Award no.

R000222777
Award Holders: Dr. Richard Wilson

Title: Reconciliation in South Africa

Full Report on Research Activities and Results

Award no. R000222777 Richard Wilson Reconciliation in South Africa

2. Full Report of Research Activities and Results
Background
After having written a monograph on ethnic revivalism and the social consequences
of civil war in Guatemala, I became more interested in questions of reconstruction
and social memory-how past human rights offences were remembered and what the
relationship was between official accounts of truth and individual and community
narratives. This led me to focus upon the emergence of truth commissions in
Guatemala-one funded by the United Nations and the other by the Catholic Church.
The transnational character of truth commissions necessitated a comparative approach
and both South Africa and Guatemala signed legislation for establishing a truth
commission in the same week in June 1994. My work became more comparative as I
spent 3 months at a South African university in 1995, funded by the British Council,
and I was able to return to carry out a more serious research project in 1996-7, funded
by the ESRC.
This ESRC research project, titled Legal Strategies and Normative Orders focussed
upon the impact of a new regime of human rights upon three levels of justice in
South Africa: the Truth and Reconciliation Commission (TRC), criminal prosecutions
of human rights offenders (and especially the case of hunter Ndlovu) and local
township justice institutions such as the Boipatong kgotla. I concluded from this work
that the system of justice and rights is highly fragmented in post-apartheid South
Africa, At the level of formal organization, it is apparent that state justice is not
unified and coherently centralized, with certain levels such as the TRC following
human rights principles, whereas elements within the criminal justice system continue
to torture criminal suspects, and popular courts both resist and are incorporated into
policing structures. At the level of values, there are divergences between legal
orthodoxy and popular legal consciousnesses on issues of revenge and retribution,
and also convergences between human rights ideas and the social policy of
progressive churches, especially around notions of reconciliation.
This research was not fully complete, and this present research project on
Reconciliation in South Africa was necessary to fill the gaps in the ethnographic
material. In particular, I needed to assess the impact of the final report (published
October 1998), the payment of reparations to victims, and to get a greater sense of the
long term consequences of the TRCs work for those who had testified at hearings,
and had findings made on their case by the TRC.

Objectives
All of the objectives listed below were thoroughly addressed in the research, even if
not fully resolved. In addition, the reader is referred to the results section later in this
report.
A key intellectual aim from the commencement of the project has been to extend the
long-standing debates and discussions within legal anthropology to issues of human

rights. This involvement taking the discussion of rights out of the heady heights of
legal and political theory, and looking at their concrete operation, that is, the social
life of rights. Legal anthropology has developed the analytical tools and empirical
focus for examining the context of human rights. It has long been concerned for
instance, with the relationship between legal processes and popular legal
consciousness (Merry 1990, Conley and OBarr 1990). Do people taking their claims
to legal institutions share the values of those institutions and how do popular ideas
about rights and justice change through their involvement in legal practices and
discourses? Looking outside the context of legal processes, in what areas of local
justice are human rights ideas resisted, when are they appropriated and when are they
simply bypassed when other values are consider to be of greater priority? How could
these insights and research priorities be applied to transnational human rights
institutions which have become so prevalent in the 1 990s?
A main objective of my original research proposal was to undertake a highly
ethnographic and interview based approach to understanding the relationship between
the TRC and responses of victims and survivors of political violence. This was
realised as I developed a close relationship with survivors in a case where security
force personnel lured 4 ANC comrades into a disused mine shaft and then detonated
hidden explosives, killing three of the youths. Commissioners presented this case as
the zenith of reconciliation after the victims families forgave the sole survivor of any
wrongdoing at the TRC hearings, but the implications were much more complex than
appeared at the public hearing.
I planned to focus upon local justice institutions to examine relational discontinuities
between human rights and local notions of punitive vengeance, and this was achieved.
I was able to chart new developments in Boipatong, where a local township court had
been operating since 1994, beating those suspected of petty crimes and turning over
suspects of more significant crimes to the police. This material would allow me to
theorize the relationship between local and state and transnational justice institutions,
and to get a better idea of the concrete operation of legal pluralism in South Africa.
Finally, I was able to state the policy oriented objectives of the research, through
participation in a conference in Johannesburg in June 1999, and in my appearance
before a Commons Select Committee on International Development in December
1998.

Methods
This research project involved one months intensive fieldwork in Johannesburg and
in its surrounding townships-particularly Kagiso in the West Rand and Boipatong in
the Vaal.
In Johannesburg, I carried out interviews with staff in human rights NGOs, with
journalists covering the TRC, religious leader and most importantly with acting and
former employees of the TRC. The latter category provided much useful information
which they had been cautious to reveal earlier during their employment. I was also
able to interview a high ranking member of the ANC national executive, Jeremy
Cronin, in order to understand better the circumstances around the ANCs legal
opposition to the publishing of the TRC Report.

In the townships around Johannesburg, I divided my time between two locales and
carried out 20 in depth interviews (lasting two hours or more) overall. I attended the
Boipatong community court in order to assess its functioning in the new context of
human rights, and was able to follow up some fascinating developments which nearly
led to the demise of the court. This involved a case where a woman beaten by the
court successfully prosecuted court members, and I was caught up in interviewing all
those involved in the case. In Kagiso, I spent long periods of time interviewing a
survivor who had testified to the TRC, Zandile Musi, and the families of the dead
victims of the West Rand Mine shaft case. In interviews, I gained much useful
testimony on how the families felt the TRC had treated them in making statements
and during the hearings, and on their responses to the findings made in their case in
the TRC report, which held high ranking apartheid government ministers responsible.
Results: Ethnography and Analysis

An engagement with human rights institutions may emerge less out of a resonance
between value-systems and more from diverse agendas of individuals who decide to
pursue them through TRC procedures. In so doing, they become integrated into those
procedures; from taking statements, to testifying at a Human Rights Violations
(HRV) hearing, to granting reparations and making findings in individual cases.
Involvement with the TRC may result from a particular need of victims to clear their
name, and to use the public forum of the TRC to do so, rather than from a deep
commitment to the whole TRC agenda of reconciliation, nation-building and a culture
of human rights. The lesson from the case of Zandile Musi case is one which a
number of legal anthropologists such as Merry (1990) and Conley and OBarr (1990)
have been making very clearly: that people become involved in legal processes for a
variety of reasons which may be very distinct from what the law itself thinks it is
doing, and that their involvement does not necessarily mean a deep loyalty or affinity
to a set of values.
What people see as valuable are the mechanisms, but why they want to participate in
those mechanisms may diverge significantly from the officials administering them.
Conley and OBarr (1990:176) for instance, demonstrate how many litigants narrate
their side of a dispute in terms of social relationships rather than the rule-oriented
thought processes of court specialists (judges, lawyers, clerks). Moreover, relational
litigants may have theories of evidence, proof, causation, blame and responsibility
which differ markedly from the official legal versions.
Procedural Pragmatism

The following discussion considers in detail an instance which appeared to illustrate

straight-forwardly the TRCs own ideal of reconciliation between individuals at a
Human Rights Violations hearing. It was a case which Johannesburg commissioners
would refer to on a number of occasions as the apogee of the TRCs reconciliation
process. The case of Zandile Zandy John Musi was heard on an unseasonably cold,
overcast morning in November at the West Rand public Human Rights Violation
hearings being held in the imposing gray buildings of Laretong Hospital. Zandile
Musi, accompanied by his older brother, Mbulelo Musi, was subdued as he
recounting the events of February 15, 1982 His story was as follows:

In 1982, Zandile Musi was 19 years old and at secondary school in Kagiso. This was
a time of politicization of the township and country-at that time the Kagiso Residents
Organization and the Cdngress of South African Students (COSAS) had just been
formed. With his close childhood friend Fanyana Nhlapo, Zandile Musi participated
in COSAS activities and at the Faith Mission Church. There he met Eustice Bimbo
Madikela and Peter Ntshingo Matabane and like thousands of other young men in
the townships at that time, they decided to join the armed wing of the liberation
movement. In January, 1982, the boys expressed their desire to leave the country and
receive military training to Mfalapitsa Ephraim Tihomedi, a friend of Zandiles older
brother Mbulelo who was himself in exile with the ANC.
Ephraim said that he would train them himself to carry out operations. Ephraim said
they should wait for him at Leratong Hospital at 8 p.m. The four young comrades lied
to their families-saying that they were going into Johannesburg to a Millie Jackson
concert at the Coliseum. They even went so far as to buy tickets, but Ntshingos
mother was suspicious and confiscated his and refused permission to go. In the end
she relented to his pleas. At 8 PM, Ephraim picked them up in an inconspicuous
white van. Behind the wheel was a black man theyd not met before, with a large scar
across his face. The youths were taken to the West Rand mine shaft. Inside, Ephraim
took out an Fl hand-grenade and fitted the detonator onto the grenade. He left the
hand-grenade with Ntshingo and left in a hurry, saying he was going to retrieve more
grenades.
There was a huge explosion and Zandile lost consciousness. The police came at about
9 a.m. and took Zandile to Leratong hospital. The other three comrades had died in
the night. Zandiles leg was broken, his ears were bleeding and he has been partially
deaf since then. He was taken by police out to a field where a policeman stuck a gun
in his mouth and asked who had brought him to the West Rand mine shaft. Policemen
took turns jumping on his broken leg. Zandile was charged with possession of
explosives and after two months in detention, he was given bail. He was eventually
acquitted because a passing white policeman admitted that Krugersdorp police had
tortured him.
For over a decade, Zandile was ignorant of the events behind what had happened that
night in February. In 1996 he learned from a South African Broadcasting Company
(SABC) journalist that the driver with Ephraim, scar-face, was the security
policeman Joe Mamasela. The young comrades had been tricked by double agents or
askaris, former ANC combatants who had been turned by the security forces. Since
1982, Kagiso township residents were suspicious of Zandile, as he was the only
survivor. It emerged in the hearing that relations were strained between Musi and the
families of his 3 fellow comrades who had been killed. After the explosion, the
families of the comrades did not visit Zandile Musi in hospital but they did attend his
trial. Zandile felt that they had blamed him and he was plagued by guilt since he had
been the ring-leader and had put them all in touch with Ephraim.
After Musis testimony, there followed the testimonies of the three sisters of the
fallen comrades. They were all still living in Kagiso, as was Musi. Common to all of
them was a previous suspicion of Zandile Musis role in their brothers deaths.
Behind the Scenes in Kagiso
It was uncommon that reconciliation was as apparent at a hearing as in the West

Rand mine shaft incident. This case exemplified better than any other what the TRC
itself thought it was doing to facilitate reconciliation in the HRV hearings it held
around the country: victims told their stories, the truth came out, families openly
forgave each other after years of resentment and reconciliation was there for all to
see.
I interviewed Zandile Musi and other members of the families in Kagiso in late 1998,
and started to get a picture of where the TRC fit into their long process of
reconciliation. Zandile is now in his mid-thirties, married with two sons and
working as a taxi driver in Kagiso. His brother Mbulelo is Deputy Director of
Communications of the Gauteng Provincial legislature. The family has prospered
under the new ANC regime, but Zandile still feels his life has been ruined. When
asked why he went to the TRC, Musi replied:
I wanted my case to be known and what happened to me. To appear before the
TRC would help to remedy the misery of my life. I wanted the families f the other
victims} and the world to know. . . I had avoided them. I had always blamed
myself for what happened and didnt know how to start with them. The TRC was
an avenue that could make it possible to convey that.
The attendance of some members of the family had only been made possible by
developments earlier on that year. Simmering hostility between Musi and the families
of the three dead comrades, began to break down in early 1996 due to the intervention
of an SABC television journalist, Reggie Morobe, who was making a program on the
case. Morobe was hoping film a meeting between the families and the perpetrator
Ephraim for his documentary on reconciliation for a current affairs program
Newsline.
The timing of events was fortuitous for Musi. When asked whether he felt that he had
been forgiven by the other families before the hearing, during or after, he replied:
Before-I could see they had forgiven me before we went to the TRC. I continued,
So the TRC was a public expression of what had already happened privately? Musi
commented, Yes. And it continued afterwards. The TRC said theyd arrange
mediation between the families but they didnt. There was no further communication.
But afterwards we all had a meeting here at my brothers house over a weekend. We
just sat here and talked and talked.
Interviews with relatives of the three dead comrades showed that they were not fully
convinced. Ntombi Emily Zanele, the younger sister of Fanyana Nhlapo said:
Zandile came to explain to us what had happened in 1996, but our family didnt
understand. After the TRC hearings, we saw that Zandile was telling the truth. We
listened, but others did not. Myself and my aunt were the only ones to attend and we
told our family about the hearings, but they didnt want to understand. They were
suspicious of Zandile and think he got money and used it for himself. I then asked,
Do you think Zandile has finally cleared his name in Kagiso? and Emily Zanele
replied, No the community blames Zandile. They say, How was it that you survived
and they died?
.

If one delves deeper into the ideas around reconciliation which Musi and the three
hold, one gets a sense that the values of the TRC were not successfully transmitted to
all participants. Buzzolis (1998) use of a Durkheimian analysis of collective
effervescence to explain how the new values of reconciliation are transferred to

audiences at TRC hearings have to be put into context. Aspects of the HRV hearings
are highly ritualized in order to create new identities and to engender new
dispositions of forgiveness, but we must take into account not only how values are
diffused, but also how they are received. People are not ideological dupes or mere
vessels of discourses as they are portrayed in many dominant ideology theories and
their post-modern successors. This was apparent when I asked Zandile, Did you have
the same ideas about reconciliation as the TRC? and he replied, What was the
concept of reconciliation of the TRC? I dont know.
The participation at the TRC hearings had not, in this case, led to victims forgiving
perpetrators and forsaking revenge. On October 31, 1998, the TRC Final Report was
publicly released and I obtained a copy quickly and went to Kagiso. On pages 582-3
of Volume 3, Zandile learned for the first time who had applied for amnesty for the
murders and what the findings of the Commission were. In his case, the findings were
quite dramatic and revelatory since they were linked to amnesty applications:
The Commission finds a number of Security Branch operatives responsible for this
operation and, in particular, Brigadier Willem Schoon, the Head of the Security
Branch, who authorised the operation that led to the commission of gross human
rights violations. The Commission finds further that Mr. Christian Siebert Rorich,
Mr. Abraham Grobbelaar, Mr. Joe Mamasela and Mr. Ephraim Mfalapitsa were
responsible for carrying out the operation, for the deaths of the three COSAS
members and the gross violation of human rights.
The Commission finds the former state, the Minister of Police, the Commissioner
of Police and the Head of the Security Branch responsible for the gross violation
of human rights. The Commission finds that, through their actions, the former state
is vicariously responsible for criminal conduct in that it secured these deaths
through extra-judicial means.
Musi had only ever known of the actions of Ephraim and Mamasela, and learned for
the first time about the involvement of three white Security Branch police officers.
Zandiles immediate response was to say, Those people did not apply for amnesty
for reconciliation, only because they knew what would happen. They would be
prosecuted. Then he asked me who I thought he should sue; the individuals who had
applied for amnesty or the Ministry of Safety and Security as the institution held
criminally responsible. The hostility of the relatives of the dead comrades was even
greater than that of Musi. Bimbos sister Maide said: It is still unbelievable for me
that he died. I am still angry. If I see Ephraim, then I would have to kill him. I hate
that person.

Human Rights. Local Justice and Gender

Since the 1980s, human rights and local justice had been opposed to one another, as
peoples courts were blamed for many of the excesses of the anti-apartheid
movement. In the 1990s, this opposition intensified, as human rights became more
entrenched within South African legal practice, and there was more jurisdictional
confrontation between local courts and state courts influenced by international law.
During the life of the TRC, many customary courts in rural areas and township courts
in urban locales actively opposed the reconciliatory activities of the TRC on the
grounds that it did not pursue their vision of justice as punishment. One Boipatong
court member told me The TRC-its a sell-out. This material is very important in
order to get a sense of the context in which the TRC, a fleeting body, operated, and in
particular, to see how local justice institutions dealt with issues of past conflicts.
In late 1998, and 1999, the tide of legal reform in South Africa seemed to be turning
against local courts. At a national level, the TRC Final report released in October
1998 (p.327) recommended that the Ministry of Justice eradicate physical punishment
in chiefs courts: Despite the fact that such courts do not have criminal jurisdiction,
the defacto position is that, in many areas, this right has been assumed and corporal
punishment and illegal sanctions are routinely imposed. This practice must be ended
as a matter of urgency. The TRC also urged the state to suppress township courts
when it recommended that steps be taken to inhibit the reappearance of the peoples
court phenomenon.
In 1998, things began to go awry for the Boipatong kgotla, or local court. Just weeks
before the publication of the TRCs final report, two of its leading officials Adons
Ramaele and William Ubane were found guilty of indecent assault and grievous
bodily harm and were sentenced in the van der Bijl Park District Court. Their defense
argued that they were acting on behalf of the community, but this time the
Afrikaansspeaking magistrate rejected the rhetoric of a separate justice system for
blacks. Magistrate J.A.van Staden called the local court officials bullies and liars
and sentenced them to a year in jail or a fine of 2000 Rands (then US$225) each. 78year old Ramaele paid up, but Ubane was languishing in jail in late 1998 when I
interviewed Boipatong residents about the case.
The story behind the District Court case was a fascinating one and its complexity
demonstrates the contradictions and continuities within state-informal law relations
since 1994. The Boipatong kgotla had been under pressure from both women and men
to hear more domestic cases. It had also become increasingly punitive especially
towards married women (but never men) found guilty of adultery and minor domestic
transgressions. Matters came to a head on June 5, 1997, when 38-year old Elizabeth
Mahiangu was brought to the kgotla by her own mother, who accused her of neglect
of an infant. Chairman Ramaele found her guilty and the court sentenced her to 50
lashes with a sjambok. Ms. Mahiangu suffered a horrible beating, was hospitalized for
nearly two weeks, and photos of the extensive injuries to her buttocks and legs were
shown in court.
Ms. Mahlangu received support from a number of disaffected groups in her campaign
to get her case investigated by the police and heard in the District Court. She was
encouraged by politicized women of the township, including an ANC Womens
League activist and local chairperson of Women Against Violence Against Women
who had been beaten herself in 1997 by the kgotla, allegedly for adultery with a

married man. Growing resentment among women was supported by the ANC Youth
League, whose members also chafed at the bit of elder male control. In the 1980s,
popular courts run by ANC comrades had generated a large part of its constituency
from women who were unhappy with gerontocratic township courts, and this political
axis reemerged in Boipatong in the late 1990s.
In his decision, the magistrate accused the Africans of practicing jungle justice (Vaal
Vision Oct. 23, 1998), illustrating how the present legal regime bears many
continuities with apartheid legality. What was novel however, was how the magistrate
invoked human rights in his decision. Human rights discourse would not have been
articulated in a case like this before 1994-indeed the case would probably have never
come to the District Court at all but would have been referred to a section of the black
administrative system.
Local residents sought to appeal to human rights also, saying that beating women was
against the new Bill of Rights in the South African Constitution. However, digging a
little deeper, residents seemed to be wrapping local moralities within human rights
discourse. They also stated that men beating women was against traditional African
culture, but that men beating other men was acceptable both within tribal law and
human rights. Many Boipatong residents, including two women beaten by the court,
continued to support the existence of the kgotla and to recommend that it continue
beating young, male miscreants. The moral language ofcustomary norms rather than
written positivized rules, of a morality that demanded that men respect and physically
protect women, even through a punitive township court, was still relatively intact, but
had now been repackaged within a new language of human rights. These discursive
associations seemed quite superficial, and may be little more than a new idiom for a
much more established language of justice and morality. Rights talk is vague enough
to cloak a variety of claims and entitlements (which may not be rights-derived at all),
and because of this human rights provided the idiom for urban Africans to enter an
old-style Afrikaner magistrates court, which many boycotted as a symbol of
apartheid only five years earlier.
The Mahlangu case reinforces my assertion that human rights presently serve a
centralizing project, drawing local ideas and institutions of justice into the state, and
expelling all that does not fit. Ms. Mahiangu was supported by the members of the
Boipatong Community Policing Forum, and the van der Biji Park magistrate in his
sentencing judgment instructed the kgotla members to stop their nonsense and join
the Community Policing Forum instead. The policing forums were set up in 1994 by
the new government as a way of making the police seem more accountable and
legitimate and to eradicate township courts and vigilantes by drawing them into
formal structures. In Boipatong, the policing forum and the kgotla functioned side by
side, but the deep structural crisis of criminal justice in South Africa meant that such
co-existence was unstable and the state has acted in a number of ways to centralize
and unify its authority.
In 1999, the Boipatong kgotla still limped along, holding only a few meetings a week,
and refusing to hear domestic cases. It confined its hearings to theft and assault cases,
and it had at least temporarily stopped beating those found guilty. Despite their
district magistrates indignation, van der Biji Park police have kept working closely
with the kgotla, which is now more prone to just hand over suspects to the police
without trying or sentencing them. Thus, despite having been battered by one arm of
the state, the urban court is at another level even more integrated into the state

criminal justice system than before.

Human rights Revisited
This final addresses some theoretical problems in conceptualising human rights, in
the light of the intervening ethnographic material on the Vaal and Kagiso.
Until the early 1960s, the dominant approach in the field of legal anthropology
proposed an equivalence and continuum between all types of legal rules and social
norms, and operated with a static and isolationist view of customary law which too
readily assumed the existence of different systems. Over time, it moved from
codifying customary rules to advocating a processual approach which portrayed local
law as characterized by open and seemingly limitless individual negotiation and
choice-making.
In the early 1970s influences from within critical legal studies and the crossdisciplinary law-and-society movement drew attention to the dialectical relationship
between state institutions and local normative orders and the relations of dominance
and resistance between them. Marxist legal anthropologists such as Snyder (1981)
argued rightly that the processual approach treated dispute processes as too selfcontained and thus tended to ignore the wider political context. Local moralities and
norms were in a subordinate relationship to state law, but they resisted and created a
counter-hegemonic bulwark, demanding recognition on their own terms.
There are a number of conclusions we can draw from my research which run counter
to conventional approaches to discourse or hegemony. The approach I adopt draws
from the neo-Weberian writings of Abercrombie, Hill and Turner (1980, 1990),
which challenge the influence of Gramsci and the concept of hegemony in the
analysis of legal ideology. In the late 1970s, many marxists adopted a very strong,
coherent and totalizing view of hegemony in order to explain why the industrial
classes of capitalist societies apparently accept the core assumptions of capitalism.
Their answer lay in the way in which capitalism could create hegemony, or a coherent
worldview via dominant state and social institutions. Yet there was very little
attempt by marxists to empirically verify whether the dominant ideology did indeed
incorporate subordinate social classes: that is, to see if at the level of transmission and
reception, ideology worked as it was theoretically expected to work.
The Dominant Ideology Thesis (1980) provided an important counter-point, which is
still relevant today, for understanding how people pragmatically participate in
political and economic processes, but not necessarily take on the values of dominant
societal and state institutions. Abercrombie et a! argued that the dominant value
system is not internally consistent, and that major parts of the ideology are rejected by
industrial classes to the extent that one may speak of a dual consciousness between
social classes.
Contrary to the accepted view in both Marxist, Durkheimian functionalist and
Parsonian thought that consensus results from common values, these neo-Weberians
were arguing that the system could function no more than a pragmatic acquiescence
by the majority. This analysis of values is appropriate for thinking about the Musi
case and the TRC in South Africa. Involvement in the TRC is pragmatic rather than
normative or ideological. People may pragmatically perform roles and take part in
HRV hearings and reparations procedures, but not necessarily accept the core human

rights assumptions of the institution. They may have their own values (e.g. on the
death penalty, or reconciliation) to such an extent that we might speak of a dual legal
consciousness. Victims therefore participate for their own reasons, some of which
mesh with the new institutions and language of human rights, whereas others diverge
sharply. This divergence seems to be working less at the level of conscious resistance
than a sheer lack of awareness of attention to, and even interest in the values which
victims were supposed to subscribe to. So while it is clear that there is a hegemonic
project around human rights which the TRC pursued in tandem with other state
institutions, it is not at all clear that the reception of the main targeted constituency
(urban, ANC-supporting blacks) conforms to the intended pattern. On television or at
the hearings it might all seem to work nicely, but listening to what victims are saying
during in-depth interviews can take us to an unexpected place that is between (or,
perhaps, beyond) both acceptance and resistance.
If many urban blacks attending TRC hearings are only pragmatically acquiescent, and
many others, as we will see, actively resist the dominant human rights ideology, then
what was the point of the TRCs hegemonic project? Again, neo-Weberian sociology
reverses conventions and argues that ideology does have important effects, but these
are primarily upon the dominant rather than the subordinate classes. Hill (1990:2)
writes that What has been important for the stability of capitalism is the coherence of
the dominant class itself, and ideology has played a major role in securing this.
In thinking about human rights in democratising countries in the 1990s, researchers
need to preserve the idea that many states engage in centralizing efforts to resolve
their hegemonic crises, but we can no longer accept that there is always an inherent
asymmetry between centralizing and pluralizing processes. Instead of the stark
polarity of dominance and resistance which reduces the complexities of a historically
produced political-legal context, we must turn our attention to shifting patterns of
dominance, resistance, acquiescence, and avoidance which occur simultaneously. As
we have seen in Boipatong, local courts are both connecting up with policing
structures and bypassing them in order to exercise a certain degree of autonomy to
judge and punish. The Boipatong imbizo was simultaneously working with the van der
Biji Park police, while being prosecuted and sentenced by the magistrate who told
them, in the name of human rights, to cease their activities and join the Community
Police Forum. There are multiple connections between state institutions, religious
organizations and local courts, to the extent that we see a splintering of the unified
fields of state and society, and an eradicating of their hard boundaries.
Diverse social fields in African countries are too complex and emergent to be
constrained by any explanation which sees law and society as a priori structural
categories to be understood by a single explanatory framework. Instead of two
coherent unified systems which are locked in a structurally determined struggle, we
see combinations of actors and collective groups who are involved in the production
of norms and who create new historical experiences and experiences of history. The
direction of social change in post-apartheid South Africa, what Touraine (1995) refers
to as historicity, is the product of the social action of individuals and collective
actors (political parties, local courts, religious organizations etc.) engaged in the
reflexive self-production of society.
The post-apartheid South African regime is in an agonizing process of state
reformation; its ANC ministers are unifying, consolidating infrastructure, and
desperately trying to transform institutions such as the police, prisons and

magistrates courts historically tainted by their involvement in administering

apartheid. This project of state centralization and national unification is the most
important thing to realize about the first post-apartheid regime. It found itself opposed
to legal pluralism and a dual system of justice and administration for blacks and
whites, which it set about dismantling. Yet this shift from one type of hegemony and
governmentality to another-from separate development and racial and cultural
difference to equality, rights and universal values-created a legitimacy crisis.
Human rights are a central discursive idiom of governmentality in the New South
Africa, and my research has traced how these formulations circumvent local values
altogether (pragmatic proceduralism) or are repulsed by them, as occurs in local
courts. The social processes described work in different directions simultaneously,
both reinforcing and obstructing the introduction of human rights values into a
context of semi-autonomous legal and moral fields. This view allows us move beyond
stark formulations of state and society, to chart the concrete consequences of social
action which contest historicity in the area of justice and reconciliation.
Activities

While in South Africa, I was a Visiting Associate in the Department of Social

Anthropology at the University of the Witwatersrand in Johannesburg. While in the
country, I kept in close touch with a network of social scientists and historians
working on the TRC and related issues.
After my period of ethnographic fieldwork, I presented the results of my research in
the following contexts:
Manufacturing Legitimacy: the TRC and Human Rights in South Africa.
Commissioning the Past Conference. University of the Witwatersrand, Johannesburg.
June 1999.
Reconciliation and Revenge in South Africa. Close Encounters Conference.
Stanford University. USA, April 9th-10th 1999.
Conflict and Reconciliation in South Africa. Constitution-Making in Conflict
Situations. Rockefeller Center at Villa Serbelloni, Bellagio, Italy, February 20th -25th
1999.
Reconciliation and Reconstruction in Post-Conflict Countries. Commons Select
Committee on International Development, Palace of Westminster, UK, December 1,
1998.

Outputs
Publications
Reconciliation and Revenge in South Africa: rethinking legal pluralism and human
rights. Current Anthropology. Volume 41, Number 1, February, 2000.
Trauma, Liminality and Symbolic Closure: the legacy of political violence in South
Africa. Co-authored with Brandon Hamber, in Edward Cairns (ed.) Forthcoming
1999. Social Memory in Post-Conflict Situations. Proceedings of the American
Psychological Association. London: MacMillan.
Human Rights and Globalization: Local Justice and the Truth and Reconciliation
Commission in South Africa. Forthcoming, 2000. In Suad Joseph (ed.) Women,
Human Rights and Islam. Berkeley: University of California Press.
Justice and Legitimacy in the South African Transition. In Alexandra de Brito and
Carmen Gonzalez (eds.) Forthcoming. 2000. The Politics of Memory: Three Decades
of Transitional Truth and Justice. Oxford: Oxford University Press.
I am presently writing a book entitled The Politics of Truth and Reconciliation in
South Africa. A proposal is being considered by the Law and Society series of
Cambridge University Press and a manuscript will be delivered by December 15,
1999.
Impacts
I was fortunate to be able to provide advice to those shaping British foreign policy,
when asked to appear before the Commons Select Committee on International
Development at the Palace of Westminster on December 1, 1998. The committee was
considering issues of Reconciliation and Reconstruction in Post-Conflict Countries
and the final report included large sections of transcripts from my session.

Future Research Priorities

I am presently writing the last 2 chapters of my book on the subject of human rights,
truth commissions and local justice in South Africa. Writing up the last of the results
of my research over the past 4 years will occupy all of my time for the next three
months, and I have not fully considered what research plans might lie beyond that
period. However, I am interested in following up a theme which was not fully
developed in my present research, namely the place of race within the South African
justice system between the years 1990-2000, to examine constitutional judgements,
the impact of truth commissions and key criminal cases. What reforms have
governments and legal professions undertaken to end institutionalized racism (within
both society and the legal profession) and what have been the implications at the level
of the living law of the criminal justice system and for popular perceptions of law?

Citations
Abercrombie, N., S. Hill and B.S. Turner. 1980 The Dominant Ideology Thesis.
London: Allen and Unwin
Abercrombie, N., S. Hill and B.S. Turner. (eds) 1990. Dominant Ideologies. London:
Unwin Hyman.
Buzzoli, Belinda. 1998. Public Ritual and Private Transition: the Truth
Commission in Alexandra Township, South Africa 1996, African Studies Vol. 57,
No.2.
Conley, John and W. OBarr. 1990. Rules versus Relationships: the ethnography of
legal discourse. Chicago: University of Chicago Press.
Hill, Stephen. 1990. Britain: the Dominant Ideology Thesis After a Decade. In
Abercrombie, N., S. Hill and B.S. Turner. (eds) 1990. Dominant Ideologies. London:
Unwin Hyman.
Merry, Sally Engle. 1988. Legal Pluralism Law and Society Review 22 (5): 869-901.
1990. Getting Justice and Getting Even: legal consciousness
among working class Americans. Chicago: University of Chicago Press.
Touraine, Alain. 1971. The Post-Industrial Society. Tomorrows social history. class,
conflict and culture in programmed society. Tr. Leonard Fox Mayhew. New York:
Random House, 1995. Critique of Modernity. Oxford: Blackwell.
Truth and Reconciliation Commission Report of South Africa Report. Vol. 1-5. 1998.
Cape Town: Juta and Co. Also on Internet site http://www.truth.org.za/