Administration in District Six - Organisational Identity 149 and an Impasse of Governance
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The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University Reading Restitution in District Six: Law, Discourse and ‘Governmentality’ Thesis Presented for the Degree of DOCTOR OF PHILOSOPHY In the Department of English Town UNIVERSITY OF CAPE TOWN Cape By Robertof Macdonald Student Number: MCDROB008 UniversityAugust 2012 Supervisor: Professor John Higgins 1 Declaration: This work has not been previously submitted in whole, or in part, for the award of any degree. It is my own work. Each significant contribution to, and quotation in, this dissertation from the work, or works, of other people has been attributed, and has been cited and referenced. Signature: Date: Town Cape of University 2 Abstract This thesis carries out an interdisciplinary textual analysis of the legal documents (primarily contracts and court documents) used to negotiate and fix the terms of the statutory land restitution process in District Six, Cape Town, during the period from 1996 to 2012. Utilizing French philosopher Michel Foucault’s theorisation of ‘discourse’ and ‘governmentality’, it traces the interweaving of restitution’s legislative concepts with heterogeneous political and cultural discourses emanating from District Six’s unique history. It is argued that the hybridised configurations of discourse generated by this encounter serve as new instruments of power in the space of thisTown restitution project, lending themselves to a range of unintended and sometimes paradoxical material outcomes. The introductory chapter of the thesis contextualisesCape land restitution within South Africa’s broader political project of securingof a peaceful transition from apartheid to a post-apartheid liberal democracy under a new constitutional regime. It argues restitution aimed simultaneously at redress for apartheid dispossessions and at building stability and legitimacy for the new regime, but has had limited practical outcomes, with District Six as one of the most prominent instances in this regard. The thesis methodology and theoretical framework in Foucault’s work on discourse and governmentality are introduced. University Chapter two analyses restitution’s legislative discourse and provides an overview of its application in District Six. The chapter distinguishes four main elements of restitution legislation, namely, its subjects, its objects of dispossession, its objects of restoration and its rules for administration (that is, the procedures for lodging, adjudicating and settling restitution claims, and the role of the state in governing those procedures). 3 Chapter three focuses on the re-inscription of restitution’s ‘object of dispossession’ in District Six. It argues that in the District Six legal texts, historic notions of ‘lost community’ eclipse restitution’s conceptual basis in property law. The result has been a ‘rewriting’ of restitution’s legal object of dispossession in the legal texts, steering the conceptual and physical course of the project toward a collectivised, ‘single- redevelopment’ solution to restitution. Chapter four examines the construction of restitution’s ‘subjects’ in District Six. It argues that the legal notion of the ‘claimant’ has been transformed in this case through the imposition of institutional identifications created by a formal trust, which has tended to marginalise the legal subjects of restitution from decision-making or access to land. Chapter five analyses the production of restitution’s ‘objectTown of restoration’ in District Six. It argues that the envisaged socially and physically ‘integrated redevelopment’ for the site has led to modes of urbanism that have, paradoxically, generated new and intensive modes of social segregation and exclusion,Cape primarily of claimants themselves. Chapter Six turns to the question of stateof administration in restitution, examining how the legislation’s envisaged role for bureaucratic organs of state and laws of administration has fared in the case of District Six. It argues that, at various points throughout the restitution process, organs of state have found themselves branded with organisational identifications revived from the site’s lexicon of anti-apartheid struggle texts, creating a fundamentalUniversity legitimacy deficit for bureaucratic modes of authority and a progressive withdrawal of the state from the project. The thesis argues, therefore, that in this case of restitution, the state and the law have receded in the space of ‘governmentality’ in Foucault’s sense of the term, while the actual text of the law itself has undergone a range of appropriations and transformations. As such, this thesis argues that the debate on land restitution and reform in South Africa needs to be informed by a closer reading of inscriptions of ‘the legal’ in specific sites of restitution implementation. 4 Table of Contents Acknowledgements 9 Chapter One: Introduction to Restitution and ‘Governmentality’ - The 10 Interweaving of Law and Heterogeneous Discourses in District Six Town Chapter Two: Restitution’s Constitutional OrderCape of Discourse 44 of Chapter Three: ‘Community’ and Restitution’s Alternative Object of 73 Dispossession University Chapter Four: The Subject of Restitution in District Six – from Victims to 98 Beneficiaries, from Activists to Trustees Chapter Five: District Six’s Object of Restoration – Integration 126 or Exclusion? 5 Chapter Six: Administration in District Six - Organisational Identity 149 and an Impasse of Governance Conclusions: District Six’s Hybrid Forms of Governmentality 174 Bibliography 181 Town Appendices – Primary Legal Texts in Chronological Order (see attached CD-ROM) Cape 1. ‘Application to the Land Claims Court in terms of Section 34 of the Restitution of Land Rights Act by Basilof Davidson, CEO of the Cape Town Community Land Trust on behalf of the Cape Town Central Substructure and Provincial Government of the Western Cape’. 1996. Cape Town. 2. ‘Founding Affidavit in the Land Claims Court Case Number LCC 11/1996 by BasilUniversity Davidson, CEO of the Cape Town Community Land Trust on behalf of the Cape Town Central Substructure and Provincial Government of the Western Cape’. 1996. Cape Town. 3. ‘Notice of Intention to Oppose in the Land Claims Court Case Number LCC 11/1996 by Anwar Nagia on behalf of the District Six Civic Association and others. 1996. Cape Town. 4. ‘Opposing Affidavit in the Land Claims Court Case Number LCC 6 11/1996 by Anwar Nagia on behalf of the District Six Civic Association and others. 1996. Cape Town. 5. ‘Opposing Affidavit in the Land Claims Court Case Number LCC 11/1996 by Anthony Bernard Lawrence on behalf of the District Six Civic Association and others. 1996. Cape Town. 6. ‘Opposing Affidavit in the Land Claims Court Case Number LCC 11/1996 by Timothy Alfred Strain Turner on behalf of the District Six Civic Association and others. 1996. Cape Town. 7. ‘Responding Affidavit in the Land Claims Court Case Number LCC 11/1996 by Basil Davidson, CEO of the Cape Town Community Land Trust on behalf of the Cape Town Central Substructure andTown Provincial Government of the Western Cape’. 1996. Cape Town. 8. ‘Notice of Intention to Withdraw’ by Basil Davidson,Cape CEO of the Cape Town Community Land Trust on behalf of the Cape Town Central Substructure and Provincial Governmentof of the Western Cape’. 1996. Cape Town. 9. ‘Land Claims Court Order’ Case Number LCC 11/1996. 1996. Cape Town. 10. ‘Facilitator’s Report’University for Land Claims Court Case Number LCC 11/1996. 1997. Cape Town. 11. ‘District Six Record of Understanding’. 1998. Cape Town 12. ‘Agreement for the Settlement of the District Six Ownership Land Claims in Terms of Section 42D of the Restitution of Land Rights Act No.22 of 1994’. 1999 onward. Cape Town. 13. ‘Section 42D Framework Agreement in Terms of the Restitution of 7 Land Rights Act 22 of 1994 for the Settlement of Urban Tenancy Land Claims in District Six, Cape Town’. 2000. Cape Town 14. ‘Deed in Respect of the District Six Beneficiary and Redevelopment Trust’. 2001. Cape Town. 15. ‘Memorandum of Agreement Regulating the Construction of a House in the Township of District Six at Cape Town’. 2004 onward. Cape Town. 16. ‘Land Development Agreement for the first and Second Pilot Projects’. 2005. Cape Town. 17. ‘Notice of Motion’ in the Land Claims Court Case Number LCC 145/07 by Mogamat Amien Majiet and Hannah Manley. 2007. CapeTown Town. 18. ‘Founding Affidavit’ in the Land Claims Court Case Number LCC 145/07 by Mogamat Amien Majiet. 2007. CapeCape Town. 19. ‘Responding Affidavit’ in in the Landof Claims Court Case Number LCC 145/07 by Anwah Nagia on behalf of the District Six Redevelopment and Beneficiary Trust. 2008. Cape Town. 20. ‘Responding Affidavit’ in in the Land Claims Court Case Number LCC 145/07 by Pogiso Molapo on behalf of the City of Cape Town. 2008. Cape Town. University 8 Acknowledgements I would like to thank my wife, Raazia, for her endless patience and support. In addition, I thank my supervisor Professor John Higgins, who has never stopped pushing me to do better. I must also thank my parents for helping me to get this far and supporting me throughout my studies. Finally, I would like to thank Pogiso Molapo and the staff at the Office of the Regional Land Claims Commissioner for the Western Cape for their time and their assistance with access to information and documents. Town Cape of University 9 Chapter One: Introduction to Restitution and ‘Governmentality’ - The Interweaving of Law and Heterogeneous Discourses in District Six 1.