An exploration of legal pluralism, power and custom in South Africa. A conversation with Aninka Claassens

Abstract

Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and academic in the field of legal pluralism in South Africa. During the apartheid era she worked for the women’s anti-apartheid organization the Black Sash, supporting rural communities who resisted forced removals from their land and homes. In 1990 she moved to the Law Faculty at the University of the Witwatersrand where she became involved in land policy work alongside her ongoing role in supporting rural communities involved in anti-bantusan resistance and land re-occupations. She joined the ANC land desk and participated in the drafting of the early land reform laws that were introduced between 1994 and 1999. However, as the ANC policy direction began to shift in favour of supporting traditional leaders rather than the land rights of vulnerable groups, she became involved in litigation, challenging laws such as the 2003 Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act (CLRA) of 2004. The CLRA was ultimately struck down by the Constitutional Court in 2010. She also supported litigation upholding participatory and inclusive versions of “living” customary law in the face of discrimination derived from distorted versions of “official” customary law. In 2009 she joined the University of Cape Town and later founded the Land and Accountability Research Centre (LARC), which she directed until 2019. LARC forms part of a collaborative network, constituted as the Alliance for Rural Democracy, which provides strategic support to struggles for the recognition and protection of rights and living customary law in the former homeland areas of South Africa. Aninka’s research is mainly focused on the nature and content of customary law in South Africa, particularly regarding the tensions between the jurisprudence of unwritten “living” customary law emanating from judgments of the Constitutional Court, and the autocratic versions of custom inherited from colonialism and apartheid that have been reinforced by traditional leadership laws enacted since 2003. These laws have sought to transfer freehold ownership of the “communal” land in the former homelands to traditional leaders at the expense of pre-existing customary law ownership rights that have vested in families over generations. The laws have also sought to centralize decision-making power and authority in the hands of