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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Land rights that come with cut-off dates: a comparative reflection on restitution, aboriginal title, and historical injustice
Author:Cavanagh, EdwardISNI
Year:2012
Periodical:South African Journal on Human Rights (ISSN 0258-7203)
Volume:28
Issue:3
Pages:437-457
Language:English
Geographic term:South Africa
Subjects:land rights
land conflicts
indigenous peoples
eviction
External link:https://doi.org/10.1080/19962126.2012.11865055
Abstract:The doctrine of aboriginal title allows for a distinct form of redress, empowering communities to use the judiciary to take action against the State for foundational acts of historical dispossession. It has not taken root in South Africa, yet in other former settler colonies of the British Empire, it remains important to this day. This article interrogates history and law to explain why this is the case. Such an approach allows for a critical reflection on the system of land restitution that developed in South Africa instead of aboriginal title. By exploring the past and present realities of 'dispossession' in South Africa, this article discredits the inclusion of cut-off dates in the Restitution of Land Rights Act. These dates have discriminated between claimant communities irrationally and insensitively - even racially. History should not be mobilized in statute law to obstruct the pathway to redress. It should, instead, be used positively to restore the rights of those formerly dispossessed, and to preserve the rights of those facing dispossessions pending, in South Africa. Notes, ref., sum. [Journal abstract]
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