Redressing the Past with An Eye to the Future. The Impact of the Passage of Time on Property Rights Restitution in Post-Apartheid South Africa
| Author | Wouter Veraart |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| DOI | 10.1177/016934410902700104 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 27/1, 45-60, 2009.
© Netherlands I nstitute of Human Ri ghts (SIM), Printed in the Net herlands. 45
RedRessIng THe PasT WITH
an eye TO THe fuTuRe.
THe ImPaCT Of THe Passage Of TIme
On PROPeRTy RIgHTs ResTITuTIOn
In POsT-aPaRTHeId sOuTH afRICa
W V*
Abstract
How should the law respond to a period of grave injustice in which cer tain categories of
people were systematically deprived of their property rights and what is the impact of the
passage of time on restitution issues in dynamic societies? e argume nt will be made,
rst, that, ir respective of the passag e of time, the implementation of a certain policy of
restitution of property rights is a necessary step in the (re-)establishment of a democratic
legal order. However, law’s function in dealing with past deprivations of propert y rights
will vary with the passage of time. If the lapse of time between the moment of past
injustice and the moment of restitution has been relatively short, it is possible to conceive
of the restitution process as a problem of cor rective justice: as conicts between original
owners of property rights and current owners in ‘good’ or ‘bad’ faith. Aer a substantial
lapse of time, the nancial burden of the rest itution process will shi to the collective as
a whole and the res titution process will become entang led in redistributive and future-
oriented polic ies. e complexity of law’s function i n dealing with injus tices in the far
past will be illus trated with a brief look at the contemporary land re stitution process in
post-Apartheid South Africa .
1. INTRODUCTION
In her well-known book on Transitional Justice, Ruti G. Teitel addresses the following
questions: ‘What happens to transitional repar atory entitlements and obligations
* Wouter Veraart is profess or of lega l philosophy at t he Free Uni versity of Amsterdam, the
Netherlands . is ar ticle is pa rt of a research projec t ‘Time, Re stitution and the Law’ for which a
‘Veni’ grant has bee n awarded by the Netherland s Organisation for Scient ic Research (NWO). All
internet sites were la st accessed in Janua ry 2009.
Wouter Veraart
46 Intersentia
over time?’ And more general ly: ‘What are the consequences of the passa ge of time
for transitional justice?’1 Teitel discovers something odd in the relation between
the passage of time and transitional justice. Normal ly, lega l claims tend to weaken
over t ime: they are ‘superseded’ a er a few dec ades through statutes of li mitation
or r ules of prescription.2 But in certain cases of extreme injustice the tendency of
law to weaken or expire over time is itself checked or opposed .3 e international
recognition of the imprescriptibility of genocide and cr imes against humanity is a
case i n point.4 However, with in international c riminal law, t he imprescriptibility of
certain crimes is kept in balance, so to spea k, by t he mortality of the perpetrators.
eir criminal responsibility cannot be transmitted to their heirs, preventing criminal
law from becoming (most of the t ime) an intergenerationa l issue. Within private law,
this is di erent, as legal claims as well as liability for cert ain acts may be transm itted
to fol lowing generations; reason why, with the passage of time, transitional justice
becomes more and more a story of restitution and compensation and less of purges,
lustration and punish ment.
In this article, I will limit myself to problems of restitution of property rights within
a context of transitional justice. Within thi s eld dierent time-related problems arise.
Central to the discus sion is the quest ion: what exactly is the ee ct of the passage of
time on restitution claims based on the experience of past injustice? is question
revolves around the impact of rest itution claims on the coherence and stability of t he
present legal order. is fundamental problem forces us to look in dierent directions.
If we suppose that ordinary statutes of li mitation may be supersede d in those c ases,
what makes thes e claims dierent from other legal claims which remain subjected to
statutory limitations? is question is looki ng backwards, to the specic nature of the
injustices i nvolved, and tries to distingu ish them from ‘ordinar y’ cases of property-
related injustices such as t he or fraud. is theme is the subject of the rst pa rt of
this art icle.
A second issue is much more contemporaneous or even future-oriented. If we accept
that restitution claims should be dealt with in a legal fashion even aer a substa ntial
1 Teitel, Ruti G., Transition al Justice, Oxford Universit y Press, Oxford 20 00, p. 138.
2 See, for example, M ill, J. S., ‘Pri nciples of Political Economy w ith Some of e ir Applicat ions to
Social Ph ilosophy’, Book 2 , Chapter II, in: Robson, J.M . (ed.), Collected Works of John Stua rt Mill,
University of Toronto Press, Toronto, 1965.
3 For a critical stance, see Waldron, Jeremy, ‘Supersed ing Historic Injustice’, Ethics, Vol. 103, No. 1,
October 1992, pp. 4 –28; and Cowen, Tyler, ‘How Far Back Should We Go? Why Restitution Shou ld
Be Small’, in: Elster, Jon (ed.), Retribution and Reparation in the Transition to Democracy, Cambridge
University Press , Cambridge, 2006 , pp. 17–32.
4 For an interesti ng over view and comparison of statutes of limitat ion a nd the notion of
imprescriptibi lity within internationa l cri minal law, see Kok, Ruth A., Statutory Limitations in
International Criminal Law, T.M.C. Asser Pre ss, e Hague, 2 007. See a lso Camp agna, Norber t,
Strafrecht und unbes trae Straaten. Philosophi sche Überlegungen zu r strafenden Gerechtigke it und
ihren G renzen [Crim inal law and unpunished criminal acts. Philosophica l thoughts on pu nitive
justice and its l imits], Franz Steiner Verlag, St uttgart, 200 7, pp. 131–134.
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