Justice & Memory: South Africa's Constitutional Court

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In a society such as South Africa in which the past has been deeply unjust, and in which the law and judges have been central to that injustice, establishing a shared conception of justice is particularly hard. There are four important strands of history and memory that affect the conception of justice in democratic, post-apartheid South Africa. Two of these, the role of law in the implementation of apartheid, and the grant of amnesty to perpetrators of gross human rights violations, are strands of memory that tend to undermine the establishment of a shared expectation of justice through law. Two others, the deep-rooted cultural practice of justice in traditional southern African communities, and the use of law in the struggle against apartheid, support an expectation of justice in our new order. Lawyers and judges striving to establish a just new order must be mindful of these strands of memory that speak to the relationship between law and justice.

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In post-apartheid South Africa the state instrumentalised the idea of heritage to advance a project of reconciliation and nation building. Heritage was framed as an inherent good, facilitating symbolic restitution through foregrounding black public histories and fostering a national culture based on the common ownership of heritage resources. This article evaluates this framing of heritage through analysis of the reworking of material remains recovered at two sites of apartheid era incarceration and their different paths to heritage ‘status’. First, it discusses the recovery and rebranding of the fence from Robben Island as an artistic and design commodity. Second, it describes the demolition and recycling of building material from the Old Fort Prison in Johannesburg to build the Constitutional Court. Using ruination as a theoretical entry point, the article shows how the heritage significance of these remains was brought out through engaged interpretation that explicitly linked the material to a dominant, reconciliatory post-apartheid heritage narrative. It was then circulated in different economies of cultural, political and economic value, and put to work to generate commercial profit or to promote constitutional justice. Showing these divergent outcomes, the article critiques the utility of a reconciliatory framing of heritage for purposes of inclusive nationalism.
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