrats, legal activists and other members of the public (Zenker, 2015).
Juridification, politics and the Kalkfontein lands
Prof Zenker’s work helps us to better understand the perspectives of both black and white South African land claimants and how these differing understandings create friction when dealing with restitution claims. When working with restitution agencies set up by the new state these underlying differences come to the fore, creating a problematic encounter which causes visible tension.
In his research, Prof Zenker illustrates how different sections of residents and claimants of Kalkfontein hold different understandings and attitudes towards land ownership and redistribution (Zenker, 2012). Such cases highlight that when traditional customary law comes into contact with state law logic, considerable strain and disquiet develops. Prof Zenker’s work thus gives us a better understanding of the underlying tensions, rather than merely the surface level issues that manifest in judicial decisions. In light of such tensions, any meaningful post-Apartheid attempt at reconciliation in relation to land becomes difficult and is often undermined at a very fundamental level.

Can there be a white restitution claim that does not intrinsically violate the boundaries of an acceptable moral community in the new South Africa? Quote_brain

Protest and politics
Prof Zenker’s research paints a large and complex picture where various stakeholders not only work to create new laws but also influence the judiciary process (Zenker, 2018). He illustrates a multi-faceted process where attitudes towards politics, land ownership and restitution are often contested and construed in a myriad of different ways. In such processes, individuals often hold strong and conflicting attitudes on such matters, as well as on the correct place of law and politics in relation to land ownership.
Prof Zenker’s work takes place within the context of a changing South Africa. Like many other nations, the new state is being continually reshaped by globalisation, modernisation and other long-term processes of change. Within this context, individuals, groups and governments are attempting to correct the effects of long-standing racial discrimination towards black South African groups that had been dispossessed and forcefully pushed off their lands. Prof Zenker’s studies provide an important road map of these relationships and engagements, giving a greater and clearer understanding of the central issues that permeate and animate the dynamics of land restitution in South Africa. In doing so, Prof Zenker’s research reveals the current land restitution process to function as an exemplary site, at which the moral modernity of the new South African state is contested, renegotiated and remade.

  • Zenker, Olaf [2012]: The juridification of political protest and the politicisation of legalism in South African land restitution. In: Julia Eckert/Brian Donahoe/Christian Strümpell/Zerrin Özlem Biner [eds.]: Law against the state: ethnographic forays into law’s transformations. Cambridge (Cambridge University Press): 118-146.
  • Zenker, Olaf [2014]: New law against an old state: land restitution as a transition to justice in post-apartheid South Africa? In: Development and Change 45(3): 502-523.
  • Zenker, Olaf [2015]: South African land restitution, white claimants and the fateful frontier of former KwaNdebele. In: Journal of Southern African Studies 41(5): 1019-1034.
  • Zenker, Olaf [2018]: Bush-level bureaucrats in South African land restitution: implementing state law under chiefly rule. In: Olaf Zenker/Markus V. Hoehne [eds.]: The state and the paradox of customary law in Africa. London (Routledge): 41-63.
During your time in South Africa, what were the most common issues and/or injustices presented to you by the various black communities concerning Apartheid rule?
The injustices endured by black communities under Apartheid were numerous, as racial segregation and systematic discrimination permeated people’s everyday life in all its facets. Given the focus of my research, however, the loss of home and lands that colonial dispossession and forced removals entailed featured prominently in people’s narratives about their past experiences. Yet no matter how well-intended the restitution process has been, and is, no remedy of today can fully undo the multiple suffering that people had to endure under colonial rule, and that in so many ways, persist until today. Against this background, I have been impressed by the dignity that many claimants exhibit today and the persistence they show in fighting to get back what was theirs.
From your time in South Africa (2010-2016), did you note any changes in attitudes towards racial injustice from any segments of society?
Although the new constitutional order formally ended racial inequality and while the new government has introduced diverse measures improving the lives of the formally disadvantaged, multiple social inequalities have persisted along racial lines until today. While transitional justice measures such as land restitution have surely been important, truly changing racial injustices that built up over centuries will still take a long time. This, together with the complexities of reconstructing possession histories, limited state resources and a preference among claimants for financial compensation have caused a slow pace at which racial landownership has changed over the past decades – something that has repeatedly led to misleading populist demands to expropriate white landowners without compensation in order to allegedly accelerate structural change, even though such a step is unlikely to profoundly improve the lives of formerly disadvantaged South Africans and will cause additional problems.
Ethnographic research can be quite rewarding but difficult at times. Can you tell us of any instances where you were moved by the stories you were hearing?
Ethnographic fieldwork, especially in the context of postcolonial attempts to redress historical injustices, is indeed a challenging, but also highly rewarding experience. I have been moved by the many stories I was told about past experiences of suffering and injustice related to forced removals and discrimination in everyday life, but also by the numerous examples of how people managed to resist and persist and make the best out of their situation. I have been deeply impressed by the strong sense of dignity that many people have managed to maintain and to uphold as well as by the willingness that can be encountered in all sections of society to reconcile and forgive, and to move forward.
Your published work details some fascinating observations, particularly in relation to the possibility (or lack) of reconciliation (e.g. Zenker, 2014). From a personal perspective, how do you see the future of South African race relations developing? Can they move on from Apartheid?
South Africa today remains a deeply divided and enormously unequal society, with divisions that still strongly correlate with former racial categories. Although some attempts have been made in various fields of society to address this racial injustice – from land reform to Black Economic Empowerment to the Truth and Reconciliation Commission – much more is still needed to truly help South African society at large to move on from Apartheid. Apart from nitty-gritty details of how to better organise, for instance, the land restitution process and besides the obvious need to overcome the current corruption and ‘state capture’, this surely also has to entail a much more substantial redistribution of economic opportunities and resources. This, and time, would give South African society a real chance to ameliorate its frictions and move on into a better future for all.
Where do you see the focus of your research within the next five years?
Focusing on land restitution has allowed me to better understand the myriad ways in which different actors renegotiate what I call ‘the moral modernity’ of the new South African state. Evidently, such remaking of post-Apartheid statehood currently takes place in multiple arenas and regarding numerous concerns. What makes land such a special object of enquiry to me is its protean nature, appearing as a place for being and living; as an economic resource; as a political territory; as an area of rights, entitlements and jurisdiction; as a matter of identity, rootedness and belonging; as the spatial context of memories, good and bad, reaching back in time; and so on. Hence, I intend to continue researching the multiple, overlapping and contradictory ways, in which South Africans construct their connections with others and specific places – that is, their autochthonous politics of belonging – as well as their senses of entitlement to specific resources derived from these territorialised collective identities – that is, their politics of belongings – as both co-evolve in and beyond the land restitution process.

Populist demands for expropriation without compensation are unlikely to solve restitution’s problems which are complex and more related to the failure of the state to effectively use what is already at its disposal Quote_brain

Research Objectives
Prof Zenker’s project investigates the ongoing South African land restitution process, in which the new state compensates victims of former land dispossessions that were based on laws discriminating because of race. Building on this research, the project addresses a central research gap by focusing on the renegotiations of modern statehood that are at the core of South African land restitution.
SWISS National Science Foundation (SNSF)

  • Prof Dr John L. Comaroff, Department of African and African American Studies, Harvard University, Cambridge (USA
  • Prof Dr Harri Englund, Division of Social Anthropology, University of Cambridge (UK)
  • Prof Dr Marie-Claire Foblets, Max Planck Institute for Social Anthropology, Halle (Germany)

Prof Zenker received his PhD from the Martin Luther University and the Max Planck Institute for Social Anthropology, Halle/Saale, Germany, and obtained his habilitation from the University of Bern, Switzerland. He previously worked at the Free University of Berlin, and since February 2017, is Professor of Social Anthropology at the University of Fribourg, Switzerland.
Prof Olaf Zenker
Department of Social Sciences
University of Fribourg
PER 21 – Office G340
Boulevard de Pérolles 90
1700 Fribourg
T: +41 (0)26 300 7841

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