Search

Home > Dialogue > Seminars

Lunch Time Seminar Series

Below is a list of recent seminars LARC has hosted as part of the "Lunch Time Seminar Series."  Click on one of the links below for a brief and further details on the seminar. 

Dr. Sindiso Mnisi Weeks: Access to Justice and Human Security: Cultural Contradictions in Rural KZN and Their Implications for the Traditional Courts Bill

Daniel Huizenga: Asserting community rights to consent at the intersection of traditional authorities, living law, and extractive industry

ProfKojo Amanor: Land, Custom, Ethnicity and Capital Accumulation in Africa

ProfOlaf Zenker: The re-opening of land restitution, neo-traditionalism and the contested values of land justice in South Africa

ProfJanine Ubink: Access v. Justice: Customary courts and political abuse: Lessons from Malawi’s Local Courts Act 

Professor William Beinart​: Indigenous Ownership – recent court judgements and their implications

Dialogue between Justice Albie Sachs and Dr Nomalanga Mkhize 

Dr Bernard Dubbeld: Can welfare replace wages in South Africa? Government grants and the form of the future in a countryside settlement

Dr Rosalie Kingwill​: Bridging the Property Divide 

Dr. Sindiso Mnisi Weeks: Access to Justice: Dispute Management in Rural South Africa 

Access to Justice and Human Security: Cultural Contradictions in Rural KZN and Their Implications for the Traditional Courts Bill
Dr. Sindiso Mnisi Weeks

Date: Thursday, 10 August 2017
Time: 11h30 - 13h00 (light refreshments from 11h15)
Venue: All Africa House Seminar Room, Level 2, All Africa House, Middle Campus, UCT

ABSTRACT: For most people in rural areas, traditional justice mechanisms provide the only feasible means by which to access any form of justice. While these mechanisms are popularly associated with restorative justice, reconciliation and the maintenance of harmony in rural communities, this ethnographic study grounded in the political economy of rural South Africa reveals how historical conditions and contemporary pressures have and continue to strain traditional justice mechanisms' ability to deliver the high normative ideals with which they are notionally linked. In areas such as Msinga access to justice is made especially precarious by the reality that human insecurity (as a composite of physical, social and material insecurity) is high for both ordinary people and the authorities who staff the local justice forums, cooperation between traditional justice mechanisms and the criminal and social justice mechanisms meant to be provided by the state is low, and competition from purportedly more effective 'twilight institutions' (such as vigilante associations) is rife. Further contradictions are presented by profoundly gendered social relations premised on a delicate social trust that is closely monitored by one's community and enforced through self-help measures like witchcraft accusations in a context in which violence is, culturally and practically, a highly plausible strategy for dispute management but not for conflict resolution. 
 
All of these contextual considerations compel Dr. Sindiso Mnisi Weeks, in her forthcoming book, to ask: 

  • Of what justice can we reasonably speak in such an insecure context? 
  • What if the adjudicative justice to which traditional justice mechanisms provide access is not (and cannot realistically be) what people are really looking for or needing from these forums? 
  • What access to justice solutions are viable under such volatile human conditions and what is necessary to realise them? 

In her seminar, Dr. Mnisi Weeks will discuss her book’s exploration and responses to these challenging questions that cast doubt on the adequacy of even an improved version of the Traditional Courts Bill as that of 2017. As does the book, the seminar will end with a vision and call for access to justice in rural South Africa that takes seriously ordinary people's circumstances and the traditional authorities' lived experiences as documented in this detailed study. The author proposes a cooperative governance model that would maximise the resources and capacity of both traditional and state justice apparatus for delivering the legal and social justice (namely, peace and protection from violence as well as mitigation of poverty and destitution) that rural people genuinely need.

BIO: Sindiso Mnisi Weeks is Assistant Professor in Public Policy of Excluded Populations in the School for Global Inclusion and Social Development at the University of Massachusetts Boston, USA. She previously served as a senior researcher in the Centre for Law and Society at the University of Cape Town, where she worked on the Rural Women’s Action Research Programme (RWAR), which is now the Land and Accountability Research Centre. At RWAR she was involved in work that combined research, advocacy and policy work on women, property, governance and participation under customary law and the South African Constitution. She holds a BA and LLB from the University of Cape Town and received her DPhil in Law (with a focus on socio-legal studies) from the University of Oxford, where she was a Rhodes Scholar. Prior to Oxford, she clerked for then Deputy Chief Justice of the Constitutional Court of South Africa, Dikgang Moseneke. She co-authored “African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives”, published in 2015 by Oxford University Press Southern Africa.

Asserting community rights to consent at the intersection of traditional authorities, living law, and extractive industry
Daniel Huizenga

Date: Wednesday, 05 April 2017
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: Level 4, All Africa House 1, Middle Campus, UCT 

ABSTRACT: Critics argue that proposed national legislation, such as the Traditional and Khoisan Leadership Bill, entrenches apartheid-era territories and bolsters the authority of traditional leaders over rural peoples. They further argue that amendments to the Mineral and Petroleum Resources Development Act fail to stipulate an adequate standard of community consent. Collective land holding in rural areas is found to be better understood as forms of social tenure whereby individuals, kinship networks, communities, or other levels of social organization access and control land in layered and nested forms of authority. The difference between these approaches come to a head on the issue of ‘Free Prior and Informed Consent’ (FPIC) in the context of extractive industries as local communities and traditional leaders both claim to be the legitimate authority to grant consent to mining on communal land. Legal and political debates around whether FPIC applies to local communities or indigenous peoples adds another layer of complexity. In this seminar I focus on the Xolobeni community and their struggle to stop mining on their traditional lands to illuminate the diverse means by which rural peoples and their advocates are asserting community rights to land and resources. I highlight some of the ways that authority in traditional territories is being challenged and reconfigured through struggles engaging with multiple scales and jurisdictions of law and policy, from municipal to transnational. I develop a framework of ‘articulation in assemblage’ to interrogate the complex power dynamics at play in this contested terrain.    

BIO: Daniel Huizenga is a PhD Candidate in the Socio-Legal Studies program at York University, Toronto, Canada and is currently a visiting researcher at the Land and Accountability Research Centre, University of Cape Town.

Land, Custom, Ethnicity and Capital Accumulation in Africa
Prof. Kojo Amanor

Date:  Friday, 13 May 2016
Time: 11h30 - 13h00 (light refreshments from 11h15)
Venue: All Africa House seminar room, middle campus, UCT

ABSTRACT: Since the 1990s institutional reform of land administration has gained considerable attention in Africa in the context of market liberal policies. The majority of African states have now initiated new land reform policies, processes and laws that accords formal recognition to customary land tenure and attempt to harmonise customary and statutory tenure. The concept of customary land rights is closely associated with ethnicity, since customary rights are usually embedded in notions of citizenship rooted in ethnicity and kinship. Therefore the transformation of customary land relations has considerable implications for ethnicity and ethnic conflicts.  However, land reform has also been embedded in notions of land markets, private property, capital accumulation, and redistribution of land through markets to efficient farmers. Although land reforms are purported to be pro-poor and inclusive they often work to create private property.  The presentation examines the incongruities between national rights based on notions of citizenship, ethnic rights based on local belonging, and land markets and claims on property and marketable assets within a policy framework of  harmonisation of customary and statutory rights. The presentation draws from a wide range of case studies drawn from African societies. 

BIO: Kojo Amanor is a Professor at the Institute of African Studies, University of Ghana and coordinator of the Societies and Culture Section. He  has published widely on land relations, community development and the construction of community,  the environment and interface between smallholder producers and forestry institutions, agricultural commercialization and agribusiness, and new emergent powers in African agriculture. Among his many publications are 'Contesting Land and custom in Ghana: State, chief and citizen', Leiden: Leiden University Press, 2008, edited with Janine Ubink; 'Land and Sustainable Development in Africa,' London: Zed, 2008, edited with Sam Moyo; ‘Land labour and the Family in Southern Ghana: A critique of land policy under neo-liberalisation’, Nordic Institute of African Studies, Research Report no. 116, Uppsala, 2001.  His approach is rooted in political economy, historical research, ethnography and a critical engagement with cultural politics.


The re-opening of land restitution, neo-traditionalism and the contested values of land justice in South Africa
Prof Olaf Zenker 

Date: Friday, 11 March 2016
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: OR Tambo Moot Court, Level 5, Kramer, Middle Campus, UCT

ABSTRACT: South African land restitution redresses past race-based land dispossessions. Originally, land claims had to be lodged until the end of 1998, producing about 80’000 claims of which about 25% still await finalisation. Recently, however, the Restitution of Land Rights Amendment Act (2014) re-opened the lodgement of new land claims until mid-2019, ostensibly in order to do justice to those “rightful claimants” left out in the first round. President Zuma has repeatedly encouraged “traditional authorities” to now claim vast stretches of land in order to make for a second coming of their kingdoms of “custom”. This is in line with a marked government shift towards neo-traditionalist policies since the late 1990s: while original restitution law clearly emphasised individual rights of “citizens” even in communal claims (restored land was to be held by a democratically constituted legal body), recent neo-traditionalist statutory laws have shifted the control over land to re-empowered chiefs and away from their newly constituted “subjects”. This paper explores the shifting values that have been associated with the land justice to be achieved through restitution. While acknowledging the importance of land as a productive value, thus far dominating the academic and public debates in South Africa, it broadens the focus in order to interrogate this neo-traditionalist shift also with regard to its consequences for seemingly “non-productive” networks of belonging, relatedness and co-residence. These might massively shape the specific “distributive value” of land that, as James Ferguson suggests, might become the more relevant future of nature in South Africa and beyond.

BIO: Olaf Zenker is Junior Professor at the Institute of Social and Cultural Anthropology, Freie Universität Berlin, Germany. Over the past years, he has done research on the moral modernity of the new South African state in the context of its ongoing land restitution process. His publications include the co-edited volume Transition and Justice: Negotiating the Terms of New Beginnings in Africa (Wiley-Blackwell 2015) as well as the forthcoming co-edited books The State and the Paradox of Customary Law in Africa (Ashgate) and Homelands as Frontiers: Apartheid’s Loose Ends in Postcolonial South Africa (Routledge).

Access v. Justice: Customary courts and political abuse: Lessons from Malawi’s Local Courts Act 
Prof. Janine Ubink 

Date: Thursday, 11 February 2016
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: Dean's Committee Room, Level 4, Kramer, Middle Campus, UCT

ABSTRACT: Developing countries are hard-pressed to provide affordable good-quality dispute settlement to their population. Malawi is a case in point, where Parliament in 2011 passed the Local Courts Act to remedy the profound lack of access to justice in the country. The proposed Local Courts are hybrid institutions that combine characteristics of state and customary fora. This article analyses the probable impact of Local Courts on people’s access to legal institutions and the quality of the justice they provide compared to Magistrate Courts and informal Traditional Tribunals. It furthermore discusses whether it is likely that the Local Courts be abused for suppression of political opposition as happened in the Traditional Courts, hybrid courts operating in Malawi from 1969 to 1994 during the regime of President-dictator Kamuzu Banda. The Traditional Courts invoked custom and tradition whenever the law did not serve them. This exceptional use of chief-led courts to circumvent the regular courts and subdue dissent poses the salient question whether courts that can apply custom are more vulnerable to political abuse due to certain characteristics of customary law. This article presents a valuable lesson for other developing countries reforming their customary justice sector: While certain characteristics of customary law that are crucial to their functioning – their unwritten, negotiable and relational character and their flexible procedures – have a shadow-side in that they can facilitate abuse, the enabling and determining factor of such abuse lies in the undemocratic constellation of the country and the lack of independence of its judges.

BIO: Janine Ubink has a law degree as well as a PhD in legal anthropology from Leiden University in the Netherlands. Her 6-year PhD-research focused on customary land management in peri-urban Ghana. She has worked at the Van Vollenhoven Institute at Leiden Law School from 2001 until 2013, when she moved with her family to South California and joined the University of California Irvine (UCI) Law School. Her research focuses on legal pluralism, customary law and its relation with state law, traditional authorities, transitional justice, rule of law reforms, gender, and land management, with a regional focus on Africa, particularly Ghana, Namibia, Malawi and Somalia. She has published on these subjects in various books and articles in peer-reviewed journals. In 2012 she received a 4-year research grant from the Netherlands Organization for Scientific Research (NWO) VENI grant program for a project regarding ‘customary legal empowerment’, which includes fieldwork in Malawi on a large-scale donor-sponsored program to enhance the functioning of traditional dispute settlement institutions. Janine also works as a consultant in this field, most recently as an adviser to the Ministry of Justice of Somalia. In December of 2015 she became the President of the international Commission on Legal Pluralism.

Indigenous Ownership – recent court judgements and their implications
Professor William Beinart
 

Date: Thursday, 15 October 2015
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: Dean's committee room, Level 4, Kramer, Middle Campus, UCT

ABSTRACT: Please join Center for Law and Society in a discussion led by Professor William Beinart on a theme that is very topical  at the moment; the status of land tenure in ‘communal’ areas. He will talk about some recent court judgements in respect of land rights and their implications.  These judgements seem to define better the nature of ‘communal indigenous ownership’ and to give some protection to those who hold land collectively in the former Bantustans and potentially elsewhere.  However, the judgements are also silent or uncertain on key aspects of tenure.  His talk will focus on the judgements but this discussion is also important for pending Bills that will have direct implications for indigenous ownership of land, especially in the former Bantustans. The Traditional and Khoi-San Leadership Bill was tabled in parliament on 28 September 2015. The Communal Land Tenure Bill is expected to be tabled any day now. These Bills may result in the re-entrenchment of apartheid boundaries. In addition these Bills propose vesting stronger governmental powers and ownership of communal land in ‘African’ traditional leaders, while treating Khoisan traditional leaders entirely differently.  

BIO:  Professor William Beinart is the recently retired founding Director of African Studies at the University of Oxford. He was chair of the Board of the Journal of Southern African Studies (1992-8), co-chair of the School of Interdisciplinary Area Studies (SIAS, 2006-8), President of the African Studies Association of the UK (2008-10), Director of Graduate Studies at the African Studies Centre (2009-13) and in 2009 he was elected to the British Academy. Professor Beinart was also the expert witness in two restitution cases, the Hlolweni, Mfolozi, and Etyeni Communities v North Mpondoland Sugar (Pty) (Ltd) (2009) and the recent Wild Coast Sun case.Professor Beinart has published a wide range of work which includes but not limited to the following titles: Twentieth Century South Africa (2001), Prickly Pear: the Social History of a Plant in South Africa (with Luvuyo Wotshela, 2011); African Local Knowledge and Livestock Health (with Karen Brown, 2013); and South Africa 1948-94: from Apartheid to Rainbow Nation (with Ed Teversham, 2015) - the latter is an A-level text book for British schools. 

Dialogue between Justice Albie Sachs and Dr Nomalanga Mkhize 

Date: Tuesday, 10 November 2015
Time: 12h15 - 14h45 (light refreshments from 12h00)
Venue: Smit Marine Room, Level 5, Kramer, Middle Campus, UCT

ABSTRACT: Please join the Center for Law and Society (CLS) hosting a dialogue between the former Constitutional Court Justice Albie Sachs and Dr Nomalanga Mkhize. Albie Sachs is going to be speaking about the debates at the time of drafting the Interim Constitution on the relationship between customary law and the Bill of Rights. Nomalanga Mkhize is going to discuss the concept of 'Neo-traditionalism and the Post-colonial State', particularly exploring the question of why African nationalism as a liberation tradition has almost always given rise to a neo-traditionalist state which takes regressive stances on questions of gender, tradition and power.

BIO:  Justice Albie Sachs has been a human rights activists all of his life. He was a member of the ANC Constitutional Committee and negotiating team at Kempton Park where the Interim Constitution was drafted. Albie Sachs also served as a Justice of the Constitutional Court when it was established after the 1994 democratic elections and retired in 2009. Dr Nomalanga Mkhize is a history lecturer at Rhodes University. Her doctoral work from the University of Cape Town was on Land and Agrarian questions. She has a special interest in writing for children in African languages and is also a regular contributor to the Business Day. 

Can welfare replace wages in South Africa? Government grants and the form of the future in a countryside settlement
Dr Bernard Dubbeld

Date: Friday, 21 August 2015
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: Dean's Committee Room, Level 4, Kramer Building, Middle Campus, UCT

ABSTRACT: In the late 1990s, the South Africa government reorganized welfare, providing support to the elderly, the disabled, and caregivers of children. This reorganization has extended the reach of cash transfers substantially, with sixteen million grants paid out in 2012 and the South African Institute for Racial Relations suggesting that more people now receive grants than earn wages. In this paper, I examine how grants have become part of the material and moral life of a countryside settlement. Taking up James Ferguson’s (2014) provocation that basic income payments could “replace labor”, I show ethnographically that grants seem to have had different social effects than work, especially in respect of the gendered and generational tensions that appear to accompany these payments, with grants often regarded by men as undermining their authority in the household. Yet if these effects might lay the basis for a different kind of society, I suggest that an adequate comparison between wages and grants must take seriously the futurity that wage work promised, and around which, even in South Africa, many imagined the possibility of a better life. While concurring with Ferguson’s observation (2013) that cash transfers do enable political possibilities and animate reevaluations of dependence and independence, I argue that grants have not as yet established a new kind of sociality that is able to transcend wage work. Instead, in regarding grants as helpful for the present but not a means through which to make a future, my informants point to cash payments as standing in for, rather than replacing, wage labor. 

BIO: Bernard Dubbeld is senior lecturer at the Department of Sociology and Social Anthropology at Stellenbosch University in South Africa. He completed a doctorate at the University of Chicago in 2013 on government social interventions in the countryside after Apartheid, exploring their effects and limits through an ethnography of a state-built settlement in the countryside. He has also recently written on the transformation of dock labour in Durban and alternative markets in Cape Town. He edits the journal Social Dynamics. 

Bridging the Property Divide 
Dr Rosalie Kingwill

Date: Friday, 24 July 2015
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: CLS office,All Africa House, Middle Campus, UCT

ABSTRACT: Post-apartheid South Africa has seen the persistence of a dualistic legal paradigm in the state’s approach to recognising rights in land; indeed the gap is widening. On the one hand, a rigorous system of land title characterised by precise and quantifiable mathematical formulae that determine whether rights are registerable and, by implication, alienable and transmissible. Registered owners have proprietary powers. On the other hand, a range of off-register rights which are unregisterable and which, by implication, are not transmissible, and lack overt proprietary content. The legal consequences are that the concept of ‘ownership’ is restricted to the former. To cross the gulf between these two legal divides is more complex than conventionally assumed. Urban titling programmes have demonstrated beyond doubt that surveying plots, registering owners and issuing title deeds does not resolve the question of unequal property rights, and in fact creates new problems. Rural group title has similarly struck numerous problems. What is needed is greater understanding of the sociological as well as legal-technical factors that contribute to the widening gap between those with legally recognised ‘formal’ rights in the form of title, and those without fully legally recognised rights, relegated misleadingly to the category of ‘informal’.Dr Rosalie Kingwill will discuss some findings of her research on land tenure in two freehold localities in the Eastern Cape, focusing on the implications of empirically verifiable practices of inter-generational transmission of land rights among the families in her research sites. Relationships reminiscent of ‘customary’ concepts of the family are not extinguished with title. The land is viewed as family property held by unilineal descent groups symbolised by the family name. This conception diverges considerably from the formal, legal notion of land title as embodied in common law, whilst similarly distanced from official versions of customary law. This conclusion suggests that social norms play a significant role in defining the scope of property rights, rather than black-letter law. The findings challenge two misconceptions about land tenure and property rights. The first is that the legal status of tenure is the ultimate determinant of property rights in an environment of normative pluralism. The second is that the absence of full legal recognition of rights necessarily translates into absence of property. A critical marker of property is transmissibility of rights, and hence the importance of aligning land tenure and succession law. Recent developments in customary succession law suggest that there remain important unresolved issues with respect to this relationship.  A recent article published in Kronos, Southern African Histories (vol 40 Nov 2014) discusses some of these issues in historical perspective. 

BIO: Rosalie Kingwill is a post-doctoral research fellow at the Institute of Poverty, Land and Agrarian Studies (Plaas), University of the Western Cape, where she was awarded a PhD degree in 2014. She is also an affiliate of the Centre for Law and Society. She was previously based in the Eastern Cape where she studied for her PhD under supervision of Prof Ben Cousins. She previously worked in the land sector in the Eastern Cape for thirty years, first in the NGO sector and later as a research consultant, focusing predominantly on historical and evolving land rights. For the past decade she has been a member of Leap, a learning and action research collective to promote land tenure security for the poor. She is currently one of four Leap members editing a book on land tenure from the Leap perspective.

Access to Justice: Dispute Management in Rural South Africa
Dr. Sindiso Mnisi Weeks 

Date: Wednesday,  17 June 2015
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: OR Tambo Moot Court, Level 5, Kramer,Middle Campus, UCT

ABSTRACT: People in rural South Africa – like those in many parts of the world – live subject to at least two often seemingly distinct legal universes, and their respective dispute management forums: state law and customary law. The greatest limitation of this reality is the existing uncertainty of whether, in either arena, they will obtain a form of justice that will give them the security or relief that they seek. The controversial Traditional Courts Bill (introduced in 2008 and ­2012 and, again, due to be reintroduced with revisions later this year) was intended to reduce the uncertainty of obtaining justice in the traditional forums, especially for those 16-21 million who will only be able to turn to these forums for redress. Yet the Bill’s ability to accomplish this with the framework and wording it adopted was seriously questioned, alongside doubts that it would further the cause of human rights in traditional communities.Dr. Sindiso Mnisi Weeks will discuss the findings of her book which provides the empirically-based research that is needed for an informed policy discussion of how contemporary rural people use traditional dispute management forums and what needs exist for the legal regulation of these forums. The book, which has been accepted for publication by Ashgate, draws on a five year project on the pursuit of justice and human security in the various dispute management forums of two traditional communities in Msinga, KwaZulu-Natal.

BIO: Sindiso Mnisi Weeks (LLB DPhil) is Assistant Professor in Public Policy of Excluded Populations in the School for Global Inclusion and Social Development at the University of Massachusetts Boston. She is on a Carnegie African Diaspora Fellowship at the Centre for Law and Society, where she was previously a senior researcher in the Rural Women’s Action-Research Programme.