Paper short abstract:

South African land restitution was shifted from a judicial to an administrative process in the late 1990s in order to speed up service delivery. This paper investigates the inadvertent consequences of this shift in unleashing the bureaucracy from judicial review, unless enforced by opposing landowners.

Paper long abstract:

Recently, global trends towards more juridification and judicialisation have been noted. While this development has surely been present in South Africa as well, the ongoing land restitution process, by contrast, experienced a marked de-judicialisation in the late 1990s. In land restitution, in which rightful claimants are entitled to either "land restoration" or "equitable redress", the state simultaneously functions as the core reference point (as claims are lodged against the state), the champion of claimants through the Commission on Restitution of Land Rights, and the judicial arbiter through the specialist Land Claims Court. Initially, each claim had to be referred to the Land Claims Court for ultimate settlement. Given the painfully slow progress that ensued, a ministerial review led to a shift from this judicial to an administrative approach: now ministerial bureaucrats have the power to settle claims by agreement, and only contested cases end up in court. While this undoubtedly led to more efficient service delivery, it simultaneously undermined accountability by unleashing the administrative bureaucracy from systematic judicial review: unless claims are contested in court, the Department of Land Affairs, it seems, can operate all too flexibly. Effectively, this also often means that the burden of enforcing judicial review is outsourced to those current landowners who oppose the validity of land claims. Since current owners only become party to cases when "land restoration" is sought, shifting instead to "equitable redress" thus allows the administrative state to implode court cases and hence to evade judicial review itself.