Participation and litigation: parallel routes to policy in the South African postcolony

Abstract

ABSTRACT Policy processes in contemporary South Africa draw attention to a phenomenon that is both common in policymaking and under-theorised in the anthropology of policy: the tendency for policy to be made both through legislative and administrative fora, and through litigation and the threat of litigation, often concurrently. Given South Africa’s robust legal frameworks mandating public participation in policymaking, there is an unexpectedly productive dialectical relationship between administrative and legal processes, where failures of participation create openings for court challenges that may limit the scope for top-down policymaking. These legal actions likewise reflect responses to the country’s apartheid history: they rely upon legal oppositional strategies developed to challenge the apartheid state, often by the same actors and organisations, and they rely upon legal institutions that have been deliberately structured to prevent past injustices from being repeated. This paper illustrates these points with two cases from South Africa: first, a local policy implementation process concerned with the issuing of permits for subsistence fishing in the Dwesa-Cwebe Marine Protected Area (MPA) in the Eastern Cape and, second, a national process concerned with the re-opening of claims under South Africa's land restitution programme.