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n South African Journal on Human Rights - Pro-poor court, anti-poor outcomes : explaining the performance of the South African Land Claims Court

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Abstract

The Land Claims Court of South Africa ('the LCC') was established in 1996 under the Restitution of Land Rights Act 22 of 1994, one of the first statutes of the new democratic government. Anyone reading the Restitution Act would have had no doubt that the LCC had been established to oversee the reversal of eighty years of state-orchestrated land dispossession. And yet, almost ten years after its establishment, the LCC plays no meaningful role in the land restitution process, and administers two other statutes that, at least in part because of the way they have been interpreted by the Court, are regarded as 'facilitating' a new wave of land dispossession. In seeking to explain this anomaly, this article draws on the work of a group of scholars who are studying the role of courts in new democracies. The study design assumes that the capacity of courts to be used as agents of social transformation is influenced by a number of indicators, including institutional indicators, indicators of poor groups' voice, resource indicators, and indicators of access to justice barriers. What makes the study of the LCC interesting from this perspective is that it provides an opportunity to eliminate most of the variables that typically condition the social transformation performance of courts, viz indicators of poor groups' voice, resource indicators and access to justice barriers. If the theoretical model tested in this article is sound, this means that the performance of the LCC must be explicable in terms of one or more of the posited institutional indicators. Testing this hypothesis, the article examines four areas of law in which plausible pro-poor arguments were made before the LCC, only for these arguments to be rejected or ignored in the decisions handed down. The article then attempts to explain these 'anti poor' outcomes by reference to three institutional indicators: the doctrinal force of the common law, the influence of legal culture, and professional concerns amongst the judges about how their decisions are perceived. The article finds that the continuing influence of legal formalism in South African professional legal culture provides an adequate explanation for most of the decisions studied. Where a legal culture is overwhelmingly formalist, the use of general, discretion-conferring language in social transformation statutes is likely to be less successful than the enactment of detailed, prescriptive rules.

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/content/ju_sajhr/20/4/EJC53168
2004-01-01
2016-12-05
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