Thirty years post-1994, ‘the Natives’ still lack ‘property’. This cannot be remedied until the ‘common’ law is returned to them.
Three decades after all South Africans became citizens with socio-economic rights under the Constitution, widespread material inequality and social marginalisation on the basis primarily of race render the defiant afterlives of colonial-apartheid self-evident. If the democratic constitutional order was designed to address these legacies, then ‘transformative constitutionalism’ is a failure. This paper takes seriously increasing sociopolitical challenges to the legitimacy of the post-apartheid legal order in South Africa and scorching critiques of the constitutional settlement, against which many in the legal establishment bristle. It argues that the prevailing attitude among jurists that the worst thing that could happen to the Rule of (un)common Law is for ‘liberal constitutionalism’ to be abandoned is perplexing in the face of the persistent sense of constitutional crisis pervading the country’s social and political air. The paper contends that the real ‘worst-case scenario’ is that South African liberal constitutionalism should stubbornly continue its unresponsiveness to ordinary people’s alienation from the so-called ‘common law’ and its colonial logics, ultimately leading to the ‘anarchy’ uncommon law jurists fear. To avoid this dire future, the paper offers Alter-Native Constitutionalism as grounding of the country’s system in the indigenous normative convictions expressed in ‘vernacular law’.
This paper is for scholars interested in indigenous law and state property regimes that exclude their common property regimes. Combining methods from anthropology, historical linguistics, and doctrinal law, it canvasses social justice solutions to property problems that are made available when law, as land, is common to the people it should serve.
