The transition from an apartheid state to one whose foundation is universal suffrage saw South Africa adopt multiple methods to signify transition from the one form of rule to the other. Such a transition involved, among others, the creation of truth commissions, the amendment of legislation and the promulgation of new legislation – a process collectively referred to as transitional justice. Despite the protections against the arbitrary deprivation of property, provided for in the Constitution of the Republic of South Africa and other pieces of legislation born of transitional justice, there continues to exist a disparity in respect of who South African property law caters for and protects. Against this background, the South African Constitution and case law, this chapter engages the principle of transformative justice to interrogate the conceptions of ownership and property under South African property law. This chapter argues that the current conception of property and ownership serve to, inter alia, economically exclude a large number of South Africans whose property custodianship exists outside of the current conceptions of ‘ownership’ and consequently outside of the recognition of private ownership of land or property.

This chapter investigates the notion of ‘justice’ that informs ‘just and equitable’ compensation in section 25 of the Constitution and questions whether this notion changed during the attempt to amend section 25. It starts off by investigating the possible meaning of ‘justice’ during the transition and interrogates the usefulness of that notion of justice in interpreting section 25. It makes the argument that the conversations bringing about the Constitution Eighteenth Amendment Bill, even though not leading to an amendment, were important to challenge the notion of ‘justice’. The adoption of this Constitution lays a secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation (Epilogue of the interim Constitution, 1993).

This chapter asks how the revitalised debate about our land question relates to the transformation of property law. Drawing on Van der Walt, Walker, Ngcukaitobi and Wilson and focusing on developments in two areas of land law – home evictions and mining rights disputes – the chapter proposes that transformation of property law requires its democratisation. It considers the two most prominent proposals that emerged from the land debate: ‘expropriation without compensation’ and ‘state custodianship’ of land. It suggests that, despite their ostensible radicality, neither of these proposals breaks with apartheid property law. Instead, embracing the notion that absolute control over land must vest somewhere, whether in private owners or the state, both mirrors and validates the basic ‘code’ of apartheid land law: the primacy of an absolute notion of ownership. In this way, the debate has been not only limited but limiting. It has diverted our attention from the central question concerning land (how to live together justly in relation to land) and set us back in realising the democratisation of property/land law that its transformation requires.

Interdependence-generating goods will not arise unless actors view arrangements as right or correct. This perception gives rise to a preoccupation in communities with what is just. It necessitates the development of a theory of justice that coordinates with the theory of community developed above. Justice in relation to goods can be thought about in two forms: either as a matter of the good’s distribution ex ante or its correction ex post. Nevertheless, this two-fold structure is simplistic in that it fails to account for the fact that justice must promote an ideal of just relationships. The theory of justice developed in this chapter therefore posits that the interaction of distributive and corrective justice over time gives rise to transformative justice. The transformation in question relates both to the nature of the good and the attendant conception of a wrong. The chapter details how transformative justice is an outcome visible in both international and WTO law. At the same time, the chapter suggests that WTO law’s transformative justice is not perfectly just, a deficiency that gives rise to a continuing impetus at reform.

Chapter 1 introduces the topic of historical abuses of states and churches. The chapter outlines the existing and related conceptions of justice that may inform a response to historical abuses and positions transitional justice as the dominant but flawed approach to addressing the violent aspects of the past. The third section considers the application of these justice approaches to the context of historical abuses of Western states and Christian churches. The final section previews the remaining chapters of the book.

This chapter reflects on the implications of resilience thinking for transitional justice as a transformative process that contributes to adaptive peacebuilding. It discusses how the concept creates space for new thinking about transitional justice and the potential dangers and opportunities afforded by a resilience approach. As part of this analysis, the chapter provides a critical appraisal of the overall approach to transitional justice that has dominated the field, considering transformative justice as an alternative perspective that challenges the hegemonic politico-legal, state-based, backward-looking retributive framework. It argues that resilience thinking supports a greater focus on psychosocial, community-based, forward-looking restorative approaches to transitional justice, consistent with the transformative turn in the field. It demonstrates this by exploring different understandings of justice, how they are pursued in the context of transitional justice and what they mean for building resilient societies after mass violence and human rights violations. The chapter further examines how various transitional justice mechanisms might contribute to individual, community and systemic societal resilience, while also recognising their limitations.

Cycles of violence in Palestine are set against a backdrop of settler colonialism. In this chapter, we argue that in colonial conditions such as in Palestine, ‘transformative justice’ frameworks and practices are needed over transitional justice. In particular, we suggest that transformative justice should e grounded in Indigenous knowledges and emergent practices ‘from below’, meaning the everyday needs and strengths of those most directly impacted by violence and oppression. In this chapter, specifically, we theorise ‘from below’ from the perspective of our work as two Palestinian psychologists. Through this writing process, which involved reflecting on our personal, professional and inter-generational experiences of contending with violence and oppression, we articulate a series of counter-stories as key decolonial enactments of adaptation and resilience. These decolonial enactments include:  1. Self-determination of Colonized Communities: Asserting our Sovereignty with Decolonial Attitude and Unafraid Re-Planting; 2. Radical Coalitions for Transformative Justice: Strengthening our Connections and Capacities to Struggle; and 3. Resetting our Wings: Everyday Enactments of our Humanity and Radical Love. These counter-stories shed light on pathways towards effectively disrupting cycles of colonial violence in Palestine and bringing forth, into everyday life, the decolonial futures that we so desperately need and deserve.

The concept of resilience is best understood as a process whereby individual capital and social capital intersect in ways that create optimal outcomes in stressed environments. As a process, resilience can look very different in different contexts, with any single system (including systems that promote economic and environmental justice, human rights, and law enforcement ) showing patterns of persistence, resistance, recovery, adaptation or transformation depending on the resources that each system has available to support positive change. This chapter explores these processes and how they affect systems simultaneously at multiple levels. This understanding of resilience as a multi-systemic concept can help to explain how transitional justice processes and the broader systems with which they interact (both judicial and non-judicial) respond to stressors, thereby shaping how individuals, communities and institutions deal with adversity and shocks. Brief case examples are used to show how resilience changes depending on a population’s exposure to extreme forms of potentially traumatising events like war, forced migration, genocide and chronic economic disruption.