Accepted Paper:

Theorising post-settlement litigation in South African land restitution  
Derick Fay (University of California, Riverside)

Paper short abstract:

Conflict among claimants is endemic to South African land restitution: communities settle claims, only to end up litigating internal struggles. Intra-community conflict reflects patterns of juridification and neoliberal governance, undermining restitution and limiting opposition to state policies.

Paper long abstract:

Conflict among claimants is endemic to South African land restitution: while land-claiming communities and the state rush to nominally settle claims, these leave latent conflicts that subsequently result in litigating internal struggles. Public hearings as part of a national review of restitution policy (HLP Report 2017) confirm the findings of local ethnographic studies (Beyers and Fay 2015, Fay 2013), as "speakers referred to the conflict, and enormous waste of time and expense in litigation, caused by competing or overlapping land claims, or competing stakeholder interests in particular land under claim" (HLP Report 2017: 239).

Drawing upon the author's ethnographic fieldwork on the Dwesa-Cwebe land claim (Fay 2013), and comparative analysis (Beyers and Fay 2015, HLP Report 2017), the paper critically reflects on attempts to theorise these processes. The practice of "bunching" disparate groups and interests in large group claims, tensions between claimant groups and the legal entities created to represent them, and the uncertainties and highly technical processes of claims implementation all contribute to the prevalence of conflict. These take place against the neoliberal background of the diminishing administrative capacity of the state, fragmentation of sovereignty, and the promotion of contractual arrangements between land claimants and "strategic partners," conditions which allow external actors to take advantage of intra-community conflict. Given the prospect of an independent hearing in the courts, these conditions give rise to the prominence of recourse to the law and litigation, even as such conflicts limit and fragment opposition to state policies and practices.

Panel P29
Fission and collision: disputation over native title boundaries and group membership