Accepted paper:

Implementing state law under chiefly rule: Navigating the plural legal orders of South African land restitution

Author:

Olaf Zenker (Martin Luther University Halle-Wittenberg)

Paper short abstract:

Based on a case study of the communal land claim on “Kafferskraal” and 16 surrounding farms in Limpopo, this paper investigates how the state conceptually and practically processes the paradox of having to navigate plural legal orders in order to ultimately implement its own law.

Paper long abstract:

South African land restitution redresses past race-based land dispossessions, which went hand in hand with massive relocations of Africans to so-called "homelands" under the codified "customary rule" of state-recognised "tribal authorities". While current restitution law clearly emphasises individual rights of citizens even in communal land claims, in which the restored land must be held by a democratically constituted legal body, those state officials tasked with the actual implementation of these regulations face great problems. In many rural areas, these "bush-level bureaucrats" are confronted with powerful structures of "customary law" and chiefly rule that persist as complex assemblages of older apartheid-codified "customary law", the "living customary law" and new attempts at constitutional and statutory regulations regarding "customs" and chiefs. Especially recent statutory trends towards a re-empowerment of traditional leaders further complicate the task of bush-level bureaucrats to implement seemingly straightforward court orders/settlement agreements in land restitution that get increasingly ambiguous when travelling to their target places. Based on a case study of the communal land claim on "Kafferskraal" and 16 surrounding farms in Limpopo, this paper thus investigates how the state conceptually and practically processes the paradox of having to navigate plural legal orders in order to ultimately implement its own.

panel G46
State strategies for navigating plural legal orders (IUAES Commission on Legal Pluralism)