Redressing the past with an eye to the future. The impact of the passage of time on property rights...

Citation: 27 Neth. Q. Hum. Rts. 45 2009

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REDRESSING THE PAST WITHAN EYE TO THE FUTURE.

THE IMPACT OF THE PASSAGE OF TIMEON PROPERTY RIGHTS RESTITUTIONIN POST-APARTHEID SOUTH AFRICA

WOUTER VERAART*

Abstract

How should the law respond to a period of grave injustice in which certain categories ofpeople were systematically deprived of their property rights and what is the impact of thepassage of time on restitution issues in dynamic societies? The argument will be made,first, that, irrespective of the passage of time, the implementation of a certain policy ofrestitution ofproperty rights is a necessary step in the (re-)establishment of a democraticlegal order. However, law's function in dealing with past deprivations of property rightswill vary with the passage of time. If the lapse of time between the moment of pastinjustice and the moment of restitution has been relatively short, it is possible to conceiveof the restitution process as a problem of corrective justice: as conflicts between originalowners of property rights and current owners in 'good' or 'bad'faith. After a substantiallapse of time, the financial burden of the restitution process will shift to the collective asa whole and the restitution process will become entangled in redistributive and future-oriented policies. The complexity of law's function in dealing with injustices in the farpast will be illustrated with a brief look at the contemporary land restitution process inpost-Apartheid South Africa.

1. INTRODUCTION

In her well-known book on Transitional Justice, Ruti G. Teitel addresses the followingquestions: 'What happens to transitional reparatory entitlements and obligations

Wouter Veraart is professor of legal philosophy at the Free University of Amsterdam, theNetherlands. This article is part of a research project 'Time, Restitution and the Law' for which a'Veni' grant has been awarded by the Netherlands Organisation for Scientific Research (NWO). Allinternet sites were last accessed in January 2009.

Netherlands Quarterly of Human Rights, Vol. 27/1, 45-60, 2009.@ Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 45

Wouter Veraart

over time?' And more generally: 'What are the consequences of the passage of timefor transitional justice?" Teitel discovers something odd in the relation betweenthe passage of time and transitional justice. Normally, legal claims tend to weakenover time: they are 'superseded' after a few decades through statutes of limitationor rules of prescription.2 But in certain cases of extreme injustice the tendency oflaw to weaken or expire over time is itself checked or opposed.3 The internationalrecognition of the imprescriptibility of genocide and crimes against humanity is acase in point.4 However, within international criminal law, the imprescriptibility ofcertain crimes is kept in balance, so to speak, by the mortality of the perpetrators.Their criminal responsibility cannot be transmitted to their heirs, preventing criminallaw from becoming (most of the time) an intergenerational issue. Within private law,this is different, as legal claims as well as liability for certain acts may be transmittedto following generations; reason why, with the passage of time, transitional justicebecomes more and more a story of restitution and compensation and less of purges,lustration and punishment.

In this article, I will limit myself to problems of restitution of property rights withina context of transitional justice. Within this field different time-related problems arise.Central to the discussion is the question: what exactly is the effect of the passage oftime on restitution claims based on the experience of past injustice? This questionrevolves around the impact of restitution claims on the coherence and stability of thepresent legal order. This fundamental problem forces us to look in different directions.If we suppose that ordinary statutes of limitation may be superseded in those cases,what makes these claims different from other legal claims which remain subjected tostatutory limitations? This question is looking backwards, to the specific nature of theinjustices involved, and tries to distinguish them from 'ordinary' cases of property-related injustices such as theft or fraud. This theme is the subject of the first part ofthis article.

A second issue is much more contemporaneous or even future-oriented. Ifwe acceptthat restitution claims should be dealt with in a legal fashion even after a substantial

Teitel, Ruti G., Transitional Justice, Oxford University Press, Oxford 2000, p. 138.2 See, for example, Mill, J.S., 'Principles of Political Economy with Some of Their Applications to

Social Philosophy', Book 2, Chapter II, in: Robson, J.M. (ed.), Collected Works ofJohn Stuart Mill,University of Toronto Press, Toronto, 1965.For a critical stance, see Waldron, Jeremy, 'Superseding Historic Injustice', Ethics, Vol. 103, No. 1,October 1992, pp. 4-28; and Cowen, Tyler,'How Far Back Should We Go? Why Restitution ShouldBe Small', in: Elster, Jon (ed.), Retribution and Reparation in the Transition to Democracy, CambridgeUniversity Press, Cambridge, 2006, pp. 17-32.

4 For an interesting overview and comparison of statutes of limitation and the notion ofimprescriptibility within international criminal law, see Kok, Ruth A., Statutory Limitations inInternational Criminal Law, T.M.C. Asser Press, The Hague, 2007. See also Campagna, Norbert,Strafrecht und unbestrafte Straftaten. Philosophische 17berlegungen zur strafenden Gerechtigkeit undihren Grenzen [Criminal law and unpunished criminal acts. Philosophical thoughts on punitivejustice and its limits), Franz Steiner Verlag, Stuttgart, 2007, pp. 131-134.

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The Impact of the Passage of Time on Property Rights Restitution in Post-Apartheid South Africa

lapse of time (that is 40 years or more), the question how to deal with them seemsto alter with the passage of time. This appears to be the case because, after severaldecades after the injustices occurred, a policy of straightforward restitution of specificproperty rights, based on private law-concepts such as the (retroactive) annulment offorced transactions and the presumption of bad faith of current owners, is in mostcases due to changed circumstances no longer a viable option. Alternative approachessuggest an abandonment of the corrective justice-mechanism altogether, or at least toa certain extent, giving room to more open-ended, less legalistic approaches. Amongthe alternatives are policies aimed at restitution on a smaller scale, combined withfinancial compensation or compensation in kind, policies of redistribution, symbolicgestures and political compromises. What are the benefits and pitfalls of thesealternative responses to injustices in the (far) past? And do these really annul what hashappened in the past, or are these measures to be considered and evaluated differently,with only one eye to the past and the other eye to the future? In order to deal with thisquestion in the second part of this article, I will make use of the conceptual differencebetween corrective and distributive justice, two famous concepts of justice which datebackto Aristotle's Nicomacheian Ethics.5 The South African post-Apartheid experiencewith the restitution of land rights, after the promulgation of the Restitution of LandRights Act in 1994, will be taken as an example.

2. LOOKING BACKWARDS: A LEGAL RESPONSE TO LEGALINJUSTICE

How is it possible that certain past injustices do not seem susceptible to the healingpower of time but are, on the contrary, transmitted from generation to generation? Thisis a complex question that cannot be answered exhaustively. It is clear that the injusticecommitted ought to be extreme.6 But extreme injustice is an open-ended phenomenon:it has innumerable forms, which cannot be predicted beforehand. However, within thecontext of this article, one type of extreme injustice can be distinguished from moremoderate types of injustice which do not preclude prescription. This type of extremeinjustice is at least partially executed or enabled by legal means; committed by, orinspired by, State-orchestrated practices, to the effect of depriving certain categoriesof people of their rights, by systematic forms of dispossession, persecution, or evenutter destruction. It is not difficult to see that systematic dispossession of propertyrights, brought about in a (partially) legal and discriminatory form, goes beyond thevices of 'ordinary' theft or robbery. A comprehensive policy of dispossession hurts

5 See Aristotle, The Nicomacheian Ethics, Book V, Oxford University Press, Oxford, 1988.6 Cf Radbruch, Gustav, 'Gesetzliches Unrecht und uibergesetzliches Recht' [Statutory injustice

and superstatutory law], in: Radbruch, G., Der Mensch im Recht [The human being in the law],Vandenhoeck & Ruprecht, Gottingen, 1957, pp. 111-124, at p. 119.

Netherlands Quarterly of Human Rights, Vol. 27/1 (2009) 47

Wouter Veraart

human beings not only in their assets or in their physical wellbeing, but also in theirquality as legal persons, in their capacities to act as responsible agents and to take partin social, political and economic life.7 This type of extreme injustice deprives peopleof their (full) presence in the legal order. By 'outlawing' certain categories of people,extreme injustice in this definition is therefore a flagrant violation of even the mostlimited sense of human rights and the rule of law.8

Barring specific categories of people from (full) access to the legal order, byunjustly discriminating against them and systematically dispossessing them of all orpart of their assets, is a cause of extreme injustice, often related to genocide or othercrimes against humanity. As indicated above, a politics of dispossession amounts todehumanisation, to the depersonalisation, in a juridical sense, of the victims, whoare hampered in their functioning as social and political beings and as full-fledgedlegal subjects. Moreover, another victim is the legal order itself. Using legal meansand institutions to commit acts of systematic dispossession against certain categoriesof people inevitably implies that the rule of law, understood as a guarantee of legalequality amongst human beings within the same jurisdiction,9 is broken down. Thelegal order has been used as a mechanism of oppression and has lost its legitimacy asan - always imperfect - beacon of impartiality and justice. In sum, not only humanvictims are traumatised by what has happened, so is the legal order itself.

Bearing in mind these different aspects, it may become clear why legal claimsrelated to this kind of injustice do not disappear over time. The dispossessed wereousted by legal means, they became citizens of a lesser kind, or even considered asUntermenschen, 'lesser than humans'.10 The subsequent instauration of a democraticlegal order, based on the rule of law and the protection of human rights, is in itselfnot sufficient to overcome, let alone to 'undo' this experience. The (retroactive orprospective) abrogation of the extremely unjust legislation can be seen as a symbolicallyimportant starting point by which the present legal order may commence to 'purge'itself by distancing itself explicitly from the unjust past. A second step could be thepromulgation of specific legislation enabling victims of dispossession to stand upbefore an independent judiciary for the reclamation of their rights.

Offering people a renewed 'access to the law', by enabling them to stand up for theirrights before an independent judicial institution, strikes me as extremely important,

7 Cf Ricoeur, Paul, 'Who is the Subject of Rights?', in: Ricoeur, P., The Just, Chicago University Press,Chicago-London, 2000, pp. 1-10; and Hilberg, Raul, The Destruction of the European Jews, Revisedand Definitive Edition, Holmes & Meier, New York, 1985, chapter III.

8 For a more developed argument leading to these conclusions, see Veraart, Wouter, Ontrechting enrechtsherstel in Nederland en Frankrijk in dejaren van bezetting en wederopbouw [Deprivation andrestitution of property rights during the years of occupation and post-war reconstruction in theNetherlands and France], Kluwer, Deventer, 2005, pp. 1-46.

9 For an opposite view, see Raz, Joseph, 'The Rule of Law and its Virtue', The Law Quarterly Review,Vol. 93, 1977, pp. 195-211.

1o See Veraart, op.cit. (note 8), p. 19.

Intersentia48


not only in a practical sense, but also symbolically, in that it stands for a break withthe past, for a 'welcoming back' within the legal order in the best possible way thelaw can offer: by letting people speak again as free and equal citizens before a trulyindependent institution."

This insight may best be illustrated by examples taken from situations in which thelapse of time between the moment of extreme injustice and the process of restitution isrelatively short. For example, the moment the Dutch Jewish lawyer Heiman Sanders,a born fighter with high moral and legal principles, started his first great plea beforethe Judicial Division of the Dutch Council for the Restoration of Rights in September1948, dealing with the restitution of property rights on behalf of the Dutch-Jewishpopulation after World War II, has been a defining moment in the otherwise unedifyinghistory of (the immediate) post-war restitution in the Netherlands. His gratitude forrecovering his voice in court was only matched by the solemnity of the hour:

[I am also filled with] gratitude for being allowed to reach the day in which to fight forjustice against a big injustice before a Court, which stands completely outside the spheres

of interests of the parties involved. But on the other hand, I feel very strongly the burden of

responsibility towards the part of the population I represent here and whose interpreter I

am. This must be [similar to] the feeling of the cantor, when he in a couple of weeks, at Yom

Kippur, pronounces the prayer which belongs to the most beautiful of our liturgy.. 12

This quotation may underline the invaluable significance of offering people who havebeen outlawed by the legal system under an unjust regime, access to an independentinstitution (for example a court) to speak out and reclaim their rights. Moreover,Sanders' strategy of approaching the independent Judicial Division in order to provokelegal precedents instead of bargaining directly and outside the courtroom with theDutch authorities, was ultimately much more successful in securing restitution orcompensation for the decimated Jewish population in the Netherlands than wouldhave been the case otherwise.13

" The much discussed South African Truth and Reconciliation Commission (TRC) has drawn ina relatively fruitful way on this idea, but sometimes its fact-finding mission was hampering its'healing' objective, when the procedure before the commission was preventing victims to speakout in a spontaneous way. For some examples, see Van Marle, Karin, 'Law's time, particularityand slowness', in: Le Roux, Wessel and Van Marle, Karin (eds), Law, Memory and the Legacy ofApartheid: Ten years after AZAPO v President of South Africa, Pretoria University Law Press,Pretoria, 2007, pp. 26-28.

12 Plea of Mr H. Sanders in re: Vecht/Bosch and Polak/Van der Werf, before the Judicial Divisionof the Council for Restoration of Rights on 20 September 1948, Archive of the Commission forthe Protection of the Rights of Dispossessed Owners, access no. 2.19.042.56, inv.no. 70, p. 3 DutchNational Archives, The Hague (author's translation).

13 See Veraart, Wouter, '"Reasonableness" or strict law? The postwar restitution of property rightsin the Netherlands and in France (1945-1952)', Yad Vashem - The International Conference onConfronting History: The Historical Commissions of Inquiry 2002, available on http://wwwl.


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In the same vein, in liberated France, in 1944 and 1945, the question how torespond to the spoliation of the Jews in France by Vichy and the German authorities,was answered in a way that befitted the best legal principles of the French Republic.Some people wanted to use the same bureaucratic means to restore the French Jewsin their rights as Vichy had used to dispossess them.14 But the historian AntoineProst explained in one of the reports that were published by the Study Mission on theSpoliation of Jews in France (researching the French post-war restitution process) in2000, why in France this pragmatic approach has not been adopted, but already atan early stage has given way to a vision more in line with the ideals behind the re-establishment of the French republic in August 1944:

[T]he administrative procedure, in the delicate field of property law, characterized preciselyVichy's refusal of republican principles, and the restored Republic wished to mark itsdifference by entrusting the judicial branch, and not the executive branch, with the task todeal with the inevitable lawsuits as a consequence of aryanisation.s

Unlike the Dutch, the French post-war provisional legislator was very conscious ofthe dangers of giving free rein to the administration in such a principled affair as theundoing of systematic spoliation of a part of the population. The French also opted forvery strict restitution laws to the advantage of the claimants, based on the idea thatall forced transactions of property rights which occurred without permission of theowners during the war years, were null and void from the outset and had to be undone.The Dutch restitution legislation was, on the contrary, extremely open-ended andgranted full protection to current owners who were in good faith (that is not aware ofthe Jewish origin of the property at the time of the acquisition). Moreover, the Dutchadministration, especially the Dutch Minister of Finance could exert great influenceon the restitution process, and protected large financial companies to the detrimentof claims of original owners, because he prioritised the economic reconstruction ofthe country. That's why the Dutch restitution process has been ridden with difficultiesfor the claimants, whereas the French approach was much more successful in makingsure that the dispossessed people were legally recognised in their claims and, to a largedegree, indeed were getting their fortunes back.

yadvashem.org/about-yad/departments/institute/pdf/veraart-paperrevised since-conference_new.pdf.

14 See Veraart, op.cit. (note 8), pp. 433-434:'[We should] redo in the opposite direction what 1044 civilservants [of the Vichy department of Jewish Affairs] have done during three years of continuous andpersistent labour', remarked a French official in 1946 (author's translation), but by then this roadwas not taken.

15 Prost, Antoine et al., Aryanisation dconomique et restitutions [Economic aryanisation andrestitutions], Mission d'6tude sur la spoliation des Juifs de France [Report of the Study Mission onthe Spoliation of Jews in France], La Documentation Frangaise, Paris, 2000, p. 67. See also Veraart,op.cit. (note 8), p. 4 3 3 .

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The argument so far has been that a systematic dispossession of property rights of apart of the population constitutes an'extreme injustice', because it hurts human beingsnot only in their assets, but also in their capacities to function as legal subjects and toparticipate as (full) citizens in economic and public life. Undoing this kind of injusticemust be a necessary step in any process of re-establishing a legal order in which equalaccess to the law is guaranteed for all. The immediate post-war experience with therestitution of property rights in European countries as France and the Netherlandsin the first decade after 1945, illustrates the paramount importance of the law - andof the independent judicial branch - in dealing with cases of restitution. However,in those cases, issues of legal and practical limits due to the passage of time did notoccur, as the lapse of time between the (relatively brief) period of extreme injustice(1940-1944) and the period of restitution (1945-1954) was short. How the passage oftime affects law's function and possibilities in addressing past injustices, will be thesubject of the next section.

3. REDRESSING THE PAST WITH AN EYE TO THEFUTURE; THE IMPACT OF THE PASSAGE OF TIME

After 1989, restitution of property rights even after the passage of a lot of time hasbecome a global phenomenon. The end of communism in Eastern Europe, the end ofthe rule of Apartheid in South Africa, and a sudden revival of worldwide interest inthe aftermath of the Holocaust have, amongst other significant events, 16 sparked itssudden popularity, even in the mass media.17 However, finding adequate answers todecades of communist expropriations in Eastern Europe, or to more than a centuryof segregation and Apartheid in South Africa, or responding to the massive spoliationof the European Jews during World War II 50 years after liberation, is of coursehampered by changed circumstances due to lapse of time.

This is not to say that nothing more could, or should, be done. The argument madein the previous paragraph was that instances of extreme injustice, such as the legalinjustice of systematically depriving certain categories of people of their propertyrights, demand redress, because these acts have outlawed and dehumanised people,and, for that very reason, delegitimised the legal order as a whole. In this respectat least it seems, in order to 'overcome' dehumanisation and illegitimacy, a legal

response to extreme injustice will always be a valuable moment and, by reaffirmingthe humanity of the victims and restoring legitimacy to the abused legal order, neverwill come too late.

16 Such as the war in former Jugoslavia, see the article of Antoine Buyse in this issue of NQHR.17 For an overview of the wide range of restitution issues in the 1990s, see Barkan, Elazar, The Guilt

of Nations. Restitution and negotiating historical injustices, The John Hopkins University Press,Baltimore and London, 2000.


Wouter Veraart

However, the passage of time raises the complex question about the urgencyof restitution of property rights as a precise response to a specific kind of extremeinjustice. This problem has been recently discussed by Jeremy Waldron. 'If somethingwas taken from me a few decades ago', he argues,

the claim that it now forms the centre of my life and that it is still indispensable to theexercise of my autonomy is much less credible. For I must have found some way to livein the mean time; I must have developed some structure of subsistence. And that will bewhere my efforts have gone, and where my planning and my practical thinking have beenfocused. I may, of course, yearn for the lost resource and spend a lot of time wishing that Ihad it back. I may even organize my life around the campaign for its restoration. But thatis not the same thing as the basis of the original claim.'8

If the dispossession was originally dehumanising, Waldron argues, it is very unlikelythat surviving claimants, or heirs of the original claimants, are still dehumanised byit after a few decades. Doubtless, circumstances will have changed, new generationswill have taken over, new lifestyles and modes of subsistence will have been adopted.While morally if not legally the original claim still stands - the original trauma isstill present, within the victims and their heirs, within the population at large, withinthe distribution of property rights, and within the legal order itself - the urgency ofthe claim seems to be diminished in the light of the different circumstances of thecontemporary moment.

It may be the central paradox of restitution of property rights as a response tohistoric injustice, that is after a lot of time has passed. The evil of the original injusticeresides precisely in the fact that it not only took away property rights, but that itoutlawed a category of people and destroyed with it their livelihoods, their way oflife, which entailed the dehumanisation. After a time lapse of several decades, therestitution of property rights may still be possible in some cases; but often the originallivelihoods, the specific skills, the community and its mores or culture, which oncehad been strongly connected with the property rights involved, will be impossible torestore.

This disparity due to changed circumstances within the core of the claim itselfwill be much more serious and visible in situations in which the present claimants arein dire need, than when they are rich and upbeat. In South Africa, for example, theproblem of the restitution of rural land rights to former black land owners or tenantsrevolves as much around issues of 'post-settlement support' as around problems ofsettlement of the restitution claims itself.19 Compare, for example, the following

18 Waldron, Jeremy, 'Redressing Historic Injustice', University of Toronto Law Journal, Vol. 52, 2002,pp. 135-160, at pp. 157-158.

19 See the Sustainable Development Consortium (ed.), Settlement and Implementation Support (SIS)Strategy for Land and Agrarian Reform in South Africa, Synthesis document, The Commission of theRestitution of Land Rights in the Department of Land Affairs, Pretoria, 2007.

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quotation, dealing with the successful restitution, already in 1994, of a big farm(Doornkop in Eastern Transvaal Province, South Africa) to members of a large blackcommunity which had been forcibly removed from it in 1974 during the so called'black spot removals' of the Apartheid regime in that period:

[A] fter the highly emotional moment of reclaiming, with the flags, the press, the nationalistrhetoric (...) suddenly the officials and everybody else departed, and the people were justleft there. They felt insecure. They did not go back to claim their original plots, they agreedrather that they needed a plan. 'The government will come next week,' they said. In themean time, they built a squatter settlement and called it 'Crossroads'.20

Deborah James, from whose book Gaining Ground this quotation coming from twoNGO-spokesmen in 1994 has been taken, added that '[tihese temporary shacks, adecade later, were mostly still in place'.21 The name of the squatter camp, 'crossroads',captures the point very well that despite the restitution of their farm, the Doornkopowners, after more than one decade since the farm was returned to them, are stillliterally 'caught' between the past which they, for a number of reasons, cannot re-enterand the future that is not yet there.

The impotency to re-enter the former situation, to return to the status quo ante,despite restitution taking place, has not only to do with many social changes andgrowing divisions within the composition of the Doornkop community itself.22 It

has also to do with major economic, political and global developments which haveaffected society at large, and South African agriculture in particular. Farming inSouth Africa in 1994 (or currently) had become a highly complex and difficult practiceand by no means comparable to sustaining a South African farm in the 1960s or theearly 1970s. 23

Land restitution in South Africa, for those who had been dispossessed undersegregation and Apartheid laws and practices after 19 June 1913,24 is made possibleby the enactment of the Restitution of Land Rights Act 22 in 199425 and enshrined asa constitutional right in the property clause of the Constitution of 1996.26 The racistApartheid legislation was already abrogated in 1991, but not retroactively. The cut-off

20 James, Deborah, Gaining Ground? 'Rights'and 'Property' in South African Land Reform, Routledge-Cavendish, New York, 2007, p. 74.

21 Idem.22 See James, op.cit. (note 20), pp. 64-68.23 See Atkinson, Doreen, Going for broke. The fate of farm workers in arid South Africa, HSRC Press,

Capetown, 2007, pp. 53ff24 See section 2(1)(d) of the (South African) Restitution of Land Rights Act 22 of 1994.25 For a legal discussion of the Restitution of Land Rights Act, see, inter alia, Van der Walt, A.J.,

Constitutional Property Law, Juta, Cape Town, 2005, pp. 289-307.26 Section 25(7) of the South African Constitution reads: 'A person or community dispossessed of

property after 19 June 1913 is entitled, to the extent provided by an Act of Parliament, either torestitution of that property or to equitable redress.'


Wouter Veraart

date for the lodgement of claims has been set (after prolongation) at 31 December 1998.In recent years almost all 'urban claims' (relating to urban plots of land and houses)have been settled, mostly by way of monetary compensation of the dispossessedclaimants. Most rural land claims are still pending, due to the many complexitieswhich have arisen in this area.

Urban and rural land restitution is part of a larger project, land reform, whichalso consists of two other focus areas: a policy of improvement of security of tenurefor those whose legal position as rural workers have been weakened as a result ofApartheid policies, 27 and a policy of redistribution of rural land in order to makemore land available to people who were deprived of it during the period of Apartheidand who may have been landless throughout their lives. 28 While land restitution, withits emphasis on the restoration of specific rights which have been lost, is primarilylooking backwards, both land redistribution and the policy of improvement ofsecurity of tenure are primarily forward-looking policies, aiming to redistribute landin such a way among citizens that a more just society will be attained. 29 The conceptsof restitution and redistribution relate to Aristotle's famous distinction betweencorrective justice and distributive justice, with their incommensurable 'arithmetic'and 'geometrical' qualities. To put it a bit roughly: while corrective justice aims torestore 'arithmetically' a past wrong, by taking away the property (or its value) fromthe ones who profited from it and return it to the original owner - an act that tries toreturn to a status quo ante in the past without questioning the general justice of theinitial situation -, distributive justice aims to (re-)distribute scarce goods in such a wayamong members of a society - by allotting them'geometrically', that is proportionally,according to certain general qualities of these citizens - that the overall situation willbecome more just in the future. 30

However, within the South African context, the corrective and the redistributivepolicies are inexorably bound up with each other. As I indicated before, South Africanland restitution is part and parcel of a larger project of land reform, implying thatrestitution claims will be dealt with within a (changing) framework of future-orientedland reform policies (often influenced by liberal visions of economic development),which may mean that restitution claims going against these policies could bediscouraged or frustrated. In my view, this is the main reason why access to an

27 See section 25(6) of the South African Constitution and the Extension of Security of Tenure Act 62of 1997.

28 Land redistribution ('[tlhe state must take (...) measures (...) to foster conditions which enablecitizens to gain access to land on an equitable basis') is promised in section 25(5) of the SouthAfrican Constitution.

29 For an official document emanating from the Department of Land Affairs and canvassing the wholeprogramme of land reform, see the White Paper on South African Land Policy, published in 1997,also available on the website of the Department of Land Affairs: http://land.pwv.gov.za/legislationpolicies/white-papers.htm.

3o See Aristotle, op.cit. (note 5), 1130 b-1132 b.

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independent judiciary, as a bulwark against forward-looking politicians with theirunderstandable tendency to use the restitution process instrumentally for their ownends, and not valuing it enough as an end in itself, remains of the utmost importancewhen dealing with restitution, notwithstanding the specific context and irrespectiveof the passage of time. In South Africa, access to the Land Claims Court, with thepossibility of appeal and of constitutional review by the Constitutional Court offersa legal guarantee against arbitrary policymaking in restitution issues. However, dueto dissatisfaction with the slowness and the legalistic approach of the Land ClaimsCourt, the role of the Court has been substantially diminished after 1999. Since then,while access to the Court is still open to everybody, almost all claims are settled bythe Commission of the Restitution of Land Rights, an administrative body whichis accountable to the Department of Land Affairs. As a consequence, the Court hasmore difficulty than before to regulate the restitution process by the creation of legalprecedents, as the process is mainly channelled through the much more policy-minded Commission.31

Different factors may explain the intermingling of corrective and redistributivepolicies within the South African context, and they all have to do with changedcircumstances as a consequence of the passage of time. In the first place, in the SouthAfrican situation, there is the aforementioned issue of post-settlement support. It hasproven totally impossible to restore people their farms and just leave it there, expectingthat they will run their farms again, comme si rien n'dtait, as if the decades did notrun by. After 15 years of South African land restitution, one of the main lessons learntis that rural land restitution does not end, but only begins with the legal transfer ofland to a former dispossessed community. A multifaceted forward-looking approachis needed, involving many departments, to build up viable farms and to enablecompletely changed communities to thrive in completely changed circumstances.Redressing the past in this context is not only about restitution, but as much, andarguably even more importantly, about opening up the future.

Secondly, it is evident that in the South African case, there simply is no moreor less just initial situation to return to, some acceptable former distribution of landrights which would be attained in the unlikely event that all the lands would have beenreturned to their former owners. The cut-off date of 19 June 1913 had been chosenbecause on that date the notorious Natives' Land Act 27 was issued by the Union ofSouth Africa, with long-lasting and devastating effects for the land rights and legalstatus of the black population. 32 This cut-off date is already a very ambitious one,

31 See Roux, Theunis, 'Pro-poor court, anti-poor outcomes: Explaining the performance of the SouthAfrican Land Claims Court', South African Journal on Human Rights, Vol. 20, No. 4, 2004, pp.511-543, at p. 516; and Du Plessis, W., Olivier, N. and Pienaar, J., 'Delays in land reform - SouthAfrica emulating Zimbabwe?', SA Publiekreg/Public Law, Vol. 16, No. 2, 2001, pp. 432-457, at pp.435-436.

32 It prohibited Africans from purchasing or leasing land outside special reserves, covering about7 percent (later 11.7 percent) of the South African territory. About the Native Land Act and its


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covering almost a century of segregation and Apartheid, but arbitrary nonetheless,because in 1913 the expulsion of native people, tribes, black families and communitiesfrom their lands was already going on for a long time, dating back even severalcenturies. 33 In this and similar situations, a policy of land restitution seems to benecessary but not yet sufficient, and needs to be supplemented by a policy of landredistribution.

Thirdly, the absence of an acceptable initial situation to return to is also illustratedby the fact that former land rights such as ownership, land tenure, grazing andcropping rights etcetera, were very unequally distributed among members of the blackpopulation. In fact, claims based on full former ownership in rural land (of which theaforementioned Doornkop-claim is an example) are rare in the South African case.In this context, a restitution policy favouring or prioritising 'full' ownership rightsover other ('lesser') rights in land would reinforce inequality and discriminate againagainst the majority of black claimants. For this reason a just land reform policy is alsoabout the 'fragmentation' of property rights, by giving due respect to all sorts of landrights, including different forms of land tenure.34 But, extending the legal security ofland tenure, for example, is clearly a forward looking policy with redistributionaryeffects. Unfortunately, the South African legal effort to give more legal security torural tenants appears to be counter-productive, as farm owners, for their own goodreasons, are reluctant to employ farm workers who are very hard to evict. 35

In the same vein, a simple return to (pseudo-)traditional forms of communalownership3 6 would mean that their hierarchical and paternalistic internal structureswould be reproduced. Post-Apartheid legislation tries to remedy these undesiredconsequences by transforming the concepts ofcommunal ownership in a redistributiveway, in order to obtain more just, secure and (gender-)equal relationships within thecommunal structure. This project is ridden with difficulties.37

In the fourth place, the passage of time makes it difficult to dispossess currentowners, who in many cases should be considered to have been in good faith at themoment of the acquisition of their lands. But it is not only a question of good faith.In the South African restitution process, there is the fear of 'another Zimbabwe', amajor disruption of the rural economy when commercial white farmers would beousted from their lands on a large scale, to the benefit of former right-holders. The

consequences; see Plaatje, Sol, Native Life in South Africa [1916], Picador Africa, Northlands, 2007.For the historical context of the act, see Thompson, Leonard, A History of South Africa, JonathanBall Publishers, Johannesburg and Capetown, 2007, pp. 158-166.

3 See Thompson, op.cit. (note 32), chapters 1-4.3 Cf Walt, A.J. van der, 'The fragmentation of land rights', South African Journal on Human Rights,

Vol. 8, 1992, pp. 431-450, at pp. 446-450.3s See Atkinson, op.cit. (note 23), pp. 79-90.36 Most forms of communal ownership were created under Apartheid.37 The Communal Land Rights Act 11 of 2004 is an important piece of legislation in this area. Powerful

chiefs within traditional black communities are often unwilling to cooperate.

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protection of existing property rights of the white minority was also part of thepolitical compromise struck in 1993 between the different political factions,3 8 whichpreceded the interim Constitution of 1993,39 which in its turn has been replaced bythe Constitution of 1996. In the 1996 Constitution the property clause within the Billof Rights, section 25, offers both protection of existing property rights (in subsections(1)-(3)) and a strong commitment to land reform and land restitution (in subsections(4)-(8)). It is clear that this double-sided function creates an inherent tension withinthe property clause itself and has raised problems of interpretation.40 According toVan der Walt,

[t]he only sensible and legitimate interpretation of section 25 is (...) one that allows (andactually obliges) the courts to strike an equitable balance between the protection of existing

rights and the public interest (which includes land reform goals).4 '

Within this constitutional framework, land redistribution or land restitution in kind

in cases in which the current owners of the land are unwilling to cooperate, are onlypossible by expropriating them. Subsections 25(3) and (4) allow for expropriationsfor the purpose of land reform, defined as a public interest. The amount of thecompensation should be 'just' and 'equitable', the current market value of the land

being only one of the factors which must be taken into consideration. In cases of land

restitution, however, expropriations of current owners against compensations belowmarket value have been a rare - and politically highly sensitive - phenomenon. 42 Asa consequence, it is almost exclusively the South African (taxpaying) communityas a whole, not the individuals or group who have profited and still profit from the

history of segregation and Apartheid (especially current white farm owners), who is

financing and delivering restitution, or alternative compensation whenever restitution

in kind does not take place. In this sense restitution of land rights in South Africa can

be described as a special kind of land redistribution. Even the applicability of the

concept of 'expropriation', as a tool to oust current owners, is in itself a recognition,

not a challenge, of their rightful legal ownership.43 The in South Africa much debated

legal and constitutional guarantees around expropriation are an expression of this

recognition.

38 See, inter alia, Klug, Heinz, Constituting Democracy. Law, Globalism and South Africa's PoliticalReconstruction, Cambridge University Press, Cambridge, 2000, pp. 118-138.

3 See section 28 (dealing with the right to property) and section 123 (dealing with land reform) of the

1993 Constitution. Interestingly, the entitlement to land restitution was not mentioned in the Billof Rights of the interim Constitution, but in a separate section. According to Van der Walt, op.cit.(note 25), p. 287, this was done 'possibly because of their intended limited time-span'.

40 See Van der Walt, op.cit. (note 25), pp. 22-26.41 See ibidem, p. 26.42 The South African Government has recently proposed a new Expropriation Bill for land reform

purposes, which has been met with much criticism.4 The question if their ownership may be attacked on the basis of private law remedies is still open.


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To summarise the argument so far, a brief and far from complete look at the SouthAfrican restitution process may illustrate the effect of the passage of time on large-scale restitution issues within a rapidly changing society. Restitution may still takeplace, and justly so, but its form and content will differ greatly from the correctivejustice mechanisms which are available in private law, in which lawsuits are framed asconflicts between original owners of property rights and current owners in 'good' or'bad' faith. After a substantial lapse of time, the financial burden shifts to the collectiveas a whole and an ambitious restitution policy will inevitably become more difficult toimplement and entangled in a myriad of redistributive and future-oriented policies,with the ever-present risk of dissolving into them.

4. CONCLUDING REMARKS

Claims relating to extreme injustice resist time. The legal order is not perfect and evenif it were, it would never be completely able to respond to them, even if it had alreadydealt with them extensively and is preparing for a second round. It is as if the law cannever do enough to answer extreme injustice, such as genocide and related crimes.These crimes will never be forgotten and the demands of its victims or their heirs willforever keep popping up. Claimants keep demanding restitution, not only originalvictims, but also following generations in their search for recognition and redressfor the extreme injustice suffered by their ancestors. It is interesting why it is exactlyrestitution in kind (and not redistribution in some form) which is so often demanded.Restitution in kind, with its ambition to 'undo' the evil of the past, is a concept withstrong religious overtones, which transcends, so to speak, any secular legal setting.For example, the claimants in the earlier mentioned South African Doornkop case,who were Christians, interpreted the restitution of their original farm as a return totheir promised land, and during the time of their dispossession compared themselveswith the Israelites when they were in Egypt.44 Especially rural land is an object withwhich people may identify very strongly, as farmers, tenants or sharecroppers, or asan indigenous people or tribe or because the land was a dwelling place and a burialsite of their ancestors. 45

In the above I argued, first, that systematic deprivations of property rights ofspecific parts of the population constitute an extreme injustice whenever they havethe effect of hurting people in their capacities to act as responsible agents and to takepart in economic and public life. Undoing this kind injustice is a necessary step in the

44 See James, op.cit. (note 20), pp. 60-64.4s See, for example, Van Onselen, Charles, The Seed is Mine. The Life of Kas Maine, A South African

Sharecropper 1894-1985, Jonathan Ball Publishers, Johannesburg and Capetown, 2005. For theimportance of houses and of housing restitution as a consequence, see Buyse, Antoine, Post-Conflict Housing Restitution. The European human rights perspective, with a case study on Bosniaand Herzegovina, Intersentia, Antwerp, 2008, chapter 2.

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(re-)establishment of a legal order in which the rule of law applies and access to thelaw is guaranteed for all. In this sense, finding a legal response to extreme injusticewould be always a meaningful project, irrespective of the passage of time. However,restitution of property rights has its momentum. It could best take place as soon aspossible after the injustices occurred. When the gap between the past injustices andthe restitution process becomes large, covering many decades or even more than onecentury, as in the South African case, law's function will undergo a formidable changeand should not be overvalued.

The South African restitution process is a case in point. In order to break awayfrom the Apartheid era, one needed an identifying mark and this mark becamethe Constitution of 1996 (after the interim Constitution of 1993), especially its Billof Rights, including rights to land reform and land restitution in its chapter 2. Thisconstitutional act symbolically provided for a break with segregation and Apartheidand enabled South African citizens to enter a new society. On the basis of constitutionalpromises, a land reform (including land restitution) process was set up and gotunderway. This process has become very lengthy and is not at all yielding the resultsas one had expected in the early 1990s. The disparity between the promise of theconstitution and the material progress 'on the ground' is striking. The symbolic breakwith the past does not correspond with the actual distribution of property rights inSouth Africa, which is still based, in many ways, on the Apartheid era.46

In this way, not only the Doornkop farmers are caught between past and future,but South Africa as a whole. The passage of time has made it impossible to 'redress'the past, or to embark on a restitution process on the basis of cherished concepts ofprivate law, such as the Netherlands and France in the first decade after World WarII could do, holding current owners in bad faith responsible for their transactionsduring the war. In this respect, it is easy to describe the restitution and redistributionof rural land in South Africa at the present moment as an utter failure: the processis very slow, current white farm owners do not bear the financial burden, and almostall of the returned lands lay fallow. However, the fact that, albeit in a mitigated form,restitution does take place and, at least on a local level, is responding to the injusticesof segregation and Apartheid, is still a modest, but invaluable sign of a legal ordertrying to come to terms with its past and offering new hope for the future.

The South African restitution process is unique, not only in its failure to deliverquick and clear-cut answers to the manifold extreme injustices of its very long past,

46 See Hall, Ruth, 'Transforming rural South Africa? Taking stock of land reform', in: Ntsebeza,Lungisile and Hall, Ruth (eds), The Land Question in South Africa. The Challenge of Transformationand Redistribution, HSRC Press, Cape Town, 2007, pp. 87-106, at pp. 88-89: 'The target of landreform, proposed by the World Bank and adopted in the Reconstruction and Developmentprogramme (RDP) in 1994, was to transfer 30% of agricultural land within the first five years. (...)By February 2005, 3.5 million hectares had been transferred through all aspects of land reform -approximately 4 percent of agricultural land (...). To reach the 30 percent target by 2015, deliveryover the coming decade would need to be increased eightfold.'


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but also in the careful attention paid to the legitimacy and legality of the process, asexpressed by section 25 within the bill of rights of the Constitution, the Restitutionof Land Rights Act and the establishment of an independent Land Claims Court.The fact that the Constitutional Court of South Africa has already pronounced landmark decisions in restitution cases,47 has a very strong symbolic value, not only forthe victims of the segregation and Apartheid laws and practices, but also for therestoration of integrity of the legal order itself.

4 See, especially, Alexkor Ltd and the Government of the Republic of South Africa vs RichtersveldCommunity and Others, 14 October 2003 (12) Butterworths Constitutional Law Reports 1301, SouthAfrican Constitutional Court; and Barry, Marcia 'Now another thing must happen. Richtersveldand the dilemma's of land reform in post-apartheid South Africa', South African Journal on HumanRights, Vol. 20, No. 3, 2004, pp. 355-382.

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