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Now Another Thing Must Happen: Richtersveld and the Dilemmas of Land Reform in Post-Apartheid South Africa

Abstract The Constitutional Court‘s decision in the Richtersveld case, recognising the Richtersveld community’s right to restitution of the lands they had been dispossessed of in the 1920s, was hailed as a victory for the cause of justice in South Africa. Of legal interest is the South African court’s consideration, for the first time, of the doctrine of aboriginal title. This article explores the theories of justice that underpin the decision, contending that the justice claims made by the parties are more complicated than they first appear. While the Richtersveld community’s claim is predominately grounded in the politics of recognition, the government’s defence can be understood with reference to the politics of redistribution. This article explores some of the complications raised by the competing theories of justice that underlie the positions of the parties. While redressing past injustices will usually further broader objectives of social justice generally, the Richtersveld decision illustrates that this is not necessarily the case. Tensions can arise between competing justice claims, and there is always a danger that righting one injustice may be perpetuating or even creating other injustices. The purpose of the article is not to suggest a solution to these tensions, but merely to explore the complications, and to suggest that there are many aspects of restitutionary claims that need further theorising.