Prof. Jaco Barnard-Naude

Seeking Spatial Justice in the Postcolony

In a 2003 article published in the Digest of South African Architecture, Iain Low, Professor of Architecture at the University of Cape Town, wrote that ‘[s]pace is the construct that most effectively realised and maintained apartheid’s grand plan and continues to ensure the endurance of its legacy’. Thirteen years later and more than two decades after the formal dismantling of apartheid as a principle and institution of government, civil society is beginning to direct its attentions to the fact that the spatial legacy of apartheid remains firmly entrenched. Efforts such as those of Ndifuna Ukwazi around the sale of what has become known as the Tafelberg site in Sea Point testify to the realization amongst post-apartheid activists that without a fundamental transformation in the spatial arrangements and relations of South Africa, the hopes and dreams of the post-apartheid Constitution will remain unfulfilled.

The enactment of the final Constitution as the foundational law of the post-apartheid state, recognizes in its Preamble the ‘injustices of our past’ and goes on to make it the mandate of this new law to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’. For this reason, our Constitution (and, indeed, post-apartheid law in general) has been described as transitional and transformative. In a very significant sense, the drafters of the Constitution recognized that it was imperative to assign to law the task of transformation, because it was the force of law that enabled, protected and consequently perpetuated apartheid. In short, it would require nothing short of the force of a new law, to undo in South Africa the consequences of colonialism, imperialism and apartheid. As former Chief Justice Pius Langa remarked in 2006: ‘This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future’.

The postamble of the Interim (1993) Constitution prominently availed itself of a spatial metaphor to describe the process of which Langa writes: it declared itself to be a ‘historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans’. Reading the final Constitution, it is equally remarkable how often the text has recourse to spatial action such as ‘those who have worked to build and develop our country’ and ‘we … adopt this Constitution … so as to lay the foundations for a democratic and open society’. Ever since the dawn of legal order, jurists have recognized that the founding act of law is a spatial one: the line in the sand, the building of a wall, the erection of a fence. And it seems that, at least at the rhetorical level, the drafters of the post-apartheid constitutions were acutely aware of this constitutive connection between space and law.

Despite this rhetoric, the post-apartheid order became increasingly unconscious, not only of the founding relationship between space and law, but also of how closely the apartheid order matched the letter of the law to its concrete, spatial instantiations on the territory. Above all, apartheid was a spatial policy of segregation backed by the force of state law. Accordingly, it is impossible to transform a country such as ours by way of law, without transforming its spatial arrangements and configurations. In the early years of the transition, government moved quickly and appropriately to dismantle the formal provincial, municipal and infamous ‘homeland’ boundaries. While some of the new spatial demarcations of the post-apartheid republic at this level remain the subject of public controversy and protest, very little has been done in terms of the transformation of the concrete, everyday spatial realities of the majority of the population. In short, post-apartheid spatial planning has largely failed to transform the spatial legacy of apartheid: impoverished townships are still where they were established under apartheid. Affluent suburbs (intentionally and more conveniently, of course, located closer to business nodes), on the other hand, have become increasingly gated and securitized. Of course it is true that these have become somewhat de-racialised and of course service delivery in the townships has improved. But the spatial configurations of towns and cities remain almost exactly the way they were under apartheid. It still takes a domestic worker who lives in the townships up to four hours to get to work in the suburbs at a cost grossly disproportionate to her income.

The National Development Plan’s insistence that the spatial legacy of apartheid must be transformed, as well as the new Spatial Planning and Land Use Management Act indicate that government has now woken up to the fact that spatial transformation is a fundamental aspect of the post-apartheid mandate. Ndifuna Ukwazi’s efforts to secure spatial justice in Sea Point must be considered as part and parcel of holding government accountable for transformation through law – part and parcel, then, of dismantling the concrete remnants of apartheid’s ‘grand plan’ and one aspect of what it means to recognize that South Africa, as the Constitution holds, ‘belongs to all who live in it’.

Prof. Jaco Barnard-Naudé is Professor of Jurisprudence in the Department of Private Law at the University of Cape Town.


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