Customary Law and Indigenous Rights in South Africa: From Transformative Constitutionalism to Living Law in Struggles for Rural Land Rights

South Africa is well known for the countrys model of racialized territorial government called apartheid and the successful transition to constitutional democracy in April 1994. The South African Constitution provides a framework for the progressive realization of human rights as a measure of transitional justice. The Constitution guarantees land reform to account for histories of racialized dispossession. However, critics argue that land remains insecure for millions of racialized peoples living in rural areas who remain subject to forms of undemocratic chiefly authority. Existing scholarship argues that rural land insecurity is due in part to a failure to legislate an appropriate post-colonial and emancipatory version of customary law as a basis for collective land rights. A common line of argument is that there are two ways of interpreting customary law as either codified in law, as it was during colonialism, or as living customary law, referring to an imagined historical evolution of custom in response to a democratic transition and changing social and economic conditions. For example, literature often focuses on traditional leadership in South Africa and argues that this model of governance, while based on cultural rights as protected in the Constitution, relies on ethnic and territorial control reminiscent of the Bantustan reserves under apartheid. In this dissertation I demonstrate that a dichotomous view of customary law, as either codified or living, is inaccurate in contemporary conditions of neoliberalism wherein forms of authority and subjectivity and claims to territorial control are characterized by multiple actors engaged in networked and horizontal relationships of power. In these conditions, I show, an ethic of transformative constitutionalism paired with forms of government characteristic of neoliberalism have opened opportunities for new articulations of human rights, custom and property, that contribute to the emergence of living law and new forms of territorialisation. Moreover, I demonstrate that the transnational indigenous rights movement, and the vernacularization of indigenous rights in South Africa, are unsettling colonial and post-colonial assumptions about customary law in the contemporary period.