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5 - Reparation and the forms of justice

Published online by Cambridge University Press:  01 July 2009

By
François du Bois
Edited by
François du Bois  and
Antje du Bois-Pedain
François du Bois
Affiliation:
University of Nottingham
Antje du Bois-Pedain
Affiliation:
University of Cambridge
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Summary

INTRODUCTION

‘Repairing the past’ is commonly regarded as integral to undoing historical injustice. Claims for reparations form part of the discourse concerning the duties owed to descendants of colonised and enslaved people by the descendants of their masters, and have featured in the various political transformations that have become emblematic of transitions to democracy. South Africa, which falls into both these categories, is no exception. The interim Constitution of 1993, which governed the transition from apartheid, specifically addressed two types of past injustices. It provided, first, for reparations in respect of ‘the acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past’, and, second, for the restitution of land dispossessed ‘under any law which would have been inconsistent with’ the prohibition on unfair discrimination in the interim Constitution ‘had that … [prohibition] been in operation at the time of the dispossession’.

While often viewed as indispensable, the status and scope of the duty to ‘repair the past’ is nevertheless controversial and uncertain. It is beset by theoretical and practical problems, and often has to give way to competing priorities. This, too, is evidenced in South Africa, where the transitional legal arrangements also shielded those responsible for gross human rights violations – both the direct perpetrators and the organisations behind them – from civil as well as criminal liability, and guaranteed the protection of existing land titles.

Type
Chapter
Information
Justice and Reconciliation in Post-Apartheid South Africa , pp. 116 - 143
Publisher: Cambridge University Press
Print publication year: 2009

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