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View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by YorkSpace Customary Law and Indigenous Rights in South Africa: From transformative constitutionalism to living law in struggles for rural land rights Daniel Huizenga A Dissertation submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Graduate Program in Socio-Legal Studies York University Toronto, Ontario July 2019 © Daniel Huizenga, 2019 ABSTRACT South Africa is well known for the country’s model of racialized territorial government called apartheid and the successful transition to constitutional democracy in April 1994. The South African Constitution provides a framework for the progressive realization of human rights as a measure of transitional justice. The Constitution guarantees land reform to account for histories of racialized dispossession. However, critics argue that land remains insecure for millions of racialized peoples living in rural areas who remain subject to forms of undemocratic chiefly authority. Existing scholarship argues that rural land insecurity is due in part to a failure to legislate an appropriate post-colonial and emancipatory version of customary law as a basis for collective land rights. A common line of argument is that there are two ways of interpreting customary law – as either codified in law, as it was during colonialism, or as ‘living’ customary law, referring to an imagined historical evolution of custom in response to a democratic transition and changing social and economic conditions. For example, literature often focuses on traditional leadership in South Africa and argues that this model of governance, while based on cultural rights as protected in the Constitution, relies on ethnic and territorial control reminiscent of the Bantustan reserves under apartheid. In this dissertation I demonstrate that a dichotomous view of customary law, as either codified or living, is inaccurate in contemporary conditions of neoliberalism wherein forms of authority and subjectivity and claims to territorial control are characterized by multiple actors engaged in networked and horizontal relationships of power. In these conditions, I show, an ethic of transformative constitutionalism paired with forms of government characteristic of neoliberalism have opened opportunities for new articulations of human rights, custom and property, that contribute to the emergence of ‘living law’ and new forms of territorialisation. Moreover, I demonstrate that the transnational indigenous rights movement, and the vernacularization of indigenous rights in South Africa, are unsettling colonial and post-colonial assumptions about customary law in the contemporary period. The characteristics of living law that I identify emerge at the intersection of constitutional law, human rights, customary law, and transnational norms on peasant and indigenous rights through the activities of state agencies, non-governmental organizations, activist lawyers, and corporations who marshal different forms of legitimacy and authority. The dissertation draws from the disciplines of sociolegal studies, legal geography, and legal anthropology, and contributes to work on the topics of human rights, property, neoliberalism, Indigenous Peoples’ rights, customary law, and rural land rights. ii ACKNOWLEDGEMENTS This dissertation would not have been possible without the support of my partner in life, Holly. We met when my interest in research first sparked and she has been with me every step of the way. Thanks to Eli who has forced me to find a balance in life at the park, on our cargo bike, and writing my dissertation. My dissertation committee has influenced and inspired me throughout my doctoral studies. Annie Bunting has provided insight and encouragement on my work since she supervised by master’s thesis and I could not have imagined completing this project without her guidance and inspiration. David Szablowski has introduced me to research on the extractive industry, a topic that has become more central in my post-doctoral research. Special thanks to my supervisor, Rosemary Coombe, who offered unwavering support throughout my entire research journey and the twists and turns that it involved. This dissertation would not be what it is without her dedication to seeing me succeed beyond what I thought was possible for myself. Thank-you to the external examining committee members, Renee Sylvain and Daniel Yon, who pushed me to think differently about some key aspects of my work and contributed to an engaging discussion during my exam. Thanks to Chris Beyers who introduced me to socio-legal studies in his third-year undergraduate course, Law, Rights, and Development, at Trent University, and who supervised my honours thesis on the Richtersveld judgement. Thanks to my parents, Tina and Peter, for their continuous support and encouragement. My mom homeschooled me for the early years of my life and some of my independence and work ethic was certainly formed during this time. My dad’s eccentric energy has been a dependable reminder to find silliness and create adventure in the thick of things. My siblings have all inspired me carve my own path and to let creativity influence my thinking as much as existing scholarship. Dave, Robyn, Stephen, Christian, Aaron, Ben, Josh, and Will, as well as my siblings-in-law Peter, Jordan, Brittany, and Dawna, you have all contributed immensely to who I am as a person and as a researcher and academic. Thanks to many of my friends who were with me at York – Emily, Katrin, Devin, Matt and Ali, among many others. Connor was often at the center of many of our gatherings and he is dearly missed. Graduating will not be the same without the opportunity to celebrate with him. Finally, my friends and colleagues in South Africa have been a constant source of inspiration for me. Henk Smith, Wilmien Wicomb, Jackie Sunde, Ben Cousins, Johan Lorenzen, among many others. Their energy and persistence at the foot of mountains is something that needs to be witnessed. I remember my conversations with Brendan Boyle fondly; he offered critical discussions and insights as I worked and is missed by many. Thank-you to everyone who took time to tell me about their work. Thank-you to Aninka Claassens for inviting me to be a visiting researcher at the Centre for Law and Society and the Land and Accountability Research Centre and for expressing so clearly the legal challenges at stake in the recognition of living customary law. To everyone above, I look forward to many years of learning and collaboration in the future. iii TABLE OF CONTENTS ABSTRACT .................................................................................................................................... ii ACKNOWLEDGEMENTS ........................................................................................................... iii TABLE OF CONTENTS ............................................................................................................... iv LIST OF ACRONYMS ................................................................................................................ vii 1 INTRODUCTION: PROPERTY, TERRITORY AND HUMAN RIGHTS IN SOUTH AFRICAN LAND REFORM ......................................................................................................... 1 1.1 Introduction ....................................................................................................................... 1 1.2 Colonialism: Law, territory, and rural subjects ................................................................ 2 1.3 The Constitution, traditional leadership, and collective land rights ................................. 3 1.4 Property and territorialization in conditions of neoliberalism .......................................... 6 1.5 Sociolegal Studies and the politics of human rights and indigeneity ............................. 14 1.6 Methodology ................................................................................................................... 23 1.7 Chapter overview ............................................................................................................ 25 1.8 Conclusion: Property in the margins .............................................................................. 29 2 LAW, GOVERNMENTALITY, AND AGRARIAN POLITICAL ECONOMY IN COLONIAL AND APARTHEID HISTORY .............................................................................. 31 2.1 Introduction: Spatializing Law in the Colonial and Apartheid Past ............................... 31 2.2 Early Colonial Occupation: Administration of Chiefdoms and Labour (1795-1912) .... 35 2.3 Late colonial occupation: The South African Union and the Native Land Rights Act ... 43 2.4 Apartheid ........................................................................................................................ 49 2.5 Understanding ‘customary law’ as dispossession and governmentality: Legal Anthropology and Legal Geography .............................................................................. 56 2.6 Conclusion ...................................................................................................................... 60 3 LAW AS REVOLUTION: TRANSFORMATIVE CONSTITUTIONALISM AND LOCALIZED STRUGGLE .......................................................................................................... 63 3.1 Introduction ....................................................................................................................

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