Spectres of Reparation in South Africa: Re-encountering the Truth and Reconciliation Commission [1 ed.] 9781003290278, 9781032268613, 9781032268651

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Praise for Spectres of Reparation in South Africa: “In this ground-breaking book, which draws seamlessly on both African indigenous cosmology and psychoanalytic theory, Barnard-Naudé helps us understand how spectres of reparation continue to haunt South Africa, many years after the Truth and Reconciliation Commission (TRC) formally finished its work. […] This important book deserves to be read in South Africa and beyond, across disciplines, and by scholars and practitioners who are interested in linking transitional justice to more robust theoretical and political agendas.” – Paul Gready, UNESCO Chair, Centre for Applied Human Rights, University of York, author of The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond (2011).

Praise for Jaco Barnard-Naudé: “A highly original scholar, at ease in the domains of politics and philosophy, law and literature, Jaco Barnard-Naudé has been making his mark for some time by bringing psychoanalysis to the negotiating table of political injustice. His work, rapidly becoming indispensable, has far-reaching ramifications for anyone reflecting on how to advance in the maelstrom that is South Africa today.” – Jacqueline Rose, Professor and Co-Director, Birkbeck Institute for the Humanities, University of London, author of On Violence and On Violence Against Women (2021).

Spectres of Reparation in South Africa

This book argues that South Africa is haunted by the spectre of reparation. The failure of the South African Truth and Reconciliation Commission (TRC) to secure adequate reparation for the victims of colonisation and apartheid continues to drastically undermine the legacy of the commission’s processes and findings. Investigating the TRC’s key processes of amnesty, archiving and forgiveness in turn, the book demonstrates that each process is fundamentally thwarted by the terminal lack of reparation. These multiple forms of the spectre of reparation haunt post-apartheid society in deeply traumatogenic ways. The book proposes a new ethic of “reparative citizenship” as a means of encountering the spectres of reparation in a productive and transformative manner, generating hope even in the face of the irreparable. This book will be an important read for South Africans interested in overcoming the impasses and injustices that haunt the country, but it will also be of interest to post-conflict transitional justice and politics researchers more broadly. Jaco Barnard-Naudé is Professor of Jurisprudence, Co-Director of the Centre for Rhetoric Studies (CRhS) and Director of Research at the Faculty of Law, University of Cape Town, South Africa.

Routledge Contemporary South Africa

1. Social Policy in Post-Apartheid South Africa Social Re-engineering for Inclusive Development Ndangwa Noyoo 2. Participatory Theatre and the Urban Everyday in South Africa Place and Play in Johannesburg Alex Halligey 3. Social Media and Everyday Life in South Africa Tanja E. Bosch 4. Radio, Public Life and Citizen Deliberation in South Africa Edited by Sarah Chiumbu and Gilbert Motsaathebe 5. Afrikaners and the Boundaries of Faith in Post-Apartheid South Africa Annika Björnsdotter Teppo 6. The Contested Idea of South Africa Edited by Sabelo J. Ndlovu-Gatsheni and Busani Ngcaweni 7. The Short Story in South Africa Contemporary Trends and Perspectives Edited by Rebecca Fasselt and Corinne Sandwith 8. Generation, Gender and Negotiating Custom in South Africa Edited by Elena Moore 9. Youth Unemployment Scenarios: South Africa in 2040 Maximilian Matschke 10. Spectres of Reparation in South Africa Re-encountering the Truth and Reconciliation Commission Jaco Barnard-Naudé For a full list of available titles please visit: https://www.routledge.com/RoutledgeContemporary-South-Africa/book-series/RCSOUTHAFRICA

Spectres of Reparation in South Africa

Re-encountering the Truth and Reconciliation Commission

Jaco Barnard-Naudé

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 Jaco Barnard-Naudé The right of Jaco Barnard-Naudé to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-26861-3 (hbk) ISBN: 978-1-032-26865-1 (pbk) ISBN: 978-1-003-29027-8 (ebk) DOI: 10.4324/9781003290278 Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India

Contents

Acknowledgements

viii

1

Introduction

1

2

The Ghost in the “Impossible Machine”: Reparation and the Biopolitics of Transition

33

3

On Apology and the Spectre of a Haunting Shame in the TRC’s Process

63

4

The Spectre of Reparation in the Archive: The TRC’s Work on the Role of Business During Apartheid and the Ongoing Demand for Reparation

87

5

The Spectre as Refusal: Reparation and Forgiveness in the Work of Mourning

147

6

Creative Haunting: Towards the Poetic Justice of Reparative Citizenship

176

7

Conclusion

210

Index

239

Acknowledgements

Earlier versions of some of the chapters in this book have been published previously, as follows: Chapter 2 was originally published as “Real Zones of Indistinction: Crisis, Exception, Norm and the TRC as Biopolitical Imperative” in Karin van Marle and Mia Swart (eds) The Limits of Transition: The South African Truth and Reconciliation Commission 20 Years On (2017) Brill: Leiden 186–220. Chapter 3 was originally published as “On Apology and the Failure of Shame in the TRC” in Melanie Judge and Dee Smythe (eds) Unsettling Apologies: Critical Writings on Apology from South Africa (2022) Bristol University Press: Bristol 264–289. Chapter 4 was originally published as “For Justice and Reconciliation to Come: The TRC Archive, Big Business and the Demand for Material Reparations” in François du Bois and Antje du Bois-Pedain (eds) Justice and Reconciliation in Post-Apartheid South Africa (2008) Cambridge University Press: Cambridge 172–205. Chapter 5 was originally published as “The Work of Mourning, Refusal, Forgiveness” in Karin van Marle (ed) Refusal, Transition and Post-Apartheid Law (2009) SUN Media: Stellenbosch 101–120. Chapter 6 was originally published as “Towards the Poetic Justice of Reparative Citizenship” in Pumla Gobodo-Madikizela (ed) Breaking Intergenerational Cycles of Repetition: A Global Dialogue on Historical Trauma and Memory (2016) Barbara Budrich Academic Press: Leverkusen 49–70. A segment of Chapter 6 was also originally published in “What Pandora Did: The Spectre of Reparation and Hope in an Irreparable World” in Kim Wale, Jeff Praeger and Pumla GobodoMadikizela (eds) Post-Conflict Hauntings: Transforming Collective Memories of Historical Trauma (2020) Palgrave Macmillan: London 67–92. Chapter 7 republishes segments from “‘She Reigns and He Does Not Govern’: The Discourse of the Anxious Hysteric in Post-apartheid South Africa” (2017)

Acknowledgements ix 28(3) Law and Critique 267–287 and “‘Space Is Space’: The Nomos of Apartheid, the ‘Coloniser Who Refuses’ and Uncolonial Spatiality in JM Coetzee’s Waiting for the Barbarians” in Jaco Barnard-Naudé and Julia Chryssostalis (eds) Spatial Justice after Apartheid: Nomos in the Postcolony (2022) Routledge: Abingdon 130–147. Thank you to the publishers of the above works for allowing subsequent publication with their permission.

“Without […] reparation, no law will stop the apartheid ghost from haunting our society” – Joe Slovo (1992).

1

Introduction

The South African Truth and Reconciliation Commission as a subject of lack Conjuring now the South African Truth and Reconciliation Commission (TRC) as a subject—and specifically as a subject of lack. While there are myriad ways of contemplating the TRC as an institution, this book will advance the proposition that studying the TRC as a subject of lack provides a renovated basis for a critique of the TRC as an institution as well as for a critique of its legacy in the context of broader current debates relating to the question of the afterlife of apartheid. The proposition that the TRC be studied as a subject of lack may be justified by consulting the text out of which the TRC was constituted—the famous epilogue of the 1993 Interim Constitution (Constitution 1993). As we shall presently see, this epilogue constructs and constitutes the South African nation at the dawn of the formal dismantling of apartheid precisely in terms of lack. After proclaiming that “[t]he pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society,” the epilogue diagnoses the symptoms of the South African nation as “gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.” It then goes on famously to proclaim that these symptoms “can now be addressed” on a particular basis, namely on the basis that there are three forms of what the epilogue calls “need” and what I propose to call lack. These three forms of need/lack are the need for understanding, the need for reparation and the need for ubuntu. The way in which the epilogue is written at this point in the text also gives us a palpable sense of what South Africa does not need/lack at this constitutional moment. These are vengeance, retaliation and victimisation. The epilogue tells us that there is quite enough, a surfeit even, of these forms of social antagonism in the South Africa that is to be constituted. But if we are prepared to look at these from a vantage point of lack, what we find is that these three forms of what South Africa does not lack are in fact themselves statements of lack: Vengeance, for instance, as the lack of forgiveness, retaliation as the lack of grace, victimisation as the lack of reconciliation. On the whole, then, the epilogue is at pains to tell us that South Africa is a country, a subject, of lack, that there is in fact an overabundance of lack when it comes to constituting South Africa after apartheid. DOI: 10.4324/9781003290278-1

2

Introduction

From the point of view that the TRC was derived from this epilogue in which there is such an abundance of lack, it should not be surprising that the TRC itself would reflect this constitution of South Africa in the midst of lack. Indeed, the TRC stands narrated as an institution that was destined to address the lack in which it was founded and grounded, especially the three lacks of understanding, reparation and ubuntu but also the lacks that inhere in the surfeit of vengeance, retaliation and victimisation. However, this book takes the position that this does not mean that the TRC must or can be understood as a subject of abundance as the opposite of lack, although I will certainly have much to say about that which abounded in the TRC. Rather, I propose that despite the abundance of the TRC, it is nonetheless itself a subject that is constituted by a specific lack. This constitutive lack of the TRC is the lack of reparation. That the TRC is constituted by and in the lack of reparation is something that is immediately evident from the powers of the Commission. As everyone who has studied the TRC knows well, the Commission did not have the power to order reparations. It could only, through its Reparations and Rehabilitation Committee, make recommendations to Parliament as regards adequate reparations. That the TRC was acutely aware of this lack of the power to order reparations, while having, at the same time, the power to grant amnesty to perpetrators (which is where abundance will become part of our picture), is played out in the TRC Report in statements that are clearly calculated at exhorting the post-apartheid state to award adequate reparations, in other words, to fill the lack that the TRC was acutely aware of self-consciously. For instance, in Volume 5 of the Report the Commission writes that “[v]ictims of human rights abuses have suffered a multiplicity of losses and therefore have the right to reparation” (TRC Report 1998, 170 (emphasis added)). In this statement we see how the Commission reads the “need” for reparation in the Interim Constitution’s epilogue as in fact constituting a right to reparation, despite the fact that there is in fact no such right in the Constitution or any other domestic law. The Commission goes on to say that reparation is “essential to counterbalance amnesty” (170) in that amnesty denies the victims the right to institute juridical claims against the perpetrators. As such, “the present government” (174) should take responsibility for reparation, the Commission writes. The Commission in this regard is emphatic that “[w]ithout adequate reparation and rehabilitation measures, there can be no healing or reconciliation” (175). The Commission then lays out what it calls the “legal basis” for reparation. This basis exists in the Azapo judgment’s (Azapo 1996) acknowledgement that the epilogue “envisages our own state shouldering the national responsibility” (171) for reparation. In addition to this, the Commission cites the fact that South Africa is party to several international law treaties in which the right to compensation for victims of human rights violations is recognised (TRC Report 1998, 172–174). It further goes on to cite the enabling Act of Parliament, the Promotion of National Unity and Reconciliation Act (PNURA 1995) to the effect that measures must be taken to provide for reparation, and it also acknowledges its power to make recommendations to Parliament in this regard (TRC Report 1998, 171). In a section entitled

Introduction 3 “moral argument” (174), the Commission makes it plain that “we must ensure that those whose rights have been violated are acknowledged through access to reparation” (174). In Volume 6 of the Report (TRC Report 1998), the Commission reiterates these points and states that the “international legitimacy” (110) (presumably not to mention the national legitimacy) of the amnesty mechanism “depends on the provision of adequate reparations to the victims of gross violations of human rights” (110). “Making good the injuries to victims of gross violations of human rights where their ability to seek reparation has been taken away from them,” the Commission writes, “is thus an inescapable moral obligation on the part of the post-apartheid democratic state” (110). So much for the TRC’s efforts to secure an adequate filling of its constitutive lack of reparation for apartheid’s victims in its report. The point is that the Commission could not secure adequate reparations by virtue of the very fact that it did not have the power to order these reparations and as such became reliant on the post-apartheid state to make reparation. What we now know, of course, is that very little came of the Commission’s exhortations in this regard. Individual victims were paid a paltry sum far less than what the Commission recommended, and, as regards other recommendations, these have mostly been ignored or the government has dragged its feet in terms of progress with these to such an extent that over 20 years later, nothing has come of, for instance, community reparations and rehabilitation (see Barnard-Naudé and Madlingozi 2021, 37–42). The bold promises made by the then President Thabo Mbeki in his Statement to the National Houses of Parliament and the Nation at the Tabling of the Report (Mbeki 2004, 15) are belied by a post-apartheid landscape that harrowingly reflects systemic and endemic poverty, unemployment, deprivation, ongoing de facto segregation and destitution. What stands indeed crisply rendered are the consequences of all the qualifications and reservations that the then President Mbeki cited in his statement, for instance that the reparation payments would be made with “some apprehension” (22), because “no one can attach monetary value to life and suffering” (22). President Mbeki, in this (cynical) statement, attempts to weaken the obligation to make reparation because no reparation can ever be enough for the loss of life and for suffering, missing of course the point that this is precisely why adequate reparations should be paid. There is also the then president’s famous rejection of the (ultimately failed) apartheid reparation litigation against corporations in the United States courts, on the basis that it is “completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts” (24), followed closely by the rejection of the TRC’s proposal of a once-off wealth tax on corporations (25). Instead, President Mbeki proffered a “co-operative and voluntary partnership to reconstruct and develop South African society” (24–25). Indisputable statistics and other forms of real evidence such as pervasive service delivery protests as well as the recent spate of widespread looting and burning in July of 2021 show on a daily basis that this “partnership” has not worked and that it is not working in terms of addressing the “needs” of post-apartheid South Africa. South Africa, like the TRC which aimed to represent it, remains a country, a subject, deeply marked and thus defined by a constitutive lack of reparation.

4

Introduction

Against the backdrop of this history, I propose to treat the TRC as constituted by a lack of reparation. Some commentators would immediately retort that the TRC cannot be held responsible for the lack of reparation in South Africa, precisely because it did not have the power to order such reparations. However, the wager of this book is aimed at making a prior point, namely that the lack of reparation is discernible in the TRC itself. What do I mean by this? In essence, my argument is that there is an unconscious to the TRC and in this unconscious the lack of reparation is constitutive. It is thus not merely that the TRC lacked, at the level of consciousness, the power to order reparation. Rather, the lack of reparation in the TRC’s unconscious is a palpable and ubiquitous lack once we delve beneath the surface of the TRC’s constitution and inner workings. I will shortly say more about the theoretical import of premising a subject on the basis of constitutive lack. But before I do so, let me say that just as the lack of reparation first constituted in terms of the South African nation in the Interim Constitution was extended into the TRC, this lack of reparation has been and continues to be re-extended into South African society in the aftermath of the TRC. To begin, then, by focusing on the lack of reparation in the TRC itself has the value of furnishing a critique of the TRC as an institution of transitional justice in a time when it has been held up as a model of how to conduct transitional justice. As is well known, the TRC model has been exported to numerous settings, and it is likely that its exportation will continue in time to come as other countries move into a post-conflict period. Honing the point that the TRC is a subject of the lack of reparation should accordingly interest everyone who is concerned with posing critical questions about the advisability of such an export—then and in the future. The identification of the TRC with the lack of reparation, as proposed here, should be especially interesting to countries that are in the process of embarking upon transitional justice, specifically when considering ways in which the TRC model could be supplemented with a view to its improvement. From the point of view that reparation is a much-neglected topic in transitional justice, scholars that have studied, are studying or wish to study the ongoing phenomenon of transitional justice in the twenty-first century may also find value in the argument that approaches the TRC in the terms of a lack of reparation. The trajectory of the argument At this point, it is perhaps most appropriate to lay out the trajectory of the book, before I go on, in the rest of this introduction, to expound the concepts that sit at its heart. In the next chapter, I will make the case for understanding the TRC as a biopolitical imperative, haunted by the spectre of reparation. The aim of the chapter is not only to illustrate (relying on the seminal work of Adam Sitze (2013)) the TRC’s antecedents in colonial-apartheid era juridical forms but also to underscore that the TRC emerges out of Sitze’s account as an institution that is structured, through its precedents, by the lack of reparation. Indeed, supporting Sitze, my argument will be that not enough was done in the conceptualisation of the TRC to distinguish it from its colonial-apartheid precedents. The structure of the

Introduction 5 TRC that emerges, namely as an institution that can grant amnesty but does not have the power to order reparations, is all but coincidental—it has its origins in the colonial-apartheid Commission of Enquiry and so-called compensation committees. The conclusion that I draw from the biopolitical analysis of the TRC is that while the TRC was a biopolitical imperative, an intervention at the level of the life of the South African population, it is nonetheless a deficient or incomplete biopolitical imperative, for its biopolitics is stymied by its constitutive inability to make a definitive and affirmative biopolitical intervention: Reparation. As such, it remains stuck within a Foucaultian and Agambenian version of biopolitics undertaken solely in the name of consolidating the sovereignty of the nation. This means that what I call a “structural ghost” inheres in Adam Sitze’s rendering of the TRC as an “impossible machine.” This ghost is the spectre of reparation. In Chapter 3, I move to the TRC’s amnesty process to illustrate that the lack of reparation here exists in the failure of shame. I argue that the TRC regarded itself as the Lacanian big Other of forgiveness and that this self-perception severely occluded the occurrence of shame in the amnesty and human rights violation proceedings. This is particularly the case because at the same time as the TRC regarded itself as the big Other of a consummate forgiveness, perpetrators who appeared before the TRC regarded it as the fictitious Other of the Other, the complete and good Other, before whom neither apology nor shame is necessary. Such a failure of shame critically undercut the (liberal proposed) reparative value of apology in cases where it was offered. I analyse a number of testimonies before the TRC to illustrate the failure of shame on both sides of the political divide, before concluding that another spectre of reparation haunts these proceedings, namely the spectre of a haunting shame. In Chapter 4, I turn to the TRC’s archive on the role of the business sector during apartheid in order to show how the spectre of reparation haunts this archive. I deal with several ghosts in relation to this archive—the ghost of time, the ghost of inattention and the ghost of the public/private divide, all the while attempting to show how these ghosts influence the construction of the TRC’s archive as the place of beginning and commandment (see Derrida 1995, 1). I argue that this archive cannot speak/proclaim a law of the new beginning because it is not sufficiently cognisant of its death drive. As such, its commandment fails in its very beginning. In concluding the chapter, I call on a law of the new beginning that could provide an adequate legal basis for reparation claims against big businesses that aided and abetted apartheid as a crime against humanity. Central in these considerations, will be the contention that the crime against humanity does not prescribe—an idea that also finds its roots in South African customary law and the concept of ubuntu. If the crime against humanity as apartheid does not prescribe, then conduct that effectively amounted to aiding and abetting does not prescribe and this can be used as a sufficient legal basis for domestic reparation claims in South African courts. I propose that such cases may indeed be a way of finally becoming conversant with the spectre of reparation in and through an identification with the lack of the TRC in this regard. This, then, constitutes a way in which lack and law could become conversant, a way in which law can respond to lack.

6

Introduction

In Chapter 5, I turn to the relationship between the work of mourning and forgiveness with reference to the work of Jacques Derrida (see Derrida 2001). I consider reparation in its relationship with both mourning and forgiveness. I argue that the relationship between the work of mourning and forgiveness turns, ethically and politically, on a dialectics of double refusal such that forgiveness refuses the work of mourning while, at the same time, the work of mourning refuses forgiveness. This dialectic suggests a posture in which forgiveness and the work of mourning are locked in struggle, wrestling with each other, in the manner of Delacroix’s Jacob Wrestling with the Angel. Such a dialectic of double refusal points to the processual character of both mourning and forgiveness. I argue that the spectre of reparation is critically involved in both mourning and forgiveness. In fact, the reading I follow here is of the spectre of reparation as a trigger of both mourning and forgiveness. In this regard, I shall follow Mark Sanders’s Kleinian reading of reparation in the context of transitional justice (Sanders 2007, 114–146). In conclusion, I shall consider Gillian Rose’s (1996, 70) concept of inaugurated mourning in order to distinguish it from the work of mourning as politics that we find in Derrida. Arguing that Rose’s concept of inaugurated mourning ultimately de-ethicises forgiveness, I argue that the subject remains firmly sovereign in Rose’s work, whereas for the kind of reparative mourning and reparative forgiveness that I see as needing to take place in South Africa, we are in critical need of a decentring of the subject of sovereignty—a decentring that becomes available through a psychoanalytic version of forgiveness. In Chapter 6, I will propose an ethic of reparative citizenship as a mode of subjective and decentred being that harbours the possibility of creatively coming to terms or becoming newly conversant with the spectre of reparation. I follow the work of Agamben (1999, 67) on the “poetic status” of the human being in order to situate an aesthetic version of subjectivity and thus of citizenship in a time-space marked by the Irreparable. The chapter posits hope as the condition that is to be made out of the encounter between the spectre of reparation and the Irreparable. I revisit the myth of Pandora and Jane Harrison’s (1900) recasting of the myth in order to argue that the encounter with the remains can generate hope if it is thought of and actualised as a reparative encounter. The reparative dimension of the encounter, I argue, is impossible without an aesthetic disposition in relation to the Irreparable. Having made the case for a re-appreciation of the poetic status of the human, the chapter proceeds to a discussion of the literary imagination in the work of Martha Nussbaum (1995), arguing that reparative citizenship is inconceivable without the literary imagination. For instance, the productive encounter with the spectre of reparation depends on the ability creatively to draw on the imagination in the invention of reparative action. The argument further supports Nussbaum’s plea for the emotions as an essential part of social rationality. Via a reliance on the work of Jean-Luc Nancy (2006), the chapter positions reparative citizenship as an ethic of “poetry’s resistance” to the proclivity of late neoliberal capitalism for utility. In conclusion, I suggest that reparative citizenship, as a way or modality of productively consorting with the spectre of reparation, can open up a horizon of hope for post-conflict societies.

Introduction 7 In the Conclusion, I consider the discursive importance of the recent calls for decolonisation in South Africa in the context of the book’s consideration of the spectres of reparation. I argue that the student protests of 2015–2017 in Higher Education have palpably revealed that South Africa remains a subject constituted by the lack of reparation but also that South Africa is discursively speaking a country in which there seems to be an interminable oscillation between what Lacan (2007) called the discourse of the “hysteric” and the discourse of the “master.” I ask after the conditions of the possibility of another, revolutionary kind of discourse in South Africa, namely the discourse of the analyst. Engaging Achille Mbembe’s (2021) work on decolonisation as “disenclosure,” I argue that the discourse of the analyst is premised precisely on a revolutionary disenclosure of the subject and as such is conducive to the decolonisation that has been called for. I will suggest, in conclusion, that the discourse of reparative citizenship cannot but be a discourse of the analyst, on condition that we understand the discourse of the analyst as a discourse of de-colonisation, a discourse, in other words, in which paralysing symptoms and ossified certitudes (and the Manichean distinctions on which such certitudes are based) come apart or are given up, in exchange for master signifiers that are more open and receiving of the Other, that are more concerned with the plight of the Other and that are, ultimately, more willing to consort with the spectre of reparation, knowing that this spectre can and should never be finally exorcised. In the conclusion of the chapter, I offer a reading of J.M. Coetzee’s (1980) Waiting for the Barbarians as a literary instance of a discourse of the analyst that undoes the subject of colonisation and juridicity. Having laid out the trajectory of the arguments in this book, I now want to turn to key concepts that animate the course of this argument. In the remainder of this introduction, I therefore propose to deal with an exposition of what has been called “the politics of lack” (Robinson 2004, 259), after which I will turn to Derrida’s concept of hauntology. In this section I will make brief remarks on spectrality and haunting. The conclusion of this introduction deals with the relationship between reparation and lack as the ultimate animating theoretical device in the book’s argument. The ontology and the politics of lack The concept of lack as I will employ it here derives from the psychoanalysis of Jacques Lacan who regards the subject as constituted by both a lack in being and a lack of having. The Lacanian lack in being is a lack at the level of existence and arises as a result of the subject’s constitutive alienation in the signifier. The lack in having is not unrelated to the lack in being, since the lack in having touches upon the desire that the subject feels for an object that can temporarily and incompletely cover the lack in being. As Mari Ruti (2008, 484) has argued, this prioritisation of lack in subject formation means that Lacan sees lack as “a necessary foundation of identity.” Lacan, she argues, is “concerned with lack as the ontological underpinning of human existence.” Tønder and Thomassen (2005, 5) relate this ontological status of lack to the centrality of language in Lacan:

8

Introduction the subject, who is only a subject in language, is constituted through identification with a signifier in language […] while this serves to fill the lack […] the filling of the lack is always incomplete and temporary […] Identification always fails […] because it comes up against the limit of signification, which cannot itself be signified within language […] the limit of signification is not something lying beyond the realm of language, but a lack inherent to language itself.

In this regard, Ruti (2008, 488) points to the prohibitive and castrating force of the signifier: Insofar as it carries cultural prohibition, the signifier forces the subject “to realize that she is not invincible, that she operates within a social world that is much more powerful than she could ever be, and that there are parts of that world that she does not have access to.” Before I go further into a discussion of the political valence of Lacanian lack, I want to situate Lacan’s conceptualisation of the subject as a subject of lack within the broader intellectual historical context that attends to the ontology of lack, so that we may better understand the philosophical and existential foundations out of which Lacan’s thinking in this regard arose. Here the work of Oliver Marchart (2005) is instructive. Marchart (2005, 17) begins his argument by first drawing attention to the meaning of ontology: The study of being in general. He then traces how ontology became designated as a general metaphysics, before charting how, in modern philosophy, a shift from ontology to epistemology occurred. Marchart designates this shift as a shift from the study of “being-qua-being” to “being-quaunderstanding” (18). A “return to ontology” took place in the early twentieth century “prepared by Hegel, Schelling and Nietzsche” (18). However, this return to ontology did not “re-emerge in full glory, as a return to the pre-critical, ‘pre-modern’ stable ground of being” (18). Instead, the new thinkers of ontology approached being as “something intrinsically precarious,” “something haunted by the spectre of its own absent ground” (18). For this reason, Marchart argues that being in the revived version of ontology should not be understood as onto-theology but must instead be conceived of in terms of “hauntology, where being is always out-ofjoint, never fully present” (18). Martin Heidegger’s thinking of finitude in this context prepared the ground for theories of “a constitutive lack-in-being” (Marchart 2005, 19). Heidegger argued that Dasein is “intrinsically temporal because it is finite: the being of Dasein is a being-towards-death” (19). And while this sense of one’s own death is felt as an absence in the life of the human being, it is nonetheless an absence that has a very real presence: “Finite being is […] held out in a Nothing that is not at all neutral or indifferent” (19). Marchart contends that Heidegger’s thinking of finitude was “folded back” (19) into Hegelian dialectics with Alexandre Kojève’s 1933–1939 seminar on Hegel in Paris: Hegel is celebrated by Kojève for having introduced into ontology the fundamental category of negativity, yet by assimilating that category to the Heideggerian notion of finitude Kojève proposes an “existential” or

Introduction 9 “anthropological” version of Hegelian dialectics, whose field of application is now entirely restricted to the realm of human affairs, thus excluding the realm of nature. As a result, Kojève can define negation as the constructive act by which man, under the sign of his/her own finitude (or death) freely creates history. (19) Marchart shows how Sartre took up this idea of anthropological negativity in his Being and Nothingness to argue for a being-in-itself (conscious human being) that is “permeated by nothing: it always is what it isn’t, and it isn’t what it is” (20). As in Kojève, Marchart argues, lack-of-being in Sartre becomes the “source of human freedom” (20): “the moment of active negation is the moment of freedom, and freedom in turn becomes synonymous with lack” (20). Thus negativity and lack, through the early and mid-twentieth-century reading of ontology, are reinterpreted to be productive as opposed to nihilistic categories (20). It is against this backdrop in the history of ideas, Marchart (2005, 20) argues, that Lacan’s thinking of lack as constitutive of subjecthood must be understood as a “specific articulation of Freud’s thought with Kojèvian dialectics and the Sartrean concept of lack-in-being”: As for Sartre, for Lacan the irresolvable lack-of-being constituted the ontological ground of the subject’s desire for being. It is on the premise of the subject’s lack-of-being—and subject in Lacan is just the very name for that lack—that the dialectics of desire is set in motion. (20) Marchart makes the important point that Lacan radicalises Kojève’s negative understanding of desire as desire for the Other, by following the trajectory of lack in desire when arguing that desire is the desire of the Other—the Other here being the symbolic order of language or the social (21). With this argument, Lacan situates desire as always coming from somewhere outside the subject—it is not to be found within, the subject remains “excentric vis-à-vis itself” (21). And since the subject is pure lack, “what is absent can only be pure presence: jouissance, a presymbolic, real enjoyment that was lost when the subject entered into language” (21) and thus became a subject of desire. We are now in a better position to understand lack in the terms of political ontology. Marchart (2005, 21) begins his discussion in this regard by positing a definition of lack as it emerges out of the above adumbrated history: Lack is, at its most general level, the name for the “absence constitutive of and operative within presence.” It is thus the absence of a ground for being that paradoxically becomes the very ground for thinking being. It is a ground “haunted by its own absence: an entirely unstable ground” (21). The most important consequence of this, Marchart argues, is that “lack can only be experienced in the cracks and fissures within being, or, in the breakdown of signification and the unconscious slips and failures of the Other” (22). By making the important point that Lacan’s

10

Introduction

concept of the Other as socio-symbolic order, thus as “an essentially intersubjective agency,” brings ontology “down to the worldly ground of the social and the political” (22), Marchart accomplishes the shift from abstract philosophy to concrete politics. Here, Marchart (2005, 23) hastens to point out that Lacan’s claim that desire is always the desire of the Other, “implies that not only the subject, but also the Other itself, is defined by a constitutive lack (and, hence, not in possession of the subject’s object of desire.” This “lack in the Other” is of critical importance democratically speaking, for it “gives the subject […] a breathing space, it enables him to avoid the total alienation in the signifier not by filling out his lack but by allowing him to identify himself, his own lack, with the lack in the Other” (23). These are the “ontological” underpinnings of a Lacanian theory of a politics of lack as we find it in the work of Slavoj Žižek. For Žižek it is the task of radical democratic politics to insist on the lack in the Other, to “try to keep this empty place open” (24). In Žižek’s thought, which this book will follow, democracy is nothing other than the attempt to institutionalise lack “against any ideology promising once and for all to fill up this place” (24). Marchart concludes: the moment of emancipation—both in analysis and politics—is only reached when the subject identifies not with this or that imaginary object supposed to fill up his/her lack, but when s/he ‘identifies’ with lack itself: with the constitutive impossibility of social fullness. (24) In each of the chapters in this book, I am concerned to state the lack opened up by and in the TRC and to proceed with an articulation of the emancipatory possibilities that could follow for reparation from such an articulation of lack. Let me provide at least three examples of such an articulation of lack that opens up emancipatory possibilities for reparation. In Chapter 2, I argue that the constitutive (biopolitical) lack of reparation that opens up in the structure of the TRC itself provides an opportunity for beneficiaries of apartheid to step into the breach through an affirmative biopolitics grounded in the obligatory gift. In Chapter 3, I argue that a lack of shame opens up in the TRC’s amnesty proceedings and that such a lack of shame creates new possibilities for thinking about the relationship between apology and reparation. I argue that a demonstration of shame is an essential requirement for any apology to be reparative and that such a demonstration largely lacked in the TRC. In Chapter 4, I argue that the spectre of reparation that haunts the TRC’s archive on the role of business in apartheid opens a lack in post-apartheid law, one that could be set upon to provide a legal basis for reparation claims in South Africa through creative legal activism. This, then, becomes a way of playing the big Other of the post-apartheid against itself by exploiting its lack of reparation. Similarly, in Chapter 5 I argue that a lack of reparation should fundamentally structure the interplay between mourning and forgiveness in transitional justice processes—the spectre of reparation opens up a gap of/as refusal in the discourse of forgiveness and such a gap animates forgiveness in a psychoanalytic direction.

Introduction 11 Treating the TRC as a subject of lack, I propose, is part of a strategy of cultural humility—it is to explode the myth that the TRC was a completion and a fullness all by itself, it is to expose that the TRC, like any subject, is not captured by the signifiers that permeate within it, that its identification with these signifiers (for instance with “forgiveness” or “reconciliation”) is always already fraught and failed. Thus, in following the constitutive lack of reparation in the TRC, this book is interested in the meanings, thoughts and action that may arise out of an identification with the lack of reparation in the TRC. As is clear from the above, lack grounds desire, and accordingly to posit the TRC as a lack of reparation is to ask after and to posit it as a subject that desires reparation from the Other. Such a desire for reparation from the Other has already been evident in the TRC’s exhortations to the government to make reparation. So this book’s focus on the lack of reparation in the TRC is not only concerned with what the TRC could have done more or better in relation to itself making/securing reparation for apartheid’s victims—it is also concerned with how the TRC is a subject that desires reparation. The aim is thus not at all to simply discredit the TRC as an institution but rather to ask after the institutional and affective architecture that animated the TRC and its aftermath. As is pointed out above, lack, and focusing on it, is not intended to be a nihilistic endeavour—lack is productive in the sense not only that something—ideology—always arises out of it to fill the lack temporarily and incompletely, but, more importantly, lack is productive because something emancipatory may arise out of a fixation on the lack itself. In the chapters that follow I traverse these two forms of manifestation that arise out of the lack of reparation in the TRC. Chapter 2 is meant to sketch the biopolitical ideology out of which the TRC emerges as a subject of lack. In this sense, it is meant to provide the ground for the rest of the chapters as a ground that is, at the same time, inexistent—a ground as lack (of reparation). In Chapter 3, we will explore forgiveness as a substantive ideology of the TRC that arises out of its lack of reparation but, as I will argue, is a substance that generates its own lack in relation to apology and shame. In Chapter 4, we will be interested in the ideological stakes of the archive that is generated out of the lack of reparation for the role of business in apartheid while at the same time consorting with the ghosts that preside over this archive and thus radically prevents its completion/ fullness. In Chapter 5, we will be most concerned with how a fixation on the lack of reparation itself enables and disables both processes of mourning and forgiveness through a metaphor of refusal that prevents them from ever coming to an end. In each of these chapters the concern remains, then, to keep the empty space/ the lack open as haunted, permeated by ghosts. Moreover, conceiving the TRC as a subject of lack, rather than as simply an ideology of fullness and social completion, has the value of re-politicising the TRC in the context of the wider debate about reparation in South Africa, for if the TRC is a subject constituted by the lack of reparation, then it must be understood as a process that has not come to an end, that in fact, cannot come to an end, despite institutional dismantling. The lack in the TRC as a lack of reparation thus grounds the argument for the continuation (and, of course, structural funding) of processes that the TRC either did not address or addressed incompletely. This sense of the lack of reparation will ground the work

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Introduction

of Chapter 6 and the Conclusion. In the passages above, I have already alluded to spectres, ghosts, spectrality, haunting and hauntology. It is now time to confront these concepts head-on. Hauntology: Of spectres, ghosts, spectrality and haunting In the previous section, we saw how Marchart traced the re-emergence of ontology in the twentieth century to an absence at the heart of being—being as precarious, always haunted by the absence of its own ground and, as such, the new treatment of being would be better described as hauntology “where being is always out-of-joint, never fully present,” Marchart writes. This hauntological version of being thus grounded the ontology of lack. I now want to consider more directly that which is implicated by hauntology in terms of the proposed study of the TRC as a subject of the lack of reparation. Colin Davis (2005, 373) argues that the hauntological preoccupation with the “figure of the ghost” is meant to function as an “ethical injunction,” because the ghost is thought here in terms of the Levinassian Other: “a wholly irrecuperable intrusion in our world, which is not comprehensible within our available intellectual frameworks, but whose otherness we are responsible for preserving” (373). In many ways, the ghost can itself be understood as the presence of an absence, the positivisation of a lack. There are obvious resonances here with the idea of the lack in the Other that in Lacanian radical democracy is posited as something critically to be preserved and fought for, for the place of the lack in the Other (and in the subject) is precisely something radically Other “not comprehensible within our available intellectual frameworks.” Davis quotes Fredric Jameson to make the point that “spectrality” has nothing to do with the belief (or not) in ghosts— all it says, if it can be thought to speak, is that the living present is scarcely as self-sufficient as it claims to be; that we would do well not to count on its density and solidity, which might under exceptional circumstances betray us. (373) In this elaboration of spectrality, we thus again see the association of the spectral with the productive capacity of the absence of which the ghost is the figuration. There are thus clear resonances between hauntology and the constitution of the subject on the basis of lack. In both, the concern is to subvert the self-presence and self-sufficiency of the present or the given, be it the subject or the social, or both. Given my title, Spectres of Reparation in South Africa, notions of ghosts, haunting and spectrality will pervade this book and in an effort to heed the ethico-political injunction of what I call the spectres of reparation. Simply put, Spectres of Reparation in South Africa is concerned to provide a “hauntology” of the TRC and its place in transitional justice, and my argument holds that the “absence of ground,” that which haunts the being of the TRC, is the absence of reparation despite everything we find in the TRC that is concerned to secure reparation. From the point of view of reparation, I argue, the TRC is constitutively out of joint with

Introduction 13 itself and as such cannot be thought as a self-present, self-sufficient, stable subjectivity. Noting that the word “hauntology” was coined by Jacques Derrida in his Specters of Marx (1994, 10), Davis (2005, 373) has provided a succinct definition: “Hauntology supplants its near-homonym ontology, replacing the priority of being and presence with the figure of the ghost as that which is neither present nor absent, neither dead nor alive.” My proposition is that reparation functions in the TRC as this form of ghost which is neither fully present nor absent, neither dead nor alive in the work of the Commission. In addition, reparation functions to undermine the “density and solidity” of our post-apartheid present in the aftermath of the TRC by opening up a relation with an unresolved past, often described as the “unfinished business” of the TRC. “Derrida’s spectre,” Davis (2005, 376) writes, “is a deconstructive figure hovering between life and death, presence and absence, and making established certainties vacillate.” Davis suggests that Derrida implores us to “listen and speak to the spectre, despite the reluctance inherited from our intellectual traditions and because of the challenge it may pose to them” (376–377). He goes on to associate Derrida’s spectre with a “structural openness or address directed towards the living by the voices of the past or the not yet formulated possibilities of the future” (379). Davis’s remarks, then, suggest that the question of hauntology, of the spectre and of haunting is a matter of responsibility thought as ethicity. This brings the question of the relationship between ethics and the ontology of lack to the central foreground, and it is therefore no coincidence that Derrida writes of hauntology in the same breath as he does of justice. For Derrida (1990, 947), justice must be rigorously distinguished from law (droit), and he describes justice in his late work as centrally finding its location in an experience of aporia. In his “Force of Law” essay, Derrida (947) describes the aporia as a “non-road,” as “something that does not allow passage.” For this reason, it is impossible to have what Derrida refers to as a “full experience” (947) of the aporia. Yet, there is, for Derrida no justice without this experience of the impossible. As he puts it in Specters of Marx (1994, 27): does not justice as relation to the other suppose […] the irreducible excess of a disjointure or an anachrony, some Un-Fuge, some “out of joint” dislocation in Being and in time itself, a disjointure that, in always risking the evil, expropriation, and injustice (adikia) against which there is no calculable insurance, would alone be able to do justice or to render justice to the other as other? We must be careful here not to elide the importance of the fact that the aporia “does not allow passage,” for this implies infinite engagement—an orientation that Davis above draws out of hauntology. The aporia of justice, of justice as a spectre, does not let you pass, does not let you go and provides no form of good conscience, only infinite responsibility (Derrida 1994, xv). Thus, it is the very experience of the impossibility of having a full experience of justice that demands ceaseless engagement with it. This is, clearly, the ethical dimension of Derrida’s insistence on the aporia of justice—that it demands infinite response-ability. The aporetic nature of

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Introduction

justice means that it is always already radically incomplete and thus deficient and absent, never fully over and done—ethics, in other words, always haunts politics and the political; the political is the realm of decision, of finitude and certainties which the ethical/justice disrupts at the very moment that such decisions and certainties come to pass. In the terms of Derrida’s engagement with the relationship between law and justice, justice is the name of the spectre that haunts all law: Every time that something comes to pass or turns out well, every time that we placidly apply a good rule to a particular case, to a correctly subsumed example, according to a determinant judgment, we can be sure that law (droit) may find itself accounted for, but certainly not justice. Law (droit) is not justice. (Derrida 1990, 948) Later in the “Force of Law” essay, Derrida relates justice explicitly to the notion of the ghost, but he does it through the elaboration of what he calls the “ghost of the undecidable” (Derrida 1990, 963) as a “form of the same aporia” (Derrida 1990, 965) of justice. He describes the undecidable as “the experience of that which, though heterogeneous, foreign to the order of the calculable and the rule, is still obliged […] to give itself up to the impossible decision, while taking account of law and rules.” It is this ethico-political experience which remains caught, lodged, at least as a ghost - but an essential ghost—in every decision, in every event of decision. Its ghostliness deconstructs from within any assurance of presence, any certitude or any supposed criteriology that would assure us of the justice of a decision. (Derrida 1990, 965 (emphasis added)) In Specters of Marx, Derrida (1994) addresses a different but still closely related aspect of the relationship between the spectre and his concept of justice: If I am getting ready to speak at length about ghosts, inheritance, and generations, generations of ghosts, which is to say about certain others who are not present, nor presently living, either to us, or outside us, it is in the name of justice. Of justice where it is not yet, not yet there, where it is no longer, let us understand where it is no longer present, and where it will never be, no more than the law, reducible to laws and rights […] No justice […] seems possible or thinkable without the principle of some responsibility, beyond all living present, within that which disjoins the living present, before the ghosts of those who are not yet born or who are already dead, be they victims of wars, political or other kinds of violence, nationalist, racist, colonialist, sexist, or other kinds of exterminations. (Derrida 1994, xix (emphasis added)) One sees in these later remarks on a different aspect of the relationship between the spectre and justice, nonetheless, a convergence that will become important: What

Introduction 15 joins these quotations is their references to the present and presence. Derrida’s insists that ghostliness/the spectre “disjoins the living present” and so deconstructs “any assurance of presence.” Moreover, it is this very disjunctive work of the spectre—its haunting—in the “living present” that anchors the principle of responsibility, that ensures that no decision can ever be described as fully “just.” In Chapter 6 we will see how, via the work of Giorgio Agamben on rhythm, the act of reparative citizenship relies on a necessary interruption of the present of linear time in order to come to pass. As such, I will argue that reparative citizenship as an ethico-political undertaking relies precisely on the disjuncture of the living present and thus derives its force from spectrality. Mark Sanders (2007, 117) has elegantly shown how the aporia as the ghost of the undecidable attends the question of reparation in the TRC’s Report. Sanders, it will be seen, in fact, establishes a correspondence, a correlation even, between reparation and justice—what they share is not only their aporetic essence but indeed also a spectrality. Sanders shows how the TRC first acknowledged that reparation is an aporia—impossible, because reparative measures can never “bring back the dead, nor adequately compensate for pain and suffering” (116), while at the same time the TRC insists that the order of calculation and decision must be entered— the “quality of life of the victims” (116) must be improved through such measures, which are then elaborated in the details of the individual reparation grants that the TRC recommended to Parliament. However—and while Sanders is not explicit about this aspect—he also shows (Sanders 2007, 115–119) how this crossing of the aporia, as an assumption of responsibility, eventually broke down. Thabo Mbeki’s 2003 speech to Parliament, referred to earlier, cynically twisted the TRC’s engagement with the order of the incalculable, by putting it (the acknowledgement that no monetary value can be placed on life and suffering) in service of, in the form of a justification for, its crude and wholesale surrender to the order of decision based only on calculation and aimed solely at exorcising the ghost of the undecidable: Mbeki unceremoniously announced the decision to pay severely diminished, “once-off” individual reparation grants, while at the same time making it clear that the government opposed the apartheid reparation litigation in the United States. As regards the individual grants, Sanders (2007, 119) remarks: The idea of a “once-off grant,” […] tells one that a debt has been paid and paid off, that things are and can be over, that one ought to think of them as over […] At worst it restarts the cycle of historical wrong. Moreover, and in addition to these ways in which the aporia of justice and reparation was betrayed in the aftermath of the TRC, one should also note that transitional justice’s over-reliance on Archbishop Tutu’s tropes of “confession, forgiveness and reconciliation” (as they are invoked throughout the TRC Report) has meant that this formula has often figured as transitional justice all on its own, with the question of reparation on the discursive periphery of such a justice. This, for instance, is one way of explaining why the reparation debate in South Africa and Rwanda

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Introduction

(the country of the TRC’s first export) becomes prominent only some years after the formal transition (see Du Bois and Du Bois-Pedain 2009). In this regard, one should not lose sight of the fact that governmental power may well regard the reparation question as a potentially catastrophic threat to the consolidation of the renovated national sovereignty (Salazar 2014, 44) and, for this reason, is interested in managing the discursive field in such a way that the question of reparation is effectively repressed. Yet what stands out, ironically, is precisely how the spectre of reparation comes back to haunt the TRC in its aftermath. In fact, one could say that the TRC’s holy trinity of “confession, forgiveness and reconciliation” harbours an unconscious and thus repressed dimension which returns in the form of the spectre of reparation and always in an untimely fashion, namely at a time when political authority is most interested and concerned to place it out of reach. In the aftermath of the TRC, “reparation” has shifted from the periphery of transitional justice to its very centre, where it is often articulated as “justice,” alongside a term such as “reconciliation” with the insistence, echoing, ironically, the TRC itself, that there can be/is no reconciliation and no forgiveness without justice as reparation (Corlett 2011, 608). By identifying reparation not only as one of the post-conflict forms of justice but now indeed as the post-conflict form of justice that is most lacking, transitional justice no longer follows the governmental script and has, perhaps unwittingly, supported the understanding of reparation as the name of the spectre that haunts post-conflict/still-conflict societies. For to assert that it is the form of justice that is most lacking in the postcolony is to insist that it is the most spectral. Even if it was disputable that reparation is the form of justice that lacks most in the post-conflict setting, would it not be, at all events, responsibly realistic to hold that we are always already and in general haunted by reparation, simply because of the fact that, as Sanders clearly shows and this section attempts to underscore, “reparation” is a form, an instantiation, a name, of the aporetic justice as spectre that Derrida expounded? As regards the generality of this haunting by reparation, Sanders (2007, 129) quotes Melanie Klein’s assertion that “making reparation is […] a fundamental element […] in all human relationships” and concludes that “reparation constitutes a basic structure of responsibility.” (In the following section, we shall consider these characteristics of reparation in further detail, especially regarding their relationship to the ontology and politics of lack.) It is precisely here that it is worth noting that Derrida conceived of hauntology in a particular context, in response to a particular discourse, namely the “end of history” discourse of Francis Fukuyama which had held that global society by the end of the 1980s had reached a point where history culminates in the consolidation of capitalism as political economy and liberal democracy as the paradigmatic form of government. It is no coincidence that the TRC comes about within the atmosphere of, and is a creature of, this very discourse, for the TRC to a great extent was a critical element in the effort to consolidate national sovereignty in order to install liberal democracy and neoliberal capitalism in South Africa. Against this discourse of the “end of history,” Derrida raised the spectres of Marx, arguing that “[a]t a time when a new world disorder is attempting to install its neocapitalism

Introduction 17 and neoliberalism, no disavowal has managed to rid itself of all of Marx’s ghosts” (1994, 37). As Tom Lewis (1996, 22) indicates: through Specters of Marx, Derrida is intervening not only in a scholarly context (“marxology”) but also in a political context (the end of the cold war) in which he honestly hopes to fill a political vacuum within a broadly defined Left. What I am alluding to, then, is the confluence between the spectre of reparation and the spectres of Marx. Indeed, from the point of view that we have not rid ourselves of the spectres of Marx, that they haunt “end of history” ideology in ever more proliferating modalities, it is not difficult to see that the spectre of reparation that haunts the TRC is in fact one of the spectres of Marx. The spectre of reparation shares with the spectres of Marx the idea that history is not over and done with, that the present is not fully present to itself, that there is a “disjointure” in the present, what Derrida calls the heterogeneity of a pre-, which, to be sure means what comes before me, before any present, thus before any past present, but also what, for that very reason, comes from the future or as future: as the very coming of the event. (1994, 28) The prioritisation of this pre- complicates any referential framework within which the post- of apartheid is simply comprehended as given after apartheid’s institutional dismantling, over or past, behind us. As such, the pre- necessarily and inescapably returns us to the primal scene of “post-”apartheid South Africa such that it can be understood, as Karin van Marle (2010, 635) has insisted that an irrevocable tension between “post-” and “past” insists and persists. Thus, what this heterogenous pre- enacts is a return to the past and as return, then, it raises the spectre of the past, a spectre of reparation, over the present and so guarantees its haunting. Avery F. Gordon (2011, 2) has suggested that haunting “is one way in which abusive systems of power make themselves known and their impacts felt in everyday life, especially when they are supposedly over and done with […] or when their oppressive nature is continuously denied.” Gordon believes that haunting is an “animated state” (2) through which the persistence of social violence makes itself known, when “the over-and-done-with comes alive” (2). Spectres of reparation in South Africa takes it as given that apartheid (then and now) constitutes the racialised form of capitalism par excellence, that it is the over and done with that remains spectrally alive in the everyday lives of the majority of South Africans. From the point of view that this capitalism called apartheid has not been superseded, reparation critically involves the making or the doing of concrete and material measures of justice (however symbolic such measures may nonetheless be) to the victims of apartheid-related conflict. The spectre of reparation is thus a spectre that turns on a rendering of justice against the neoliberal, neocolonial and capitalist given of injustice and deprivation. This is the justice that the spectre of reparation

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Introduction

wants. As such, the spectre of reparation is interested in what may still be called the ethics and politics of a communist spirit. In this way, too, the spectre of reparation remains a spectre of Marx.1 To premise that South Africa is a haunted nation and that it is primarily haunted by the spectre of reparation is to re-inscribe in it the legacy of what a certain Marxism may have achieved in the life of the nation. There can be no doubt that this spirit of Marxism was alive in the liberation movement and sponsored much of the thought that animated the struggle. To insist, then, on a spectre of reparation is also to pay tribute to the accomplishments of this thought in the struggle against apartheid, while at the same time attempting to re-animate this thought in the here and the now. To be sure, the Marxism that the spectre of reparation is interested to maintain is not a nostalgic longing for any kind of dogmatic or scientistic “classical” Marxism, nor for any form of institutionalised (and bastardised) communism as it was practised in the twentieth century. Rather, the spectre of reparation as a spectre of Marx maintains Marxism precisely as a spectral substance from which may be drawn the inspiration for an alternative, non-hegemonic, counter-utopian praxis of justice. The force of Marxism in the spectre of reparation, then, lies precisely in its potential to act as a counterweight to the injustices that neoliberal colonialism perpetrates and has perpetrated in the postcolony. However forceful the spirit of Marx may be in the spectre of reparation, the analysis embarked upon here is, at the same time, also an effort to place the legacy of the TRC within the context of indigenous knowledge and living customary law in which consorting with the ancestors’ spirits remains a critical avenue of knowledge production and ethics. We must recall here again the Interim Constitution’s “need for ubuntu” precisely because ubuntu is a crucial way into the understanding of the relationship between ancestry and the living in African customary systems. As Edwards et al. (2009) explain, the saying “umuntu umuntu ngabantu” from which ubuntu is derived is not simply an ontological statement of the self as constituted by others (a person becomes a person through other people) but is also indicative of a “shared sense of self in both temporal and spatial dimensions that include the common ancestral heritage” (2). As Edwards et al. go on to note “ancestral reverence of historical persons demonstrating outstanding divinity […] as well as [of] recently deceased parents and grandparents, are fundamental for spirituality” (2) in African indigenous systems. Ramose (2001) in this regard argues that the “metaphysics of ubuntu” is articulated at three levels of being, making up a “triadic structure” consisting of “the living, the living dead (the supernatural forces) and the yet-to-be-born.” Ramose is emphatic about the idea that it is the living dead that determines justice for the living. So, while the Interim Constitution’s declaration of a “need” for ubuntu was clearly concerned in the textual context of its invocation to articulate a counterethic to the “retaliation” to which it opposed ubuntu, it cannot be denied, against the backdrop of the above mentioned, that the articulation of the need for ubuntu was also an articulation of a desire to restore and revivify the ancestral domain, as well as to draw a basis for ethics and politics in the new South Africa out of that domain. Indeed, it would hardly be going too far to suggest that ubuntu, understood

Introduction 19 in this way, in fact affirmed a need for haunting, a desire to consort with the ancestors and to heed their call for justice once more. As Gordon remarks, the emphasis on something-to-be-done in haunting requires that “the ghost him or herself be treated respectfully (its desires broached) and not ghosted or abandoned or disappeared again in the act of dealing with the haunting” (2011, 3). From the point of view that many of apartheid’s survivors have ancestors who were profoundly victimised by apartheid without having received any form of compensation (and I am obviously not restricting the term to monetary forms of compensation), the spectre of reparation makes the memory of these ancestors a critical part of its business. Edwards et al. (2009, 3) go on to account how, in African indigenous belief systems, the ancestors are thought to preside over the living in such a way that, unless appropriate rituals are performed, the living will remain vulnerable to ancestral discontent that can cause profound disruption and misfortune in life. As such, the ancestors play a critical role in the everyday lives of the living since they not only take a “lively interest” (3) in these descendant lives, but are indeed thought to shape these lives in profound and indubitable ways. Accordingly, questions of intergenerational transmission of trauma as they are posed in psychoanalysis have clear resonance with African forms of cultural production and inheritance. The African version of ontology captured in ubuntu understands deeply that the traumatic experiences of one generation can slip into the bloodstream of its descendants and there wreak havoc if left untreated—an insight long recognised by psychoanalysis as inter- or transgenerational transmission. It is thus no surprise that Edwards et al. (2009, 5) connect the profound role of the ancestors in African indigenous belief directly to psychoanalytic notions like the “family unconscious” and Jung’s collective unconscious (5). In this they suggest a direct relation between African indigenous belief and the way in which psychoanalysis approaches the question of inheritance and transmission. One of the most directly resonating instances of this connection can be found in Nicolas Rand’s (1994, 167)—the editor of Abraham and Torok’s The Shell and the Kernel Vol I—contention that Abraham’s concept of the phantom calls for an understanding of psychoanalysis as a “cult of ancestors” and a form of “honoring the dead with rightful burial.” He continues: in the psychoanalytic realm, laying the dead to rest and cultivating our ancestors implies uncovering their shameful secrets, understanding their nameless and undisclosed suffering. We should engage in this unveiling and understanding of the former existence of the dead not because we may want to appease them or prevent them from perpetrating their nocturnal pranks, but because, unsuspected, the dead continue to lead a devastating psychic halflife in us. (Rand 1994, 167) Thus, while African indigenous belief may hold on to the possibility of “appeasing” the ancestors, it still nonetheless finds common ground with psychoanalysis in the belief that we should make an effort to understand the nameless and

20

Introduction

undisclosed suffering of the dead because the ancestors can lead and do lead “a devastating psychic half-life in us.” Consorting with the spectre of reparation as is suggested in this book is thus also an effort to come to terms with the ways in which the ancestral continues to live its life within the living present in the form of a haunting that seems to know no end, precisely because of the present’s stubborn refusal productively to confront the spectre of reparation. Finally on this score, I think it is worth noting the resonances between, on the one hand, the African indigenous version of ontology as represented in ubuntu and, on the other, the way in which Lacan accounts ontologically for the formation of the subject in psychoanalysis. My proposition in this regard is that in both we find the idea of haunting at work in a foundational sense. As Louis Althusser masterfully explained in 1969, there is no way in which it can be denied that for Lacan the subject is constituted by the Other from the very moment of its birth. Althusser (1969, 59) refers in this regard to the “two great moments” of “transition”—the the dual pre-Oedipal intercourse, in which the child, concerned with nothing but one alterego, the mother, who punctuates its life by her presence (da!) and absence (fort!) lives this dual intercourse in the mode of the imaginary fascination of the ego, being itself that other, any other, every other, all the others of primary narcissistic identification; and the Oedipal moment, in which a ternary structure emerges against the background of the dual structure, when the third (the father) intrudes on the imaginary satisfaction of dual fascination, overthrows its economy, destroys its fascinations, and introduces the child to what Lacan calls the Symbolic Order, the order of objectifying language that will finally allow him to say: I, you, he, she or it, that will therefore allow the small child to situate itself as a human child in a world of adult thirds. Althusser argues that Lacan’s crucial discovery was that the two moments are directed by one single law—the law of the symbolic, formally correlated to language. “Lacan demonstrates the effectiveness of the Order, the Law,” Althusser (1969, 60–61) writes, “that has been lying in wait for each infant born since before his birth, and seizes him before his first cry, assigning to him his place and rôle, and hence his fixed destination.” Althusser (61) calls this symbolic order of Lacan’s the Law of Culture, and he refers to it as the “discourse of the Other, of the great Third.” There can thus be no question about the fact that Lacan constitutes the subject in the midst of intersubjectivity. The resonance with the ontology of ubuntu is, in fact, crystal clear, for in both Lacan and ubuntu there is no way in which subjectivity can be without being with others—a person becomes a person because of or in relation to others. In both ubuntu and in Lacan the idea of the ego as a bounded entity is a fiction—the ego is constantly being formed and reformed by the intersubjective

Introduction 21 agency of the Other. The path back to spectrality here is not difficult to discern, for Lacan’s proposition that the subject is lack, is nothing but a formalised statement that the subject is forever constituted as haunted not only by the fantasmatic memory sense of a primal unity that it will forever attempt to recuperate in its relations of desire but also simply because the subject is constantly haunted by the Other of the symbolic order itself. In ubuntu a similar fantasy of plenitude and fullness/completion undergirds the relation with the ancestors in that harmony and unity with them is believed to be one of, if not the major, purpose of life. As Ramose (2001) simply remarks: “Justice is determined by the supernatural forces. Their determination seeks to restore harmony and promote the maintenance of peace. Justice as the restoration of equilibrium is a central element of the ubuntu philosophy of law.” Reparation in the ontology of lack As must be clear by now, it is not just this or that ghost, this or that spectrality and this or that spectre (in other words, spectrality in general), that this book is interested to explore and affirm—it is specifically and discretely the spectre of reparation. For this reason, engagement with the work of Melanie Klein—the major psychoanalytic theorist of reparation in the twentieth century—is essential. Klein (1975, 306) wrote of reparation in the context of an infant’s “first object of love and hate – his mother.” Reparation is thus from the start a matter of the kind of intersubjectivity with which I concluded in the previous section. Klein subscribed to two primary psychic positions in relation to the young infant’s development: The paranoid-schizoid position and the depressive position. The paranoid-schizoid position corresponds to a period during early infancy in which the infant is beset by paranoid anxiety as regards the object of its gratification, the breast, and by a form of splitting of the breast into a good object and a bad object. Hannah Segal (1964, 25) explains that the early infant is from birth exposed to anxiety that arises out of the polarity of the life instinct and the death instinct. The way in which the early ego deals with the anxiety provoked by the death instinct is by deflecting it—the “ego splits itself and projects that part of itself which contains the death instinct outwards into the original external object—the breast” (25). In this way, the breast becomes an object associated in the child’s mind with the “fear of a persecutor” (25). The part of the death instinct that remains in the ego is converted into aggression against the bad breast. At the same time, the life instinct, or libido, is projected outwards onto the very same object but now viewed/split off in its ideal manifestation—as the object that is associated with the preservation of the life instinct. Thus, a dual relation of splitting in relation to the breast occurs in that it is split between the ideal breast and the persecutory one (26). Splitting is accordingly a fundamental feature of the paranoid-schizoid position. Segal (1964, 37) argues that in order to transition out of the paranoid-schizoid position into the next position, the depressive position, “the necessary precondition is that there should be a predominance of good over bad experiences.” When there is such a predominance of good over bad, the ego comes to believe in the “prevalence of the ideal object over the persecutory objects” (37) and accordingly

22

Introduction

also in the prevalence of the life instinct over the death instinct. It is the repeated identification of the ego with the ideal breast which enables it to cope better with anxieties “without recourse to violent mechanisms of defence” (37). Thus, where there is a greater flow of libido (i.e. greater energy expended in relation to the ideal breast), “the fear of the persecutor lessens and the splitting between ideal and persecutory objects lessens as well”. As the splitting lessens, the ego develops a greater ability to tolerate its own aggression, to “feel it as a part of itself” (37). The depressive position, Klein argued, is that phase of development “in which the infant recognizes a whole object and relates himself to this object” (68). The whole object relationship is to be contrasted with the split object relationship of the paranoid-schizoid position, especially because the infant recognises not only his mother and father as whole objects in this position but also himself: “He begins to see that his good and bad experiences do not proceed from a good and a bad breast or mother, but from the same mother who is the source of good and bad alike” (68). A very important change occurs as regards the psychopathology of the depressive position vis-à-vis the paranoid-schizoid position: In the paranoid-schizoid position the major anxiety that the infant defends against is the anxiety that his ego will be consumed by the bad persecutory object; in the depressive position the main anxiety is that his own destructive impulses “have destroyed or will destroy, the object that he loves and totally depends on” (69). In addition, feelings unknown in the paranoid-schizoid position result as a response to this shift in the primary anxiety. Segal mentions that mourning and “pining for” the good object felt as lost and destroyed, as well as a feeling of guilt for having destroyed the good object with her own destructive impulses, pervade this position in psychic development. The position is called “depressive,” precisely because at the height of the affective experience in this stage, lies a depressive despair: The infant remembers that she has loved and still loves her mother, but she feels that she has devoured or destroyed her so that she is no longer a part of the external world. This paves the way for what Klein designated as reparation. “The experience of depression,” Segal writes, “mobilizes in the infant the wish to repair his destroyed object or objects” (72). In her essay on love, guilt and reparation, Klein (1975) begins by explaining that the initial expression of a child’s sexuality is given in feelings of love for the mother when the mother is “satisfying his need for nourishment,” when the mother functions as the “good breast” (307) of the paranoid-schizoid position. Klein then goes on to suggest that when the baby’s desires are not gratified, hatred and feelings of aggression are aroused and he becomes “dominated by the impulses to destroy the very person who is the object of all his desires” (307)—the important point here being that the infant has moved on from the paranoid-schizoid position of splitting and thus experiences this reaction in relation to the mother as his whole object. Klein then proceeds to argue that the impulses of love and hate towards the mother as whole object are accompanied by “a kind of mental activity” which she designates as “the most primitive one”: “phantasy-building” or “imaginative thinking” (308). “When a baby feels frustrated at the breast,” Klein writes, “in his phantasies he attacks this breast; but if he is being gratified by the breast, he loves

Introduction 23 it and has phantasies of a pleasant kind in relation to it” (308). For Klein the most important feature of the negative phantasy, which she equates to a death-wish, is that “the baby feels that what he desires in his phantasies has really taken place” (308, emphasis added). As a response, the infant in a sense has no other choice but to construct a phantasy that Klein designates as of the “omnipotent” kind—a phantasy “that he is putting the bits together again and repairing” the mother. Klein extrapolates out of this rendering of things the idea that it is always the case that alongside the phantasy of destruction there is a desire to make good, to “put right loved people who in phantasy have been harmed or destroyed” (311). Moreover, for Klein (1975) identification with the loved person who has been destroyed in phantasy is a precondition of the ability to make reparation. In this regard, Segal makes the important point that the pain of mourning in the depressive position and the drive to make reparation constitute the mainsprings of creativity and sublimation (75), thus alluding to a profound linkage between empathy and reparative creative activity. I will explore this link further in Chapter 6 when I propose reparative citizenship as an ethic of poetic justice that can begin to come to terms with the spectres of reparation in South Africa. While Klein wrote in numerous instances of the overcoming of the depressive position, Segal (1964) writes that the depressive position never fully leaves us, is “never fully worked through,” and the “anxieties pertaining to ambivalence and guilt, as well as situations of loss, which reawaken depressive experiences, are always with us” (80). This suggests that in Klein mourning and reparation in the form of sublimating creative activity not only constitute something of a blueprint for the adult life of the individual but also find application in contexts seemingly far removed from the parent–child relationship in which it was first conceived.2 We are now in a position to associate Kleinian reparation with the ontology of the subject as lack in Lacan. In this regard, the book length conversation between Amy Allen and Mari Ruti (2019) has become a ground-breaking resource. The first chapter of Allen and Ruti’s book revolves around the Kleinian and Lacanian views of subjectivity. Ruti, in this conversation, makes the important point that for Lacan the object (in the form of das Ding) is primary in subject formation, similar to the way in which the object (first as split breast and then as a whole mother) is primary in Klein’s account of subject formation. Ruti writes that the subject comes to be for Lacan through the fantasy of the essential loss of das Ding in the acquisition of language (7). In both Klein and Lacan, as Allen and Ruti point out, it is only in so far as a loss in adult life reactivates in some way the primary loss of the object/das Ding that it is experienced as a loss in the first place (7). Ruti writes that the Lacanian subject is “intrinsically melancholic” because it is “born from a loss that can never be redeemed for the simple reason that it only exists as a retroactive fantasy” (8). The Lacanian subject, as a subject of lack, is forever destined to turn to the outside world, other people, “to plug the hole left by the loss of the Thing” (14). Ruti then says that for her this constant burden of having to work through loss in Lacan is similar to the way in which Klein thinks of subjecthood as a continuous working through the depressive position (8), through reparation. In Klein, the loss of the object is as fantasmatic as it is in Lacan and the effort to restore this loss

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Introduction

through reparation is, similarly, a matter of phantasy. It thus cannot admit of any doubt that both the Kleinian and the Lacanian subject are subjects that are, in one or another sense, haunted by reparation. Lacan, of course, does not employ Klein’s terminology, but it cannot be discounted that the Lacanian subject’s eternal and tragic movement from one objet petit a to another has similar motivations at its base as the Kleinian drive to reparation—in both, the attempt exists as an attempt to overcome loss through the fantasised restoration of an itself imagined/fantasised loss of an original plenitude. In the wake of Klein’s work there have been many interventions that have extended Kleinianism to politics, making for a distinct psychoanalytic understanding of a wide array of contemporary political questions (see, for instance, Rose 1993). Ruti and Allen too devote the concluding chapter of their book to politics. Allen here argues that Klein’s account of reparation “offers possibilities for rethinking justice in the context of the violent tendencies of contemporary social and political life” (Allen and Ruti 2019, 192). Ruti, for her part, responds by saying that it seems as if “the paranoid-schizoid position has become the norm for our political landscape” (193), and she argues that if reparation is an always tenuous attempt to counter the destructiveness of the death drive, then we are “spectacularly failing at this attempt” (193). Both Allen and Ruti see the destructive dynamics of the paranoid-schizoid position at work on the contemporary political scene in everything from “the dynamics of splitting and demonization at work in defining groups of immigrants or refugees as outside the existing social and political order” (192) to the “politics of defensiveness” (196) that characterise the fundamentalism of ISIS and Donald Trump’s ability to rally people around the notion of “returning America to ‘real’ Americans by keeping out all intruders” (196). To this we could add the extremely alarming way in which political authority in South Africa have criminalised poverty in the post-apartheid era, primarily by deploying laws and bylaws to forcibly remove the poor from areas demarcated for “development” or identified as urban land. Ruti asks Allen about the potential of reparation if we accept that the subject starts out from aggression and destructiveness. Allen responds by invoking Judith Butler’s discussion of nonviolent ethics. She says that she finds Butler’s work rewarding precisely because it does not shy away from the subject’s negativity. Butler finds in Klein a way of thinking an ethical orientation compatible with and emerging out of destructiveness (Allen and Ruti 2019, 194). According to Butler, we cannot understand the reparative trajectory of identification without first understanding the way that sympathetic identification, according to Klein, is wrought from efforts to replay and reverse scenes of loss, deprivation, and the kind of hatred that follows from nonnegotiable dependency. (194) Allen argues that the primary object relation in Klein is characterised by ambivalence: “destructiveness gives rise to guilt and reparation” (194). When, in the

Introduction 25 depressive position, the subject realises that the object it hates is also the very object that it loves, it generates guilt and the drive to make reparation from within—these do not have to be imposed by strict moral laws from without. Furthermore, says Allen relying on Butler, when the subject engages in reparative acts, she doesn’t disavow her destructiveness and aggression, but rather seeks to “reverse its damaging effects”: “It is not that destructiveness converts into repair, but that I repair even as I am driven with destructiveness, or precisely because I am so driven” (195). Ruti proceeds to make a point via the work of Noëlle McAfee that has a direct bearing on the concerns of this book, namely the relationship between reparation and the work of mourning. Ruti says that at the core of McAfee’s work is an argument that deliberative politics cannot do without affect: It demands “an affective process that allows participants to collectively mourn the loss of ideal arrangements and definitive resolutions” (Allen and Ruti 2019, 195–196). Without this capacity to mourn, Ruti argues, politics easily turns into a kind of “adolescent fundamentalist faith in ideality” (196) that leads to an inability to compromise, a lack of empathy and an intolerance for less-than-perfect solutions. Ruti links the inability to mourn back to the paranoid-schizoid position by saying that if we are denied the capacity to mourn, we necessarily revert back to this position “so that one categorically splits the world into good and bad components, projects all the badness to the (threatening) other, and idealizes one’s own position” (196). It seems clear then that the depressive position and the reparation that is available in it are premised on the subject’s ability to mourn—in fact, in both Ruti and Allen mourning becomes the modality of the depressive position, and in this way we can understand that reparation is a critical element of the work of mourning. To posit reparation as a critical component of the work of mourning also leads us out of the ethical danger that Ruti identifies, namely that an emphasis on mourning as such may too easily lead to a position where we think that as long as we mourn the lot of victims, we have done our ethical and political duty (196). If reparation is situated as the critical instalment in mourning, mourning can be thought of as carrying a potential for concrete interventions that go beyond mere acknowledgement. In the South African context, Mark Sanders (2007) has done pioneering work in terms of relating reparation as a political question in South Africa to the psychoanalysis of reparation as we find it in Klein. Sanders begins by drawing attention to the fact that in Klein reparation is embedded in phantasy and that Klein is interested in the effect of reparation on the agent thereof. He then makes the point that when the South African state occupies at the same time the place of perpetrators of human rights violations on the one hand, and the “place” of capital, on the other hand (as it does in the aftermath of the TRC), the making of reparations on behalf of both perpetrators and the holders of capital “can still satisfy a phantasy of reparation” (128). Sanders argues that the virtual maker of reparations (here, the South African state as a proxy) “provides the conditions of possibility for actual instances of reparations, just as ‘symbolic’ reparation provides for material reparations” (129). He then writes that the question is whether “by universalizing the imperative – all South Africans must contribute (as Mbeki said in his 2003 speech) – the act of making reparation is transferred across the polity, making the phantasy

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Introduction

a shared one” (129). For Sanders, Klein’s dynamics of reparation as set out above in fact represent the makings of ethical agency in general, and this dynamic always presupposes that violence has been done to the object (130). It is thus conceivable that “love, or something like love can be achieved through the making of reparation” (130). Like Ruti and Allen, Sanders is interested in the relationship between mourning and reparation in Klein. Like these authors, Sanders also argues that reparation is a component of mourning in the sense that reparation is a mourning in a general sense: “if there is a Kleinian ethics – of reparation, responsibility – then it is strongly linked to the work of mourning” (133). Coming back to South Africa, Sanders (2007) writes that the agent of reparation “is commonly conceived as a perpetrator of the violation” (133). “But the agent is also the mourner” (134), Sanders writes. What is crucial, however, is that the reparative agency of the agent of reparation must, if we are to stay true to Klein, follow from a phantasy of destruction (134). Sanders carefully describes the numerous pathological responses to reparation that can result from such a phantasy (such as Dan Roodt’s grossly misguided argument that “apartheid included a significant number of positive elements” (134)) but argues that “it is possible to argue for an ethics that […] relies upon phantasmatic perpetratorship” (134). Here, the phantasy of destruction and the impulse to make good is “made available to anyone” (134): “[w]hatever the facts […] someone has to make good; in the system we have, the only way one can is to assume – virtually, phantasmatically – the place of the perpetrator of the worst deeds” (134). Sanders’s work, then, makes the point that for reparation to take place a perpetratorship must be stepped into, has to be assumed and worn like a phantasmatic or virtual cloak, just as the South African state assumes responsibility for reparation by acting as a proxy for both perpetrator and capital or capital as perpetrator. However, the assumption of this phantasmatic perpetratorship exposes the agent of reparation to a certain endlessness: It is imperative that reparation be made, while at the same time such reparation can never be enough. This is why Sanders distinguishes between reparation on the one hand and reparations on the other—however many reparations are made, they can only ever approximate, without fulfilling, the general obligation to make reparation. In this way reparation is similar to the Derridean idea of justice as an aporia, as I have explained above. Sanders concludes that embarking on a course of reparation may foster bonds of what he calls “responsibility-in-complicity” (145). He is, however, careful to draw out the possibility of a negative reaction (“retribution,” “rivalry” (145)) because of owning up to past misdeeds, even in this phantasmatic way, and he also insists that the attempt at, or offer of, reparation “involves staging a plea or prayer for a counter-response” (146). Sanders writes that this need for a counter-response renders the agent of reparation precarious—for the agent can never know whether the predicament that they have explicated will draw forth “the countersignature of the other” (146). Such never-knowing, Sanders concludes, “is also a condition of existence” (146). This conclusion neatly returns us to the idea of a lack in being and a lack in having that lies at the heart of this book. Reparation, no matter how extensive, no matter how elaborate, can never finally cover up the lack in being or the lack

Introduction 27 of having—that is why I insist on speaking of reparation as a spectre. Instead of this serving as an alibi to stay out of reparation, Sanders suggests on the contrary that the realisation of the precarity of (the agent of) reparation must call us to vigilance “when terms and limits are set for actual reparations” (145). Instead, then, the realisation that reparation is only ever incomplete and itself lacking calls us to an infinite responsibility that allows no form of good conscience: The work that reparation must do always remains to be done, and we are always behind when it comes to reparation. The drawing out of an infinite responsibility in relation to reparation via the work of Melanie Klein is a far cry from the way in which reparation was approached in the aftermath of the TRC. While the obligation to make reparation was placed as a general obligation on all South Africans, the way in which the post-apartheid state limited and attempted to avoid its obligation to make reparations—with arguments, for instance, that the struggle was not about money—belied this very general obligation to make reparation. Instead of acknowledging its own infinite obligation to make reparation, the South African state attempted—cynically so—to justify its making of severely limited (and widely regarded as inadequate) reparations. It thereby undercut the very general obligation to make reparation which it was supposedly proposing. However, the fact that the state failed and is failing in its obligation to make reparation does not absolve the beneficiaries of apartheid from their obligation to make reparation (Mamdani 2016, 187). As I will propose in Chapter 4, capital or big business especially had and still has an enormous responsibility-incomplicity in this regard. The fact that the state has assumed a proxy status in relation to capital at the same time as it has grossly failed to assume the responsibilities of such a proxy status shifts the obligation to make reparation back to where it first originated—in the big business that aided and abetted the apartheid legal order. Moreover, the fact that the state failed or is failing the victims and survivors of apartheid when it comes to reparation should not mute or paralyse the ongoing call to make reparation via the state. This is also why I will propose in Chapter 4 that there remain ways and means of legally holding the beneficiaries of apartheid to account for reparation. This is only one way in which the machinery of the state can be engaged via the courts to compel reparations from those who do not acknowledge their perpetratorship. An obvious alternative route is through ongoing advocacy through which the state may come to alter its intractable stance in relation to the making of reparation. What I think is needed in South Africa is not simply the general responsibility for reparation based on a phantasmatic perpetratorship (although the ethic of reparative citizenship that I will argue for in Chapter 6 draws much of its inspiration from this concept) but also a coercive mechanism to compel reparations from those who wish to avoid it or even from those who do not know how to make it. In his contemplation of the aporia of justice, Derrida (1990, 967) writes of the necessity to judge, to decide in the “night of non-knowledge and non-rule” it is true, but to decide nonetheless. The coercion in relation to reparation that I will argue for here is strictly derived from the idea of the general obligation to make reparation as that obligation resides in a common perpetratorship. Coercion is thus

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Introduction

not opposed to the idea of a general perpetratorship nor to the voluntarism that seems to be implicit in Sanders’ discussion of it. Rather, coercion is a way in which such general perpetratorship can be concretised and, where appropriate, individualised. Coercion, in other words, is itself a crossing of the aporia of reparation, a move from reparation to reparations. It is precisely because the obligation to make reparation is infinite that it can be judged and enforced by the law in concrete situations. South African courts have, in many cases where it is faced with the task of awarding damages, especially non-patrimonial damages, emphasised that it is an impossible task to attach monetary value to the dignity of life. As the Supreme Court of Appeal recently remarked in the Komape case (2020, para 56): Attempting to determine an adequate solatium for the appellants’ suffering is, of course, a daunting task as no monetary compensation can ever make up for their loss. Some guidance may be obtained by having regard to awards in previous cases but comparisons are always odious, particularly as the facts in different cases are never, if ever, directly comparable. […] At the end of the day, a court is called upon to exercise its discretion to determine an amount which it feels is fair and reasonable to both parties, given the particular circumstances of the case in question. Thus, while it is an impossible task to award a “solatium,” our courts have recognised that they nonetheless have the responsibility to do so and a discretion to make a reward that is fair and reasonable. Our courts have thus struggled for many years with the same kind of agony that would be attendant on the award of a reparation claim. In the end, justice, as Derrida also recognised, requires the making of a decision, requires judgment; without decision there would be no justice. I think, moreover, that the adjudication of reparation claims should be regarded as an important, indeed critical, feature of transformative constitutionalism as it has been described by Klare (1998, 150): “an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.” Surely, it cannot be doubted that reparation claims and their payment can make a monumental contribution towards the induction of the kind of “large-scale social change” that is so necessary in South Africa. If we accept that apartheid as a crime against humanity is imprescriptible, we can posit an alignment of the aporia of reparation with the imprescriptibility of apartheid as a crime against humanity, as follows: Because apartheid is imprescriptible, the reparation to be made in relation to it can never be fully made, no reparation will erase the imprescriptibility of the crime. Yet at the same time, it is precisely because the crime is imprescriptible that reparation in relation to it remains due as a matter of practice and of policy. In short, it is the very imprescriptibility of apartheid that grounds the obligation to ceaselessly cross the aporia of reparation. Coercion in relation to reparation in no way undermines the Kleinian idea that reparation is embedded in phantasy. If anything, coercion in relation to reparation can function as a critical mechanism through which the phantasy of reparation can not only be facilitated by a figuration of the big Other but also traversed. For this

Introduction 29 reason, I will argue in the Conclusion of this book for the discourse of the analyst in post-apartheid politics, conceived as a discourse of decolonisation. Indeed, I will argue that decolonisation is precisely the figuration of reparation most appropriate to the postcolony, on the condition that we understand decolonisation as a disenclosure as Achille Mbembe (2021, 42–89) has argued. I will propose that such disenclosure of the subject of reparation is one of the conditions of possibility of decolonisation in the postcolony. As such, I will insist that the spectres of reparation that the TRC left us with can be creatively and productively consorted with once we become prepared to undergo the discursive shift in the postcolony on which Lacan’s discourse of the analyst, as a revolutionary discourse, is premised. Notes 1 I am not unaware of the various criticisms of Specters of Marx to the effect that Derrida’s hauntology in fact erases any kind of revolutionary horizon for politics in the twentyfirst century (see in this regard especially Lewis 1996, Ahmad 1994 and Spivak 1995). To the extent that Derrida does so in Specters of Marx, I disagree—but even if these authors’ various criticisms are valid, that does not mean that the validity of hauntology as an approach to politics in the new millennium is thereby rendered defunct. Moreover, I do not think that Derrida would not have contemplated that the spectre and haunting itself may very well have revolutionary consequences—that societies may still rise up by force of their hauntings. Derrida’s emphasis on the undecidability and incalculability of the spectral seems to suggest otherwise. It is especially in the context of Derrida’s association of the spectral with the incalculable future-to-come of justice and democracy that enough room, in my opinion, is created for doubting that Derrida completely exorcised the spectre of revolution in Specters of Marx. Consider, for instance, the following passages: “at the extremity of the extreme today, there would thus be announced the future of what comes. More than ever, for the future-to-come can announce itself as such and in its purity only on the basis of a past end: beyond, if that’s possible, the last extremity. If that’s possible, if there is any future, but how can one suspend such a question or deprive oneself of such a reserve without concluding in advance, without reducing in advance both the future and its chance? Without totalizing in advance?” (1994, 37) and “At bottom, the spectre is the future, it is always to come, it presents itself only as that which could come or come back” (1994, 39). It seems to me that it does not take a great leap of hermeneutic audacity to recognise the reference to “beyond […] the last extremity” as a reference to revolution and the reference to “the spectre is the future” that “could come or come back” as a reference to a resuscitation of the revolutionary tradition. 2 “[A]nything that is felt to give out goodness and beauty and that calls forth pleasure, and satisfaction, in the physical or in the wider sense, can in the unconscious mind take the place of this ever-bountiful breast,” Klein (1975, 333) writes. She further argues that feelings of aggression and the drive to make reparation “can be transferred to another sphere, far away from the original person” (334). Klein then herself discusses the transposition of reparation to the sphere of politics when she mentions the cruel aggression against “native populations” displayed by colonisers (334). Some of the early aggressive phantasies of the infant, she writes, “were expressed in reality by the attitude towards the natives” (334). She then goes on controversially to suggest that the reparation phantasy found its equivalent in the colonial situation through the repopulating of the conquered country with people of the colonisers’ own nationality. This remark has caused David Eng (2012, 159) to argue that “psychic theories of reparation” can function “as an extension of aggression and violence rather than as a check against their negative capacities”

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Introduction (175). Eng argues that Klein in fact places here “the possibility of [reparation as] an experimental, ethical practice” in “explicit crisis” (176). “In this particular scenario,” Eng writes, “the European colonizer cannot be aligned with the helpless infant, as Klein tries to do. The colonizer is, in fact, less the powerless infant than the powerful mother, and his aggression against native populations brings about neither a state of heightened anxiety nor the amelioration of violence toward the native other” (177). This, then, must beg the question whether what Klein describes as a reparation phantasy is in fact that at all. Eng argues that the example constitutes a form of splitting of reparation itself into, on the one hand, the extension of violence towards the natives and, on the other, the preservation of life and love for the self-same. For Eng this means that Klein’s passage “starkly illustrates reparation as a process that is more accurately characterized by the unequal distribution of love and hate across disparate populations and peoples constituted through this process as human and inhuman” (179). The “political unconscious of reparation” is, thus, “a hidden history of colonialism and race” (179). For my part, I think that it is quite clear that what Klein is really describing is a reaction formation of the paranoid-schizoid position, because in the phantasy the good and the bad objects are split—natives are “bad,” while the self-same is regarded as “good.” I thus think that Klein seriously misidentifies and misdirects her own theory of reparation in the example—if the phantasy was really congruent with the depressive position and thus reparative, it would have been precisely directed at the natives as whole “objects” that are both good and bad; reparation would have been undertaken in relation to them and not in relation to self-same others. What this means is that extreme vigilance must prevail when we seek to identify reparative interventions in politics, particularly in the colonial/ postcolonial situation, for what the example illustrates is how the theorist herself easily misidentified as reparation something which actually arises out of the paranoid-schizoid position.

Bibliography Agamben, Giorgio. 1999. The Man without Content. Translated by Georgia Albert. Stanford: Stanford University Press. Ahmad, Aijaz. 1994. “Reconciling Derrida: ‘Specters of Marx’ and Deconstructive Politics.” New Left Review 208: 88–106. Allen, Amy and Mari Ruti. 2019. Critical Theory between Klein and Lacan. New York: Bloomsbury Academic. Althusser, Louis. 1969. “Freud and Lacan.” New Left Review 55: 49–65. Azapo and Others v the President of the Republic of South Africa and Others. 1996(8). BCLR 1015 (CC). Barnard-Naudé, Jaco and Tshepo Madlingozi. 2021. “The Post-apartheid Legal Order.” In Introduction to Law and Legal Skills, edited by Tshepo Madlingozi and Tracy-Lynn Field, 9–57. Cape Town: Oxford University Press Southern Africa. Coetzee, J.M. 1980. Waiting for the Barbarians. London: Minerva. Constitution of the Republic of South Africa Act 200 of 1993. Corlett, J. Angelo. 2011. “Reparations.” In The Oxford Handbook of World Philosophy, edited by William Edelglass and Jay L. Garfield. Oxford: Oxford University Press. Davis, Colin. 2005. “État Présent: Hauntology, Spectres and Phantoms.” French Studies LIX(3): 373–379. Derrida, Jacques. 1990. “Force de Loi: Le ‘Fondement Mystique de l’Autorité.’” Cardozo Law Review 11(5): 920–1046. Derrida, Jacques. 1994. Specters of Marx: The State of the Debt, the Work of Mourning & the New International. Translated by Peggy Kamuf. New York: Routledge.

Introduction 31 Derrida, Jacques. 1995. Archive Fever: A Freudian Impression. Chicago: The University of Chicago Press. Derrida, Jacques. 2001. On Cosmopolitanism and Forgiveness. Translated by Mark Dooley and Michael Hughes. London: Routledge. Du Bois, François and Antje Du Bois-Pedain (eds.). 2009. Justice and Reconciliation in Post-Apartheid South Africa. Cambridge: Cambridge University Press. https://doi.org /10.1017/CBO9780511575419 Edwards, Steve et al. 2009. “The Role of the Ancestors in Healing.” Indilinga – African Journal of Indigenous Knowledge Systems 8(1): 1–11. Eng, David. 2012. “Reparations and the Human.” Columbia Journal of Gender and the Law 21(2): 159–181. Gordon, Avery F. 2011. “Some Thoughts on Haunting and Futurity.” Borderlands 10(2): 1–21. Harrison, Jane. 1900. “Pandora’s Box.” The Journal of Hellenic Studies 20: 99–114. Klare, Karl. 1998. “Legal Culture and Transformative Constitutionalism.” South African Journal on Human Rights 14: 146–188. Klein, Melanie. 1975. Love, Guilt and Reparation and Other Works 1921–1945. London: Vintage. Komape and Others v Minister of Basic Education and Others. 2020. (2) SA 347 (SCA). Lacan, Jacques. 2007. The Other Side of Psychoanalysis: The Seminar of Jacques Lacan Book XVII. Translated by Russell Grigg. New York: WW Norton & Company. Lewis, Tom. 1996. “The Politics of ‘Hauntology’ in Derrida’s Specters of Marx.” Rethinking Marxism 9(3): 19–39. https://doi.org/10.1080/08935699608685495 Mamdani, Mahmood. 2016. “Beyond Nuremberg: The Historical Significance of the Postapartheid Transition in South Africa.” MISR Review 1: 156–197. Marchart, Oliver. 2005. “The Absence at the Heart of Presence: Radical Democracy and the ‘Ontology of Lack’.” In Radical Democracy: Politics between Abundance and Lack, edited by Lars Tønder and Lasse Thomassen, 17–31. Manchester: Manchester University Press. Mbeki, Thabo. 2004. “Statement to the National Houses of Parliament and the Nation at the Tabling of the Report of the Truth and Reconciliation Commission, 15 April 2003”. In Repairing the Irreparable: Reparation and Reconstruction in South Africa, edited by Erik Doxtader and Charles Villa-Vicencio, 15–28. Cape Town: David Philip. Mbembe, Achille. 2021. Out of the Dark Night: Essays on Decolonization. New York: Columbia University Press. Nancy, Jean-Luc. 2006. Multiple Arts: The Muses II. Stanford: Stanford University Press. Nussbaum, Martha. 1995. Poetic Justice: The Literary Imagination and Public Life. Boston: Beacon Press. Promotion of National Unity and Reconciliation Act 34 of 1995. Ramose, Mogobe B. 2001. “An African Perspective on Justice and Race.” Polylog: Forum for Intercultural Philosophy 3. https://them.polylog.org/3/frm-en.htm Rand, Nicholas T. 1994. “Introduction: Renewals of Psychoanalysis.” In The Shell and the Kernel Vol I: Renewals of Psychoanalysis, edited by Nicolas Abraham and Maria Torok. Translated by Nicholas T Rand. Chicago: The University of Chicago Press. Robinson, Andrew. 2004. “The Politics of Lack.” The British Journal of Politics and International Relations 6(2): 259–269. Rose, Gillian. 1996. Mourning Becomes the Law: Philosophy and Representation. Cambridge: Cambridge University Press. Rose, Jacqueline. 1993. Why War? Psychoanalysis, Politics and the Return to Melanie Klein. Oxford: Blackwell.

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Ruti, Mari. 2008. “The Fall of Fantasies: A Lacanian Reading of Lack.” Journal of the American Psychoanalytic Association 56(2): 483–508. Salazar, Philippe-Joseph. 2014. “The Joint Sitting of Parliament, 15 April 2003: A Rhetorical View of the Reparation Debate.” In To Repair the Irreparable, edited by Erik Doxtader and Charles Villa-Vicencio, 44–65. Claremont: David Philip. Sanders, Mark. 2007. Ambiguities of Witnessing: Law and Literature in the Time of a Truth Commission. Stanford: Stanford University Press. Segal, Hanna. 1964. Introduction to the Work of Melanie Klein. London: Karnac Books. Sitze, Adam. 2013. The Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission. Ann Arbor: The University of Michigan Press. Spivak, Gayatri Chakravorty. 1995. “Ghostwriting.” Diacritics 25(2): 65–84. Tønder, Lars and Lasse Thomassen (eds.). 2005. Radical Democracy: Politics between Abundance and Lack. Manchester: Manchester University Press. Truth and Reconciliation Commission of South Africa. 1998. Truth and Reconciliation Commission of South Africa Report Volumes 1–7. Pretoria: Government Printer. Available at: https://www.justice.gov.za/trc/report/ Van Marle, Karin. 2010. “Jurisprudence, Friendship and the University as Heterogenous Public Space.” South African Law Journal 127(4): 628–645.

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The Ghost in the “Impossible Machine” Reparation and the Biopolitics of Transition

Introduction: Indistinction It is, by now, a common place to assert that the South African Truth and Reconciliation Commission (TRC) was a creature (of statute) born of crisis. The state of near civil war in South Africa that prevailed in the immediate period before the TRC began its work is often selected as the justification for the assertion that the TRC was precipitated by a crisis. There are, of course, also the circumstances that prevailed in the midst of the drafting of the Interim Constitution of 1993, when the security forces of the outgoing apartheid government threatened that they would not secure the first democratic elections if there was no mechanism in the Interim Constitution to protect them from prosecution by the new order. Then there is the assertion that apartheid was as such a prolonged situation of crisis if not a full-fledged state of exception. Whether one takes the more general circumstances of a near civil war as the point of departure, or the more specific situation of security forces fearing retaliation, or the point of view that apartheid rule was essentially rule in a state of exception, the conclusion that is arrived at is that the TRC was intended to play a critical role in the restoration of a state of norm(alcy). When, moreover, one considers that the TRC was born out of the law that was the Interim Constitution and that that Constitution installed the rule of law for the first time properly in South Africa, then one is drawn to surmise that the TRC was considered to be a critical component and condition of possibility of the rule of law taking root as the norm. Yet, the TRC’s central mechanism—amnesty—posed and continues to pose a challenge to any clear distinction between norm and exception (or crisis) in the birth of the new South Africa, for amnesty seemed to undermine the rule of law at the very moment that it was “properly” inaugurated. Much ink has been spilled on this question, and many justifications and understandings offered to explain how the amnesty of the TRC fits with the rule of law. This fit or no fit was essentially the question faced by the Constitutional Court in the Azapo (1996) case, where the court concluded that the amnesty referred to in the epilogue of the Interim Constitution internally limited that Constitution’s protection of the fundamental right to access to the courts. But if that is the case, then it means that an exception was built into the very heart of the norm at the foundation of the new South Africa. It means that exception intermingles with the norm at the very moment of the DOI: 10.4324/9781003290278-2

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Constitution. But is this intermingling of the norm with exception simply a result of expediency, a consequence of the mess that South Africa was in at the end of the 1980s? Or is it that norm and exception share a much more general and intimate conceptual history such that their intermingling can be attributed to far more than merely a solution grounded in expediency? Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life (1998) provides, as far as the history of political philosophy from ancient to modern is concerned, a definitive answer. From the ancients, Agamben draws the idea that a certain politicisation is already at work in Aristotle’s foundational definition of political life. As soon as Aristotle distinguishes—in the course of formulating that definition—between political life (bios politikos) and bare life (zoē), the exception arises in the form of an included exclusion. Agamben calls this “the aporia that lies at the foundation of Western politics” (13). In other words, politics constitutes itself in the West as a politics of bare life and political life. If this is the case, then the political order carries the exception in its heart and from its birth. Agamben then goes on to argue that in the modern era “[b]are life remains included in politics in the form of the exception, that is, as something that is included solely through an exclusion” (13). And as such, the exception constitutes “the hidden foundation” on which the entire political and juridical system is predicated (9). Agamben goes as far as claiming that the inscription of bare life into “the sphere of the polis” (10) “constitutes the decisive event of modernity” and goes on to assert that the central characteristic of modern politics is the extent to which the ancient distinction between bare life and political life collapses into a “real zone of indistinction” (4), to the point that any and all attempts still to wrench difference out of their perennial encounter have become utterly futile. The truth seems to be that “indistinction” has become an especially accurate signifier to characterise the “real zone,” or zone of the Real,1 today. Can this description of the general socio-political state of affairs today, be applied to the more specific question of the postmodern juridical order that South Africa founded at the beginning of the 1990s? I argue in this chapter that Agamben would certainly answer that question in the affirmative. At the very moment when Agamben (1998, 4) writes that “the exception is the originary form of law,” he plunges his discourse into the treacherous water of indistinction. It is the extraordinary meditation on the relation between law and politics that follows from tirelessly returning to the assertion that the very “form of law” originates in the exception that sets Agamben’s analysis in Homo Sacer apart from earlier (juridicoinstitutional) approaches to the problem of power—notably, Michel Foucault’s. To admit today that it is not only that the norm as law has entered into the crisis of exception but also that the very distinction between the norm and the exception has entered into an irrevocable crisis that has always been present within that distinction as its potentiality for a radical auto-immunity, is, however, not to dismiss out of hand the achievements of modern democracy. But it is, to paraphrase Johan van der Walt (2005, 2) (citing Heidegger), to consider the crisis of democratic law and politics as the “capacity for an incapacity.” And it is also as Agamben (1998, 10) writes, to try to understand why, when contemporary democracy seems to have

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come full circle by explicitly valuing “nothing but life,” it nonetheless proves itself repeatedly and stubbornly to be incapable of saving the very zoē on which its foundation—as an exclusion—rests. There is no use denying that the post-apartheid legal order is not an exception in this regard. Inscribed as it now is in a new, post-1989 global order, it has repeatedly, even consistently, shown itself to be incapable of saving zoē and at the very moment when there is, precisely, nothing else left to save. Perhaps the ultimate post-apartheid representation of this “capacity for an incapacity” within democratic law and order is contained in those dramatic and traumatic images, taken by press photographers and transmitted to screens all over the planet, immediately after 34 miners were executed during a de facto state of exception that horrifically and concretely blurred any and all boundaries between law enforcement and lawless violence on that fateful day at Marikana in August of 2012. And it is not that Marikana is an isolated incident—in so many respects, it is a magnification and an exemplification of the state of “normal emergency” (Sitze 2013, 193) in which the majority of South Africans continue to live today. In this chapter, I want to bring Agamben’s generalised concerns about the crisis of the contemporary juridico-political order as a whole, to bear on our understanding of the post-apartheid order and, especially, on our understanding of the question of reparation that plagues it. I do this by way of a close reading of the argument in Adam Sitze’s book The Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission (2013). In my reading of Sitze, I draw on the notion of crisis as “the capacity for an incapacity,” in order to support a “critical” reading of the TRC, one that accepts the suggestion that the TRC was a creature of crisis, but, at the same time, one that does not uncritically accept such a suggestion. For as it will be seen, to speak of the TRC as a creature of crisis presupposes a norm(alcy) that could not have said to be in existence in South Africa historically. I argue that the spectre of reparation arises in the midst of the indistinction between norm and exception that characterised the apartheid legal order. Further, I contend that the spectre of reparation arises within a distinctly biopolitical atmosphere as regards historical rule in South Africa, a biopolitical atmosphere that was consistently rendered in a thanatopolitical declension. The purpose of the chapter is, then, first to sketch the juridical and institutional biopolitical context within which the spectre of reparation arises. Indeed, I will suggest that “reparation” cannot be properly appreciated without resort to an understanding that its spectre is shot through with biopolitics, arises on the terrain of biopolitics. This means that I will, towards the end of the chapter, consider specifically the question of a biopolitics of reparation, one that unties the spectre of reparation from the thanatopolitical declension in which it arises. My point of departure and guiding thread is Sampie Terreblanche’s (2002, 129) intimation that there was nothing about apartheid that could be described as “normal.” If we read Terreblanche’s insistence with Sitze’s consideration of the juridical precursors of the TRC in colonial and apartheid jurisprudence, we shall find that an altogether different, in fact, inverted definition of crisis eventually comes to the fore, namely the incapacity for a capacity. I will suggest that such incapacity

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for a capacity is deeply imbued with the question of how and why the spectre of reparation is raised with such force in the archive of the juridical precursors of the TRC. Against this background of the emergence of the “real zone of indistinction” between exception and norm, capacity and incapacity, towards the end of the apartheid era—but certainly present within it from inception—arises the impossible Shakespearian task of the TRC to “set it right.” And to do so, moreover, at a global moment distinguished not simply by its zero tolerance for exceptions to the neoliberal order but perhaps ultimately by its seemingly limitless capacity for the exception, its apparent compulsion for turning the norm into the exception. While it is often said that the TRC proceeded to its task by way of one last exception to the rule of law (in the form of amnesty), the genealogy that Sitze reveals casts serious doubt over the accuracy of such a conclusion. This is the case because Sitze’s genealogy, as we shall see, fundamentally disrupts the notion that the TRC’s precursors in indemnity resided in exceptionality. Rather, Sitze shows us that the exception was the rule in apartheid South Africa or, at the very least, that the exception and the rule entered into a zone of indistinction. Sitze’s is a genealogy of the becoming norm of the exception and the becoming exceptional of the norm in South Africa (if there ever was, following Terreblanche, such a thing as norm in apartheid South Africa). From this point of view, the TRC and especially the reparation that it was tasked with, stands narrated against the background of a state of exception that, by the time of its founding, was well established as a norm and as normality in South Africa. From this point of view, the TRC’s last exception in fact becomes a continuation of a historically established warped normality. The title of Sitze’s book turns on the deconstruction of two readings of the “impossible machine.” First, there is the TRC as an impossible machine—a machine that makes impossibles possible: “the TRC was, on this read, a miracle making machine, a machine designed […] to create effects and events that should not be possible according to the known and probable laws of the world” (Sitze 2013, 19). On the other hand, the TRC was an impossible machine: a complicated apparatus with an inner operation that was not only inscrutable but also ineffective, a transitional mechanism with aims that were never realistic in the first place, a device that not only didn’t work as advertised but, in failing to miraculate, failed to work at all. (19–20) Sitze urges a break with this “bipolar oscillation” (20) and contends the “falsity of the antithesis between miracle and fraud” (20). “[T]hose who deify the TRC as an ‘impossible machine’ speak in unwitting agreement with those who denigrate the TRC for being an ‘impossible machine,’ and vice versa”, Sitze writes (20). Indistinction is thus with Sitze’s book from the very beginning, and such indistinction is generative: It clears a space for asking how the impossible machine came into being in the first place (20).

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In this chapter, I suggest that there is a ghost in this impossible machine and that that ghost is reparation, strictly understood in the aporetic sense which I suggested in the introduction: Those who assert that the TRC is an impossible machine tend to praise the TRC for the reparation of the irreparable that it achieved against all odds. Those that denigrate the TRC as an impossible machine emphasise the extent to which the TRC failed to secure reparation for the irreparable, the extent to which reparation of the irreparable is impossible for a device such as the TRC to achieve, impossible to achieve for any mechanism of transitional justice.2 In the course of the chapter, I want to ask a question similar to that of Sitze, one that is intimately related to the question of how the TRC came into being as an impossible machine in the first place. That question is: How did it come to be that reparation figures as a ghost in this impossible machine? How does reparation acquire a spectral quality in the coming into being of the TRC, especially if we consider again that the Interim Constitution categorically stated a “need for reparation”? And, then, to follow Sitze to the end here, how is it that those who praise the TRC for the reparation that it did achieve end up unwittingly confirming the irreparability of reparation? The answer to these questions, I would suggest, requires that we delve with Sitze into the origins of the TRC, but from a particular point of view, namely the point of view brought into focus by biopolitics. As I will argue, reparation is a distinctly biopolitical question that remains unresolved by transitional justice. I shall thus have reason to “read” biopolitics into Sitze’s genealogy of the TRC or at least expose alongside Sitze the fundamental biopolitical origins of the TRC. These biopolitical origins within which the TRC resides will, towards the end of the chapter, lead us to the question of what would be required to consort more productively with the ghost in the impossible machine, and I will suggest, relying on the work of Roberto Esposito and his interpreters, that the answer to this question turns on an affirmative biopolitics “of, not over, life” (Tierney 2016, 367) that is grounded in the notion of the obligatory gift. Impossible Machine: A genealogy of “colonial sovereignty and governmentality”

The fundamental aim of Sitze’s book is to discern “something” about the TRC that has “eluded transitional justice scholarship” (Sitze 2013, 2). To do this, he argues that it is necessary to take one’s leave from transitional justice scholarship and the “hermeneutic horizon” specific to its field. Instead, Sitze asks the reader to direct her attention to an alternative horizon on which the TRC’s sun could (also) be said to have both risen and set. According to Sitze, this alternative horizon comes into view when one foregoes the attempt to write yet another grand “history” of the TRC and instead pursue “the sort of work that Michel Foucault, writing in 1971, called ‘genealogy’” (6). It is worth quoting Sitze at length as regards the difference between history and genealogy: Whereas history speaks of the origins of the present in a morally consoling way, reassuring us that the norms that govern our conduct today have developed in a manner both necessary and rational, genealogy traces those same

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The Ghost in the “Impossible Machine” norms to an origin that disquiets and disturbs us, an unexpectedly divided origin that neutralizes our sense of piety by revealing our morals to entail presuppositions that we find repugnant and immoral. If history discovers forgotten pasts that explain why the present is the way it is, genealogy reveals select precursors of the present that not only have been left in oblivion but that needed to have been left there in order for the present to achieve its own self-presence and self-identity, its own goodwill and clean conscience.

(6)

With his clarification of the distinction between “history” and the method of “genealogy” in place, Sitze’s genealogical pursuit compels us to fix our gaze on the juridical origins of the TRC in two legal figures of colonial history—figures that worked hand in hand during that period: Indemnity jurisprudence, on the one hand, and the Commission of Inquiry (specifically, the “Tumult Commission” (Sitze 2013, 15)), on the other. Exactly how it can be said that the TRC originated in and accordingly “reiterated” indemnity jurisprudence while also resembling the colonial Commission of Inquiry/Tumult Commission to a troubling degree, will detain us much later, because it is an argument that can only be properly apprehended once we have returned with Sitze from his genealogical traversal of the juridical landscapes of indemnity and the Tumult Commission in the colonial and apartheid past. The Foucaultian frame of Sitze’s argument is, however, not simply constituted at the level of “method” or the “form” of the inquiry as genealogical: It also drives the substance of the argument in The Impossible Machine—and fundamentally so. When Sitze states the core of his genealogical argument, he situates it explicitly within a Foucaultian taxonomy when he invokes one of the most familiar terms of Foucaultian discourse: Governmentality. The TRC’s “concrete operation, as well as its novelty and audacity as event,” he writes, “are most illuminatingly named with reference to” its “counterintuitive precedents in colonial sovereignty and governmentality” (Sitze 2013, 2 (emphasis added)). Without spoiling the plot here, I want to suggest that a focus on reparation would require that we specifically consider “governmentality” as the counterintuitive precedent that should concern us most. This is so for reasons that will become clearer in the course of the argument. Suffice it to say for now that the genealogy that Sitze unearths makes it unquestionably clear that the question of reparation arose in a distinctly governmental key, one that, however and as we shall see, cannot be separated from sovereignty but that should be regarded as a specific kind of dialectical counterpart to, or condition of, sovereignty. Initially, at least, it appears that Sitze sees the two colonial precedents of the TRC (indemnity and the Tumult Commission) as originally divided along the two axes generated by the “master” division between (colonial) “sovereignty” and “governmentality” above, so that “indemnity” could be discretely treated as having its origin in “sovereignty” and the Tumult Commission as having its roots, also discretely, in governmentality. However, the genealogy soon reveals that this neat theoretical distinction does not and did not hold with regard to concrete

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colonial-apartheid practice. Below, I shall try to show that the relationship between sovereignty and governmentality is far more complex or “dialectical” than first appears and, to stay with the idiom with which I began, that it is from the outset plagued by indistinction. One important consequence of this argument will be that it cannot simply be said that indemnity and the Tumult Commission have their origins in a clinically separated sovereignty, on the one hand, and governmentality, on the other. It is accordingly no surprise that Sitze ultimately does not say it. In order to make the case for an approach to the relationship between sovereignty and governmentality from the point of view of complexity, the critical third term that appears simultaneously with sovereignty and governmentality in the Foucaultian discursive field, namely “biopolitics,” needs to be appreciated. Sitze’s reference to “sovereignty and governmentality” is something of a key, I would argue, to the rest of his argument, in the sense that this phrase at the opening of the book acts as a precursor for the unveiling of the horizon alternative to the “hermeneutic horizon” of transitional justice. This alternative horizon is the one that Agamben (1998, 10) has christened the “biopolitical horizon.” “Biopolitics” arose directly out of Foucault’s consideration of what he called governmentality, distinguished, as Sitze clearly states, but not divorced, from sovereignty. “Governmentality” is for Foucault the technology of power that arises at the moment when power shifts into the “biopolitical” paradigm. When government began to direct its attention primarily at what Foucault (2000, 217) called “the welfare of the population,” it entered into a “state of government” (221), a “governmentality” in relation to life. And the primary instruments of such a “governmentalisation of the state” were security and surveillance (what Foucault called “the police”) (222). The Foucaultian frame’s connection between governmentality and biopolitics thus gives us, as far as Sitze’s text is concerned, the biopolitical horizon as an alternative horizon of the TRC. An extended traversal of Foucault’s lecture on the topic of governmentality (Foucault 2000, 200) falls outside the scope of my enquiry. It is nonetheless necessary to emphasise some of the salient aspects of Foucault’s term because of the critical role that governmentality and biopolitics will play in both Sitze’s and my own argument. The first emphasis to place in this regard is that Foucault was at pains in this lecture to distinguish “governmentality” as a “technology of power” from both “government” and the state. “Governmentality,” he argued, was the collective noun for a triadic structure of power that started to emerge in the eighteenth century (219). Foucault argues that previous forms of rule corresponded to the exercise of power in the dominant register of sovereignty and that such sovereignty is essentially self-referential—its aim is obedience to the law that it posits (211). Governmentality, on the other hand, is a formation of power that differed markedly from sovereignty in that it directed its attention at the welfare of the population. Second, Foucault is at pains throughout his analysis to emphasise that governmentality never replaced sovereignty. Rather, one could say that Foucault’s argument is that rule became much more complex or variegated during the eighteenth century and the complexity of “governmentality” eventually dethroned sovereignty

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as the dominant paradigm of power. In Rousseau, for instance, the relativisation of sovereignty, through the rise of what eventually becomes governmentality, is presented as the problem of “how to provide a general principle of government that allows room both for a juridical principle of sovereignty and for the elements through which an art of government can be defined and characterised” (Foucault 2000, 218). As a result, governmentality subsumed sovereignty under its “triangle” of power, which consists, in addition to sovereignty, also of discipline and government (administration) (219). Sitze is, of course, critically aware of the above and that is the reason why he deploys “governmentality” alongside—as one does with a “complement”—but distinct from the related concept of “sovereignty” in the extract that I have quoted from above. Yet we shall see below that Sitze’s argument is not initially articulated in the terms of sovereignty and governmentality—it is articulated in the terms of sovereignty alone. Initially, we shall see, the argument turns on an intriguing setting aside of governmentality (and biopolitics) in favour of sovereignty. Another way of putting it is to say that initially, at least, the argument turns on a veritable de-emphasis on the governmentality or biopolitical imperative that lies, like the purloined letter, hidden in plain sight within the very heart of sovereignty. The TRC’s precedents: Indemnity and the Commission of Inquiry Hidden in the heart of sovereignty: Indemnity as biopolitical governmentality

With the Foucaultian frame delineated and the outline of the biopolitical horizon in view, we can proceed to a more thorough excavation with respect to Sitze’s articulation of two principles as the pivots on which turn his argument that the TRC’s precedents lie in “colonial sovereignty and governmentality.” At this point in his argument, Sitze will move to a discussion of colonial and apartheid indemnity jurisprudence. He will articulate indemnity at this point exclusively within the terms and structure of, specifically, parliamentary sovereignty. Sitze (2013, 5) explains that the structure of English and colonial parliamentary sovereignty is itself grounded in two principles: “the sovereignty of law” (the traditional rule of law or legal sovereignty) and “the law of sovereignty” (“the safety of the people is the supreme law”/“salus populi suprema lex esto” or political sovereignty). Sitze writes that it was the unique achievement of Alfred Venn Dicey—the lauded “theorist of South Africa’s dreaded system of parliamentary sovereignty” (4)—to have reconciled this apparent antinomy (how can no one be above the law and at the same time everyone (the people) be above the law?)—and he did so by theorising the convention of indemnity. Sitze goes on carefully to outline the exact place of conventions in general and the indemnity convention in particular, in Dicey’s jurisprudence of the English Constitution. By its nature, indemnity as a convention is an “unwritten rule” (Sitze 2013, 57) which provided that any person who, in good faith, pursued an illegal course of action necessary to preserve public safety could (note, not “would”), in essence, be indemnified by the sovereign for the legal liability that would otherwise ensue (5). In other words, the sovereign could legalise the illegality or, put even

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more broadly, regularise the irregularity. Indemnity thus raised at the outset the question of liability and hence of compensation. Indemnity was a means by which liability and compensation were set aside in colonial-apartheid jurisprudence. As such, indemnity held together the “two pillars” of sovereignty, because it recognised illegal conduct in accordance with legal sovereignty but, at the same time, allowed for the absolution of legal liability when such illegal conduct was necessitated by the principle of political sovereignty. For this reason, Dicey described indemnity as the “highest exertion and crowning proof of sovereign power” (57). In terms that may resonate better with what follows, we might say, in light of this statement, that indemnity constituted the “truth” of sovereignty. Now, indemnity is clearly the juridical vehicle through which the sovereign can except from the principle of legal sovereignty in the name of political sovereignty—that is why it is the “crowning proof” of sovereign power. As such, the indemnity convention always already created, within the juridico-political figure of sovereignty, the potentiality of an exception to the rule of law. And this alignment of indemnity with the exception within the parameters of sovereignty allows us to see that there is already a convergence here between indemnity as the truth of sovereignty and the Schmittian interpretation of sovereignty in Agamben (sovereign is he with the power to declare the exception). Going forward, there are a number of features to note about the indemnity convention in English constitutional law. In addition to the fact that it was, as a convention, an unwritten rule, it also existed purely at the level of what in Latin is called a spes (expectation or anticipation) (Sitze 2013, 59). This means that indemnity could never be automatic and could only be applied retrospectively to conduct that had already been recognised as past illegal conduct (58). In addition, indemnity could only be granted for specific conduct—it was “individual”—and could thus never exist in the form of a “general statute” (58). Indemnity was also patently conditional (65) in that no indemnity could be granted if the illegal conduct was not undertaken in good faith or could be shown to be excessive relative to the necessity that required such illegal conduct in the first place. The indemnity convention was thus conceived as an exception to the normal rule of liability through the courts under the rule of law. Further, while it is obvious, it is nonetheless crucial to note that the source of the indemnity power cannot be the norm of legal sovereignty. It is, rather, the “highest law” (Sitze 2013, 66) of political sovereignty or the salus publica. Yet, while indemnity was an expression of Parliament’s sovereign power vis-à-vis the courts, its overarching and explicitly stated purpose was to ensure the restoration of legal sovereignty as the rule of law (66). What exists here is thus still a firm distinction between norm and exception as well as a certain and appropriate subordination of the exception to the norm in the theory of constitutional law: The exception of indemnity arises from the exercise of the “highest law” of sovereign power and its only and ultimate aim is to restore the norm of the rule of law. Yet, Sitze (2013, 67) carefully shows that a “fundamental instability” inheres in the practical, historical application of this jurisprudence. As a matter of historical record, Britain relied upon indemnity in the domestic jurisdiction only once in

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a period of 150 years, that is, in an exceptional fashion and thus in accordance with indemnity’s original place within the Diceyan jurisprudence of sovereignty. But in the colonies, specifically South Africa, the reliance on indemnity was so frequent that it became a habit, a “norm of South African governance” (73). With reference to the Sharpeville massacre, Sitze writes that by 1961 “indemnity had become so predictable and normal a part of South African law” that “one South African MP would even argue that the truly unprecedented event would have been for Parliament not to pass an indemnity act following the Sharpeville massacre” (72–73). Sitze shows that at least since the 1912 Police Act, indemnity was integrated into “normal” South African legislation to the extent that such integration “dissolved the intricate balance that Dicey attempted to achieve between law and convention” (74). This leads Sitze to the conclusion that the way in which the indemnity convention functioned in colonial and apartheid South Africa did not simply serve to reconcile the tension between the two principles of sovereignty but, instead, became “Dicey’s solution for reconciling the tensions of empire itself. It is the juridical form through which Dicey sought to smooth the inconsistency between the despotism of English colonial administration and the liberalism of metropolitan English legality” (69). In the case of South Africa under British and then Afrikaner nationalist rule, Sitze (2013, 70) cites Hahlo and Kahn’s observation that under segregation laws, indemnity became “inevitable,” that is to say, it was used so frequently and in so blatant a manner that it not only departed radically from Dicey’s version (92) but in fact did not serve the (original) purpose of a reconciliation between legal and political sovereignty at all (83–84). Instead, indemnity entered into crisis in apartheid South Africa in the sense that it revealed its capacity for an incapacity. No longer did it function—as originally conceived and used in the British metropole—to reconcile the two principles of sovereignty. Rather, it revealed its capacity for incapacitating the distinction between political and legal sovereignty altogether (83–84). Accordingly, indemnity became the juridical form that facilitated South Africa’s entry into a “real zone of indistinction” between the exception and the norm. But this entry into a zone of indistinction between exception and norm, between political sovereignty and legal sovereignty, revealed a deeper, more fundamental, theoretical indistinction that lay concealed in the very heart of parliamentary sovereignty as articulated by Dicey. For it was not simply that the distinction between legal and political sovereignty collapsed. And it was not simply that the apartheid state's excessive use of indemnity jurisprudence woke an incoherence that “had lain asleep in indemnity jurisprudence from the very beginning” (Sitze 2013, 97). The impossible application of indemnity in the colony (92) also exposed a higher-order indistinction between “colonial sovereignty and governmentality” that had lurked in the very heart of sovereignty from the very beginning. In other words, I believe that Sitze also reveals that indemnity as a convention of sovereignty entered into a zone of indistinction with “governmentality” and, hence, “biopolitics.” To put it in Foucaultian terms of the triadic structure of governmentality, indemnity as a juridical figure of sovereignty entered into crisis in the colony, because the conditions of the colonial rule required that sovereignty as a dominant paradigm of power be displaced by the biopolitical paradigm of governmentality. That Sitze himself is

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quite aware of this ramification of the collapse of the distinction between political and legal sovereignty is evident from how he supplements his discussion of indemnity in terms of sovereignty with the biopolitical terms of governmentality, when he concludes on indemnity in crisis that where the rule of law no longer constrained the biopolitical – where repeated legalizations of illegality dissolved all distinctions between the sovereignty of law and the political supremacy of white populations – biopolitics no longer remained identical to itself either. Biopolitics, unconstrained by the rule of law, imploded into a kind of race war. (71) It is a considerable pity that Sitze does not here articulate explicitly the most important theoretical ramification of his genealogy, namely that the record of indemnity in apartheid South Africa lay bare something critical about the relationship between sovereignty and governmentality/biopolitics that Foucault had sensed but that would only be fully articulated in Agamben’s Homo Sacer project. It is the fact that sovereignty was never “identical to itself” either. Originally divided between the law of sovereignty and the sovereignty of law, sovereignty was from the outset, at its origin, biopolitically contaminated by the form of its very own “highest law,” expressed as the safety of the population/salus publica—a “biopolitical” imperative if ever there was one.3 This is why Agamben (1998, 6) writes that “biopolitics is at least as old as the sovereign exception.” The experience in the colonies, then, did not so much amount to the unconstrained proliferation of biopolitics through the political exception with indemnity as its precise juridical handmaiden. Rather, it revealed that the ultimate truth of sovereignty, “the highest exertion and crowning proof of sovereign power,” consists in a biopolitical imperative. In Society Must Be Defended Foucault (2013) considered the relationship between sovereignty, on the one hand, and governmentality/biopolitics, on the other, precisely in the context of what Sitze refers to as the “race war” that was apartheid. There Foucault notes that “racism first develops with colonization” and asks himself how a state that functions in the biopower mode can justify to itself “the need to kill people, to kill populations, and to kill civilizations” (76). More pertinently, how can a state not only wage war on its adversaries but also expose “its own citizens” “to war, and let them be killed by the millions”? (76). His answer is, of course, by “activating the theme of racism” (76). Racism, then, justifies “the death-function in the economy of biopower” (77). As Mbembe (2013, 166) writes, “the function of racism is to regulate the distribution of death and to make possible the murderous functions of the state.” And, as such, it is bounded up with the “workings of a State that is obliged to use race, the elimination of races and the purification of the race, to exercise its sovereign power” (Foucault 2013, 77). This means that biopower “functions through” “the old sovereign power of life and death” (77). It is at the moment of state racism, then, that biopower becomes necropower and biopolitics turns into necropolitics or thanatopolitics. If “indemnity” was intricately bounded up with the proliferation of governmentality, biopolitics and the race war in colonial and apartheid South Africa, then “indemnity” is, in fact, the juridical banner under

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which apartheid biopower “functioned through” sovereignty. “Indemnity” allowed the order to rubberstamp and so legalise the unleashing of its death function on the black population of South Africa—in the name, of course, of the biopolitical imperative—the salus publica of the white minority population. The history of the proliferation of indemnity in apartheid South Africa, as Sitze so perceptively notes, is, then, the history of this generalisation of biopower through the apparatus of sovereignty: “the more regularly indemnity would be applied, the more impunity it would authorise, and the more it would release the brakes on the ‘race war,’ all without renouncing the fidelity to the ‘rule of law’” (Sitze 2013, 71), which meant, ultimately, that the rule of law dissolved into a zone of lasting and irreducible indistinction with respect to the exception, to the point that it is not hyperbolic to say that the entire period of colonial and apartheid rule took the form of a permanent state of exception (recall Terreblanche: Nothing was normal under apartheid). Mbembe (2013, 172) writes that it is no coincidence that “colonies are the location par excellence where the controls and guarantees of judicial order can be suspended – the zone where the violence of the state of exception is deemed to operate in the service of ‘civilization,’” because the idea of a “common bond between the conqueror and the native” (172) is denied in advance by colonial racism. The whole history of the abuse of the indemnity convention and the unleashing of the death function of sovereignty through it, suggests that biopolitics under colonialapartheid rule was a distinctly thanatopolitical process, one that turned on what Esposito has called the immunisation paradigm. Tierney (2016, 64) has suggested that the immunisation paradigm is grounded in the “Hobbesian imperative of selfpreservation” and from the point of view that the salus of sovereignty practically referred to the safety (thus self-preservation) of the white population under colonial-apartheid rule, it is not difficult to see in this regard how the thanatopolitical declension of biopolitics functioning through sovereignty had the affirmative declension of the life of the white minority as the other side of the coin—the life of the white population came to depend on the extent to which it could activate the death function in relation to the black population. Or, as Peter Hudson (2013, 267) puts it in more overtly psychoanalytic terms: “the destitution of the colonised is the condition of possibility of the plenitude of the coloniser.” For those who would contend that this claim is hugely exaggerated, it is perhaps necessary to say that Foucault made it very clear that when he spoke about death in relation to the death function, he was not referring simply to actual, physical murder: I obviously do not mean simply murder as such, but also every form of indirect murder: the fact of exposing someone to death, increasing the risk of death for some people, or, quite simply, political death, expulsion, rejection, and so on. (Foucault 2013, 75) This is not the occasion to debate the question of whether South African state racism was in fact concretely genocidal. Suffice it to say that colonial-apartheid unleashed the “death” function in relation to the majority of the population in the myriad ways in which Foucault refers to death—that is incontestable.

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What such a thanatopolitical unleashing means for the “post”-apartheid, however, is the question of how to atone. How does one pay, at the level of the life of the population, for a history of exposing to death, of increasing the risk of death, of political death, not to mention the overt and intentional mass murders of the apartheid era? The point, for my purposes here, is that the thanatopolitical history that stands narrated through Sitze’s genealogy of the indemnity convention raises the spectre of reparation and profoundly so. From the moment that colonial-apartheid began to exercise its biopower through sovereignty, it raised the spectre of reparation in this archive, the spectre of who should be liable for the normalised exercise of indemnity, the spectre of how such a normalised exercise of indemnity would be paid for. The very logic of the exercise of indemnity as a normalised practice of governmentality, always already presupposed that a wrong had been committed for which liability/compensation or, if you will, “reparation” could be claimed. As Sitze (2013, 243) writes: “‘indemnity’ in the Diceyan tradition was supposed to protect from lawsuits those who committed crimes in honest and necessary defense of the salus publica.” The whole point of the routine exercise of the indemnity power was thus to put liability for compensation under erasure through the exercise of the “crowning proof” of sovereign power. But this attempt to erase the liability for wrongs committed did not achieve the disappearance of the question of liability altogether. Rather, it bestowed a ghostly and spectral quality upon the question of liability and thus of reparation. As we shall see, colonial-apartheid approached the question of compensation for the exercise of the indemnity convention with a predictable cynicism—a cynicism that the TRC, of course, needed critically to displace but a cynicism that unwittingly raised the spectre of reparation. But before we get to the question of displacement (or not) in the TRC, it is necessary to traverse its distinctly, overtly biopolitical, precursor. The colonial Commission of Inquiry/“Tumult Commission”

Whereas indemnity constituted the juridical precedent of the TRC, Sitze (2013, 11–12) argues that its closest forebear from the institutional point of view was the colonial Commission of Inquiry. Sitze contests as ahistorical the conventional wisdom of transitional justice (as well as of the first post-apartheid government) that no prior Commission had placed “ordinary people so fully and completely at its centre as did the TRC” (11). Instead, he argues that long before the emergence of the TRC […] there was another, more prosaic name for the administrative organ tasked with listening to, evaluating, and archiving the voices of the victims of abuses of illegal state activity: the Commission of Inquiry. (132) Sitze is at pains to emphasise that the point of recalling that the TRC “deploys an administrative apparatus that was central to the very system it rightly declares evil” (133) is not to argue that the TRC was in advance or inevitably “contaminated” by

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or simply repeated colonial ways of doing. Rather, it is to try to understand “the TRC’s relation to its precedents in the apartheid state” (133). That being as it may, Sitze (2013, 132, 134) presents a compelling case that the Commission of Inquiry, at least in apartheid South Africa, was not a neutral or empty husk, but rather that it was a “technique of governmentality that was deployed as a means to the end of securing and normalizing colonial conquest” (159). He goes on to show that Commissions of Inquiry in general are biopolitical devices par excellence (159). Originally derived from the sovereign’s executive power of commissio, Commissions of Inquiry took the inquisitorial form from the seventeenth century onwards (136) (which is also the period that broadly corresponds to Foucault’s periodisation of the emergence of governmentality). As such, Commissions of Enquiry did not “determine guilt or innocence” as was the case with sovereignty. Rather, their aim was to gather information about the population under its jurisdiction with a view to use that information as the basis for figuring out how to govern or manage the population better. In its modern iteration, Sitze concludes, the Commission of Inquiry “would emerge as an administrative apparatus through which the sovereign […] could pose questions for itself about the scope, limits and goals of the governance of its populations and territory” (137). However, Sitze (2013, 155) shows that at least with respect to the colonies this inquisitorial function of the Commission of Inquiry was almost always executed within a context where the Commission itself arose as a result of crisis or disruption in the population such as a riot or uprising which was then violently suppressed by state officials. For this reason, Sitze refers to the Commission of Inquiry in the colonies as the “Tumult Commission” (160). The Tumult Commission, like other Commissions of Inquiry, had as its general aim the restoration of “public confidence in government” (138). But the Tumult Commission in particular had as its specific aim the investigation into how this “restoration” could be achieved through improved management of what was euphemistically called “race relations” (161), a breakdown in which was assumed to be the cause of the tumult: the Tumult Commission defined this task for itself by rendering African biopolitics intelligible on the trope of a machine or an organism susceptible to afflictions by certain “frictions” or “diseases” in and between its constituent ethnic and racial “components” or organs. (161) The reader might be forgiven to conclude from these extracts that it is Sitze’s argument that the Commission of Inquiry and the Tumult Commission in particular were the products exclusively of biopolitical governmentality. Yet Sitze’s argument is, again, more complex about this aspect. In his consideration of the Commission of Inquiry as a general quasi-juridical form as such, Sitze writes: “[T]he fundamental horizon within which the Commission of Inquiry posed the question of governance for itself was both ‘sovereign’ [because the Commission was a product of sovereign command] […] and ‘biopolitical’ (because of the substance of the inquiries themselves)” (Sitze 2013, 138). The risk here is that Sitze’s discussion would

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create the impression that he is reproducing the very bifurcation of sovereignty and biopolitics/governmentality that I have shown him to have exposed—admittedly, in the context of indemnity—as fallacious. There arises, thus, the need to consider another sense in which it can be said that the fundamental horizon within which the sovereign posed the question of governance for itself through the Commission of Inquiry was both sovereign and biopolitical, a sense that is congruent with the collapse of the distinction between sovereignty and biopolitics which indemnity facilitated. At the beginning of his famous “Force of law” text Jacques Derrida (1990, 921) writes that “[a] conjunction such as ‘and’ dares to defy order, taxonomy, classificatory logic, no matter how it works: By analogy, distinction or opposition.” The sense of a conjunction between sovereignty and biopolitics that “dares to defy order” would be the sense in which the conjunction defies the distinction and illuminates the indistinction between sovereignty and biopolitics with which we are already familiar in the context of indemnity. The “fundamental horizon within which the Commission of Inquiry posed the question of governance for itself” was both sovereign and biopolitical in this latter dis-orderly sense, because the Commission of Inquiry was not a form of biopower functioning through sovereignty but rather the form in or mode within which sovereignty functioned through biopower. Whereas indemnity in the colonies, for reasons that were provided above, could be said to have been the mode in which biopower functioned through sovereignty, the Commission of Inquiry can be said to have been the mode in which sovereignty functioned through biopower, not least because the overarching point of the Commission of Inquiry and its biopolitical inquiries in relation to the population was always, as Sitze (2013, 170) argues, a “means to the end of ‘keeping the peace,’” where “peace” means the restoration of trust/public confidence in the sovereign through just the right biopolitical mixture of suppression and pacification. This question of the restoration of the sovereign to public confidence, to the security of the normality of its exceptional rule, is precisely why it posed for itself, in the form of the Tumult Commission, the question of how and why its biopolitical strategies had failed. And it is the reason why the Tumult Commission was inevitably biopolitically tasked to inquire into the nature and causes of the disturbance or crisis in the “race relations” of the population that gave rise to the breakdown in public confidence in the sovereign in the first place. It is, however, also necessary to add here a further complication. Sitze (2013, 15) radicalises Foucault’s claim that “government precedes the State” by adding to it that “the Commission of Inquiry precedes government.” But is it not also the case that the Commission of Inquiry, in a certain sense and under certain circumstances, precedes sovereignty? Sitze maintains that knowledge acquired by Commissions of Inquiry prepares “the conditions under which governance based on knowledge – a government of instrumental reason, of manipulating things and populations to the end of the salus populi” (159)—could then come into being in an enduring way. The word “government” in Sitze’s claim that “the Commission of Inquiry precedes government” does not exclusively refer to government as an entity so much as it refers to government as an activity. The Commission of Inquiry gathers biopolitical

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knowledge that informs and also changes the activity of government—it provides considerations to be taken into account when considering how to rule better—and in this way it “precedes” government. But if this is the case as surely it is, then it must be conceded that the Commission of Inquiry at the same time precedes sovereignty, tasked as it was with the “restoration” of the “peace.” Not only is Sitze’s claim regarding the precedence of the Commission of Inquiry over government played out in concrete historical examples such as the infamous Native Affairs Commission of 1903–1905 which was explicitly tasked with the question of what form of government would be suitable for colonial South Africa (Sitze 2013, 132, 125–128). It is also the case that the Commission of Inquiry in apartheid South Africa “preceded” sovereignty in the sense alluded to above, in the sense that without the Commission of Inquiry and, most pointedly, the Tumult Commission in particular, sovereignty under conditions of colonial rule (that is to say, under conditions in which one proclaims an allegiance to the “rule of law” while at the same time routinely excepting from it) could not be made to function without the Tumult Commission. In this way, the Tumult Commission may be understood as a condition of the possibility of sovereignty at the same time as it was a condition of the impossibility of sovereignty. This can, once again, be understood if we consider the career of the Tumult Commission in apartheid South Africa. We have already noted that the Commission of Inquiry was an exceptional governmental apparatus, theorised in the metropole, that, as a matter of genealogy, arose in the colonies almost exclusively after the exercise of martial law in a state of exception. This is why Sitze uses the more accurate descriptor of “Tumult Commission.” As such, the Tumult Commission was closely related to indemnity as a critical part of colonial parliamentary sovereignty’s limited repertoire of responses to the violent suppression of an uprising in the population (which, in the colonial setting, amounted, in one or another way, to a contestation of sovereignty) (Sitze 2013, 151). The governmental response in relation to the perpetrators of illegal political violence from within its own ranks was an indemnity act, the response ostensibly focused on the victims of such violence was the Tumult Commission. But in the same way that indemnity in crisis obliterated the distinction between norm and exception and between sovereignty and governmentality under colonial and apartheid rule in South Africa, the Tumult Commission was resorted to so frequently to enquire into acts of violence and aggression committed against the black population by the state’s officials, that it lost its character as an exceptional governmental apparatus and became a norm of governance (Sitze 2013, 159). In other words, under these conditions, sovereignty could not do and did not do without the governmental biopower of the Tumult Commission. But it is not just that sovereignty functioned, through the Tumult Commission, in this or that biopolitical mode. Sitze repeatedly shows that the Tumult Commission functioned in a racist biopolitical mode. As such it formed part and parcel of the “race war” of which Sitze writes. Because, under the circumstances, the “peace” that it was tasked to “restore” or “keep” was a peace indistinguishable from the race war that the apartheid government was waging on the black population. The task of the colonial Tumult Commission was to

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“whitewash” (157) the exercise of “biopower through sovereignty” (indemnity) in a properly dialectical fashion, namely by exercising sovereignty through biopower. How does one whitewash the exercise of “biopower through sovereignty” (indemnity) by way of exercising sovereignty through biopower (Tumult Commission)? The answer, once again, lies in the third term that entered the discussion at the moment when Foucault asked himself how biopower can be exercised through the sovereign right to legally put to death. Racism. “Commissions that were concerned, in particular, with riots and disturbances posed the question of the failure of governance not only in demographic and economic terms”, writes Sitze (2013, 150–151) “but also in psychological and anthropological terms.” Indeed, it was only by employing a discursive strategy of racism that the Tumult Commission could treat the black population of South Africa in biopolitical terms “as a sort of ‘raw material’” (162), that is, not from the point of view of European humanity (for that implied a rational, self-legislating subject, individual as well as collective), but from the point of view of “a nonhuman natural resource, like water or ‘human livestock’” (163). When Sitze (2013, 151) writes that the “demand for knowledge” is structured directly into indemnity jurisprudence and that that is why the Tumult Commission appears so consistently with indemnity, he means, initially at least, knowledge of necessity: “the only way for the Crown to determine whether illegal acts were honestly ‘necessitated’ by the case at hand was through an extensive and detailed inquiry into the causes and facts of the riot or disturbance itself” (151). But as Sitze’s ensuing discussion clearly shows, the Tumult Commission was ill-suited for this purpose because the very biopolitical epistemic field within which it functioned predisposed it “toward the exculpation of those who killed, maimed, and tortured in the name of the empire” (157). The need for knowledge of necessity was thus a very carefully constructed biopolitical ruse to conceal the deeper biopolitical predisposition, the predisposition that causes one to be predisposed, in the first place, to exculpate those who “killed, maimed and tortured in the name of empire.” This is the predisposition of racism. Unsurprisingly then, the Tumult Commissions almost invariably concluded with recommendations as to how government could better manage—in the name of the salus populi of the white minority—the racial and ethnic divides that pervaded the colony and caused disturbances among the human “chattel.” Its aim was, without as much as an iota of irony, to “present remedies for avoiding the recurrence of racial strife” (Sitze 2013, 161). To be sure, the Tumult Commissions “lamented” and “regretted” as “tragic” (but nonetheless unavoidable) the excessive use of force that resulted in the extra-judicial executions for which the sovereign’s officials were (often, already) indemnified (180). And they most certainly went out of their way to “hear all the voices,” “inviting all comers to testify” (163). But (and here the “sovereign” declension of this iteration of biopower becomes more explicit), they almost always expressed considerable doubt, if not scorn, as regards the resulting victim testimony. In other words, they almost always took the sovereign, final decision as regards the value/worth of victims’ words. And it is no

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coincidence that they routinely cancelled out their condemnation of the excessive use of force by arguing that the rioters were a “concomitant cause” and thus carried considerable blame for the situation that transpired (Sitze 2013, 164). While they enquired into the feelings and “aroused passions” that were commensurate with the uprisings, they nonetheless treated such feelings as incidental to the aim of establishing “peace” at all cost, in other words as “yet another sort of raw material to be governed wisely” (169). By extension, one could say that the Tumult Commission also treated the wounds of the victims as a sort of raw material that had to be governed wisely. But (and here the sovereign side of this iteration of biopower is at its most explicit), the Tumult Commission never once produced as a possible solution, proposals for self-government. The Tumult Commission, then, was, above all, a device for the displacement and deferral of political selfrepresentation, a device that allowed for the representation of the health, safety and welfare of populations who were, in paradigmatic colonial manner, understood to be unable to represent themselves. (Sitze 2013, 151) And in this way, it was a critical apparatus through which colonial racist sovereignty could not only function but indeed was made to endure through, the exercise of biopower (159). In the previous section, I mentioned that the apartheid government, at least, if not the colonial governments before it, did not altogether ignore the question of compensation as a sort of counter-measure to the exercise of indemnity—it rather approached this question cynically. Sitze (2013, 87) refers in this regard to what he calls “[p]erhaps the most unprecedented element of indemnity jurisprudence under apartheid”: The compensation committee. This was a committee that arose alongside the passing of indemnity legislation after the Sharpeville massacre of 1960. The apartheid government did not constitute this committee willingly. Rather, it was a response to the censure, after Sharpeville, of the “very Western states” whose civilisation was the foundation for the “necessity” of exercising indemnity (87), the Western states on which apartheid depended for its continued existence. So, in an effort to show that it was not ignoring this censure altogether, the apartheid government constituted “a committee to provide ex gratia payments to ‘innocent victims’ who suffered police repression” (88). However, as Sitze (2013, 88) writes, it was made clear at the time that the ex gratia payment was strictly a “discretionary gesture,” “extended not on the basis of a legal obligation but simply ‘out of the goodness’ of the government’s ‘own heart.’” As such, it was a classical expression of “sovereign immunity” (91). Further, as Sitze shows, the logic of ex gratia payments that emerged in the aftermath of Sharpeville was that such a mechanism was a “better and even speedier way” to accomplish what would ordinarily only have been possible through an exercise of the right to courts (91). As such, the invention of the ex gratia payment mechanism functioned explicitly to legitimate the government’s exercise of indemnity. In a characteristically

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cynical fashion, the apartheid government pretended that the ex gratia payment really was the form in which the state would authentically “take over” the liability of the perpetrator and make good for its excessive exercise of indemnity. But what is abundantly clear from Sitze’s analysis is that the excessiveness of indemnity was in no way matched by any kind of excess in relation to ex gratia payments. Apart from the fact that it could only be offered to “innocent” victims, the compensation committee and its ex gratia payments came as a sort of afterthought of biopolitical governmentality—there was absolutely no match between the excessive resort to indemnity, on the one hand, and the compensation committee’s ex gratia payment on the other. Ex gratia payments thus didn’t have behind them the intention to make good as much as it had the intention to serve as a further biopolitical tool through which “race relations” during a race war could be managed. The ex gratia payment was thus a classical exercise of governmentality. As such, and further, this means that the ex gratia payment never served the function of detaching or untying governmentality from the death function, from the thanatopolitical declension of biopolitics. As Sitze makes clear, the compensation committee and its ex gratia payments were, rather, an expression of sovereign immunity. This basis of the compensation committee and ex gratia payments in, ultimately, the sovereign right of grace, should give us pause, for it suggests that at the very beginning of South African sovereignty’s attention to a counterpart for the consequences of the exercise of indemnity lies the idea of executive discretion, rather than legal obligation. It suggests that if the TRC was to be an exception to its precedents in colonial and apartheid rule, it had to take this cynical declension of sovereignty exercised through biopolitics seriously and displace it. As the reader will already know from what was said in the Introduction, this is precisely not what happened when the TRC was conceived. Rather, as will be seen, the sovereign right of grace ultimately played a determinative role when the question of reparation came to the fore, despite the Interim Constitution’s “need for reparation.” Suffice it to say for now that the occurrence of the compensation committee constituted a rudimentary iteration of the spectre of reparation, albeit that as Sitze ultimately shows, the compensation committee functioned as part and parcel of the attempt to whitewash massacre. The existence of the committee, Sitze (2013, 89) writes, permitted the government “a response to the criticism from abroad” that it was persecuting innocent South Africans, “but also implied that not every person killed” was innocent, thereby “adding justification and legitimacy to the killings.” In the end, the Tumult Commission and the compensation committee that emerged alongside it constituted an apparatus through which the constitutive “capacity for an incapacity”/crisis of colonial sovereignty functioned and maintained itself as norm. This crisis may as well, at this point where indistinctions proliferate, be expressly stated for what it, more accurately, was, namely a crisis which obliterated even the distinction between capacity and incapacity on which Van der Walt’s incisive definition of crisis rests. For Sitze’s genealogy of the Tumult Commission exposes, again and again, that the constitutive crisis of apartheid consists in the incapacity for a capacity, the constitutive incapacity of apartheid as what Sitze calls the “impotence of apartheid as a mode of government” (183).

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The TRC We come, then, to how this tale of bloody sovereignty and racist biopower acting through one another, passing into real zones of indistinction between one another, impacted upon the TRC as the Commission that was tasked with closing the book on it all. First, it is necessary to understand what Sitze posits as the test for whether the TRC was, against this background, a success or a failure, a repetition or a turning point. In the manner of a Hegelian speculative philosopher, Sitze (2013, 101) writes that his project is not to “produce definitive answers,” but rather to ask the right questions. Yet, while there are clear indications in his text pointing to a certain circumspection, a warning to proceed with caution when it comes to finally judging the TRC, the questions he raises do suggest particular answers. That said, Sitze poses—against transitional justice’s emphasis on the “reconciliation,” “forgiveness” and “truth” that emerged from the TRC and that was, also in the Constitutional Court, the main justification for its status as event (as opposed to repetition) as well as the test of its success—only one question as the test for its success or failure: Whether it managed to put “out of commission” or render “defeasible” the very jurisprudence in which it found its precedents (Sitze 2013, 100). With respect to amnesty as the heir of colonial indemnity jurisprudence, Sitze’s argument makes a compelling case that the way in which the TRC handled conditional amnesty did not displace colonial indemnity jurisprudence. Rather, it replaced it in the manner of a repetition under a different name. That name was “amnesty.” Sitze recognises that from the outset, the “TRC Bill was a simple extension of what, in 1977, parliamentarians from all parties called the ‘principle of indemnity’” (98): “It was a classical Diceyan attempt to provide retroactive protection from civil and criminal prosecutions to those who violated the laws passed by the apartheid state’s own sovereign parliament” (98–99). Thus the TRC “re-used the very power whose abuse it criticized in the apartheid state” (99). But it is also the very use of these tools from the decommissioned master’s house that provided for the TRC’s “unprecedented audacity and even genius” (99). In short, the genius of the TRC lies in the way in which it used the techniques and powers proper to martial law as the “juridical basis” upon which to build exposure and critique of the inhuman acts that were committed under the aegis of the apartheid regime. From this point of view, the norm that would determine the TRC’s success or failure was whether its deployment of indemnity one last time, would render indemnity defeasible. In Chapter 3, I will discuss the ways in which the TRC failed to render indemnity defeasible in more detail. Suffice it to say for now that when it came to implementing practically the mechanisms in the PNURA (1995) designed to render indemnity defeasible, such as full disclosure, the Amnesty Committee of the TRC did not fare well. In fact, Sitze shows convincingly that the way in which the individualised amnesties were dealt with “reiterated key elements in the indemnity jurisprudence of the apartheid state” (9). This brings us to the treatment of reparation in and by the TRC and to what The Impossible Machine has to say about it. Sitze characterises the Reparations

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and Rehabilitation Committee (RRC) as a reiteration of indemnity jurisprudence but claims that it was a reiteration animated by great “audacity and risk” (Sitze 2013, 114). Thus, while Sitze claims that the apartheid-era compensation committee “exerted a clear influence on the TRC” (115), he also makes it clear that the RRC was “far more intricate” (115) than the principle and formula for ex gratia payments during apartheid. Yet, [t]he language of 1961 and 1977 that authorized the apartheid state to make ex gratia payments—language that came into being during two of the worst moments of apartheid state repression—persisted almost completely intact in the 1995 legislation that created the TRC. (115) So, for instance, do we see a repetition of compensation as a counterpart of indemnity in the TRC’s definition of reparation as “an essential counterbalance for amnesty” (115). And we also see a repetition of the justification for ex gratia payments under apartheid in the TRC’s justification of reparation as “much less expensive and time-consuming for the state” (115) than criminal and/or civil trials. Sitze then comes to a consideration of the Azapo court’s justification for the limited compensation scheme that was put in place. Here he writes of a tragic irony that pervades the judgment, namely that in 1996, as in 1961 and 1977, the South African state justified its limited compensation scheme with reference not to the rule of law (in particular, the requirements of criminal or civil law), but to the exception to law demanded by a specifically fiscal declension of the salus publica. (118) So, the determinative role of the sovereign right of grace is plain for all to see both in the Azapo judgment and in the way in which the post-apartheid government responded to the RRC’s recommendations. Thus, neither the Azapo judgment nor the post-apartheid republic did anything to untie the question of reparation from exceptionality and ultimately the expression of sovereign immunity, tied as that expression of sovereign immunity is, to the death function in the economy of biopower historically. In this way, it gave the lie to the “need” for reparation in the Interim Constitution. As such, the spectre of reparation arises as the ghost in Sitze’s impossible machine. And the ghost then proliferates: Following a thorough review of the RRC, Sitze (2013, 119) concludes that “it cannot be said that the TRC’s compensation program was nothing more than a simple repetition of the apartheid state’s compensation schemes.” That the TRC could only make recommendations to government in respect of reparation was, of course, one of its central weaknesses in terms of enforcing the moral economy in which reparation was a critical counter-measure to amnesty. Sitze acknowledges the extensive recommendations for reparation that surely distinguished the TRC from its forebears in apartheid jurisprudence. Yet,

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as Sitze also clearly shows, these recommendations were themselves immediately subjected to a series of new biopolitical imperatives, ultimately to the salus populi now figured by a new, neoliberal governmentality which has as its absolute antithesis the sort of large-scale structural interventions in the political economy by the state on which those recommendations turned. In the Introduction, I already referred to how the Mbeki government responded to the TRC’s robust recommendations that not only the state but indeed all beneficiaries of apartheid were responsible for reparation. However, to put it in Sitze’s words is to understand how the TRC was forced into a reiteration of indemnity jurisprudence without a critical difference: “the Mbeki administration’s response to the TRC’s proposals ruined the TRC’s ability to differentiate itself” (119 (emphasis added)). The TRC, in Volume 6 of its report, in fact went as far as itself acknowledging that what it called its “international legitimacy” (not to mention, presumably, its national legitimacy) depended on “the provision of adequate reparations” to the victims of gross human rights violations. “Amnesty,” the Commission wrote, “without an effective reparations and rehabilitations programme would be a gross injustice and betrayal of the spirit of the Act, the Constitution and the country” (TRC Report 1998, 110). What we see in this excerpt is none other than a veritable contestation over the meaning, precisely, of the salus populi of the post-apartheid population. It is a statement that holds that the political sovereignty of this post-apartheid population cannot do without reparation, echoing the Interim Constitution’s “need for reparation.” To the extent that the Mbeki administration’s cowering to neoliberal biopolitical imperatives (of the post-1989 global economy into which South Africa was inscribing itself), dictated that the TRC’s recommendations in relation to reparation not be implemented, it is a lasting testament to the inroads that the global biopolitics of the new millennium has made into the meaning of national sovereignty/the salus publica as previously understood outside the colonies in democratic countries. In fact, it is the very cowering to neoliberal biopolitics that brought the TRC to the very precipice of a zone of indistinction from its apartheid precedents, and it is this neoliberal biopolitics that continues constantly to pose the risk that the post-apartheid government will sink into a zone of indistinction from its apartheid predecessor. Sitze (2013, 230) points out that the logic of neoliberalism is in fact perfectly consistent with the kind of salus populi logic of emergency jurisprudence, with the only difference being that the state no longer functions as the coercive mechanism by which to wage war on a race within its population, but rather to enforce the dictates of “the market” on that population as its salus populi—an enforcement that corresponds strictly with the state’s new biopolitical right to abandonment, the right, as Foucault (2013, 62) put it, “to make live and let die.” The TRC, in fact, was part and parcel of a new iteration of biopolitical governmentality, now in its “therapeutic” guise. Humphrey (2005, 209) states that “the therapeutic capacity of the TRC represented an important source of legitimacy for the new South African state.” Sitze’s entire discussion shows that sovereignty turns to biopolitics when it finds itself in crisis—and there can be no doubt that postapartheid sovereignty was born in this crisis. But if Sitze’s genealogy of the truth Commission carries the day, as I think it does, then one is left with the question

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as to how “therapeutic” this version of governmentality/biopolitics really was, especially once it became evident that the TRC’s recommendations in relation to reparation would not be accepted. On the TRC’s own terms, as we have seen, it is understood that without reparation it would itself enter into crisis, it would reveal its capacity for an incapacity, its capacity not to be able, finally, to “restore,” or, rather, institute the peace. The preceding discussion shows that, historically, when biopolitics functioned through sovereignty (indemnity) the result was legalised death. And perhaps we can say that the lesson not only of the Tumult Commission but also of the TRC is that when sovereignty functions through biopolitics the result is abandonment, and “abandonment,” of course, is a different way of stating the logic of the included exclusion (here in the form of the included exclusion that arises from the state’s neoliberal biopolitics). For an affirmative biopolitics of the obligatory gift A point implicit in Sitze’s account is that the salus populi that will have provided for the best of the best of the TRC is strictly unprecedented—it differs markedly in qualitative as well as quantitative terms from the salus populi as the safety of a minority population that we find in apartheid South Africa as well as from the contemporary, neoliberal salus populi as outlined above. For the new salus populi in terms of which the TRC’s potentiality will have become intelligible as an event is, as Sitze notes and as the Interim Constitution also quite clearly stated, ubuntu, but not “roughly” translated as a lofty ethic of communitarian harmony, but understood, rather, as the simple but profound maxim that South Africa belongs “to all who live in it” (Constitution 1996, Preamble). In this respect, it is worth noting that the TRC approvingly quotes the testimony of Mr Peter Biehl, father of Amy Biehl, who calls upon the same universality in relation to post-apartheid South Africa belonging to everyone who lives in it, when he says that “[i]n the truest sense it is for the community of South Africa to forgive its own and this has its basis in traditions of ubuntu” (TRC Report 1998, 414 (emphasis added)). Again, I do not want to reductively translate ubuntu here as the communitarian power to forgive, pure and simple. Rather, with Sitze I want to emphasise that if ubuntu as a counter-ethic is definitively to speak back to the neocolonial, neoliberal re-articulation of the colonial logic of the salus populi of old, then it must also be thought outside of and against that colonial logic, but nonetheless attentive to the overarching biopolitical mode in which that logic was prevalent. This is the question of how to turn biopolitics away from its thanatopolitical declension towards an affirmative character in which the “need for reparation” may finally come into its own. What would it take, at the level of the population, to finally implement the need for reparation as a way of productively consorting with the spectre of reparation as raised by the TRC and its colonial-apartheid antecedents? Here, I can only sketch the outline of such an affirmative biopolitics of reparation by focusing on its theoretical foundation in the work of Roberto Esposito (2010). Esposito locates a biopolitics “of, not over, life” precisely in the origins of community, in the primordial roots of the “all.”

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As Tierney (2016, 56) has argued, Esposito’s thought on community begins with a criticism of the “proprietary conception of community.” Esposito argues that communal, communitarian and communicative conceptions understand community in terms of the distinction between what is proper and what is common but then defines the common in terms of what is proper—the common is defined as what is proper to the community, whether it be an ethnic trait, a language or a set of shared values. Esposito (2010, 57) distances himself from this dialectic by performing an etymological excavation of communitas which “uncovers its origin in munus.” He then shows that munus “oscillates in turn among three meanings” (4), namely onus, officium and donum. “For the first two,” Esposito writes, “the meaning of duty [dovere] is immediately clear: obligation, office, official, position [impiego] and post” (4). The third, donum, however, conveys the meaning of “gift,” which leads Esposito to ask “[i]n what sense would a gift [dono] be a duty?” (4). The munus, Esposito argues, stands to donum “as ‘species is to genus’” (4). It is the “gift that one gives because one must give and because one cannot not give” (5). In addition, the munus “indicates only the gift that one gives, not what one receives” (5). Esposito makes an explicit reference to “grace” in his exploration of the munus when he states that the munificus derived from munus is “he who shows the proper ‘grace’ […] giving something that one can not keep for oneself and over which, therefore, one is not completely master” (5). Esposito thus makes an explicit link between grace and obligation—we are here far removed from the idea of grace as an expression of sovereign immunity, rather the grace that is excavated here is a grace that is inseparable from obligation. “[W]hat else does the ‘one obliged’ [il riconoscente] accede to,” Esposito asks, “if not that he unequivocally ‘owes’ something of which he was the beneficiary and that he is called to acknowledge in a form that places him ‘at the disposition of’ or more drastically ‘at the mercy of’ someone else?” (5 (emphasis added)). Tierney (2016, 57) here emphasises that for Esposito community is not a property that is held in common but rather resides in that which “members properly owe, rather than own, in common” (57). He thinks that Esposito, similar to Mauss before him, relies on the notion of the “pure gift” “to support the affirmative, biopolitical inclination he derives from the munus” (59). Munus does not involve the expectation of reciprocity. Indeed Esposito argues that “[a]ll of the munus is projected onto the transitive act of giving” (Esposito as quoted in Tierney 2016, 59) and is a ‘“unilateral gift to others’ that is fundamentally expropriating, and involves no return” (59–60). Tierney (2016, 60) reasons that what individuals fundamentally owe to the community is their identities, in both senses of the word “owe”: As source, such as “I owe my sense of humour to my mother” and in the sense of debt that must be repaid. What Tierney and Esposito suggest is that an affirmative conception of biopolitics turns on the notion of belonging in and through a debt, one moreover, that is not or, at the very least, may not be susceptible to re-payment or, to put it in Denise Ferreira da Silva’s terms, it is the unpayable debt that must, nonetheless be paid (Ferreira da Silva (2022)). Now, Ryan McVeigh (2013, 79) has argued that all theorisations of biopolitics have at their centre the question of belonging and has suggested that an “appealing motive for its analysis lies in the nascent potential it has towards a politics of life.” For McVeigh, biopolitics that is centred around the

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notion of belonging “inherently carries with it a life-affirming trait” (79) that has the potential to turn biopolitics away from its thanatopolitical declension. McVeigh reads in Esposito a life-affirming form of belonging that is predicated on the “openness to contact with alterity” (86). As Esposito (2010, 7) writes in Communitas: the common is not characterized by what is proper but by what is improper, or even more drastically, by the other; by a voiding [svuotamento], be it partial or whole, of property into its negative; by removing what is properly one’s own [depropriazione] that invests and decenters the proprietary subject, forcing him to take leave [uscire] of himself, to alter himself. These reflections lead Esposito to think of community in terms of loss and lack: “the breach, the trauma, the lacuna out of which we originate” (8). In The Impossible Machine, Sitze (2013, 216) warns against rough translations of ubuntu that basically reproduces the colonial episteme. He sees this colonial episteme at work in most translations of ubuntu that sees it as the opposite of Western liberal legality, as the regulator or limit of the rights of the individual “in favour of the collective” (215). Sitze proposes that to translate ubuntu “unroughly” (223) would require, in jurisprudence, not that we discover the “pure African meaning of ubuntu” but rather that we “understand ubuntu in its metonymy with and displacement of the juridical forms that precede it in the apartheid state” (223). Sitze argues that ubuntu achieved just such a function in the Interim Constitution when it declared the “political necessity” of setting the rule of law aside through amnesty, as derived no longer from the “exigency of ‘saving’ certain populations” but rather from “the exigency of ‘healing’ all South Africans” (238). Recall here that the Interim Constitution posited the “need for ubuntu” alongside the “need for reparation.” Is it then possible to understand ubuntu through the need for reparation? To view the one through the other? Ubuntu as reparation and reparation as ubuntu? Can such a reading negate the potential of ubuntu to become just another expression of salus? Can ubuntu, then, be a way through which we can consort more productively with the spectre of reparation? I think that Esposito’s reflections on the munus places ubuntu and reparation within critical proximity of one another and within an atmosphere of an affirmative biopolitics of the obligatory gift. Instead of the biopolitical salus populi suprema lex esto which, as we have seen rests in colonial-apartheid jurisprudence on a thoroughly thanatopolitical declension, ubuntu gives us a way of thinking reparation as an affirmative biopolitical intervention of, not over, life. Ubuntu unearths, as Sitze (2013, 238) suggests, the way in which the thanatopolitical declension of salus could be non-identical with itself. Sitze calls this the law of “the self-negation of the salus publica” (238) and suggests that ubuntu is a name for this law. He illustrates his argument with reference to Pumla Gobodo-Madikizela’s A Human Being Died That Night (240) in which the author proposes that Eugene de Kock ought to be pardoned. Sitze suggests that Gobodo-Madikizela’s reasoning goes against the logic of salus, because it suggests that “a ‘wolf’” be let back into “the flock”’ (241): “[h]er argument for a pardon for de Kock amounts to the proposal that postapartheid society live with, rather than repress, the evil and illegal actor and the evil and

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illegal acts that were symptomatic of apartheid as such.” My proposition is that we see in Gobodo-Madikizela’s “ubuntu thinking” (240) the dynamics of Esposito’s affirmative biopolitics in which the negative is introduced into the positive, the One exposed to the Other in such a way that the totality of One and Other is rendered more healthy, safer. But how does this work exactly in relation to reparation? Here it is necessary to return to Mahmood Mamdani’s criticism of the TRC. Mamdani (2002) famously argued that the TRC’s narrow interpretation of its mandate focused the attention on individualised perpetrators that were then defined in relation to individualised victims. In this it overtly placed political reconciliation at its centre at the cost of social reconciliation. This not only occluded the fact that the vast majority of black South Africans were victims but also obfuscated the question of the relationship between victims and beneficiaries. As Mamdani (1997, 22) writes: As a form of power, apartheid undergirded a particular system of privilege. A focus on power that obscures the relationship to privilege leads to accenting the relationship between perpetrator and victim as the minority. But a focus that links power to privilege links perpetrator to beneficiary, racialised power to racialised privilege, and puts at centre-stage the relationship between beneficiary and victim as the majority. To recognise the difference is, I think, key to thinking through how to make reconciliation durable. Mamdani (2016, 187) continues to argue that the TRC’s focus “kept out of sight the beneficiaries of mass violations of rights – such as pass laws and forced expulsions.” It thus allowed the vast majority of white South Africans “to go away thinking that they had little to do with these atrocities” (187). Mamdani thus locates the TRC’s most enduring failure in the fact that it failed to educate white South Africans that, no matter their political views, they are all “without exception” beneficiaries of colonial-apartheid. Mamdani did not take the opportunity in his works on the beneficiary to educate beneficiaries on the question of what a beneficiary actually is. True, perhaps the notion of “beneficiary” required no further explanation against the backdrop of the link between power and privilege that Mamdani insists on. But if we go back to the etymology of “beneficiary” we will see that the idea of reparation lies in fact inhumed within the meaning of the word. For the word “beneficiary” is a compound of the Latin bene (“good”) and facere (to “do,” to “make”) (Online Etymology n.d.). If we come via the German term for reparation, Wiedergutmachung, we can see the close to exact correspondence between reparation and bene and facere, “good” and “making.” So, beneath the meaning of “beneficiary” as one who receives profits or advantages lies the fact that the beneficiary is literally a “good maker.” There is thus a certain indistinction at work between beneficiary and reparation. Reparation lies concealed within the very heart of “beneficiary.” We could say that this counterintuitive origin of the meaning of “beneficiary” raises the genealogical spectre of reparation from within it in advance.

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Now, Tierney, as I have stated, says that what individuals owe as obligatory gift to the community is their “identity” and so I want to ask whether the beneficiary of colonial-apartheid does not owe to the post-apartheid community, as a matter of ubuntu, this identity of itself as a “good maker.” Is this not the identity that has to be given, that cannot not be given, as a condition of the beneficiary’s inclusion in the post-apartheid community? Is this not what Mamdani means when he thinks that reconciliation can be made “durable” by recognising the relationship between victim and beneficiary? From the point of view that the state’s taking upon itself of the obligation to make reparation has clearly failed or is failing, is it not time once again to insist that if white South Africa truly wants to be a part of the postapartheid community of ubuntu, it must give this identity of itself as a good maker? This is not to release or absolve the state of its obligations to make reparation—it is, in fact, to make the case for a more redistributive demand on the state such as the TRC’s suggested wealth tax that was rejected. South Africa remains one of the most unequal countries in the world and surely it is the duty of the state to intervene in such inequality especially when it has a Constitution premised upon “the achievement of equality” even if under global neoliberal conditions. But the insistence that white South Africa must give the obligatory gift is also to suggest that large scale measures outside of the state will have to be taken for the sake of the survival and healing of the body politic. In a very specific sense, white South Africa must be brought to the understanding that it has no choice but to give the obligatory gift. To be sure, what has to be given up through this giving is precisely the safety of what Esposito calls the “proper,” it is precisely the “proper” of “property” that has to be given (up). It is precisely the thanatopolitical declension of salus that must be negated through such a gift/giving. Let me repeat Esposito’s emphatic question: [W]hat else does the “one obliged” [il riconoscente] accede to if not that he unequivocally “owes” something of which he was the beneficiary and that he is called to acknowledge in a form that places him “at the disposition of” or more drastically “at the mercy of” someone else? If the debt in relation to colonial-apartheid is unpayable as surely it is, then it is better to situate that debt outside the notion of economic exchange (which debt implies) altogether, so that it is understood that there can be no exchange, no counterpart to the payment of the debt, no exchange possible for the giving (up) of the gift. Under such conditions, the debt that is payable comes closer to the idea of an obligatory gift, the gift that cannot not be given. The idea of the obligatory gift then breaks the idea that the victims of colonial-apartheid should give anything in return for the payment of the debt to them—the obligatory gift can ask for nothing in return because it is situated outside the idea of a reciprocity altogether. I accept that there are many who would still baulk at the very idea that a “gift” can be bestowed by those who are as indebted as the beneficiaries of apartheid, but I hope that the idea of an owed gift, a gift as an obligation without exchange, goes some way in removing this idea of gift giving from the expression of sovereign immunity that we find so prevalent in the notion of the ex gratia payment under

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apartheid. As Esposito makes clear, the obligation to give, the munus, requires a “grace” of an altogether different order. It is my conviction that Esposito’s notion of the obligatory gift deconstructs the binary opposition between gift and debt with the advantage that it breaks us out of the endless circle of economic exchange upon which the vicissitudes of neoliberal order is premised. Conclusion In this chapter we have seen how the spectre of reparation arises in the colonialapartheid context within a distinctly biopolitical atmosphere, one in which biopolitics is rendered in its thanatopolitical declension. This means that the spectre of reparation is tied to the unleashing of the “death function” of sovereignty and biopolitics under colonial-apartheid rule. With respect to indemnity, we have seen how biopolitics functioned through sovereignty via the justification of indemnity as grounded in the biopolitical imperative of the salus populi suprema lex esto of the white minority population. In respect of the Tumult Commission we have seen how sovereignty functions through biopolitics for the aim of these commissions was always already to shore up sovereignty through its racist biopolitical enquiries and findings. In the course of the discussion, we see a rudimentary iteration of the spectre of reparation in the compensation committee and its ex gratia payments. However, it was made clear that this committee and its payments worked in no way to displace the unleashing of the death function—in fact, it was an expression, as Sitze writes, of the highest form of sovereign immunity: The right of grace. We thus end up with a veritable domination of biopolitics in its thanatopolitical declension as the primary character of the rule over populations during colonialapartheid. The question then becomes one of how one unties the spectre of reparation from the thanatopolitical declension of biopolitics. I suggested that the question of an affirmative biopolitics of life grounded in the notion of the obligatory gift might go a long way in terms of negating the death function in which the spectre of reparation first arises. From the point of view that the majority of the population are victims of the beneficiaries of apartheid, ubuntu requires that these white beneficiaries give up the indistinction between privilege and reparation that lies at the heart of “beneficiary” and that should move it and give their identity as “good makers” for the sake of the welfare of the post-apartheid population as a whole. What the white population, then, needs to give up is the very salus that was their prerogative for so long. In Volume 5 of its Report, the TRC laments the “absence of white South Africans” at its proceedings as deeply disappointing. It then writes that “[i]f true reconciliation is to take place, white communities will have to take responsibility and acknowledge their role as beneficiaries of apartheid” (TRC Report 1998, 168). My argument in this chapter has been that the beneficiaries of colonial-apartheid would have to do much more than merely “acknowledge” their role as beneficiaries, unless “acknowledge” takes the Espositoean meaning of “acknowledge in a form that places him ‘at the disposition of’ or more drastically ‘at the mercy of’ someone else.” Taking “responsibility” would mean that beneficiaries would have to give up the very proper of property in a self-negating

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act that functions as the condition of admission to the post-apartheid community. What the obligatory gift requires is, then, ultimately a kind of self-wounding, one which can never match the wound(s) left by the thanatopolitical declension of the beneficiary’s salus, but a self-wounding that goes some way in making good for the wound(s) that have been left and as such puts paid to Bataille’s emphatic declaration that “human beings are only united with each other through rents or wounds” (Bataille 1985, 251). Perhaps such a wounding and living together in and with wounds becomes the only way in which we can at last begin to save the zoē whose exclusion lies at the heart of our modern juridical and moral order. Just as Gobodo-Madikizela suggests that post-apartheid South Africa has to live with, rather than repress, its evil, so too must we live together, tragic as it may be, in a wounding that may come to function as a productive way of consorting with the spectre of reparation in South Africa. Notes 1. On the twentieth century’s (violent) obsession with the (violent) Real, see Žižek 2002, 5–6. 2. Tshepo Madlingozi (2007, 111) has in this regard referred to the split between good victims and bad victims that has arisen in the aftermath of the TRC. “Bad” victims are “victims who continue to claim and struggle for reparations and social justice,” and “good” victims are “those who argue that the past must be put behind and that the struggle was not about money.” 3. As Foucault (2013, 61) argued, the primary end of government as conceived in the biopolitical paradigm, lies in the safeguarding/security of the population/people. The latter becomes clear when Foucault summarizes the various interventions staged by biopolitics at the level of the population. As he puts it: the overarching purpose of the biopolitical paradigm, obsessed as it is with the accuracy of forecasts and statistics, is the installation of “security mechanisms” that have to be “installed around the random element inherent in a population of living beings so as to optimize a state of life” (67). Moreover, if biopolitics is at heart a technology of power employed to safeguard the people, then it is a matter of “using overall mechanisms and acting in such a way as to achieve overall states of equilibration or regularity.” As such, biopolitics is a “power of regularization” (67). The justification for indemnity, then, had, in a sense, always resided in precisely this biopolitical compulsion to regularize the irregular.

Bibliography Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen. Stanford: Stanford University Press.Azapo and Others v the President of the Republic of South Africa and Others. 1996(8). BCLR 1015 (CC). Bataille, Georges. 1985. Visions of Excess: Selected Writings, 1927–1939. Edited by Allan Stoekl. Minneapolis: University of Minnesota Press. Constitution of the Republic of South Africa. 1996. Derrida, Jacques. 1990. “Force de Loi: Le ‘Fondement Mystique de l’Autorité.’” Cardozo Law Review 11(5): 920–1046. Esposito, Roberto. 2010. Communitas: The Origin and Destiny of Community. Translated by Timothy Campbell. Stanford: Stanford University Press. Foucault, Michel. 2000. “Governmentality.” In Essential Works of Foucault 1954–1984 Volume 3: Power, edited by Paul Rabinow and James D. Faubion. New York: The New Press.

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Foucault, Michel. 2013. “Society Must Be Defended.” In Biopolitics: A Reader, edited by Timothy Campbell and Adam Sitze, 61–81. Durham: Duke University Press. Hudson, Peter. 2013. “The State and the Colonial Unconscious.” Social Dynamics 39(2): 263–277. Humphrey, Michael. 2005. “Reconciliation and the Therapeutic State.” Journal of Intercultural Studies 26(3): 203–220. Madlingozi, Tshepo. 2007. “Good Victim, Bad Victim: Apartheid’s Beneficiaries, Victims and the Struggle for Social Justice.” In Law, Memory and the Legacy of Apartheid: Ten Years after Azapo v President of South Africa, edited by Wessel le Roux and Karin van Marle. Pretoria: Pretoria University Law Press. Mamdani, Mahmood. 1997. “From Justice to Reconciliation: Making Sense of the African Experience.” In Crises and Reconstruction: African Perspectives: Two Lectures, edited by Colin Leys and Mahmood Mamdani. Uppsala: Nordiska Afrikainstitutet. Mamdani, Mahmood. 2002. “Amnesty or Impunity? A Preliminary Critique of the Truth and Reconciliation Commission of South Africa (TRC).” Diacritics 32(3–4): 33–59. Mamdani, Mahmood. 2016. “Beyond Nuremberg: The Historical Significance of the Postapartheid Transition in South Africa.” MISR Review 1: 156–197. Mbembe, Achille “Necropolitics.” In Biopolitics: A Reader, edited by Timothy Campbell and Adam Sitze, 161–192. Durham: Duke University Press. McVeigh, Ryan. 2013. “The Question of Belonging: Towards and Affirmative Biopolitics.” Thesis Eleven 119(1): 78–90. Online Etymology Dictionary. n.d. https://www.etymonline.com Promotion of National Unity and Reconciliation Act 34 of 1995. Sitze, Adam. 2013. Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission. Ann Arbor: University of Michigan Press. Terreblanche, Sampie. 2002. A History of Inequality in South Africa: 1652–2002. Pietermaritzburg: University of Natal Press. Tierney, Thomas F. 2016. “Roberto Esposito’s ‘Affirmative Biopolitics’ and the Gift.” Theory, Culture & Society 33(2): 53–76. Truth and Reconciliation Commission of South Africa. 1998. Truth and Reconciliation Commission of South Africa Report Vols. 1–7. Pretoria: Government Printer. Van der Walt, Johan W.G. 2005. Law and Sacrifice: Towards a Post-Apartheid Theory of Law. London: Birkbeck Law Press. Žižek, Slavoj. 2002. Welcome to the Desert of the Real: Five Essays on September 11 and Related Dates. London: Verso.

3

On Apology and the Spectre of a Haunting Shame in the TRC’s Process

Introduction At bottom, this chapter is concerned with the relationship between apology and reparation. The common (liberal) assumption as regards this relation is that the apology has a reparative dimension—saying sorry goes some way in making good for the wrong that one has committed. Indeed, Mia Swart (2008, 51) has, in the context of South African transitional justice, suggested that apology can be a powerful gesture of what she calls “symbolic reparation.” In an early article about the South African Truth and Reconciliation Commission (TRC), Emily McCarthy similarly argued that the Amnesty Committee of the TRC should insist that “the applicant apologize as a form of ‘reparation’” (McCarthy 1997, 245). She went on to argue that amnesty applicants have a moral obligation to apologize to the people they harmed. An expression of genuine remorse not only may help to ease the pain of victims and their relatives but also goes a long way towards fostering feelings of reconciliation among South Africans. (McCarthy 1997, 247) Famously, the TRC’s amnesty process did not require apology as a criterion for amnesty (Moon 2004:191), and this chapter is, to a significant extent, concerned with the hidden ideological “background” context that would explain such a silence in the amnesty criteria. But as a point of departure, I want to ask a different question, one that proceeds from the acceptance that despite the structured silence in relation to apology in the amnesty criteria, many an apology was indeed forthcoming from amnesty applicants and even from those who did not apply for amnesty, such as the incomplete apology of FW de Klerk (McCarthy 1997, 245–246). The question is this: What if the discursive context of the TRC was so saturated with the ideology of pardon, forgiveness and mercy that this discursive context in itself undermined the reparative dimension of apologies? What if the apology’s performative force was so undermined by the discursive context in which it was delivered that, instead of “symbolic reparation”, we end up with a merely formal symbolic gesture, an instance of what Jacques Lacan would have called “empty speech”, that not only has no reparative effect but that risks (re)activating for victims the DOI: 10.4324/9781003290278-3

64 Apology and the Spectre of Shame in the TRC Process traumatic effect of the wrong? (Govier and Verwoerd 2002, 79) Clearly, this would be a paradoxical upshot of a discursive context that was meant to be therapeutic. I will argue that this is precisely the kind of risk to which the TRC exposed postapartheid transitional justice and that this might, moreover, have everything to do with the reasons behind prominent refusals or failures to apologise or failures to apologise fully, such as that of De Klerk. It might also explain the structured silence in relation to apology in the TRC’s amnesty criteria. In short, my sense is that a discursive context can be so intensely ideologically loaded that instead of operating as the background context against which the utterance—in this case, the apology— is delivered, it rushes to the foreground and usurps the specificity of the utterance so that the communicative level that dominates and ultimately prevails—the level at which it matters whether the apology is accepted or not—becomes definitively the level of the big Other, the level of the Law, although, as we shall see, this is an altogether different kind of “law” than the ordinary law of crime and punishment. In relation to the concerns of this chapter, my argument will be that where the discursive context allows for the apology to anticipate its acceptance in advance— where the discursive context into which the apology is delivered, overwhelmingly communicates the message that the apology is always already both acceptable and accepted, and, as such, not needed, apology’s reparative dimension is seriously undermined. The reason why apology’s reparative dimension is so seriously undermined under such circumstances is because, in a discursive context where it can anticipate its “acceptance” (or the fact that it is not needed) in advance, the apology’s relationship to the (critically ethical) dimension of shame is seriously called into question. I will, thus, suggest that the spectre of a haunting shame is the form that the spectre of reparation assumes in the TRC’s amnesty process. Shame acquires a spectral dimension in this process, because it is so severely occluded by the TRC’s discursive context as big Other of “forgiveness.” This means, I will suggest, that shame as an ethical orientation towards the Other was never really properly dealt with in the amnesty process and thus remains part of the unfinished business of the TRC. Thus, in this chapter it is the TRC as big Other—as the network of socio-symbolic authority that determines a discursive context for a subject (Evans 1996, 136)—which will detain us. This focus necessarily requires that we treat the TRC as an instance of Law, or the Law, in a general sense. But what kind of instance of the Law was the TRC, if we understand that it was not an instance of the Law in the ordinary sense of crime and its punishment? What sort of instance of the Law can undermine the reparative dimension of apology, located in shame, in the way suggested above? What sort of instance of the Law constrains, instead of promotes, the experience of shame for wrongs done? In order to understand what sort of instance of the Law the TRC was, I suggest that we take a short detour to the opera. La Clemenza di Tito and the TRC WA Mozart’s opera, La Clemenza di Tito, concerns a conspiracy against the Roman emperor, Tito, instigated by Vitellia, the daughter of the deposed emperor, and her lover, Sesto. The intricacies of the conspiracy against Tito need not detain

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us here. What is important is that the conspiracy ultimately fails, forcing the conspirators to confess their guilt and throw themselves in apology at the feet of the Emperor, who pardons them and unequivocally so. In his discussion of Clemenza, Slavoj Žižek (2009, 14–15) quotes a section from the opera’s libretto that neatly summarises both Tito’s predicament and his resolve. Just before the grand final pardon, Tito becomes exasperated by all the pardons he is faced with and exclaims as follows: The very moment that I absolve one criminal, I discover another. / … / I believe the stars conspire to oblige me, in spite of myself, to become cruel. No: they shall not have this satisfaction. My virtue has already pledged itself to continue the contest. Let us see, which is more constant, the treachery of others or my mercy. / … / Let it be known to Rome that I am the same and that I know all, absolve everyone, and forget everything. What makes this section of Tito’s speech in Clemenza relevant for the purposes of this contribution is the way in which Tito’s words above testify to a discursive scene saturated by forgiveness. Tito forgives/pardons/absolves “everyone,” in advance, and he forgets “everything.” This aspect of the opera has prompted Žižek (2009, 15) to remark that [t]he ridiculous proliferation of mercy in Clemenza means that power no longer functions in a normal way, so that it has to be sustained by mercy all the time: if a Master has to show mercy, it means that the law failed, that the legal state machinery is not able to run on its own and needs an incessant intervention from the outside. It hardly takes a leap of the imagination to recognise that the TRC qualifies as exactly such “an incessant intervention from the outside” when the “legal state machinery” was/became no longer able to “run on its own.” Those familiar with the trials and tribulations of transitional justice in South Africa will recall how the 1993 Interim Constitution’s famous epilogue—and the provision therein that “amnesty shall be granted”—was inserted into South Africa’s first democratic Constitution at the eleventh hour (Shore 2009, 112; Rowen 2017, 30), precisely at the moment when the “legal state machinery” was no longer able to “run on its own.” Acknowledging this is not to buy again into the narrative that the apartheid security forces “blackmailed” the African National Congress (ANC) into amnesty by threatening to disrupt the first democratic election (Du Toit 2018). Rather, it is to say, as Fanie du Toit has recently pointed out in his book on political transitions, that both the outgoing apartheid government and the incoming ANC-led coalition knew that they “needed amnesty.” Without amnesty the new legal state machinery, based as it was on a government of national unity, which included members of the old state alongside members of the armed struggle movements, could not have come into its own. Thus, while the TRC itself was a creature of statute (the Promotion of National Unity and Reconciliation Act, PNURA) of South Africa’s first democratically

66 Apology and the Spectre of Shame in the TRC Process elected parliament, its origin lies in an intervention—the epilogue to the Interim Constitution—from outside this state legal machinery,1 strictly speaking, and it was an intervention precisely aimed at ensuring that the ordinary Law would, in the future, function in a normal way, indeed that the rule of law would finally take hold in South Africa. This view is certainly in line with the view that the TRC was created to consolidate the sovereignty of the new liberal democratic state. As Humphrey (2005, 204) pointedly writes: while national reconciliation addresses conflict between antagonistic groups, often defined along ethnic or religious cleavages, it does so with the larger purpose of re-establishing the authority of the state, more particularly, reinstating the liberal state based on the social contract between civil society and the state. Truth politics aimed at promoting justice and reconciliation have been at the heart of the recovery of the legitimacy of the state during political transitions to democracy. This sovereignty could, under the peculiar circumstances that prevailed, only be secured at the cost of granting the exception in advance (exactly in the manner of Tito’s mercy), in the form of an effectively a priori legal commitment that “amnesty shall be granted” (Constitution 1993, Epilogue (emphasis added), so that the imperative “shall be granted” becomes legally enforceable). In short, the birth of the TRC in the amnesty provision of the Interim Constitution’s Epilogue was by itself an indication that power in the new South Africa could, at that point, no longer function in a normal way, so that it had to be “sustained by mercy,” by that form of the sovereign’s relaxation of the rigour of the law that the Interim Constitution called “amnesty” and styled imperatively. Now that we have established via Mozart’s Clemenza that there is enough to suggest that the TRC qualified as an intervention from outside the ordinary Law for the sake of the ordinary Law, I consider in the next section whether it could be said that, despite the fact that the amnesty dispensation was conditional, the TRC, like Tito’s Rome, was nonetheless characterised by a “ridiculous proliferation of mercy.” The climate of forgiveness in the TRC In a rare instance of strident criticism of the discourse of the TRC, Thomas Brudholm has argued that it stigmatised what he calls “negative emotions” as opposed to forgiveness. Brudholm (2006, 9) notes Martha Minow’s observation that there is “a striking prevalence of therapeutic language in contemporary discussions of mass atrocities” of which only one of the many institutional effects is that, according to Brudholm (2006, 9–10), [i]t allows the party to whom the angry protest is directed to reduce the resentment of “objective” injury and injustice to trauma or a subjective disturbance and is seen as something that the victim/patient should “get over”

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for his or her own sake and something in need of counseling and treatment rather than a moral-political response. Brudholm (2006, 8 (emphasis added)) considers how “[p]opular as well as scholarly discourses about the question of how individuals and societies can ‘move on’ in the wake of genocide are permeated with references to ‘negative’ emotions and attitudes like anger, hatred, and resentment.” He argues that “most of this discourse proceeds without much reflection as to the nature and value of these ‘negative’ emotions and attitudes at stake and, indeed, with a distinct discreditation of these emotions” (Brudholm 2006, 8 (emphasis added)). Against this backdrop, Brudholm considers the “praise of forgiveness and reconciliation” that surrounded the TRC. He argues that the ideal articulated during the proceedings and in related writings was that of victims overcoming anger and desires for revenge or retribution, not the pacification of such emotions and desires by way of justice in the form of prosecution and punishment. (Brudholm 2006, 9) Brudholm believes that ‘“negative’ reactive attitudes” in a discourse permeated with reconciliation and forgiveness are often not given their due as authentic and valid human emotions. Instead, the discourse valorises the emotions that it regards as resonant with forgiveness and reconciliation. As such, it leaves little room for “considerations of the possible value and legitimacy of victims’ ‘negative’ emotions. They are typically only considered in their function as a negative force to be overcome, labeled as hindrances to reconciliation, morally inferior, irrational, immoral, or pathological” (Brudholm 2006, 8). For Brudholm “when forgiveness, healing, and reconciliation are promoted as overriding values,” the advocates of overcoming the “negative” emotions often assume that the overcoming “leaves nothing to regret or consider” (Brudholm 2006, 10). It is in this context that Brudholm (2006, 10) casts a critical eye on the writings of Archbishop Desmond Tutu, Chairperson of the TRC. He argues that in Tutu’s writing “resentment and desires for retribution appear only as destructive and dehumanizing forces that should be ‘avoided like the plague’ because they are corrosive of ‘ubuntu’ and ‘social harmony”’ (Brudholm 2006, 10). Brudholm (2006, 10) berates Tutu for a lack of concern, at least in his “writings,” for “the possible moral value of anger or the possible legitimacy of some victims’ resistance to the call for forgiveness.” Tutu describes the refusal to forgive in the TRC’s hearings as “exceptional” and he “does not dwell on the cases of dissent, but hastily returns to the appraisal of the forgiving and more exhilarating kind of victim response” (Brudholm 2006, 10). Brudholm (2006, 10) continues: such lack of attention to the possible legitimacy of anger or the retributive emotions more generally, indeed the vilification of such emotions as

68 Apology and the Spectre of Shame in the TRC Process destructive of our shared humanity and harmony, is troubling. It is troubling not only because of the way in which it licenses disregard of the possibly valid reasons of those who did not want to forgive, and not only because of the troubles arising from an elevation of social harmony to the status of supreme good. The disqualification of anger and resentment also insinuates and promulgates an uncritical conception of forgiving as always noble and praiseworthy. Brudholm (2006, 10) then considers the TRC itself and argues that during its hearings Tutu and other commissioners repeatedly lauded those victims and relatives who were willing to forgive and reconcile. They were held forth as models of the kind of personal magnanimity and nobility needed to secure the transition to a new and better South Africa. This impression of the TRC as an institution that practised a certain injunction to forgive is not limited to Brudholm’s criticisms. There is a considerable archive that documents the impression of the TRC as an institution that exerted pressure on victims to forgive. In a chapter on apology, Verwoerd (1999, 305) quotes the following statement from one of the victims who appeared before the TRC: What really makes me angry about the TRC and Tutu is that they are putting pressure on us to forgive. For most black South Africans it is about us having to forgive … I don’t know if I will ever be ready to forgive. Similarly, in an extensive survey concluding that a significant portion of victims and survivors did experience pressure from the TRC to forgive, the author quotes in conclusion one deponent as saying that “the Government is telling us, saying that we must forgive the perpetrators. It is difficult to forgive someone who was an enemy” (Chapman 2008, 80). As for the uncritical introduction of forgiveness in the moral discourse of the TRC, Jacques Derrida, in 2001, criticised Archbishop Tutu for “christianising” “[w]ith as much goodwill as confusion” “the language of an institution uniquely destined to treat ‘politically’ motivated crimes” (Derrida 2001, 42). Similarly, Claire Moon (2004, 186) echoes Derrida’s point when she notes that the TRC’s formulation of restorative justice “made intrinsic to its political project of national unity a Christian interpretation of reconciliation.” As Moon (2004, 186) writes, this “theological rendering of reconciliation” incorporated forgiveness at its core, and this became the defining feature of the TRC’s contribution to both the articulation and the institutionalisation of the public discourse about the nation’s “moral and ethical reordering.” When we move the focus to the TRC’s own work product, its Report, the emphasis on forgiveness as an exception to the operation of the ordinary law is overwhelmingly palpable. First, one should note that the Report describes the

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TRC from the outset as self-consciously an institution of restorative justice (TRC Report 1998(1), 128). In the chapter on concepts and principles in the TRC Report, the Commission confirms that it operates according to the principle of restorative justice and ubuntu (TRC Report 1998(1), 125). In this sense, then, the TRC was concerned to create an image of itself not merely as an institution “uniquely destined to treat ‘politically’ motivated crimes” but indeed as an institution that would be permeated by restorative justice and therapeutic jurisprudence which has been described as “an alternative approach to law” (Scheff 1998, 97). It was particularly in relation to victims that the Commission was at pains to emphasise its function as an institution of restorative justice and to distance itself from the ordinary law: “Through the public unburdening of their grief—which would have been impossible within the context of an adversarial search for objective and corroborative evidence—those who were violated received public recognition that they had been wronged” (TRC Report 1998(1), 128 (emphasis added)). There are several places in the Report where the Commission links restorative justice to forgiveness by emphasising that “the key concepts of confession, forgiveness and reconciliation are central to the message of this report” (TRC Report 1998(1), 16). Similarly, in Volume 5 of the Report, the Commission quotes with approval Archbishop Tutu’s statement after a visit to Rwanda that “confession, forgiveness and reconciliation in the lives of nations are not just airy-fairy religious and spiritual things, nebulous and unrealistic. They are the stuff of practical politics” (TRC Report 1998(5), 351). And in a telling statement on the relationship between forgiveness and reconciliation in Volume 1 of the Report, it becomes clear exactly how primary the Commission considered forgiveness to be when it stated that “[i]t is also crucial not to fall into the error of equating forgiveness with reconciliation. The road to reconciliation requires more than forgiveness” (TRC Report 1998(1), 115 (emphasis added)). In this statement the TRC definitively revealed its ideological hand: We see the Commission taking forgiveness as the starting point, as that which must happen before reconciliation can be set on its course. Brudholm’s criticism coupled with the extracts from the TRC’s Report tell us that at the level of ideology as a moral discourse, the TRC was at pains to construct itself as the big Other of forgiveness, indeed as the protector and agency of the Law of Forgiveness. In a very literal, concrete sense, the TRC was principally concerned both with establishing the Authority of Forgiveness and with ensuring that it would be understood as the Authority on Forgiveness. It would, accordingly, not be overstretching the interpretation to say that many victims and survivors practically experienced the TRC as an institution in which forgiveness was the law to be obeyed and that such an experience was indeed (part of) the ideological intention of the TRC. But was it simply at the level of ideological moral discourse that the TRC adopted and practised forgiveness as its law? Did it not in its application of conditional amnesty, at least, operate according to a set of principles that had less to do with forgiveness than with juridical mechanisms geared at obtaining as complete a picture as possible of the past (through the requirement of full disclosure, for instance)?

70 Apology and the Spectre of Shame in the TRC Process In order to have a comprehensive sense of the image that the TRC established of itself as an instance of the big Other figured as the Law of Forgiveness, we should move beyond the level of moral ideology and attend to the more specific juridical level at which the TRC operated in its Amnesty Committee. Only if it is the case that the TRC also in this aspect of its operations adopted forgiveness as its law—in other words, only if it can be shown that the TRC undermined its own juridical mechanisms in favour of an ideology of forgiveness—can one accept the proposition that it was permeated by a “ridiculous proliferation of mercy.” In this regard, Adam Sitze’s (2013) criticisms of the Amnesty Committee’s work are highly instructive. Sitze (2013, 4, 23) points out that much has been made of the fact that the TRC’s amnesty was not a blanket amnesty—applications for amnesty had to meet a series of conditions before amnesty would be granted. Of these, the political motivation requirement and the full disclosure requirement became the most prominent. However, Sitze’s argument is that much of the substantive conditionality of the amnesty process fell away as a result of the way in which the Amnesty Committee dealt with the proportionality and full disclosure requirements of the amnesty applications. As a point of departure in his discussion of these aspects of the Amnesty Committee’s practice, Sitze poses only one question as the test for the success or failure of the amnesty process, namely whether it managed to put “out of commission” or render “defeasible” the very jurisprudence in which it found its precedents (Sitze 2013, 100). That precedential jurisprudence is the colonial-apartheid jurisprudence of indemnity, according to which the sovereign could, as a matter of convention, indemnify its agents for crimes that they committed in the genuine belief that they were protecting or promoting the safety of the population. As such, indemnity jurisprudence found its justification in the principle of political sovereignty: salus populi suprema lex esto (Sitze 2013, 66, 70), as discussed in Chapter 2. With respect to the TRC’s amnesty as the heir of colonial indemnity jurisprudence, Sitze’s argument makes a compelling case that the way in which the TRC handled conditional amnesty did not displace colonial indemnity jurisprudence. Rather, it replaced it in the manner of a repetition under a different name. That name was “amnesty.” The significance of the argument that the TRC’s amnesty practice did not displace colonial indemnity jurisprudence should not be underestimated in terms of what this means for the question under consideration. For if the TRC’s amnesty “jurisprudence” did not displace colonial indemnity jurisprudence, it means that this jurisprudence operated in close proximity to the sovereign “right of grace” (Derrida 2001, 45)—in other words, a sovereign right of pardon—from which the indemnity convention in colonial jurisprudence was derived in the first place. Sitze recognises that from the outset, the “TRC Bill was a simple extension of what, in 1977, parliamentarians from all parties called the ‘principle of indemnity’” (Sitze 2013, 98). As Sitze writes: “It was a classical Diceyan attempt to provide retroactive protection from civil and criminal prosecutions to those who violated the laws passed by the apartheid state’s own sovereign parliament” (Sitze 2013,

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98–99). Thus the TRC “re-used the very power whose abuse it criticized in the apartheid state” (Sitze 2013, 99 (emphasis added)). But it is also the very use of these tools from within the decommissioned Master’s house that provided for the TRC’s “unprecedented audacity and even genius” (Sitze 2013, 99). In short, as pointed out in Chapter 2, the genius of the TRC lies in the way in which it used the techniques and powers proper to martial law as the “juridical basis” upon which to build an exposure and critique of the inhuman acts that were committed under its aegis. From this point of view, the norm that would determine the TRC’s success or failure was whether its deployment of indemnity one last time would render indemnity defeasible. On the other hand, in this repurposing of the tools from the decommissioned Master’s house lay also the TRC’s greatest risk, namely that it would employ “with little modification the same core mechanisms that defined indemnity jurisprudence under apartheid only now under a new name” (Sitze 2013, 100). The critical analytical question then becomes not whether the TRC reiterated indemnity jurisprudence but what “the precise character” (Sitze 2013, 100) of such a reiteration was. This leads Sitze to an extremely thoughtful (and forceful) analysis of the work of the Amnesty Committee. Sitze begins this analysis by noting the mandate of the Amnesty Committee according to the PNURA: “the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of the conflicts of the past” (Sitze 2013, 101). Sitze then argues that the Amnesty Committee’s work revolved around two tests: The “political objective” test and the “full disclosure test” (Sitze 2013, 101–102). An important subset of the “political objective” test was the “proportionality requirement” which required the Committee to ask “whether or not an applicant’s illegal act was a suitable, necessary, and reasonable means to the end of accomplishing his or her stated ‘political objective’” (Sitze 2013, 102). Building on the work of Jeremy Sarkin and Antje Du Bois-Pedain, Sitze shows that the Amnesty Committee “completely dropped” the “evaluative or normative dimension to the ‘proportionality’ requirement”—a normative dimension which was required by the Norgaard principles from which the PNURA “political objective” test is commonly said to have derived (Sitze 2013, 106). Instead, the Amnesty Committee opted for “nonnormative, descriptive distinctions between political objectives and nonpolitical objectives,” and, accordingly, it routinely decided applications for amnesty on the basis of the applicant’s “bona fide belief in the necessity of a given illegal act” (Sitze 2013, 108). In dropping the normative dimension of proportionality (i.e. in not asking itself the question of whether the applicant’s act was objectively necessary), the Amnesty Committee reiterated without difference the indemnity jurisprudence from the apartheid era. How so? Because, as Sitze indicates, the necessity test for indemnity during the apartheid era became precisely a subjective test: Whether the official concerned honestly believed that the act was necessary to preserve or restore the salus publica (Sitze 2013, 107). In point of fact, it was apartheid indemnity’s restriction of itself to this test alone that caused the indemnity convention to

72 Apology and the Spectre of Shame in the TRC Process enter decisively into crisis. The subjective test was indemnity’s “innermost pathology,” the “innermost norm for legalizing illegality” (Sitze 2013, 108). Thus, in restricting itself to the question of the applicant’s bona fide (subjective) belief, the Amnesty Committee allowed indemnity to silently survive in its practice. In this, the Amnesty Committee failed to apply a principle “whose inclusion in the [PNURA] was to have turned that Act into more than just yet another indemnity act” (Sitze 2013, 108). One could have been forgiven for hoping that the “full disclosure” requirement, at least, saved the amnesty dispensation of the PNURA from entering into an Agambenian “real zone of indistinction” (Agamben 1998, 10) with indemnity jurisprudence. But Sitze (2013, 109) writes that this was not to be. Noting that, in the face of the Amnesty Committee’s abandonment of the “normative component of its ‘political objective’ test,” the “‘full disclosure’ test became even more important” (Sitze 2013, 109), Sitze argues that the “inner norms and criteria” of this test were “no more clear or distinct” than the political objective test. There was no guidance in the PNURA nor, for that matter, in any other relevant legislation, as to what “full disclosure” entailed. As a result, the Amnesty Committee “conferred coherence on its ‘full disclosure’ test in much the same way that it conferred coherence on its ‘political objective’ test” (Sitze 2013, 110). The “pivotal criterion” in the “full disclosure” test became “honesty”—whether the applicant had given an honest account of what actually happened (Sitze 2013, 110). However, in comparison with the indemnity jurisprudence that immediately preceded it, the Amnesty Committee’s full disclosure test reversed the onus as regards proof of honesty. In indemnity jurisprudence, the onus was on a plaintiff to show that the actions of the state officials were not motivated by an honest, bona fide belief in necessity. In the proceedings of the Amnesty Committee, on the contrary, the onus was on amnesty applicants to show that their actions were both bona fide and necessary (Sitze 2013, 110). Did this make the crucial difference? Sitze’s answer is “no.” First, the indemnity jurisprudence referred to above “was not categorically definitive of indemnity jurisprudence as a whole” (Sitze 2013, 110). In fact, “full disclosure,” where the accused had been presumed guilty unless they could show “some legal justification for their conduct,” was well known in colonial and apartheid South Africa at least since 1900. Second, the individualised approach as such undercut a fundamental aim of the TRC, namely to “narrate, as the common sense of the postapartheid state, the retrospective history according to which apartheid as a whole was a crime against humanity” (Sitze 2013, 200). The individualised approach, as Jacqueline Rose has pointed out, shrinks accountability “as the crimes of apartheid become more and more the acts of individuals, less and less the machinery of the unjust and illegal apartheid state” (Sitze 2013, 201). The interpretation of “full disclosure” that followed from the individualised approach put the Amnesty Committee at odds with “the manifestly shared or common character of the political crimes it was charged with adjudicating” (Sitze 2013, 111). For it meant that amnesty applicants did not have to disclose their complicity in crimes in relation to which they had not applied for amnesty. Writing that the Amnesty Committee “quietly rejected” an expansive version of the full

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disclosure requirement (put forth by George Bizos), which would have disallowed applicants the right to remain silent, Sitze concludes that the Amnesty Committee’s preferred, individualised, honesty-driven approach to full disclosure precluded the Committee from obtaining disclosure in relation to a vast number of acts in which amnesty applicants were complicit (Sitze 2013, 113). And this approach severely constrained the normative force of the “full disclosure” requirement. Finally, to reiterate what was said in the previous chapter as regards the work of the Reparations and Rehabilitation Committee, Sitze writes that the colonial antecedent of this form—the compensation committee—“derived its authority not from the rule of law but from the highest form of exception to the rule of law, the sovereign right of grace” (Sitze 2013, 114). Sitze argues that the Reparations and Rehabilitation Committee defined reparation in terms that were “almost identical” to the language that “authorized the apartheid state to make ex gratia payments” (Sitze 2013, 115). For instance, the description of “reparation” as an “essential counterbalance for amnesty” echoed the apartheid era definition of “compensation” as the “counterpart of indemnity” (Sitze 2013, 115). With reference to the Constitutional Court’s decision in the Azapo case, to the effect that the South African state was justified to limit apartheid era compensation to individualised reparation payments, Sitze writes that “the South African state justified its limited compensation scheme with reference not to the rule of law […] but to the exception to law demanded by a specifically fiscal declension of the salus publica” (Sitze 2013, 118). In the TRC itself, this justification took the form of attempts to “turn compensation into something more meaningful than just ‘symbolic’ payment” (Sitze 2013, 118). However, the Mbeki administration’s repudiation of the TRC’s reparation proposals “ruined the TRC’s ability to differentiate itself” from apartheid era compensation schemes (Sitze 2013, 119). The tragic irony of this reliance on an exception to the rule of law, on a large-scale “forgiveness” of the debt, one might say, was that in this very reliance on forgiveness, the post-apartheid government prevented the victims of apartheid from obtaining adequate reparation for their injuries and losses. The point of this lengthy excursion into and reiteration of Sitze’s argument here is not only to show that the Amnesty Committee grossly neglected the most important substantive conditions for the granting of amnesty. Rather, it is to show that the entire TRC process was steeped in a proliferation of “forgiveness” with devastating consequences for the victims of apartheid. It is to show that the ideological context became so saturated with “forgiveness” that it permeated in the application of the TRC’s innermost quasi-juridical mechanisms. In short, the TRC, by foregoing the proportionality requirement, forgave indemnity jurisprudence its excesses; by foregoing the objective measure of full disclosure, it forgave indemnity jurisprudence its “innermost pathology”; and, finally, the Mbeki administration, by foregoing the TRC’s recommendations for comprehensive reparation, forgave the apartheid era compensation committee its woeful shortcomings. Finally, then, the point of this excursion is to show that the TRC’s ideological context, its status as big Other, established itself as, and operated or

74 Apology and the Spectre of Shame in the TRC Process operationalised, a “ridiculous proliferation of mercy.” No wonder, then, that Sitze asks the following pertinent question about the process of the TRC as a whole: Have the normative excesses of transitional justice led it to embrace and affirm a discourse on forgiveness that, in genealogical terms, is little more than a newly moralistic shell for an old legal kernel – for the legalization of illegality that was at the core of indemnity jurisprudence? In other words, is “forgiveness” simply the name that indemnity jurisprudence gives to its juridical forms under conditions where it is no longer able to recognize either itself or its byproducts, where indeed its basic forms silently survive even as indemnity jurisprudence itself has been legally proscribed?” (Sitze 2013, 121) Apology in a climate of forgiveness Now that we have established that there is ample evidence to suggest that the TRC could be understood as an institution in which forgiveness was the Law, both in its moral-ideological discourse and in its more conventionally juridical discourse, it is time to focus on the effect of this climate of forgiveness on apology at the TRC. The first thing to note in this regard is the conclusion of Weisman (2006, 234), after an extensive survey of the TRC’s amnesty proceedings: Indeed, with few exceptions, the vast majority of applicants for amnesty either refused to apologize or show remorse even when invited to do so or, more frequently, offered statements that were so fraught with equivocation and qualification as to leave the victim and the Commission officials in doubt whether the perpetrator did feel remorse or had apologized for their gross violations of human rights. Secondly, according to Govier and Verwoerd (2002, 67) “[t]he TRC transcripts provide examples of sincere and profoundly important apologies, illustrating the promise of apology as an important step toward rectifying relationships disrupted by wrongdoing. They also provide illustrations of apologies severely flawed by hypocrisy, grandstanding, and denial.” Reading these statements together, one can discern that there was a severe deficit in the TRC as regards apologies which had the effect of “symbolic reparation.” It is thus on this second, darker, dimension of the apology that I would like to focus on in what follows. My sense is that there is a profound connection between the lack of apology and “severely flawed” apologies, on the one hand, and the TRC’s climate of forgiveness, on the other hand, and my argument here is that one of the reasons that could explain the absence of apologies or the presence of severely flawed ones is that the TRC’s climate of forgiveness occluded an essential dimension of apology. That dimension is shame. I want, thus, to return to Brudholm’s reference to the negative emotions in order to argue that one such “negative emotion,” which did not receive enough attention

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in the TRC as a result of the ideological context of “forgiveness,” is shame. I argue that, in the same way as the TRC, perhaps unwittingly, stigmatised the anger of victims, its ideological context of forgiveness also occluded the value of what the literature refers to as “reintegrative shaming” (Braithwaite 1989, 2000). This is the kind of shame that has the potential to reintegrate a perpetrator into the community, and, as such, it operates in close proximity to the symbolic reparation of which an apology is said to be capable. In fact, my wager in this regard is that the reparative value of the apology is seriously undermined without a demonstration of shame (what the literature often refers to as “remorse”) on the part of the perpetrator. Accordingly, the occlusion of this kind of shame by an ideological context saturated by forgiveness makes it easier for perpetrators either to refuse to apologise or to furnish apologies that are in fact not apologies at all: Hypocritical, grandstanding and denialist “apologies” that not only have no reparative effect but that, moreover, risks retraumatising victims. Govier and Verwoerd (2002, 68), relying on the work of Tavuchis, thus argue that the apology “realises its potential largely through the expression of shame and remorse. The sincere expression of sorrow is essential to a genuine apology.” For Govier and Verwoerd, this expression of “sorrow” (their collective term for “shame and remorse”) “indicates acknowledgement” which has three critical dimensions. First, the wrongdoer acknowledges wrongdoing and responsibility for it. Second, the wrongdoer acknowledges the “moral status of the victims” as injured parties. Third, the “offender is acknowledging the legitimacy of feelings of resentment and anger that victims may feel in response to being wronged” (Govier and Verwoerd (2002, 69). This form of apology “presupposes moral agreement”: The wrongdoer joins the victim in condemning the wrongful act. While Govier and Verwoerd do not mention this explicitly, their implication is that at the level of affect, shame accompanies all three of the dimensions of effective acknowledgement. Without demonstrated shame—what Moon (2004, 188) calls the acknowledgement of responsibility “made manifest in a sincere and outward show of remorse”—the apology does not translate into an acknowledgement that has the potential to move a victim to forgiveness and thus to achieve symbolic reparation. Another way of putting this would be to say that the reparative dimension of the apology falls away without demonstrated shame. The irony here is that the very saturation of the discourse by “forgiveness” in fact functions to undermine the potential of forgiveness following an apology, for if the TRC stigmatised anger and resentment (as Brudholm shows) and in fact suppressed it, it would not have been possible for perpetrators and victims to move beyond such anger and resentment through a joint condemnation of the perpetrator’s action. In other words, the TRC’s forgiveness ideology according to which the apology was always already superfluous in fact functioned to undermine the very potential of forgiveness in the amnesty proceedings. If, as Govier and Verwoerd (2002, 73) argue, there is a close connection between moral amends and material amends (a perpetrator who is not willing “to commit himself to concrete measures to repair damage that has been done to the victim” is likely to have his apology dismissed as “insincere or hollow”), then one can also

76 Apology and the Spectre of Shame in the TRC Process appreciate that the presence of demonstrated shame in this context can be understood as the initial embodiment of the willingness also to make “practical amends” (Govier and Verwoerd 2002, 73). It thus appears that shame in the restorative justice process operates like something of a threshold, in that it creates a gap or opens the door for both symbolic and material reparation which in turn can be the basis of a reintegration of the perpetrator into the community of victims and survivors. It is thus here where the literature on the concept of “reintegrative shaming” (Braithwaite 1989) becomes absolutely critical for the purposes of this contribution. In coining his theory of reintegrative shaming, Braithwaite (1989, 12) argued that the theory distinguishes between two forms of shaming: The “shaming that leads to stigmatization—to outcasting, to confirmation of a deviant master status” and the shaming that “is reintegrative, that shames while maintaining bonds of respect or love, that sharply terminates disapproval with forgiveness.” This latter form of shaming is, according to Scheff (1998, 102), critical to the process of “symbolic reparation.” For it to occur, Scheff (1998, 102) writes, “the offender must clearly express genuine shame and remorse over her actions.” If, as Swart suggests, apology is an important form of “symbolic reparation,” then the reparative aspect of apology is intricately connected with reintegrative shaming—in fact I would go as far as to suggest that the reparative dimension of apology fundamentally turns on the notion of reintegrative shaming. Reintegrative shaming, argues Scheff (1998, 104), involves “enough shaming to bring home the seriousness of the offense, but not so much as to humiliate and harden.” This involves “two separate movements of shame” (Scheff 1998, 105). First, it is crucial that shame felt by the victim in connection with the offence must be removed. This is the kind of shame that comes from a sense on the part of the victim that they are somehow at least partly responsible for the fact that the offence happened to them. It is critical that this shame be removed, because for the victim it “leads to the most intense and protracted suffering” (Scheff 1998, 105). Second, the victim’s shame can only be removed if “all the shame connected with the crime is accepted by the offender” (Scheff 1998, 105). Scheff (1998, 105) makes it clear that this second movement of shame can only take place through the offender “acknowledging his or her complete responsibility for the crime.” In this way, Scheff confirms that what Govier and Verwoerd call “acknowledgement” has shame as its affective component or counterpart—a mere acknowledgement, one which is not accompanied by demonstrated shame, will not be reparative. In order to offer an example from the TRC’s amnesty proceedings in which there is an acknowledgement without any shame, consider the exchange between Clive Derby-Lewis, convicted for the murder of Chris Hani, and Advocate George Bizos at Derby-Lewis’s amnesty hearing: Mr Bizos: Have you apologised about wasting a valuable life that may have made a valuable contribution to the people of South Africa, Mr Derby-Lewis? Mr Derby-Lewis: Mr Chairman, with respect, may I ask is this a condition and is this something over which the Committee should then be subjected to evidence? My impression was that an apology was not necessary and not part of the whole function of this Committee.

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Chairperson: Well, Mr Bizos, the Act does not require an applicant to apologise for what he did. He is required to make a full disclosure of what he did. Mr Bizos: I am not unmindful. The question was not for the purposes, but in order to test his sincerity on the supposed apologies to Mrs Hani, Mr Chairman. It is not only, I am not asking as a question of law. I am asking as to whether this person that is before you has ever expressed regret for killing a person who could have made a valuable contribution to the political life of this country or not. Mr Derby-Lewis: Mr Chairman, no. How can I ever apologise for an act of war. War is war. I have not heard the ANC apologising, the perpetrators of these deeds for apologising for killing people in pubs and blowing them up in Wimpy Bars. I have heard no apologies for that, Mr Chairman. Those people are just as important as Mr Hani was. (TRC 1997) From the extract it is evident that Derby-Lewis both acknowledges his “act of war” and that he offered “supposed apologies” to Mrs Hani but that he is nonetheless incapable of publicly apologising for his act of killing Chris Hani. One sees how, instead of the apology for this deed, there is a deflection to the acts of others, an attempt to shame the other, instead of being (a)shamed yourself. One can discern from the transcript alone that Derby-Lewis demonstrates absolutely no shame for the killing of Chris Hani and how this lack of shame is displaced by projecting the shame onto the deeds of others, as if his apology is contingent upon theirs. This, then, is a textbook instance where an attempt (by Bizos) to shame the perpetrator into an apology fails dismally, where a perpetrator refuses to accept any of the shame connected with the crime. There is no chance for symbolic reparation in this instance, because the shame on which it critically depends is terminally absent. In this way, one can see that an acknowledgement of a deed may not be accompanied by the shame that would be necessary for reparation or “reintegration.” I have included the comment from the “Chairperson” in this quote, because it provides an instance of where the TRC as big Other speaks in(to) a context where apology is at stake. What the TRC says as the impersonal “Chairperson” takes the form of a confirmation (and a reminder) that the Law does not require Mr DerbyLewis, as an amnesty applicant, to apologise for the crime that he has committed. One could, of course, read this comment as the TRC “merely” doing its job: Reminding the amnesty hearing that the PNURA does not require an apology as a requirement for the granting of amnesty. But the point is that “merely” doing one’s job is always already also more than that, for it is also precisely to act in accordance with (and thus to reflect) one’s ideological mandate. In this regard it is significant that the Chairperson goes no further than the confirmation that apology is not required—he does not join Mr Bizos in the attempt to elicit an apology. Thus, what the speech of the “Chairperson” achieves at the discursive level in this context is to remind the context/everyone present that the TRC does not require Mr DerbyLewis to apologise. As such, the “Chairperson” comment illustrates how the TRC fulfils, in a specific instance, its general symbolic mandate, a symbolic mandate

78 Apology and the Spectre of Shame in the TRC Process that is, on the terms of this chapter, steeped in an ideological logic of forgiveness that, much like that of Tito, is not in need of an apology but merely requires “confession” in accordance with the TRC’s repeated “holy trinity” formula of “confession, forgiveness and reconciliation.” The further ironic consequence of the fact that the TRC is not in need of an apology here is that it is totally curtailed in terms of its ability to facilitate symbolic reparation (a task that it, as institution of restorative justice, was supposed constantly to fulfil). For one thing, the logical implication of not being in need of an apology is that the actual insistence on apology can only come from elsewhere, as it does in this case through the voice of activist lawyer George Bizos in the cross-examination of Mr Derby-Lewis. And this means that the attempt to elicit the shame that would be critical for symbolic reparation to take place is also left to Mr Bizos as the representative of an ideological “outside” of the TRC. In short, while it would have been reasonable to expect of the TRC to support Mr Bizos’s attempt to shame Mr Derby-Lewis with a view to symbolic reparation, the TRC does exactly the opposite. By confirming to Mr Derby-Lewis that he does not have to apologise, the TRC facilitates his acknowledgement without shame—an acknowledgement that is not simply without any form of symbolic reparation but one that is indeed accompanied by the considerable risk of retraumatising the victims, precisely because the perpetrator refuses to accept the shame connected to the wrong (Govier and Verwoerd 2002, 73). The above discussion attempts to illustrate the importance of shame in apology and thus in the facilitation of reparation. It also illustrates that the ideological context of an institution such as the TRC can severely occlude shame where such context is permeated by a persistent logic and agency of “forgiveness.” An example from the other side of the political divide can further illustrate this aspect. In the famous Human Rights Violations Committee hearing into the activities of the Mandela Football Club, Winnie Madikizela-Mandela was in fact implored by the Chairperson, Bishop Tutu, to say that she was sorry: I beg you, I beg you, I beg you please – I have not made any particular finding from what has happened here. I speak as someone who has lived in this community. You are a great person and you don’t know how your greatness would be enhanced if you were to say sorry, things went wrong, forgive me. I beg you. To this, Ms Madikizela-Mandela responded that she had said “how deeply sorry I am” to the mother of Stompie Sepei and then proceeded: I am saying it is true, things went horribly wrong. I fully agree with that and for that part of those painful years when things went horribly wrong and we were aware of the fact that there were factors that led to that, for that I am deeply sorry. (as quoted in Weisman 2006, 222–223) In contrast to the Derby-Lewis example, here it appears that the TRC indeed does require and insist upon an apology. Yet, as much as Tutu’s speech is punctuated

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by the words “I beg you,” he also says that he has “not made any particular finding from what has happened here.” Once he has made this statement, he begs Madikizela-Mandela again to say sorry, to acknowledge that “things went wrong” and then to ask for forgiveness. What I am getting at is that Tutu’s preoccupation with forgiveness as the end result of the apology overshoots the mark of the apology. It is as if Tutu is prepared to stroke Madikizela-Mandela’s ego (“you don’t know how your greatness would be enhanced”) merely in order to elicit an apology from her which could then serve as the basis of “forgiveness.” What this attitude on Tutu’s part evinces is an understanding of forgiveness “as if it were an entitlement flowing from a contract” (Moon 2004, 188). Tutu attempts to elicit an acknowledgement from Madikizela-Mandela in the form of an apology, but there is nothing in the transcript that indicates that he elicits this apology in an attempt to facilitate the necessary demonstration of shame— quite the opposite; he elicits the apology in an attempt to produce forgiveness without a prior demonstration of shame. And what Tutu gets in reply is precisely an apology in which no shame is demonstrated, an apology which deflects, ducks and dives and merely expresses regret for “that part of those painful years when things went horribly wrong.” The example illustrates that the attempt to use an apology as an instrument with which to obtain forgiveness, without at the same time closely attending to the necessary dimension of shame, can completely short-circuit the aim of symbolic reparation. When shame lacks What happens, then, at the psycho-dynamic level, when shame fails, when there is a lack of shame where shame is expected or supposed to be? Rogers (2017, 172) notes that shame will not occur where the subject imagines he is “master of knowledge,” “all for the Other,” for in such an instance there is no exposure of the behaviour as shameful. My sense is that this is precisely what happens in the Madikizela-Mandela example—Tutu’s repeated implorations create and support a fantasy on Madikizela-Mandela’s part in which she is, at that critical moment, “all for the Other.” Indeed, it is hard to shake the impression that Tutu would have the entire proceedings of the TRC in this case hinge upon not the apology but the forgiveness of Winnie Madikizela-Mandela. If the Other before whose gaze I am posed “does not accuse me of not knowing,” then what is lost is precisely the Other in whose gaze I am, or could be, shamed. What arises, instead, in this instance, is an orientation to an entirely known, “good” Other, which marks the inability to feel shame (Rogers 2017, 174). This is the (entirely fantasmatic) “Other of the Other,” whose inexistence Lacan announced in 1959 (Lacan 2019, 298). But the fact that Lacan announced its inexistence way back when, does not mean that, in our capitalist “postcolonial” societies in which enjoyment is the law, it is not continually being fantasmatically constructed, relied upon and proliferates. Indeed, Jacques-Alain Miller (2006, 27) has gone as far as suggesting that this construction is the dominant feature of our discourse today, of our social bonds, at the present moment in civilisation: “We are at a point where the dominant discourse enjoins one not to be ashamed.”

80 Apology and the Spectre of Shame in the TRC Process What, then, happens when this entirely known, “good” and all-forgiving, nonlacking Other takes the place of the big Other in an institution such as the TRC? My sense is that the dominant discursive mode of the TRC ensured the construction of “an Other of the Other” in the place where the Other in whose eyes I am shamed should have been. In discursively “sanctioning” negative emotions and in neglecting the differential aspects of the amnesty dispensation’s “political motive” and “full disclosure” requirements, the TRC, quite unwittingly I am sure, opened a discursive gap in which it could be constructed (and was constructed) as the “good” Other before whom shame can either not be experienced at all or experienced only in a diminished and inconsequential fashion, that is, in a way that does not allow the shame to be/become “reintegrative” and thus reparative. To be sure, I am not arguing that the TRC—in allowing itself to create this Titoesque image of itself—entirely foreclosed the experience of reintegrative shaming before and in it. There were clearly examples of apology where perpetrators did experience or undergo reintegrative shaming before the TRC or as a result of its processes. What I am arguing is that the TRC’s dominant discursive mode seriously diminished its status and function as an Other before whom perpetrators could be shamed. The dominant discursive mode of the TRC as all-forgiving, “good” Other significantly affected its ability to elicit an affect of reintegrative shame. This, in turn, meant that the TRC, at least in this regard, undermined the reparative dimension of its own processes in relation to apology. Here, then, we have shame as a spectre of reparation that haunts the TRC’s amnesty process. The failure of shame as a result of the dominant discourse of the TRC meant that reparation in relation to apology failed considerably and so conjures the spectre of reparation as the spectre of a haunting shame that will have been dealt with. Here, then, we again have the TRC as a subject of the lack of reparation in its particular manifestation as a lack of shame. Eugene Baron (2015, 170) has argued that “the exclusion of remorse and repentance as official requirements in the amnesty process brought about an incomplete reconciliation between victims and perpetrators.” Baron (2015, 170) argues that there was an essential “lack of justice in the process of amnesty” and that this lack is intimately related to the exclusion of remorse and repentance from the requirements for amnesty. As Baron (2015, 172) writes: “If perpetrators envisaged themselves through the eyes of the other (victims), such a process could have brought about a deep sense of wrongdoing (remorse), but also active involvement in the reparations and the healing of the wrongs committed.” Implicit in Baron’s (2015, 172) argument that “most perpetrators did not even understand that what they had done was immoral” is an inability on the part of the TRC to facilitate the experience of perpetrators seeing themselves “through the eyes of the [O]ther.” This ability to see oneself in the gaze of the Other is critical when it comes to eliciting feelings of shame. As Copjec (2007, 75) writes, the “radical point” is that “the gaze under which I feel myself observed in shame is my own gaze.” For Baron, these eyes of the Other in which I am to see myself are, critically, the eyes of the victims. Thus, what Baron is suggesting is that the TRC as the big Other of post-apartheid Reconciliation, Truth and Forgiveness could not facilitate the

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experience of shame for most perpetrators, because it could not represent the gaze of the victims. The interaction of Clive Derby-Lewis with the TRC, quoted above, is a clear instance of a perpetrator’s experience of the TRC as an institution that did not facilitate shame. The same can be said of Winnie Madikizela-Mandela’s vague, strange and shameless “apology.” To conclude this section by way of illustration, I want to cite two further instances of apologies that were offered in the course of amnesty proceedings in order to contrast them with each other. Both these examples come from Jonny Steinberg’s book One Night in Bethlehem (2019). The first is an apology by Mandla Fokazi for the killing of a young white police constable, Cornelius Oosthuizen: The deceased and the one who survived, I would like to apologise to their families because this is painful, nobody would enjoy this. I would like to ask for forgiveness for my involvement in this case and to the people of South Africa at large. And to my, the family of my co-accused I would like to ask for forgiveness because now in this country there is democracy and I would like to build the nation, to build South Africa in a democratic country. So I would like to ask for forgiveness with my whole heart, thank you. (Steinberg 2019, 143 (emphasis added)) In this apology, one can read that there is a marked agony at work in Fokazi’s words. His expression that “this is painful, nobody would enjoy this” is a reflection of the shame that he is feeling (the point is precisely that he is, critically, not enjoying the apology). One could even go as far as saying that Fokazi’s statement is an expression of his shame, a demonstration of it. As Copjec (2013, 245) writes, shame as one form of jouissance “names our capacity to put ourselves forward and determine our destiny.” This is what Fokazi does when he takes charge of his discourse by saying that “I would like to build the nation, to build South Africa” and “I would like to ask for forgiveness with my whole heart.” The phrase “with my whole heart” indicates the sincerity with which his affect is present in the apologetic discourse. This is confirmed by the fact that he asks specific persons (“[t]he deceased and the one who survived,” “their families”) for forgiveness. On the other hand, there is the apology of Clement Ndabeni for the same incident: I would like to say to the South Africans, I ask for forgiveness and I ask for forgiveness to the families of the police who died and to the people who were with us, I would like to ask for forgiveness to their families and to the families of the police and the families of the deceased that were with us and South Africa at large. (Steinberg 2019, 145) Apart from the fact that this apology is also offered to the families of the police officer who died, there is at the same time a certain formulaic ring to it as well as a sense of incoherence. In contrast to Fokazi’s apology, there is no indication of

82 Apology and the Spectre of Shame in the TRC Process an agony at work here, no sign of shame for the deed that has been committed. Discursive signs of the presence and sincerity of the affect of shame are missing. Ndabeni also deftly avoids using the signifier “apologise.” There is only the repetition of the request for forgiveness as if this—the three times repeated request—was the only thing that was (still) required of him. Moreover, the perpetrator in no way puts himself forward and takes charge of his discourse. While he, like Fokazi, says “I would like to ask for forgiveness,” his discursive “I” becomes lost in the fixation on “forgiveness.” Here, it is as if forgiveness only has to be spoken in order for it to be granted, as though forgiveness is a simple formality of the amnesty process, an “entitlement flowing from a contract.” This is the kind of empty “apology” for which the TRC opened the door when it decided that its dominant discursive mode would hinge on the pivot of “forgiveness.” It reflects a TRC in which the gaze of the Other has, ironically, been lost, one before which the perpetrator is not exposed, but indeed covered by his repeated invocations of forgiveness. It is as if the signifier “forgiveness” itself becomes the discursive cover which prevents the subject’s exposure and, hence, the demonstration of shame. In apologies like these, the perpetrator does not (have to) fear abandonment by the big Other, because the big Other has him covered in and by forgiveness in advance—all that he has to do is speak the word “forgiveness” for the Other to come running. Conclusion In 1957, Lacan proclaimed that the big Other does not exist (Evans 1996, 136). In his book, Less Than Nothing: Hegel and the Shadow of Dialectical Materialism, Žižek (2012, 86) interprets this declaration to the effect that while the big Other is the “virtual ideal agency,” it is “kept alive by the work of individuals participating in it.” The big Other therefore does not have an autonomous existence all of its own, and in this sense it does not exist. However, while the big Other does not exist, it is nonetheless effective, it “works” (Žižek 2012, 104). For Žižek (2012, 263), the task of ethical action today is to assume fully the sense in which the big Other is inexistent or, as he calls it, “barred.” Assuming the inexistence of the big Other means that we become aware of the ways in which it is “inconsistent or lacking”: “its very functioning depends on subjects whose participation in the symbolic process sustains it.” In this contribution, we have seen that a substantial part of the problem with the TRC as big Other has been the way in which it exposed itself, by way of its ideological discourse as well as in its practical work ethic, to the risk that it would be understood by perpetrator, witness and victim alike as an all-forgiving, nonlacking, consistent big Other. In other words, the TRC relied and could not but rely, to a significant extent, on its own existence as the big Other of forgiveness. The further risk to which the TRC exposed itself in this regard is neatly described by Žižek (2009, 16) in reference to Tito: “Tito’s acts display features of hysterical self-staging: Tito is playing himself all the time, narcissistically fascinated by the faked generosity of his own acts.” In other words, in staging itself in the manner of

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an all-forgiving big Other, a big Other which forgives in a hysterical fashion, the TRC risked the authenticity of its discursive intentions. I further considered the way in which this discursive construction of the TRC of itself as big Other of forgiveness, indeed as the subject supposed to forgive, impacted on the reparative value of apology in the TRC. The conclusion I discerned in this regard is that the TRC, instead of eliciting or procuring shame, positioned itself in the discourse in such a way that the demonstration of reintegrative shame was occluded. I illustrated this by way of the examples of Clive Derby-Lewis’s refusal to apologise at the TRC and Winnie Madikizela-Mandela’s shameless apology before it. I then argued for a psycho-dynamic understanding of the lack of shame as the fantasmatic construction of an Other of the Other—an Other before which the experience or demonstration of shame cannot be borne. I concluded that the TRC, in constructing itself (and in having itself constructed as) the Other of the Other, seriously diminished its capacity to be a big Other who could represent the gaze of the victims of apartheid, before which shame could be experienced and demonstrated. As an Other of the Other, the TRC became responsible for the failure of shame in and before it and so raised the spectre of reparation as the spectre of a haunting shame that will have been dealt with. In other words, the spectre of shame as a particular manifestation of the spectre of reparation haunts the TRC’s amnesty (and, to a lesser extent, its human rights violation) proceedings. Reflecting on a TRC as big Other that does not exist newly returns us to the primal scene of this haunting shame and challenges us anew to become responsible in shame for the kinds of apologies that could be reparative. Claire Moon writes that [i]f, and this is a very big “if”, the gift of forgiveness could present a rupture to the exchange cycle, it might performatively constitute the break with the past that is repeatedly cited by the TRC as a desirable outcome of its investigations. (Moon 2004, 192) Žižek’s and Lacanian psychoanalysis’s position here would be that such a rupture depends on us fully assuming the big Other’s inexistence. Indeed, it is at least two psychoanalytic (and ethical) steps away from the TRC as an Other of the Other. Moon’s reference to the fact that it is a “very big ‘if’” that is at stake here resonates with Žižek’s (2012, 963 (emphasis added)) argument that the “inexistence of the big Other signals” “that every ethical and/or moral edifice has to be grounded in an abyssal act which is, in the most radical sense imaginable, political.” In short, ethical action—the action of forgiveness—is always already only realised through the assumption of radical political responsibility. Thinking the TRC as an inexistent Other thus also reorientates the scene of forgiveness in a way that critically connects such forgiveness to the “radical” political responsibility of perpetrators to demonstrate shame. In other words, the TRC as an inexistent Other opens a gap in the discursive saturation of forgiveness that so permeated

84 Apology and the Spectre of Shame in the TRC Process the TRC, a gap for the demonstration of shame out of which reparation may yet follow. The importance of shame in this regard is that it confronts us with what Žižek (2012, 963) calls the “zero-level of politics” in that the jouissance of shame “opens up the space for the political act to intervene,” it creates a “gap” which can be “saturated by the political effort to impose a new order.” This imposition of a new order is, of course, the break with the past which the TRC was at pains to underscore and that Moon gestures at in the quotation above. In the context of this contribution, that political act which constitutes a break with the past, that political effort to impose a new order, is the act of reparation, the action that the perpetrator and/or beneficiary embarks upon to “make good” or make up for the wrong that has been committed—and this reparative act critically depends on the emergence of what I have proposed as reintegrative shame. As paradoxical as it may sound, I think that the lack of reparation in South Africa today is, to a significant extent, a function of our continued belief in the big Other of “forgiveness,” figured in the TRC at first and today in a dysfunctional post-apartheid state where accountability remains at an all-time low, despite Commissions of Inquiry in which the worst merely becomes public, without apology and especially without demonstrated shame. This lack, then, becomes a function of the belief that we can take our cover in the big Other, that the big Other will not expose us, that the big Other fully exists. In failing to accept that the big Other is barred, inconsistent and itself lacking, we continue to allow it to determine a reality in which political responsibility is not only severely lacking but is so severely lacking precisely because no demonstrated shame results from the process. The paradoxical upshot of this state of affairs is that we fail to realise the very forgiveness that the TRC advocated as central to its work. Jacques Derrida (2001, 43) cites a critical moment in the TRC when “a black woman comes to testify before the Commission” and says: “A commission or a government cannot forgive. Only I, eventually, could do it.” This is a woman who was well aware of the inexistence of the big Other. Her words critically continue to challenge each one of us to undertake the “abyssal” political act on which the future of South Africa, to a great extent, depends. Note 1.

Indeed, in Azapo (1996, para 14) the Constitutional Court was at pains to insist that the Epilogue was as much a part of the Interim Constitution as any other provision thereof, a point made by the Interim Constitution itself. This, however, does not take away from the fact that the Epilogue was—as a product of the negotiations—imposed, both from outside the apartheid legal order and from outside the formal parameters of the first post-apartheid parliament.

Bibliography Ahmed, Sara. 2004. The Cultural Politics of Emotion. Edinburgh: Edinburgh University Press.Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen. Stanford: Stanford University Press.

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Baron, Eugene. 2015 “Remorse and Repentance Stripped of Its Validity. Amnesty Granted by the Truth and Reconciliation Commission of South Africa.” Studia Historiae Ecclesiasticae 41(1): 169–184. Braithwaite, John. 1989. Crime, Shame and Reintegration. Cambridge: Cambridge University Press. Braithwaite, John. 2000 “Shame and criminal justice”. Canadian Journal of Criminology 42(3): 281–298. Brudholm, Thomas. 2006. “Revisiting Resentments: Jean Améry and the Dark Side of Forgiveness and Reconciliation.” Journal of Human Rights 5(7): 7–26. Chapman, Audrey R. 2008. “Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings.” In Truth and Reconciliation in South Africa: Did the TRC Deliver?, edited by Audrey R. Chapman and Hugo van der Merwe, 66–89. Philadelphia: University of Pennsylvania Press. Constitution of the Republic of South Africa Act 200 of 1993. Copjec, Joan. 2007. “The Descent into Shame.” Studio Art Magazine 168: 59–80. Copjec, Joan. 2013. “The Censorship of Interiority.” In Penumbra, edited by Sigi Jöttkandt and Joan Copjec, 239–264, Melbourne: re.press. Derrida, Jacques. 2001. On Cosmopolitanism and Forgiveness. London: Routledge. Du Toit, Fanie. 2018. When Political Transitions Work: Reconciliation as Interdependence. Oxford: Oxford University Press. Evans, Dylan. 1996. An Introductory Dictionary of Lacanian Psychoanalysis. London: Routledge. Govier, Trudy and Verwoerd, Wilhelm. 2002. “The Promise and Pitfalls of Apology.” Journal of Social Philosophy 33(1): 67–82. Humphrey, Michael. 2005. “Reconciliation and the Therapeutic State.” Journal of Intercultural Studies 26(3): 203–220. Lacan, Jacques. 2019. The Seminar of Jacques Lacan Book VI: Desire and Its Interpretation. Translated by Bruce Fink. Cambridge: Polity. McCarthy, Emily. 1997. “South Africa’s Amnesty Process: A Viable Route toward Truth and Reconciliation?” Michigan Journal of Race and Law 3(1): 183–253. Miller, Jacques-Alain. 2006. “On Shame” in Jacques Lacan and the Other Side of Psychoanalysis: Reflections on Seminar XVII, edited by Justin Clemens and Russell Grigg, Durham: Duke University Press. Moon, Claire. 2004. “Prelapsarian State: Forgiveness and Reconciliation in Transitional Justice.” International Journal for the Semiotics of Law 17: 185–197. Promotion of National Unity and Reconciliation Act 34 of 1995. Rogers, Juliet. 2017. “Shame, Pain and Melancholia for the Australian Constitution.” In Narcissism, Melancholia and the Subject of Community, edited by Barry Sheils and Julie Walsh, 161–184. Cham: Palgrave Macmillan. Rowen, Jamie. 2017. Searching for Truth in the Transitional Justice Movement. Cambridge: Cambridge University Press. Scheff, Thomas J. 1998. “Community Conferences: Shame and Anger in Therapeutic Jurisprudence.” Revista Juridica Universidad de Puerto Rico 67(1): 97–120. Shore, Megan. 2009. Religion and Conflict Resolution: Christianity and South Africa’s Truth and Reconciliation Commission. Abingdon: Routledge. Sitze, Adam. 2013. The Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission. Ann Arbor: University of Michigan Press. Steinberg, Jonny. 2019. One Day in Bethlehem. Cape Town: Jonathan Ball Publishers.

86 Apology and the Spectre of Shame in the TRC Process Swart, Mia. 2008. “Sorry Seems to be the Hardest Word: Apology as a Form of Symbolic Reparation.” South African Journal on Human Rights 24(1): 50–70. The Azanian Peoples Organisation (Azapo) and Others v President of the Republic of South Africa and Others. 1996 (4). SA 672 (CC). Truth and Reconciliation Commission of South Africa. 1997. “Amnesty Hearing Transcripts: Pretoria: Killing of Chris Hani (Part 2) Derby-Lewis, C; Walusz, J. On Resumption on 19 August 1997 – Day 7.” Available at: https://www.justice.gov.za/trc/amntrans/pta/ derby07.htm Truth and Reconciliation Commission of South Africa. 1998. Truth and Reconciliation Commission of South Africa Report Volumes 1–7. Pretoria: Government Printer. Available at: https://www.justice.gov.za/trc/report/ Verwoerd, Wilhelm J. 1999. “Toward the Truth about the TRC: A Response to Key Moral Criticisms of the South African Truth and Reconciliation Commission.” Religion and Theology Journal 3(3): 303–324. Weisman, Richard. 2006. “Showing Remorse at the TRC: towards a Constitutive Approach to Reparative Discourse.” Windsor Yearbook of Access to Justice 24(2): 221–239. Žižek, Slavoj. 2009. “Mercy and Its Transformations.” Muzikološki Zbornik Musicological Annual XLV(2): 7–16. Žižek, Slavoj. 2012. Less Than Nothing: Hegel and the Shadow of Dialectical Materialism. London: Verso.

4

The Spectre of Reparation in the Archive The TRC’s Work on the Role of Business During Apartheid and the Ongoing Demand for Reparation

Introduction: Forgetting/remembering reparation The work of the TRC has—amongst various other comparisons—been described as an exercise in remembering, which, according to Harris, is “a quintessentially archival exercise” (Harris 2002, 7). The remembering function of the TRC was articulated in the Promotion of National Unity and Reconciliation Act (PNURA) as the task of putting together “as complete a picture” of the past as possible (PNURA 1995, section 3(1)(a)). The report produced by the TRC in fulfilment of this mandate can therefore be seen as an attempt to ensure the public availability of “memory in the form of documents” (Harris 2000, 8) for generations to come. The function of the TRC has, on the other hand, also been described as the task to close “a horrendous chapter in the life of our nation” (Interim Constitution 1993, Epilogue). This is the urge to, or the imperative that we, forget, as soon as possible (Derrida 2002, 54)—for the sake of embarking upon a “new chapter” (Interim Constitution 1993, Epilogue) in the life of the nation. As a product of the negotiated settlement between those who wanted retribution and those who insisted upon indemnity, or begged for forgiveness, the TRC—as authorised in the epilogue to the 1993 Interim Constitution1—was part and parcel of South Africa’s new beginning as a constitutional democracy founded in human dignity, equality and freedom. As such, the TRC was to assemble an archive of South Africa’s divided past that would make it possible to anticipate a future that could “once and for all” close the book on the past. It thus cannot and should not be denied that the TRC’s Report as an archive of South Africa’s apartheid past will always have represented both remembering and forgetting—which is another way of saying that an archive is always already both monumental and memorial and should as such be understood as a work of mourning.2 Let us be reminded, before we proceed, that all writing (the production of text) is indeed always marked by death (Naas 2003, 75)—always already destined to walk the treacherous fault line between text and open space, the living and the dead, the included and the excluded, which, in terms of textuality, is most of the time not the merely excluded but rather the occluded. No writing, including the archive-writing of the TRC, escapes this fate. In the end, the TRC’s work could only have been—I venture to say it should have been—an exercise in remembering

DOI: 10.4324/9781003290278-4

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always with the possibility of forgetting and, perhaps more importantly, forgetting always with the possibility of remembering (Harris 2002, 61, 75). The remembering/forgetting binary as it relates to perceptions of the TRC’s functions thus comes together in its Report as the official archive of South Africa’s apartheid past. In this regard, the Report is reminiscent of what Jacques Derrida writes in the introduction to what became his famous contention that writing is both poison and cure (Smith 2005, 95): “To a considerable degree,” Derrida writes, we have already said all we meant to say. Our lexicon at any rate is not far from being exhausted. With the exception of this or that supplement, our questions will have nothing more to name but the texture of the text, reading and writing, mastery and play, the paradoxes of supplementarity and the graphic relations between the living and the dead: within the textual. (Derrida 1981, 71) The outcome of a “conventional” or “superficial” reading of the above sentence might simply be a conclusion that when a text has been written, the author (or the “we” that the author co-opted intentionally or otherwise3) has said all that was meant to be said about the particular subject matter of the text. This, however, immediately opens up to another reading of what Derrida is writing here. I am guided to this “second,” yet by no means “secondary,” reading by hanging on to the phrase “with the exception of this or that supplement,” which I read together with an assertion in a passage from the same work of Derrida’s quoted above: “A text is not a text unless it hides from the first comer, from the first glance, the law of its composition and the rules of its game” (Derrida 1981, 69). Is it thus not also true that now that there is a text, now that the author(s)—in our case, the TRC—has written something down, we—and this is of course already a different or another “we,” a critical or criticising “we”—can, to a consider-able degree—that is to say to a degree that we are able to consider, judge and criticise—interrogate all that the “we” meant to say? This is what would ground the necessity of producing the exception(s) of “this or that supplement.” And do these performatives—“consider,” “judge,” “criticise”—not, if anything else, first and foremost signify attempts to bring forth, that is, make present, what is not just hidden but indeed jealously guarded by the text? For this reason, our questions (about the TRC) are inevitably caught up in the fact that a text is given, and for this reason, the “we” interested in this given text will indeed, “with the exception of this or that supplement,” have “nothing more to name but the texture of the text, reading and writing, mastery and play, the paradoxes of supplementarity and the graphic relations between the living and the dead.” That this is the case, I believe, is not bad news at all. For there is in this “nothing more” a stroke of luck and an infinite responsibility—that it allows nothing less than this naming (with exposure by way of supplementation) that is always preceded by the question: “What hides here?” Thus, this chapter is first of all concerned with the consider-able degree to which the nameable “we” of the TRC has already said all that it meant to say. The specific “all” that will concern us here is the “all” that the TRC said in its Report on

The Spectre of Reparation in the Archive 89 “the role of business” in apartheid (TRC Report Vol IV 1998; TRC Report Vol VI 2003).4 The Report uses the role of business in a narrow sense—it considers the role that corporate entities and economic transactions played in perpetuating the disaster that we have named apartheid—that is the extent to which economic transactions during apartheid created and maintained the dead labour (capital) that gave it its lease on life.5 But the TRC’s narrow interpretation of “business” is, I would argue, haunted by another sense in which we can understand the word, namely the sense that is generally meant today when we talk about “unfinished business” or “business as usual”—the sense in which “business” describes an attitude, even a pathology. One way of stating this haunting relationship between business in the narrow sense as economic transaction and business as “usual” or as “unfinished”—as attitudinal, even ecological—is to ask how the former—the role of business during apartheid—has impacted upon the latter. In what manner can the way in which the TRC dealt with the role of business during apartheid be related to, or brought to bear on, the situation of present-day “business” in South Africa? What, if anything, did the TRC’s writing of and on the role of business in apartheid contribute to what was the rationale for the TRC in the first place—that “we” must live on, together, differently? The “unfinished” business of the TRC as the “business” of present-day South Africa will hopefully stand better illuminated towards the end of the chapter by way of the conclusion I draw here, namely that the business of apartheid, the harm that it inflicted, the deaths it caused will continue to haunt the “business as usual” pathology of post-apartheid South Africa (and will do so in the form and multiple manifestations of the spectre of reparation); until such time as “we,” that is, those who remain concerned with Truth and Reconciliation, operationalise the potentialities that lie in discovering that which the text, in order to be a text, in order to be a Report, flees from or, at worst, hides away. From a normative perspective, the critical point about the “all” that the TRC “meant to say” in its Report-as-archive is that this Report had to remember in order to make it possible to forget—this is, as I’ve already intimated, a primary way in which we can resolve the contradiction between the double task of remembering and forgetting as we find it in the TRC’s mandate. It is also a different way of saying that the TRC’s task was to commence the work of reconciliation in South Africa, for without such a remembering that would make it possible to forget it is hard to imagine how the settling of accounts on which reconciliation relies could take place. The normative interplay between the remembering- and forgettingfunctions of the TRC may thus be summarised as follows: In remembering the suffering of the victims under the laws of apartheid, the TRC had to compel the emergence of a new law—the law of the new beginning—that would make it possible for apartheid victims to find closure, that is, to forget/reconcile/move on. Such a law would not only acknowledge the illegitimacy of the source of their suffering but also seek to remove its consequences: It would begin to provide reparation for the harm inflicted by apartheid. That such a new law is, in fact, heteronomous in that it comes from the Other, is clearly intimated by Derrida in the following quote in which he locates the source of the law in the spectre:

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The Spectre of Reparation in the Archive The specter is not simply someone we see coming back, it is someone by whom we feel ourselves watched, observed, surveyed, as if by the law: we are “before the law,” without any possible symmetry, without reciprocity, insofar as the other is watching only us, concerns only us, we who are observing it (in the same way that one observes and respects the law) without even being able to meet its gaze. Hence the dissymmetry and, consequently, the heteronomic figure of the law (Derrida 2013, 40).

Holding these two inseparable functions of the TRC in mind, the essential concern of the chapter is to illustrate how the spectre of reparation continues to haunt the TRC’s work on the role played by the South African business sector in underpinning apartheid. If, as Derrida (1994, xvii) contends, what happens between two (here, the two of remembering and forgetting) “can only maintain itself with some ghost, can only talk with or about some ghost,” then the essential aim of the chapter is to illustrate how remembering and forgetting in these parts of the TRC’s Report maintain themselves by conjuring (however unintentionally) the spectre of reparation. I argue here that the primary reason why the spectre of reparation haunts this archive is because the TRC’s treatment of the business sector can be understood as an exercise in archiving that represents forgetting ahead of itself—“ahead of itself” in the sense that this is an instance of forgetting that does not take sufficient account of remembering; an acknowledgement of illegitimate suffering without compelling measures to remove its consequences. I argue that this forgetting ahead of itself significantly influenced the TRC’s self-understanding of its task as archivist and of its role as part of South Africa’s new beginning. I conclude that the normative failure to compel a law of reparation means that the archive becomes the host, and ultimately even the hostage, of the spectre of reparation and that this normative failure means that the spectre remains and remains as a haunting not simply of the Report-as-archive but of the very beginning (the “new” South Africa) which this archive attempted to inaugurate. The argument of this chapter re-emphasises that the TRC lacked the power to order the payment of reparations. It could only insist on such payments. This it did (TRC Report Vol IV 1998, 55–58; TRC Report Vol VI 2003, 143, 727). But as argued in previous chapters, this lack of the power to order reparations is part of the constitutive lack of reparation in the TRC. For the TRC’s insistence on reparation to have been/become normatively effective though, for it to have translated into law, my argument is that its archive would have had to remember (especially in the context of the role of business) much more than it forgot or closed the book on. That is, merely to have begun the work of justice in relation to the economic crimes perpetrated under apartheid, the TRC’s business sector archive should have achieved a certain hyper-remembering. One could thus say that the TRC had to write down (remember) the past so vividly that reading the text would produce what Derrida (2002, 78) calls a “quasi-hallucination of the violence” of and during apartheid.

The Spectre of Reparation in the Archive 91 It is precisely because there is no remembering that cannot become forgetting that only this vivid remembering would make it possible to forget in the present because it would allow remembering in the future,6 which is, again, a way of saying that the TRC’s function was to contribute to the ongoing realisation of reconciliation in South Africa. For there is/can be no reconciliation without a productive being in conversation with the spectre of reparation. Such a being/becoming productively conversant with the spectre of reparation thus becomes the condition of possibility of reconciliation as an ongoing process. It is clear from the TRC’s Report that it understood reconciliation not as a fixed and final event, but indeed as a process. As such, the TRC should have been profoundly interested in compiling its Report in such a way that, as a work of memory, it could constantly traverse the fault line between momentary forgetting and continuing future remembrance. It is also for this reason that the TRC Report, with all its failures, can never be fully and finally confined to the past, for it can and must continue to serve as a point in the past from which to contemplate the possibilities of the present and of the future. I leave to one side here the question of whether such a vivid remembering is ever finally capable of exorcising the spectre of reparation from the archive for what is given to us as the problem here is precisely the fact that such a vivid remembering did not occur and thus that such an exorcism is out of the question. Given the severe institutional constraints that beset the TRC, the production of a “quasi-hallucination,” of a hyper-remembering, was always going to be radically impossible. However, it is precisely because the TRC was a commission subjected to institutionalised and legalised process (Van Marle 2003, 239), that it and its gatekeepers/guardians should have been more attentive to and reflexive in recognising and acknowledging this failure. Paradoxically, as Van Marle points out, it is the very acknowledgement of this failure that heightens the possibility of a multiplicity of versions and plurality of accounts. It is also the acknowledgement of this failure which grounds and commands ongoing responsibility for the archive (Van Marle 2003, 244–245). However, because the TRC’s archive was haunted by forgetting ahead of itself, because the TRC did not—in this context—sufficiently resist the drive to leave no trace,7 the picture that emerged failed to negotiate successfully between the dream of hyper-remembering and the reality of institutional constraint. In short, the TRC failed to compel the legislature (including courts) to enact a law that, while it would not even have begun to address the economic atrocities perpetrated under apartheid, would at least have provided some reparative relief for the inhumane suffering that occurred in the economic sphere during that period. Harris (2002, 177) contends that government’s ultimate concern with the TRC was that it should produce an archive that conforms to the “new history of the new South Africa” that it was writing. It is in this way and to this extent that the TRC had to ensure that its “we” will have said everything it meant to say. But it is also an indication of the fact that the institutional constraints of the TRC were supplemented by the application of governmental power to the TRC.8 From this governmental point of view, the TRC did not only record the past, but, more importantly,

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it constituted the past “in view of a future which retrospectively, or retroactively, gives [the past] its so-called final truth” (Derrida 2002, 42). From this point of view, it is thus highly significant and anything but a coincidence that the TRC could not, through its writing of this new history, compel a law that would begin to provide reparation for apartheid’s victims and survivors. In the end, then, the TRC’s archive on the role of business stands narrated in the light of the political economy that post-apartheid power chose, or was forced, to adopt. As already intimated above, it is the argument of this chapter that the archive narrated as such and the present-day political economy in the light of which it stands so narrated will continue to experience a haunting that comes from this archive, a generation/conjuring of the spectre of reparation that arises from the TRC’s archive of the business sector’s role during apartheid but that haunts in the present and will continue to do so until such time as this ghost is confronted, spoken to.9 In other words, unless this work of speaking—which is political work par excellence and which cannot be dissociated from action (Arendt 1998, 175)—is undertaken in a considered and sustained way, the spectre of reparation in postapartheid South Africa cannot be expected to be appeased or exorcised—it will insist and the primary way in which it will insist is by way of the kind of traumatic visitation that has marked the body politic in so many ways over the last few years, from violent protest to xenophobic attack, from rampant corruption and state capture to the war on women.10 I first examine here what it is that the TRC managed to consign to its archive on the role of the business sector during the apartheid era. I then move on to that which was left outside (suppressed/repressed by?) the archive and argue that what was remembered was all too expedient, and failed to fit the magnitude of the apartheid business sector and its complicity in the activities of the apartheid regime. If a “text is not a text unless it hides from the first comer, from the first glance, the law of its composition and the rules of its game,” then the task of critique involves exposing this law of the text’s composition, these rules of its game. As Derrida (1981, 69) reminds us, the law and the rules of the text’s composition and its game are not “harbored in the inaccessibility of a secret”; they lie (in) waiting to be exposed through an act of critical reading or what Derrida (1997, 158) calls “critical production,” which always takes the work of ethical construction, construction, thus, in the name of the (impossible) non-violative relation to the Other. If indeed “[t]here is nothing outside the text” (Derrida 1997, 158), this certainly does not mean that we can or should confine ourselves to the text as it stands.11 As Derrida once remarked in a sort of defence of his work: Deconstruction is above all else the search for the other … If deconstruction really consisted in saying that everything happens in books, it wouldn’t deserve five minutes of anybody’s attention … to want to confine it to linguistic phenomena is the most suspect of operations. (Baker 1995, 16 (emphasis added))

The Spectre of Reparation in the Archive 93 We are thus authorised by the kind of critique that deconstruction enables to begin this work of exposure, to go outside the (official) text in search of its other.12 In doing so, we are following an injunction aptly described by Caputo (1997b, 247): “We must pick our way among the remains, wrestle with and conjure the ghosts of the past, ply them with patient importunity in order to construct the best story we can.” Here I respond to this injunction by, inter alia, considering “off the record” facts and narratives13 and I speculate as to why these are absent from the TRC Report. Because these external narratives are considered in relation to or in the light of the text of the TRC’s Report, it means that critique can never proceed as if there is simply an outside to/beyond of the text—the “outside” is always already included or represented as silence and absence inside the text.14 These silences/absences are “walled up and walled in” (Derrida 1990, 943) the archive—in the archive, for they are neither exterior to the archive nor simply exterior to the language of the archive. The task of critique is thus to read both the text as the graphic written word and its silences represented in open spaces. The way we “read” the silences, however, can only proceed through an affirmation of Derrida’s assertion that everything indeed does not happen in “the book.” To read the silences would entail that we also take responsibility for them—we therefore have to venture outside the book or, in this context, the Report; but that can only happen where we “take writing first” (Derrida 1981, xi). I contend, having considered these facts and narratives that were left off the record of the TRC, that the resistance of the business sector to making public its complicity in apartheid can be understood as resistance against the passage from the private to the public, and thus as a resistance to the archiving process which marks that passage. As such, the resistance of business to come forward and acknowledge its complicity is not just a resistance to the archive—it is also a resistance to that which the archive would, in this instance, retroactively ground, namely a law of reparation. If, as Derrida (1995, 1) has argued, the archive is predicated on the principles of both beginning and commandment, then the resistance of business to the archive is both a resistance to the new beginning which the archive inaugurates as well as a resistance to the command—the law—that would have issued from the archive. This law that would have, or will have, issued from the archive is the law of reparation and while this chapter contends that the TRC-as-archivist should have done much more to secure such a law of reparation, it also argues that the failure to secure such a law of reparation is intimately bounded up with the resistance of business to the archive by way of its rampant insistence on the public/ private dichotomy. Indeed, as the chapter will argue, the ghost of the public/private dichotomy is perhaps the most forceful manifestation of the spectre of reparation in relation to business. I conclude that the failure of the TRC to evoke the enactment of a law providing for reparation by business shows the necessity of conceptualising the archive as “a process” (Harris n.d., 7). This notion acknowledges and remains aware that an archive (and most importantly, the official archive) can never fully make present

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what has been shut out. For this reason, archive as (infinite) process is committed to the democratic values of openness, participation and counter-absolutism. Most importantly, archive as process is committed to justice and to the doing of justice as (infinite) process (Harris n.d., 1). This kind of understanding of the archive constantly regards the text as leaving traces that open up or expose the relationship “of an inside to an outside: spacing” (Derrida 1981, 70). In this understanding, it is as if the text-as-archive points to the open spaces between words, calling the imagination to its “work of shaping and reshaping” (Harris 2002, 75). Archiving of this kind has the potential, through creative legal activism, to reactivate the archive’s principle of commandment and by doing so to overcome the limits of the current lack of law in relation to reparation. This form of archiving thus harbours the potential to bring about law (commandment) that is truly of the new beginning, law that is inaugurated in the name and in the pursuit of justice for apartheid’s victims. That this would be a “heteronomous” law, given the history of transitional justice in South Africa, cannot be denied for it is a law that is conjured by the spectre of reparation and so retains something of its heteronomous nature. But this does not mean that such a law cannot be imagined, itself conjured, at least not inevitably. Putting back, into proper correspondence, the principles of beginning and commandment marks a process which is more original and more authentically archival. There are, as I also show, several avenues by way of which this search for a new commandment of the archive can be practically pursued by way of the juridical principles of the post-apartheid legal order. In the end, the wager of this chapter is that the archive as process can/could compel a law of reparation that would finally enable a productive form of being with the spectre of reparation. The TRC’s archive on the role of business in apartheid [B]eyond the documents, the Commission hopes that the legacy of these hearings will be to stimulate further debate, further discussion and further exploration of the difficult and complex issues that underpinned apartheid. (TRC Report Vol IV 1998, 3) Let us start with the events of 11 to 13 November 1997 in the posh foyer of the Carlton Hotel in Johannesburg. In her book, Country of My Skull, Antjie Krog (1998, 239) describes the “touch of surrealism” provided by the special hearings on the role of the business sector in apartheid. Krog’s “surreal” impression is informed by her observation that the “breathtakingly wealthy […] Captains of Industry” eloquently dressed in their designer suits, sat in front of the Commission “just as hundreds of others sat before them. Free to be questioned and held accountable like ordinary mortals” (Krog 1998, 239). This image, according to Krog, created the (hopeful) impression that “not even the rich” are above the law (239). She continues to describe the tension between those who submitted that the business sector actively participated in and benefited from the “system of racial capitalism” (240) that was apartheid, as opposed to “prominent white business leaders” (240) who submitted that “of course” (240) they had not.

The Spectre of Reparation in the Archive 95 Krog notes a striking change of attitude on the side of big business towards the end of the three days of submissions when the representatives of other big companies who sat in “the back rows” figured out “that insistent pleas of innocence … on the eight o’ clock news” (241) were bad for business. Thus, by the third day, business was prepared to admit past complacency and complicity, to say sorry, “forgive us for Steve Biko” (241)15 and all the others whose names we do not remember. And then it got on with business as usual. Once the show was over, the pertinent question became how these hearings would become archived in the TRC Report. As indicated, both the 1998 Report and the 2003 addendum thereto deal with the responsibility of the business sector. The space devoted to this is, however, strikingly modest. In the 1998 Report of 3,500 pages, spread over five volumes, the role of the apartheid business sector is under-represented as a short chapter of 40 pages in the fourth volume (TRC Report Vol IV 1998, 18–58). In the one-volume 2003 addendum (volume 6), consisting of 823 pages, the chapter on “Reparations and the Business Sector” (Chapter 5) comprises a mere 15 pages, which translates into 1.8% of this volume of the Report (TRC Report Vol VI 2003, 140). Most revealing is the front page of this 2003 chapter (Figure 4.1). A plutocratic image of the former state president FW De Klerk looks up smiling (slyly?) at what appears to be a messenger who is not identifiable from the photograph. The image of a powerful white middle-aged male smiling (all the way to the bank, perhaps?) is remarkably suggestive of the impression that the business hearings left on the Commission. It is perhaps also what one could call a first manifestation/visualisation of the spectre of reparation. The Commission’s initial and final position was that business generally benefited “financially and materially from apartheid policies” (140).16 The Commission went on to propose and reiterate various ways in which a legal basis for reparation payments could be established. These included wealth tax payments, levies, donations, retrospective surcharges on corporate profits (143) and the expansion of certain common law concepts such as unjustified enrichment and illegality in contract law to found reparation claims (155). Yet nothing came of these proposals. Although the government accepted many of the TRC’s recommendations, it baulked, as we have seen in previous chapters, at imposing compulsory reparation-oriented payments. Why did the TRC fail to evoke a positive response? Although many factors were at play in shaping the government’s approach to undoing the legacy of apartheid, part of the answer may well lie in how compelling the archive presented by the TRC to government was. Admittedly, there is a play here on the word “compel”: first, I am interested in the presentation of this archive as official history and particularly in how compellingly this history was narrated; second, I am interested in the paralysing consequences of this presentation for creative legal activism—activism that, in its democratic force,17 would compel the legislation (in the broadest and in the narrowest sense) of reparation law. The two concerns are interrelated, the first being, in a sense both the condition of possibility and the impossibility of the second. In the name, then, of the possibility of this activism, the TRC’s archive on the role of business compels us to delve deeper and investigate the force with which the TRC reflected the role of the business sector in apartheid.

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The chapter on the role of Business and Labour in the 1998 Report

The 1998 Report began by noting that “at the heart” of the business and labour hearings “lay the complex power relations of apartheid, the legacy of which continues to afflict the post-apartheid society” (TRC Report Vol IV 1998, 18 (emphasis added)). This was, on the part of the Commission, a rather diplomatic way of admitting what should have been obvious, but which was contested by business throughout the hearings—that there was something worryingly amiss in these power relationships, for it surely cannot be that their complexity as such constituted a legacy which continues to “afflict” post-apartheid society. In other words, the TRC’s opening sentence in this part of its Report could be read as by itself already an admission (and thus the taking of a position) that there was something deeply troubling “at the heart of” the power relationships of business and labour during apartheid and that this constitutes a legacy which continues to afflict postapartheid society. As such, the opening sentence of the Report, with its reference to affliction, can be read as stating from the outset, the case for, and the lack of, reparation. It is also, then, the TRC’s way of saying that a spectre, the spectre of reparation, haunts/“afflicts” the post-apartheid society. The Report went on to note that two dominant positions (as Krog noticed) emerged at the business sector hearings. These positions closely resembled the long-standing debate between radicals and liberals about the relationship between apartheid and capitalism (TRC Report Vol IV 1998, 20).18 Most businesses employed, unsurprisingly, the liberal argument that apartheid was bad for capitalism (or “business” as it would be called in the capitalist paradigm, although the Report noted from the outset that the meaning of “business” in the hearings was not “homogenous” (TRC Report Vol IV 1998, 18)). According to this line of argument, apartheid raised the costs of doing business and undermined long-term productivity and growth by eroding the skills base (TRC Report Vol IV 1998, 19). As Krog also notes, one of the striking features of this argument was that business compared itself to business abroad/international business and on the basis of the premise of this comparison it felt “deprived” (Krog 1998, 240), because it viewed apartheid as having prevented it from becoming a “substantial buying and economic force” (240) in the global economy. On the whole, then, this argument positions apartheid and its policies as having placed “obstacles in the path of profitability” (TRC Report Vol IV 1998, 20) and thus casts business as a victim of apartheid. In summary, the Commission notes that it is the argument of white business that apartheid constituted a “set of politically inspired, economically irrational policies that were imposed on (and undermined) the economy” (TRC Report Vol IV 1998, 21). The radical argument (advanced by trade unions such as Congress of South African Trade Unions (COSATU) and political parties on the left such as the African National Congress and South African Communist Party), on the other hand, asserts that apartheid was good for capitalism/“business” because it facilitated superexploitation of black labour and “the destruction of black entrepreneurial activity” (TRC Report Vol IV 1998, 19).19 According to this argument, “business as a whole” benefited from apartheid while “some sections of the business community”

The Spectre of Reparation in the Archive 97 benefited more than others (TRC Report Vol IV 1998, 19). These were Afrikaner capital, mining houses and the armaments industry (TRC Report Vol IV 1998, 19). The radical argument is premised on the belief that apartheid constituted a system of racial capitalism rather than simply a political system of racial segregation. As such, it resists any abstract distinction between the private and the public or between economics and politics, asserting that the two were, in the case of business activity under apartheid, intimately bounded up with each other and constantly transgressed the ideological liberal distinction between the private and the public. As such, the radical argument is concerned, clearly from a Marxist point of view, to expose apartheid as a political economy with a deep structure premised on the super-exploitation of black labour, with all the superstructures of apartheid as either products of such exploitation or as having their ultimate rationale firmly located in keeping the deep structure of black labour exploitation in place. With reference to the Commission’s mandate, the radical argument, moreover, regards the exploitation of labour and the “ill treatment” that went along with it as profoundly and fundamentally a gross violation of human rights for which businesses should be held accountable (TRC Report Vol IV 1998, 21). As the Black Management Forum’s submission put it: The human rights violations by business are seen as those policies, practices and conventions which denied black people the full utilisation of their potential, resulting in deprivation, poverty and poor quality of life, and which attacked and threatened to injure their self-respect, dignity and well-being. (TRC Report Vol IV 1998, 21) This position was echoed by the ANC’s submission which emphatically stated that apartheid was a system premised on historical white privilege and that business as a whole “must accept and acknowledge that its current position in the economy, its wealth, power and access to high income and status positions are the product, in part at least, of discrimination and oppression directed against the black majority” (TRC Report Vol IV 1998, 22). The COSATU submission added to this how the struggle for trade union rights and the struggle for democracy were indistinguishable given the major role of trade union movements in resisting apartheid. This struggle led to what it called a host of gross human rights violations on the part of business which existed basically in the refusal to recognise trade unions on the ground of race and practically involved calling on the police when strikes took place. This involvement of the police in strikes, the submission argued, often had as their consequence the gross violation of human rights (TRC Report Vol IV 1998, 23). As regards the liberal argument, the TRC reasoned that if business was a victim of apartheid, then the question becomes why it did not protest more loudly against apartheid, why it did not do more to hasten its demise, why it did not put more pressure on the state or join progressive social action and civil society in resisting apartheid. Most pertinently, the Report asks, why did business not support the demand

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of black workers for wage increases or resist migratory labour practices? (TRC Report Vol IV 1998, 20). Business’s answer to these questions generally took three forms. First, it would point to “instances where business objected to apartheid policies and in other ways promoted political change” (TRC Report Vol IV 1998, 20). Secondly, it would cite its contributions to civil society through “social responsibility investments” such as its support for the Urban Foundation, the Small Business Development Corporation and various non-governmental organisations. Thirdly, it would point out that through job creation and generating wealth through the profit imperative, it raised living standards and in fact “created the conditions for successful political transition” (TRC Report Vol IV 1998, 20). This argument clearly narrates business as in alliance with the struggle against apartheid, but as Krog (1998, 241) notes, it exasperated the representatives of the trade unions, causing Sam Shilowa, then General Secretary of COSATU, to sarcastically exclaim: “So wonderful, everybody in the country was a revolutionary!” The Report goes on to describe how big companies defended a narrow interpretation of the TRC’s mandate that would not cover business and that opposed the radical argument that refused to draw any distinction between the spheres of politics and economics. Emblematic of this position of big business was Old Mutual’s assertion in the opening lines of its submission that the mandate of the Commission which focuses on gross violations of human rights would “almost certainly” exclude it from having to make a submission (TRC Report Vol IV 1998, 20). In this view, human rights violations required “active, deliberate participation by individuals” and thus something such as deeply exploitative labour practices may have been “regrettable” (TRC Report Vol IV 1998, 21), but did not constitute a gross violation of human rights. In this regard, the Commission quotes the Tongaat-Hulett submission which distinguished between human rights violations and what it called “ill treatment” (TRC Report Vol IV 1998, 21) and then went on to admit to “ill treatment” but vehemently to oppose an understanding that would regard such ill treatment as a gross human rights violation. What the Report and both of these two submissions seem to miss completely is that exploitative labour practices and ill treatment generally were precisely both “active,” “deliberate” and participated in by “individuals,” thus qualifying them as gross human rights violations on the very terms of the TRC’s mandate. To be sure, the glib citation of this position by the TRC in the Report is not nearly enough by way of a problematisation of this untenable position. But perhaps this is not surprising at all, since the TRC Report opted to follow a restricted definition of “ill-treatment” as the “attempted killing […] and all forms of inflicted suffering causing extreme bodily and/or mental harm” (Simcock 2011, 247). The Report itself does, however, make a general distinction between what it calls first-, second- and third-order involvement. It describes first-order involvement as “helping to design and implement apartheid policies” (TRC Report Vol IV 1998, 24); second-order involvement as participation where the business may or may not have known that its products and services were being utilised to further apartheid policies (25); and third-order involvement as “ordinary business activities that benefited indirectly” (26) from apartheid. In the following, we will return

The Spectre of Reparation in the Archive 99 to exactly how problematic this distinction is when it comes to apartheid in practice, but here it is worth noting that when the Commission discusses third-order involvement as (supposedly) the “weakest” form of involvement, it states that this form of involvement highlights “the fact that the current distribution of wealth (which is substantially concentrated in white hands) is a product of business activity that took place under an apartheid system that favoured whites” (26). This fact, it goes on to state, constitutes a significant counter-balance to the argument by business that apartheid harmed them (26), for despite this alleged harm, white business still managed to accumulate vast amounts of wealth. After a short note on the involvement of parastatals as having in many cases acted as the “financial arm” (TRC Report Vol IV 1998, 27) of apartheid, the Report proceeds to condemn the agricultural sector for not participating in the hearings. In this regard, the Commission makes it clear that agriculture, like mining, has “both shaped and been shaped by the racist structures of the political economy as it evolved both before and after 1948” (28). This means, the Commission continued, that commercial agriculture needed to acknowledge “the extent to which white farmers and their families have benefited (irrespective of their political views) from their privileged access to the land, which excluded virtually all other potential farmers” (29). The Report then goes on to indict the agricultural section for the ways in which it benefited from pass laws, the farm prison system and the forced resettlement of millions of black South Africans. Particularly in this regard, the Report also implores the white agricultural section to take responsibility for the “extent to which they failed—either by simple omission or through active hostility—to ensure better education for the children (other than their own) living on their farms” (29). The Report explicitly calls this “failure to educate children in a modern economy” a human rights abuse in itself (29). The Report then moves on to a section entitled “Costs and Benefits of Apartheid.” In this section, the Commission is interested to explore the ways in which apartheid policies “aided or hindered” business (TRC Report Vol IV 1998, 30). In this context, the Report proceeds to discuss Afrikaner business, black business, the mining industry, the arms industry, other (white) business and, finally, workers and labour. This latter section of the Report generally sets up a dialogue between extracts from submissions by both of the dominant positions described above and then hints that the TRC generally favours the radical position (TRC Report Vol IV 1998, 32, 34, 38, 42, 46). In the section on Afrikaner business, the Report points to the cosy relationship between the National Party government and Afrikaner-owned business which resulted in real benefits to such businesses at the cost of English-speaking businesses. In short, a National Party “bias” was evident in everything from the award of fishing quotas, to mining and labour concessions, to the award of government contracts (TRC Report Vol IV 1998, 31). The other side of this coin was how, as the TRC notes in the section on black business, the apartheid government systematically undermined black business (32). Particularly through the Group Areas Act, black business was prevented from operating in white areas, while the same was not true of white business vis-à-vis operating in black areas. In the cinema industry,

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for instance, the white-owned cinema giant Ster-Kinekor succeeded in its bid to operate in “Indian” areas (32). In the section on the mining industry the Report documents how mining was, from the earliest days of the Boer Republics, a driver of cheap labour policies (TRC Report Vol IV 1998, 33). In this regard, the Report identifies mining as a form of first-order involvement according to the earlier stated taxonomy of the Report: The first-order involvement of the mining houses and the Chamber of Mines (COM) in shaping the migrant labour system is the clearest example of business working closely with the minority (white) government to create the conditions for capital accumulation based on cheap African labour. (33) The Report goes on to argue that “[t]he shameful history of subhuman compound conditions, brutal suppression of striking workers, racist practices and meagre wages is central to understanding the origins and nature of apartheid” (34). In this regard, the TRC is emphatic that the first-order involvement of mining corporations required acknowledgement and it stated that “together with an appropriate apology” (TRC Report Vol IV 1998, 34), such acknowledgement could contribute significantly to reconciliation. What is striking about this statement is the fact that the Commission does not raise the elephant in the room in this regard, namely the very palpable notion that an apology without appropriate reparative measures would not go very far in terms of contributing to reconciliation. As we have seen in Chapter 3, an apology without demonstrated shame is not only worthless but risks re-traumatising the victims of apartheid. Here, the question of shame does not factor at all in the minds of the writers of the Report. An apology, in this context, does nothing to begin to undo the pernicious effects of the role of mining in first-order involvement. An apology leaves the benefits accrued entirely intact and merely adds the gloss of immorality and regret on the material benefits that remain unaltered. In such a context, it is very hard to imagine how an apology could significantly contribute to reconciliation as the Commission seems to think. It is also striking that the TRC relies on the rhetoric of apology in this context, having established and emphasised in its Amnesty hearings that apology carried a very limited weight in the moral economy of the Commission.20 In the following, I will return to the mediocre way in which the TRC generally dealt with the role of mining despite its emphatic statements that its “shameful history” is critical in understanding how apartheid worked. I will also return below to the way in which the Commission dealt with Armscor which forms part of the next section of the Report. For now, it is for the sake of completeness necessary to say that the Commission regarded the activities of the arms industry, in contrast with the mining industry, as an instance of second-order involvement (TRC Report Vol IV 1998, 36). In this regard, it stated that the moral case to answer “is essentially that business willingly (and for profit) involved itself in manufacturing products that it knew would be used to facilitate human rights abuses domestically and abroad”(36). The counter-argument that was presented

The Spectre of Reparation in the Archive 101 by Armscor was that arms manufacture is a normal function in all modern governments and that when business participated in this it was merely assisting the government in executing its defence mandate in this regard. The TRC then asks whether it was credible to argue, as business did, that producing arms for South Africa was done thinking that these products would be used to fight an external aggressor. The TRC writes that it is certainly possible that, given the propaganda about a total Communist onslaught, business could think that its arms products were going to be used to resist this onslaught. However, argues the Commission, when the army started rolling into the townships “the scales should have fallen from the eyes of all perceptive South Africans” (37). The section on the role of other white business is mostly a reprisal of points that the Commission had already made in previous sections of the report. There are, however, three important statements contained in this section which warrant attention from the archival point of view. First is the Commission’s insistence that “[f]irms that informed on trade union officials to the security police and called in the police to disperse striking workers clearly have a great deal to answer for” (TRC Report Vol IV 1998, 38 (emphasis added)). Second is the Commission’s finding that “[t]hose which took advantage of apartheid norms and practices to humiliate their workers with racism […] and to engage in unfair labour practices,” “need to recognise that they were part of the problem of apartheid – and not simply subject to its laws” (38 (emphasis added)). Thirdly, is the TRC’s conclusion in this section, namely that while not all businesses “profited equally from apartheid,” it is “difficult not to conclude that, between 1910 and 1994, government and business (despite periodic differences and conflicts between them) co-operated in the building of an economy that benefited whites” (42). These three statements read together make it clear that business has, in the TRC’s view, a case to answer in terms of reparation. While the TRC never explicitly invokes the term in this section, it could be read as clearly implicit in the references that business have a “great deal to answer for” and that it needs to acknowledge that it was “part of the problem of apartheid.” What is, however, on the other hand, worrying about these statements is that they could be read as a position on the part of the TRC that business simply needs to acknowledge, without more, the critical role that it played in perpetuating apartheid. This reading would certainly seem to align with the earlier statement in the section on mining that merely an apology would contribute significantly to reconciliation. In other words, these statements could be read as a TRC stopping short of unequivocally stating that there is a case to answer in terms of reparation. The archival risk, then, of not explicitly stating that there is a clear responsibility to make reparation, not simply to acknowledge pernicious involvement, is that the TRC further opens itself here to the criticism that the spectre of reparation haunts its text, precisely because reparation here is not confronted head-on. In the section of the Report devoted to “workers,” the TRC quotes extensively from submissions that argued the unequivocal deleterious impact of apartheid on poor black labourers and their working conditions, which not only deepened income inequality but also led to gross violations of human rights. It is in this

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section that the TRC begins to draw attention to Mahmood Mamdani’s distinction between “perpetrators” and “victims,” on the one hand, and “beneficiaries” and “victims,” on the other hand (TRC Report Vol IV 1998, 43).21 The Report goes on to quote from the submission of Prof Sampie Terreblanche to the effect that the racially-based capitalism of apartheid was “deliberately designed to produce white beneficiaries and black victims” (45). Prof Terreblanche’s submission illustrated how the very high economic growth rate of the 1950s and 1960s was accompanied by a large increase in the racial disparity ratio. This means that there was during these times what Terreblanche called an “upward redistribution of income” (45) from Africans to Afrikaners, thus clearly producing, in the economic context, the white beneficiary in relation to the black victim. What is frustrating about this part of the Report is that the TRC does not make any findings of its own in relation to beneficiaries and victims. Apart from the quotation from Prof Terreblanche’s submission, the critical nature of the relationship between beneficiaries and victims is not developed in any further detail. It is as if the TRC leaves the submissions to speak for themselves, but in the context of quoting submissions which stated vastly opposing and contradictory positions, the extent to which the TRC understands the category of the beneficiary as critical to understanding the role of business during apartheid is left underexplored at best. And because the category of the beneficiary is so crucial in constructing the argument for reparation, one can again draw the conclusion that the TRC remains reticent of explicitly stating that the case to answer critically involves the determination of the extent to which business is responsible for material reparation, reparation, in other words, that goes well beyond the mere offering of an apology or “acknowledgment.” A separate section continues to deal with business in the 1980s, which the Report describes as “a period of reform and repression” (TRC Report Vol IV 1998, 46). The Report documents here the continued and intensified cooperation between business leaders and political leaders to “prolong white domination” (48). The TRC concludes rather mildly in favour of the radical argument by again invoking the rhetoric of a “clear case to answer”: “where participation by business […] resulted in, or facilitated, subsequent human rights abuses […] there is a clear case to answer” (48).22 The problem, however, is that the TRC never actually states how this “clear case” is to be answered. Again, is the TRC’s position simply that the answer involves an empty, shameless apology or does the answer involve business stating explicitly how it envisages accounting for the decades of benefit that was bestowed on it in a myriad of ways; in other words, does the appropriate answer involve a clear commitment to material reparation? This is what remains radically unsaid in these sections of the Report and it is what allows the spectre of reparation to infiltrate, to lodge itself in the open spaces of the text, of the TRC’s writing on the role of business during apartheid. In the subsequent section—entitled “Could Business Have Done More?”—the TRC condemns the Botha government’s Total Strategy programme, noting how the 1979 Carlton Conference “introduced a new form of partnership between government and business” (TRC Report Vol IV 1998, 49). “Hundreds and probably

The Spectre of Reparation in the Archive 103 thousands of South African private sector companies,” the Report states, “made the decision to collaborate actively with the government’s war machine” (49). Here, the Report makes it clear that most businesses were willing collaborators, that collaboration was not a “reluctant decision imposed on them by coercive apartheid legislation” (49). The banks, especially, made direct loans to the apartheid government in a time when it was explicitly geared towards the repression of black citizens, waging war on the liberation movements and invading neighbouring countries (50). The Report then illustrates how multinational corporations maintained apartheid despite sanctions right up to 1984 “when it became less profitable for international investors to invest in South Africa” (TRC Report Vol IV 1998, 51). At the same time, the Report laments the fact that in view of multinational corporations’ “prominent role in South Africa’s economic development under apartheid” (50), no submissions were made by these corporations. The TRC, however, says nothing in this context of its power to subpoena persons to appear before the Commission. Presumably, the TRC did not think that its power to subpoena extended to the boards of directors of multinational corporations. In the subsequent sub-section entitled “In Broader Perspective,” the Commission quotes from several business submissions which admitted, with the benefit of hindsight, that they could have done more to resist apartheid (TRC Report Vol IV 1998, 52). The Commission here noted that “[i]mplicit in any evaluation of the role of business under apartheid is an underlying conception of what the role of business should be in society” (52). It stated that two distinct points of view emerged in the hearings, the first being the acceptance by some business that more could have been done to bring about change, thus admitting to “a moral role for business that extended beyond the conventional bounds of everyday business activity” (53). The other point of view held that business is not a construct that acts from a “moral standpoint.” It is especially noteworthy in view of what will follow that the Commission quotes the submission of SANLAM in this regard, to the effect that the notion that business should be a “watchdog” of government when it comes to human rights violations, is “totally unrealistic” and “should be dispelled” (53). The TRC rejected this argument in an outright way, writing that “to say that business was incapable of crossing swords with politicians is to deny the power (and responsibility) that accompanies financial muscle and personal contacts” (53). It is in this context that the TRC rejects the argument that morality is not an important ingredient of business activity (54). In the section on “The Way Forward,” the Commission considers various proposals for ways in which business can be held concretely accountable for apartheid. These included the proposal to cancel South Africa’s “odious debt” (now moot, of course, at least to a certain extent (see below)); the proposal by Prof Sampie Terreblanche to raise a wealth tax as a means of addressing income inequality; the proposal by Mr Bob Tucker of the Banking Council for an ill-defined contribution by business to “reconstruction and development” rather than to a reparations fund; and a proposal by Mr Stephen Mulholland that “each company listed on the Johannesburg stock exchange should give up 1 per cent of its market capitalisation”

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(TRC Report Vol IV 1998, 57) for contribution to precisely such a reparations fund. It appeared that the TRC supported the Mulholland proposal more decidedly than the other proposals, stating that it would “be a welcome signal from corporate South Africa that it understands and accepts its own responsibility for the past and its commitment to stability and justice in the future” (57). The chapter ends with the Commission’s findings which is basically a summary of the findings that it made in the course of the previous sections of the Report. The chapter on Reparations and the Business Sector in the 2003 Report

The 2003 addendum to the TRC Report in which this chapter appears is part of the Report of the Reparation and Rehabilitation Committee. As such, it focuses the question of the role of business squarely within the ambit of the question of reparation. Basically, this chapter is a reading of the 1998 Report’s section on the role of business, the latter being part of the report of the Human Rights Violations Committee. This 2003 chapter begins by noting the finding of the Commission in the 1998 Report “that business generally benefited financially and materially from apartheid policies” (TRC Report Vol VI 2003, 140). As such, it places the question of the beneficiary concretely on the table in relation to the question of reparation. In similar vein to the 1998 Report, this chapter elaborates on the activities of banks and other lenders (144–147), certain parastatals (147–151) and the mining industry (151–155). What is, however, different in terms of tenor between these two chapters is that the 2003 chapter explicitly makes the case for reparations in relation to these entities. This is clearly a function of the fact that this chapter of the Report is written by the Committee that was tasked with the making of recommendations to the government in relation to reparation. While this chapter summarises the specific and abundantly numerous instances in relation to which benefits for business accrued under apartheid, the chapter explicitly makes the case for “the involvement of business in a wider project of reparation, relating not simply to those identified as victims by the Commission, but to all those South Africans whose normal development was impaired by the system of apartheid” (TRC Report Vol VI 2003, 141). This means that the Commission considered “reparative measures” in relation to “the very large majority who remain victims of South Africa’s past” (142). What is thus clear from these statements is that the Reparation and Rehabilitation Committee accepted Mamdani’s insistence that victims should be defined in relation to beneficiaries (as opposed to perpetrators) and that if this is done the vast majority of South Africans qualify as victims. Apart from a reiteration of the findings and recommendations of the 1998 Report, this chapter concludes that business has “at the very least, a moral obligation to assist in the reconstruction and development of post-apartheid South Africa through active reparative measures” (143–144). It is not clear why the Commission decided to phrase the matter in this way. From the point of view of the archive’s principle of commandment, it could have been much more forceful to make the case that business in fact has a legal obligation to make reparation. As we shall see below, despite this framing of the reparation question as, “at the very least” a

The Spectre of Reparation in the Archive 105 moral obligation, the Commission does consider in the remainder of the chapter at least two instances in which the legal basis for reparation arises, albeit that the Commission does so in a cursory and underdeveloped fashion. The 2003 chapter also supplements the 1998 chapter in key areas. The most prominent of these is the 2003 chapter’s discussion of the banking industry’s role in apartheid. In stating the case for reparation payments by the banking industry, the Commission notes that the banks, especially Swiss banks, instead of using their leverage as creditors to force the dismantling of apartheid, provided further breathing space to the apartheid regime by, inter alia, granting an extended period for redeeming their stock of debt (TRC Report Vol VI 2003, 144–147). It is in this section on the banking industry that the Commission comes closest to stating a legal obligation for reparations. It argues that South African law on contracts such as bank loans is heavily influenced by public policy considerations (146). In South African law, contracts concluded contrary to public policy are, as a rule, unenforceable. This means that under South African law, these contracts may very well have been tainted either with criminality or with immorality per se. In either case, such contracts would be unenforceable in South Africa, because they were concluded for nefarious purposes which led to the gross violation of human rights. It is especially after the United Nations Convention declaring apartheid as a crime against humanity, that this claim attracts compelling traction (146). The argument here would be that any contract concluded to facilitate the crime of apartheid was contrary to public policy and hence unenforceable (146–147). This argument, as the Commission noted, is also closely related to the doctrine that the odious debt of a previous government can be repudiated by successor governments (147). It is, however, a great pity that the Commission does not develop this argument further than the short paragraphs in which it does no more than hint at this possibility of a legal obligation for reparation. As a result, questions as regards how such a case could practically and concretely be made and, especially, litigated, are left unaddressed. So, too, is the question of which contractual remedy would be appropriate in circumstances where the debt is declared unenforceable. Specifically, the question as regards exactly how restitution of such debts would take place in terms of the flow of payments is left unanswered. The 2003 Report moves on to a section on the role of parastatals. Here, the Report states that the government “used” the parastatals to further its own objectives (TRC Report Vol VI 2003, 147). It discusses the various criminal operations of ESKOM (the country’s main electricity supply utility) as “an example without prejudice” (147) but not before pointing out that ESKOM has made many laudable changes (147). Despite this, the Report notes that the loans to public sector corporations and business enterprises such as ESKOM constituted the “economic lifelines of the apartheid economy” (148). It was especially ESKOM’s ability to provide cheap energy that enabled the exploitation of South Africa’s “rich mineral endowment,” thus giving such exploitation a competitive advantage in global markets (148). A hugely significant part of the other side of this coin was that for 58 years (1911–1969) there was no real increase in the wages of electricity workers (148). In addition to this, ESKOM at the same time actively combated the

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liberation struggle. When its facilities were declared national key points in 1980, it established its own counter-intelligence unit, militia and armoury, while working closely with the security police and military intelligence (149). This aspect of ESKOM’s operations should be considered also in the light of the fact that it provided finance for research into South Africa’s nuclear bombs while at the same time neglecting to provide basic electrical supply to black areas. The consequent effect of this failure to electrify black areas was as the Report notes, a disproportionate environmental cost on the part of people living in unelectrified areas with afflictions such as chronic bronchitis and paraffin poisoning having a high prevalence in these areas (150). The remainder of the Report seeks to emphasise the role of the mining companies. It describes how “the blueprint for ‘grand apartheid’ was provided by the mines”—how it “was not an Afrikaner state innovation” ((TRC Report Vol VI 2003, 152); how the mines’ “thirst for migratory labour” led to “native reserves” evolving into labour reserves (151–152); how a “closed compound system” fostered separate identity and “anticipated the conflicts within the hostels and with permanent township residents” (152); how the single-sex hostels eroded family structures (152); how “state security forces became almost permanently resident on production sites to maintain and restore order” (152) in the face of strikes; and, finally, how mining corporations ignored the most basic safety strategies and standards of miners working underground (153). The Commission points out that the mining companies admitted all of this in their submissions. The chapter goes on to describe in resolute terms the “consensus” between business and the apartheid government (153) manifested in the Total Strategy programme. It damningly concluded in relation to Anglo American that the ostensibly magnanimous deeds it claimed as evidence of its resistance to apartheid must be considered “as exceptions against a general rule of profiteering based on racist systems of exclusion, indignity, manslaughter and expropriation” (155). The chapter concludes that “a reparations claim against corporations like Anglo American would be based on the extent to which decades of profits were made in the face of systematic violations of human rights” (TRC Report Vol VI 2003, 155). Here again, the Commission is willing to consider the legal basis for reparations when it states that such a legal case could be mounted on the basis of the doctrine in South African common law of “unjust enrichment” (155). In terms of the doctrine, as the Report notes, “the impoverished party acquires a legal right to claim that the extent of the other’s enrichment be restored to him/her if it was acquired at his/her expense” (155). Again, what we have here is no more than a cursory reference to the possible legal basis for reparation claims and the TRC again neglects to develop the intricacies of how such a claim would work in terms of the post-apartheid legal order’s jurisdiction. The spectre of reparation in the archive Now that we have established a workable picture, with some preliminary discussion, of what the TRC managed to consign to its archive on the role of business in

The Spectre of Reparation in the Archive 107 and during apartheid, I want to engage in this section in a more focused discussion of how I see the manifestation of the spectre of reparation in this archive. The discussion is divided into three parts: The ghost of inattention; the ghost of time; and the ghost of the public/private distinction. These, I argue, are the primary forms of the visitation of the spectre of reparation in this archive. Each of them touches in a different way upon the failure of this archive to command a law that would begin to make reparation. They are, as such, treated as separate visitations of the spectre of reparation, but in the end, they are also relatable and intertwined, for together they help to explain the ways in which this archive remains haunted by the lack of reparation. These are manifestations of the spectre of reparation that haunt the anarchival tendencies or postures of both the TRC and the business which it addressed in the enquiry. As I will go on to show in a subsequent section, these are ghosts that lodge themselves in the archive in order to call into question these anarchival tendencies while at the same time pointing towards or calling for the possibility and responsibility of another, differential, notion of the archive that can finally compel the inauguration of a commandment of the archive that would begin to come to terms with the TRC’s constitutive and organising lack of reparation. This other version of the archive is not yet and yet this is precisely the archive that the spectre of reparation, as I will argue, insists on in the name of justice. This relationship between the not yet and the spectre which calls on that which is precisely not present or even presentable has been poignantly worded by Jacques Derrida in the opening pages of his Specters of Marx: If I am getting ready to speak at length about ghosts, inheritance, and generations, generations of ghosts, which is to say about certain others who are not present, not presently living, either to us, in us, or outside us, it is in the name of justice. Of justice where it is not yet, not yet there, where it is no longer, let us understand where it is no longer present, and where it will never be, no more than the law, reducible to laws or rights. It is necessary to speak of the ghost, indeed to the ghost and with it, from the moment that no ethics, no politics, whether revolutionary or not, seems possible and thinkable and just […] Without this non-contemporaneity with itself of the living present, without that which secretly unhinges it, without this responsibility and this respect for justice concerning those who are not there, of those who are no longer or who are not yet present and living, what sense would there be to ask the question “where?” “where tomorrow?” “whither? (Derrida 1994, xix) Read in isolation, the few pages that make up the present archive of the TRC Report’s account of the role of business in apartheid indeed appear potent, they indeed appear to speak in the name of justice. However, as I show below, a closer look at the TRC’s treatment of the business sector reveals—especially in light of the evidence submitted during the business hearings—that it fails to paint an

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adequately vivid picture of business’s involvement in some form of apartheid during the greater part of the twentieth century and so fails to provide “as complete a picture as possible” of South Africa’s apartheid past. This failure to provide “as complete a picture as possible” is the primary reason why the archive is or becomes susceptible to the visitations of the spectre of reparation and it is also why we can characterise the archive in this regard as representing a forgetting ahead of itself. The ghost of inattention

A picture that does not draw the involvement of business during apartheid as the violation of human rights (mostly second-generation rights but human rights nevertheless) is not even close to a complete picture of the past (Terreblanche 2002, 127, 131). My contention is that the archive we are faced with here was assembled without what Van Marle (2003, 243) calls “attentiveness in the face of the violence that is brought into institutionalised … and legalised process.” This inattention, however, is inseparable from ideology; it is akin (but not identical) to what Fredric Jameson (1981) called the “political unconscious.” The political unconscious insists that any reading (here the TRC’s reading of its mandate as well as the framing of submissions authorised by such a reading of the mandate) always takes place in an ideological–political context that cannot be ignored or denied. This political unconscious (or inattention as politically ideological) is clear even if one considers only the record of submissions on the role of business and leaves aside for the moment the glaring absences of corporations that failed to appear before the TRC. The point here is that the TRC’s inattention in instances where it was confronted by business is itself political/ideological albeit that it is, in Jameson’s terms, “unconscious.” The best example of this inattentive posture that is (unconsciously) political is probably the way in which the Commission dealt with Armscor, the state corporation which specialised in the supply of weapons and equipment to the apartheid war machine. Despite written and unwilling oral submissions, as well as a lengthy and potentially damning submission by the Centre for Conflict Resolution (CCR), the activities of Armscor are ineffectively recorded in volume 4 of the Report and passed over in silence by the 2003 addendum. In addressing the question of whether it was credible to argue that Armscor thought its products were going to be used to fight a foreign aggressor, the Commission simply noted that “[u]nfortunately no evidence was presented … about the mindset of arms manufacturers” (TRC Report Vol IV 1998, 37). The question suggests itself whether the “mindset of arms manufacturers” was not self-evident in light of the fact that Armscor did not cease its arms production once the army was deployed in the townships. This then raises the question of whether the lamentation about a lack of evidence does not function as a red herring which the TRC unconsciously used to avoid making a specific finding on the mindset of apartheid arms manufacturers. The vast activities of the businesses that armed apartheid are treated in passing, the Report devoting a mere seven paragraphs (mostly quotes from submissions) to business activities in the arms industry during “the darkest hour of apartheid”

The Spectre of Reparation in the Archive 109 (TRC Report Vol IV 1998, 36–37; Terreblanche 2002, 130). Given that Armscor was the pivot on which the collaboration between business and PW Botha’s securocratic government hinged, this is hardly adequate. Given the many defenceless, innocent lives Armscor’s products terminated, it is reprehensible. As we shall see below, the Report also fails to provide an understanding of exactly how central Armscor was to the perpetuation of apartheid big business. The CCR’s submissions provided staggering evidence in support of its central contention that the “business community, through their extensive involvement in local arms production … provided … material means for the preservation and defence of apartheid” (CCR submission 1997, 1). These submissions to the TRC pointed out, inter alia, that Armscor never undertook the development and production of arms in its own name (2), relying instead on private-sector facilities. In its oral testimony before the TRC, Armscor confirmed this (Business Sector Hearings Transcript 1997). The CCR claimed that, by 1982, between 2,000 and 2,500 companies (ultimately controlled by only Old Mutual, Anglo American and Anglo Vaal) acted as suppliers, contractors and subcontractors of Armscor (CCR submission 1997, 3). It is precisely for this reason that the configuration of industrial relations organised around Armscor became known as the “military-industrial complex.” Armscor executive chairman, Ron Hayward, however, claimed in an oral submission to the TRC that a “fairly limited” group of private companies were involved in the arms industry during the apartheid years. Asked about profit taking by Armscor and private companies, Hayward said: “I honestly doubt there was excessive profit taking […] because we had to remain internationally competitive […] I can’t say whether some businesses made more money out of it. To my knowledge they did not” (SAPA 1997a). Instead of a sustained engagement with or attentiveness to the contradictions which emerge from these various submissions, none of this appears in the TRC Report. As such, it is evidence of a great degree of inattention around the activities of Armscor which inattention has an anarchival effect from the point of view of what was recorded in the archive about Armscor. Moreover, this lack of attention is, as I have pointed out, ideological and political since it served particular political and economic interests not to have drawn too much attention to Armscor in the TRC’s archival activities. After all, it was during this same time that government, business and Armscor were involved in the negotiation of the notorious arms deal which became the subject of so much controversy later on. Symptoms of the same inattention are reflected in the TRC’s distinction between first- second- and third-order involvement in the 1998 Report, which requires closer scrutiny. First, the distinction itself can be regarded as anarchival in that it masks human rights violations perpetrated in the economic sphere, by representing them as mere “involvements,” being more or less culpable than others. The distinction between orders of involvement is, in addition, utterly flawed at its very core. Even for the synthetic entity such as the corporation, the concept of responsibility is not something that opens itself to an evaluation from which we can deduce that it ultimately makes a difference whether some were more responsible and others were less responsible.23 Every white-owned business in South Africa knew or should have known that it was benefiting from apartheid through its “involvement,”

110 The Spectre of Reparation in the Archive regardless of whether it benefited directly or indirectly. To have fully acknowledged and disclosed the scope and extent of those benefits would have been a first step towards reparation and reconciliation. The invention by the TRC of these categories of involvement ultimately worked against such a disclosure, albeit that it did so unintentionally or unconsciously. Even if distinctions could be drawn between the levels of “involvement” of white businesses operating in apartheid South Africa, one would have to concede that the TRC’s distinction between first-, second- and third-order “involvement” is not stable at all. One can, for instance, not say that the “ordinary” activities of Old Mutual as an insurer constituted only third-order involvement. First, nothing under apartheid could be described as “ordinary” or “normal” (Terreblanche 2002, 129), and second, a company such as Old Mutual did not simply sit back collecting profits—it also allowed members of its top managerial structures to sit on PW Botha’s Defense Advisory Council. And of course it actively employed white people exclusively in all but the least desirable positions. What is more, a single company can easily fall into all three of the TRC’s orders of involvement. As was seen above, Old Mutual was one of three holding companies with subsidiaries that dealt with Armscor on a daily basis. Armscor’s activities, in turn, were curiously described by the TRC as second-order rather than first-order involvement because Armscor did not “engage directly in activities that promoted state repression” (TRC Report Vol IV 1998, 25). To say that Armscor did not directly engage in activities that promoted state repression is almost as ludicrous as saying that PW Botha was the president of South Africa but did not directly promote apartheid policies. To designate, as the TRC did, the activities of mines as first-order involvement but the activities of Armscor as second-order involvement testifies not only to the porous nature of the distinction between these orders of involvement, it also makes clear that the invocation of these orders of involvement did very little in terms of holding business to account for the roles that it fulfilled under apartheid. At worst, the distinctions along the lines of orders of involvement are disingenuous and serve to mask the ways in which concrete benefits accrued at the cost of human rights violations, no matter which order of involvement was identified in a particular case. For this reason, it is not surprising that when the TRC discussed the “weakest,” third, order of involvement, it could not avoid referring to the current unequal distribution of wealth in the country which it said was a result of the system of apartheid that “favoured whites.” The TRC’s inattention in this regard exists in the fact that it does not seem to see that the moment that one links the unequal distribution of wealth to the apartheid past, one becomes—or should become—invariably involved in a discussion of what the cost of “favouring whites,” i.e., benefiting whites, was and this cost is clearly human rights violations which were suffered by the majority of black people in this country as the direct victims of economically benefiting whites. The TRC itself made this clear when it later on endorsed Mamdani’s insistence that victims are to be defined in relation to beneficiaries. The point is thus that the TRC undermined its own taxonomy of orders of involvement when it made it all but clear that even in the weakest order of involvement the question of the gross violation of human rights cannot be avoided.

The Spectre of Reparation in the Archive 111 I will conclude this section on the ghost of inattention with an example of how the TRC failed to resolve contradictions that emerged as a result of its sustained practice throughout the Report of quoting from submissions that stated opposite positions. Consider the following passage from Volume Four of the Report: The life assurer SANLAM accepted that its Afrikaans origins “could have contributed to and facilitated cordial business relationships with government, especially after the NP came to power in 1948 …” saying that, “successful marketing implies sound relationships with decision-makers.” However, apart from having easier access to government, SANLAM said, “it did not enjoy preferred status with the NP.” SANLAM claimed that it became the first large company to redress economic imbalances when it sold the life assurer Metropolitan Life to black investors in 1993. SANLAM also created a development fund to contribute to empowerment … The ANC submission identified the “spectacular economic growth” of Afrikaner controlled companies like SANLAM, which were “especially favoured by the apartheid regime.” SANLAM’s assets rose from R30 million in 1948 to R3.1 billion in 1981, while companies over which it exercised effective control had assets worth R19.3 billion. (TRC Report Vol IV 1998, 30–31) The above passages contain all of the Commission’s writing on SANLAM. An apparent instance of inattention here exists in the absence of the Commission’s own judgement on the contradictions that are apparent from the extracts of the submissions it cites. The above contradiction regarding SANLAM’s involvement in apartheid begs answers to questions such as: “So who got it wrong? SANLAM, the ANC or both?” Or better still—“Who was untruthful in relating these events, who distorted the past—SANLAM, the ANC or both?” The Commission made no specific finding in this regard, thus leaving it up to the future readers of the Report to make up their own minds about the extent of SANLAM’s involvement in and benefit from apartheid. The above passage fails to mention that which is more or less, while having been recorded, “off the record” for purposes of the TRC’s Report. For instance, the TRC fails to mention that SANLAM did not just have Afrikaans origins, but was itself founded in 1918 by National Party founder, WA Hofmeyer (Goldstein 2000, 2). It had the specific aim of furthering Afrikaner nationalist interests. The report is silent about the records that conclude that SANLAM directly benefited from the Sharpeville massacre when, in the exodus of foreign capital which followed Sharpeville, SANLAM bought—at bargain basement prices—large quantities of shares in companies across the board (Feinstein 2005, 178–179). The report does not mention that in the early 1970s, Wim de Villiers (SANLAM’s vice-chair and a key member of the Cape NP establishment and PW Botha’s mentor), championed “cooperation between the public and private sector in an overarching strategy to ward off Marxism” (Dixon 2001). It was thus more than symbolic that in 1977 Steve Biko met his death at the hands of police

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torturers in room 619 on the sixth floor of the SANLAM Building in Port Elizabeth (Dixon 2001)—a fact the report also does not mention. The report does not engage the horrid irony and vile hypocrisy in SANLAM’s first point in its TRC submission, namely that they did not actively participate in the struggle against apartheid because of the violent nature of the struggle (SAPA 1997b). These instances of inattention on the part of the TRC in relation to SANLAM are symptomatic of the way in which the Commission dealt with business in general. In most of the cases where a particular business’s activities made it into the Report (another example here is Anglo American), the Commission did not use the opportunity that so presented itself in order to paint “as complete a picture as possible” of the particular business’s involvement in and benefit from apartheid at the cost of human rights violations. Instead, what it put on the record was quotations or positions from the submissions, which quotations and positions contradicted each other and as such painted a blurred, instead of a complete, or more complete, picture of the involvement of the particular business and the extent to which it benefited from apartheid. As Nicoli Nattrass (1999, 374) argues, quotations from submissions were added to the Report “often at the cost of argumentative coherence.” This strategy on the part of the Commission perhaps provides us with a clue of how the Commission understood its task of having to obtain as complete a picture as possible of the past. Perhaps the Commission’s understanding of this task was that it should place on the record the opposing versions of the past to which it had gained access through the submissions and that this representation of varying positions in relation to past involvement would then constitute “as complete” a picture as possible. But the risk of painting the picture in the form of contradictions in this way is that it gives way to a relativistic impression out of which no principled position/picture emerges neither of business in general’s involvement in apartheid nor of particular businesses’ specific involvements in apartheid. Even though the Commission came to the conclusion that business generally benefited from the apartheid system, the picture which underlies this conclusion could have been much more vividly, much more unequivocally, painted had the TRC given proper attention in each case to paint the picture of how business benefited in the best possible detail. The ghost of this inattention thus continues to haunt the business sector archive and will keep doing so until such time as far more unequivocal information about benefit is placed on the “official” record to support the conclusion that business generally benefited from apartheid at the cost of gross human rights violations. The ghost of time

The inattention I have described above also relates directly to the way in which the TRC dealt (or had to deal) with time. Van Marle (2003, 244) has pointed out that, generally, time constraints were amongst the TRC’s greatest institutional failures: “certain fixed time frames were created and if an individual’s case fell outside the scope of the time frame, there was no institutional path to follow.” The time-related aspects of the TRC’s work concerning the role of business which compromised its

The Spectre of Reparation in the Archive 113 archiving process are the period in respect of which submissions could be made and the time allocated by the TRC to hearing the submissions that were made. The business hearings restricted submissions to evidence relating to the period 1960 to 1994 (TRC Report Vol IV 1998, 18). This obviously excluded activities and violations in say, 1958, which were on any sensible understanding of events continuous with those that followed and essential to their appreciation. As significantly, the vast majority of the submissions actually received related to activities during and after the late 1970s (18). In this regard, Terreblanche argues that the uncritical acceptance of the time period (inattentive posture towards the time constraints) to which submissions related eschewed the important repressive labour patterns that emerged during the first three quarters of the twentieth century as a direct result of corporate pressure on the colonial governments (Terreblanche 2002, 66). The Commission felt that it was to be expected that submissions would only be made relating to the period after 1960 as “many of the individuals involved were not active in the 1960s” (TRC Report Vol IV 1998, 18). The relevance of this statement, however, is elusive in light of the fact that many corporations—not least those few companies situated at 44 Main Street24 which held the bulk of South African wealth during the 1960s—were actively involved in the 1960s’ apartheid economy. The activities of corporations are distinct from the activities of their shareholders, directors and employees from time to time, yet no reason was offered why submissions could not have been made or subpoenas issued for testimony on behalf of these businesses. Surely, the records kept by these companies would have provided some information relating to their activities under the apartheid regime? A further aspect related to time (or the lack thereof) was the short time allocated by the Commission for hearing the submissions on the role of business. Only three days were allocated to account for the decades of massive complicity of business with the apartheid government. The allocation of a mere three days to these hearings can in itself be understood as an anarchival posture on the part of the TRC. The transcript of the hearings reflects that by the time of the hearings, the TRC had become increasingly aware of its initial inattention regarding time constraints. The chair on the first day repeatedly cut submissions short halfway through with appeals such as: “[C]an I emphasise that time is of the essence here,” “I know we’re fighting against time” and “I hope that you can answer … fairly briefly so that we can go to tea” (Business Sector Hearings Transcript 1997). The transcript also clearly shows how frustrated those who appeared before the Commission were with the little time made available to them. For example, a speaker from National African Chamber of Commerce (NAFCOC) when interrupted halfway through his submission responded: “I thought people could take a little bit of time because there are some very important issues we wanted to elaborate on” (Business Sector Hearings Transcript 1997). These frustrations ultimately led to the extension of the first day of hearings by a mere half an hour. Did the TRC really think that three days would be enough time to do justice to the millions of victims who suffered at the hands of apartheid’s captains of industry? Would three days really be enough to take account of the literally thousands

114 The Spectre of Reparation in the Archive of days of hardship in the mines, on the farms, in the homes and in the kitchens? Would three days truly provide a thorough understanding of the symbiotic relationship between apartheid laws and the exploitation of black labour in every sector of the economy? But then maybe that was not the script at all. The ghost of time that haunts the TRC’s proceedings in this regard should thus be understood as, in essence, a twofold ghost. Such twofoldedness of the ghost arises out of the double genitive that inheres in the phrase the “ghost of time.” First, the ghost of time is time’s ghost that inheres in the archive—the fact that a terminal lack of time haunts the archive’s possibilities and probabilities in this regard and in fact puts it out of joint. Second, there are the specific ghosts of time, for instance the time constraint in relation to which the TRC’s mandate only accepted submissions on activities from 1 March 1960, how business submissions related only to the time period of the 1970s and onward. These two instances of the ghost of time are not unrelated for they consort together to undermine the sense in which the TRC painted “as complete” a picture as possible of business’s involvement in the apartheid past. Together they haunt the archive to the point that the archive’s relation to time becomes so prominent that it threatens a breakdown of the archive, the sense in which the archive becomes out of joint with itself. If the critical point of the archive is to record information in relation to a particular time, these ghosts of time work from within the archive to undermine the sense in which the archive can ever be a proper record of a particular time, for the ghost of time pushes the archive towards what lies radically outside its contrived temporal boundaries and in so doing it opens the archive anew and calls it to an impossible and yet necessary encounter with and accommodation of the time it does not / did not have. The ghost of the public/private distinction

We must now attend to the ghost that is perhaps the most pervasive, the most overwhelming of the ghosts that haunt the TRC’s archive on the role of business during apartheid. This is the ghost of the public/private distinction, spectral in its very character, because it is business (as supposedly “private” activity) that persistently relied on this distinction in a manner that threatened the most anarchival force in relation to this archive. The classical liberal argument which underlies the ghost of this distinction in the TRC’s processes is well known: Private activity is supposedly not susceptible to public scrutiny because it takes place in a sphere that should be, or is in fact, shielded from the State as the most public and the most political of forms. In relation to the TRC, the public/private distinction was relied upon in several ways in an overarching attempt to escape the TRC’s (as an instance of the State’s) archiving process. Below I sketch the archival consequences of the reliance by business on the public/private distinction. In other words, I describe three instances of the invocation of this distinction which raises three ghostly forms of ways in which the TRC’s archive is haunted by the distinction.

The Spectre of Reparation in the Archive 115 Conspicuous absences

The relatively small number of submissions received on the role of business in apartheid—a mere 55—immediately implies the many absences at the hearings of business and even of entire sectors. It is indicative of a certain derision on the part of business for the process and goals of the TRC. This is something the TRC should have actively engaged with. But, apart from the condemnation of the agricultural industry for not making submissions and apart from the lamentation about the absence of submissions from multinational corporations, it did not do so. But this absence of many businesses at the hearings also immediately implies a reliance on the public/private distinction which would have it that businesses did not have to make submissions before the TRC because the TRC’s mandate did not extend to the activities of “private” business. Thus, many businesses clearly relied on the public/private distinction in order to evade the TRC’s archiving process, which marks a passage from the private to the public and in so doing in fact works to erase the mythic distinction between the two. Conspicuously absent, as the TRC lamented, were submissions by the multinational oil giants, Shell, Mobil and BP, that were the largest foreign investors in South Africa during apartheid (SAPA 1997c). These companies, which controlled over 85% of the apartheid petroleum products market, were allowed by the successive apartheid regimes to conduct business in strict secrecy. This allowed for a steady fuel supply to South Africa during the international embargo against the apartheid government (SAPA 1997d). As the international embargo went into full swing, the then Minister of Economic Affairs, Chris Heunis, met with the multinational oil companies and basically told them that whatever the cost, South Africa’s petrol pumps must keep pumping fuel (Khulumani n.d.). The result was the establishment of the Equalisation Fund in order to “compensate the subsidiaries of Western oil companies refining oil in South Africa for their abnormal costs of crude oil purchases” (Khulumani n.d.). A “confidential document” has revealed that the apartheid government paid these companies a significantly higher amount than the market price for the provision of fuel in the apartheid years (Khulumani n.d). When these companies failed to respond to the invitation for submissions, the Commission, instead of calling them to account by using its subpoena powers (PNURA 1995, section 29(1)(c)),25 simply confirmed that they would not be called to attend the special hearings on business (SAPA 1997c). As a result, the TRC archive does not contain any record of the activities of these companies. It is thus more than ironic that the Commission afterwards in its Report lamented the failure of multinationals to make submissions, stating that it was “greatly [to be] regretted in view of their prominent role in South Africa’s economic development under apartheid” (TRC Report Vol IV 1998, 50). The South African Agricultural Union (SAAU), representing the farming sector in which some of the most violent human rights abuses occurred, pinned its failure to make submissions on the Commission. It declared that it made no submissions because it had not received any specific questions from the Commission (SAPA

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1997e). The agricultural sector consequently failed to answer the allegations in the ANC’s submission that there was a close link between the transition on white farms from the labour tenant system to the contract labour system, and the forced removal of blacks from rural areas in the sixties and seventies (ANC submission 1997). The ANC claimed that a significant proportion of the people forcibly removed from areas proclaimed white were former labour tenants—these had become “surplus people” no longer needed by the white farmers and forcibly evicted often from their places of birth (2). The Commission did not call on the SAAU to respond, but did conclude its brief reflection on the apartheid farming sector with an insistence that white farmers and the representatives from commercial agriculture “need to acknowledge (not least to themselves)” the extent to which they “have benefited from their privileged access to the land” (TRC Report Vol IV 1998, 29). Absent this acknowledgement, it is not surprising that no particular recommendations were made on how reparation in the farming sector could be achieved. “Don’t ask us, we only worked here”

From the above, it should be clear that the TRC understood big business as beneficiaries rather than perpetrators of apartheid. Given this view, the TRC’s primary focus on perpetrators directed attention away from the beneficiaries of apartheid, and consequently no clear framework for a calling to account was developed (Mamdani 1998, 14). To recall Mamdani’s argument once again, the “focus on perpetrators fuels the demand for criminal justice options, whereas a focus on beneficiaries shifts the focus to a notion of justice as social justice for victims.”26 No one seems to have claimed at the time that the beneficiaries were also in many instances the perpetrators, or at least that the distinction between the two is not stable.27 This situation suited business perfectly. It not only provided “the business sector with a subject position from which to speak” (Harris 2000, 7), but also allowed those businesses that did come to the hearings to rely on an interpretation of the Commission’s mandate which reflected a convenient invocation of the false private/public dichotomy (Kennedy 1982, 1349). As elaborated above, business stressed that the TRC’s mandate was to investigate “gross violations of human rights” (PNURA 1995, section 1) during part of the apartheid era and took the view that this mandate required investigation of active, deliberate participation by individuals in human rights violations during apartheid. Business pointed to the definition of “gross human rights violations” as the actual or attempted “killing, abduction, torture or severe ill treatment of any person … by any person acting with a political motive” (PNURA 1995, section 1) in the PNURA to argue that the Commission could not investigate the apartheid business sector. Apparently, business regarded itself as neither “active,” nor “deliberate,” nor involved in “severe ill treatment” violating human rights in the apartheid years, and most certainly as not acting with any particular political motive. As Terreblanche (2002, 127) shows, the TRC, instead of challenging this understanding, endorsed it despite the fact that its mandate in fact required it to “facilitate inquiries into ‘the identity of all … institutions and organisations involved in’ the

The Spectre of Reparation in the Archive 117 violation of human rights ‘including violations which were part of a systematic pattern of abuse’” (PNURA 1995, section 4(a)(i) and section 4(a)(iii)). Arguments that relied on the narrow interpretation of the mandate continued to point out that the TRC was a public investigative body which did not have the power to investigate private conduct during apartheid. A paradigmatic example of this position is Old Mutual’s statement in the introduction to its submission: “In principle, the mandate of the Commission which focuses on gross violations of human rights would almost certainly exclude Old Mutual from having to make any submission” (TRC Report Vol IV 1998, 20). Various other submissions echoed this view, among these the Tongaat-Hulett submissions, where, as indicated above, the company acknowledged that it was guilty of occasional “ill treatment,” but certainly not of “gross violations of human rights as defined by the Commission” (20), missing, of course, the point that “ill treatment” was explicitly included in the definition of “gross violations of human rights” in PNURA. This insistence on the public/private dichotomy during the TRC’s business hearings seems warped if we recall how business during apartheid conveniently ignored the ostensibly self-imposed public/private boundaries. Examples abound. To return to Armscor once again, 80% of its board consisted of private representatives (CCR submission 1997, para 2.3). The chairman of Anglo American, Gavin Relly, frequently served on it (TRC Report Vol VI 2003, 153; ANC submission 1997). Thirteen prominent businessmen, including the chairmen of some of the largest corporations in South Africa, were co-opted onto PW Botha’s 1973 Defence Advisory Council (CCR submission 1997, para 2.3). These included three members of Barlow Rand’s board of executives (including its chairman) (para 2.3). The 1979 Carlton and 1981 Good Hope conferences which served as the precursors to the implementation of the government’s “total strategy” in fact encouraged business “to participate in politics” (CCR submission 1997, para 2.3). The “total strategy” was essentially “a sales gimmick to co-opt the business community into supporting apartheid” (para 2.3) politics. It grew out of the securocratic perception that South Africa was the target of a total communist “onslaught” and was fashioned as an “equally comprehensive, co-ordinated and total” (para 2) response to it. Business embraced the “total strategy” whole-heartedly (para 2.1). Although legislation could coerce unwilling business into supporting it (para 2.1),28 this was not necessary. Business realised that it was in its best interest to co-operate because it needed state support in sanction-busting activities and to promote stability which was essential for its survival (para 2.3). No wonder that Harry Oppenheimer of Anglo American and De Beers remarked at the Good Hope conference that he felt “greater reason for real hope in the future of the country” than he had felt in many years (ANC submission 1997). This, of course, stemmed from the fact that Oppenheimer “never subscribed to the view that apartheid was morally wrong” (Business Times 1996). That the distinction between public and private became hopelessly blurred during the apartheid years can also be gleaned from business’s relationship with the security forces. The first thing big companies would do when industrial action was imminent would be to call in the police and security forces. On New Year’s Day

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1986, 30,000 workers at Gencor’s Impala Platinum (Implats) mines went on strike for higher pay. In resistance to the strike, Implats permitted the riot police to attack workers with teargas and dogs (Dixon 2001). The TRC Report refers to a strike at Anglo’s Western Deep mine which “was dealt with by government workers and resulted in the death of 12 strikers” (TRC Report Vol VI 2003, 152)—which is apparently a politically correct way of saying that Anglo called the police to come and kill the disobedient blacks, if necessary. The Black Management Forum further asserted that white business relied heavily on the police to structure relationships with black workers, in that managers were often police reservists and business cooperated actively with security forces in providing data on and monitoring workers (TRC Report Vol IV 1998, 43). A typical example of how the reliance on the public/private distinction allowed South Africa’s apartheid big bosses not to acknowledge and not to be held responsible for what were in fact overt gross human rights violations in the “private” sphere is provided by the TRC’s presentation of the violent aftermath of the worst accident in South African mining history—and probably the most tragic example of how low black miners’ safety was on the priority list and how high-profit making was. At 09:00 on the morning of September 15, 1986, 177 mineworkers were killed in an underground polyurethane29 fire at Gencor’s Kinross gold mine (TRC Report Vol IV 1998, 35). Documented reports describe Gencor’s attempts to keep the press and union officials from the accident site to compound the tragedy (Plimmer 1995). Shortly after the disaster, the names of the deceased white miners were released. Hours later, the dead black miners were identified to the world by ethnic group only as: “Sotho 45, Shangaan (Mozambican) 21, Pondo 20, Hlubi 6, Venda 1, Xhosa 29, Tswana 14, Malawi 15, Pedi 1” (TRC Report Vol IV 1998, 36). The bodies of these mineworkers were stacked outside the mortuary in the boiling sun because there was no space for them inside (Plimmer 1995). “When the workers mourned the loss of their comrades at a mass meeting, the apartheid government responded by sending in riot police” (Plimmer 1995). According to a trade union report, Gencor management obstructed and sabotaged the subsequent investigation of the tragedy (NUM 1992). In a poorly prosecuted case, the company was acquitted of culpable homicide. The only fine imposed was R100—against a plate layer accused of starting the fire (NUM 1992). The TRC’s engagement with this tragedy lasts the length of one paragraph, followed by the statement that “mining is, of course, an inherently dangerous occupation” (TRC Report Vol IV 1998, 36), to which is added that “there appears to be some evidence that profitability ranked higher than people’s lives.” A statement by the Commission characterising this event for what it was—a gross human rights violation—would have gone a long way in challenging the public/private mythology along with all the alibis it generated. Whether one agrees with the theoretical argument that apartheid was good for capitalism or not, one of the most baffling aspects of business’s submissions to the TRC was that it managed to hold itself out as having been disadvantaged by apartheid in the face of rampant examples to the contrary. When not arguing that its activities fell outside the TRC’s mandate, business claimed that it did not benefit

The Spectre of Reparation in the Archive 119 from but was in fact a victim of apartheid because apartheid was bad for business. As Patrick Bond (1998) has noted, there was just “no end to the excuses and buckpassing” when it came to holding big companies accountable for apartheid. These arguments could not explain, if apartheid was so bad for business, why there was consistent intensified corporate concentration and raised profitability in the period between 1960 and 1980 (Bond 1998). These businesses continued to argue that restrictions on black residence in, and the right to travel to, urban areas, inadequate basic education and other policies made the black workforce less productive and more expensive, and burdened the national economy. They did not, however, explain why, if pass laws were so bad for business, the President of the Chamber of Mines described them on their enactment as “most excellent law … which should enable us to have complete control over the Kaffirs” (Webster 1978, 10). “Business carried out the economic mandate of apartheid” (Bond 1998) and passed the test with flying colours. It “institutionalised racism, [and] masked [apartheid’s] … real content and substance—the perpetuation of a super-exploitative cheap labour system” (Bond 1998). When it came to accounting for its actions, business stuck to what it knew so well—invoking a vocabulary of economics to mask its dominant political ideologies. The cosy relationship between business and the state was explained as reflective of nothing more than its preference for “stability” and as “evidence that business is generally risk averse” (Bond 1998). But as Bond (1998) indicates, even if taken at face value, this rationalisation only masked support for political repression behind the desire for “stability.” In putting forward its arguments in this way, with an attitude that by nominally participating it was doing the reconciliation process a favour, big business helped to institute an archive that will not command a reparative law for the future. Rather, it aided and abetted in instituting an archive that did not and could not call forth a law that would make business reparation payments a reality. For the above reasons, the ghost of the public/private distinction and the way in which business relied on the mythology of this distinction means that this ghost is perhaps the ghost with the most force in relation to the TRC’s business sector archive. For as Derrida (1994, 50) writes, where the frontier between the public and the private is constantly being displaced we find the limit “that would permit one to identify the political” itself; although not just simply to identify but indeed to identify by way of naming and critique of this political, this political archive, which emerges through the displacement of the frontier. And this frontier is displaced because “the medium in which it is instituted” (the archive’s documentary basis in this case) “itself is neither living nor dead, present, nor absent: it spectralizes” (51). Thus, the ghost of the public/ private distinction is the ghost that silently has shaped this archive as ineffectively having come to terms with its principle of commandment. But it is also a ghost that haunts the archive’s principle of beginning, for the archive’s principles of beginning and commandment are conceptually indissociable and this means that this ghost ultimately points to the way in which the TRC failed to institute a beginning from which would follow a commandment that would finally make/produce a law of reparation.

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Business as usual: the insistence on forgetting “It is thus absence that assures the presentation of truth, and presence that entails its distortion” (Derrida 1981, xi). When it emerged that the big multinational oil companies, Shell and BP, were not going to make submissions to the TRC’s hearings, then energy ministry advisor and later CEO of ESKOM, Thulani Gcabashe, stated that the Department of Energy was not concerned that these companies were not going to make submissions and said: “Life is moving on. I'm not wasting my time re-opening old wounds” (ANC newsbrief 1997). A remark of this kind was a slap in the face for the TRC, suggesting as it did that the TRC’s efforts at uncovering “as complete a picture as possible of the nature, causes and extent of gross violations of human rights” were at best unnecessary, at worst harmful, and in any case unwanted. How does one explain such sentiments in light of the Commission’s creed that South African society cannot move into the future without exploring what happened in the past? (Harris 2000, 6). Is it better to forget without having remembered properly first? For the business sector and for the government, the answer emerged as an overwhelming “yes.” Some might say that economic reparation law was so self-evident and the Commission’s proposals regarding its implementation, so forceful that attentiveness to produce a quasi-hallucination of the economic violence of apartheid was not necessary. Yet nothing came of the Commission’s forceful proposals in respect of reparation. And this “lack” of an authoritative law that would authorise reparation has its roots in the very founding moments of the new South Africa when, in Davos, Switzerland in February 1992, big business won the day with its insistence that foreign investment would not follow leftist/Marxist economic policies (Richards and Swanger 2006, 210–211). Thus, at the time that the TRC (as a government institution) investigated the role of big business in apartheid, the same big business had already co-opted the new dispensation. This fact may provide us with at least some of the explanation for how it was dealt with at the archival moment. But it is also, as I have attempted to show in the previous sections, this fact that must condition our reading of the open spaces in the text of the TRC’s Report on business during apartheid. When we read the silences in the TRC Report, it is not to plunder the resource that is the text as an archive. It is, on the contrary, always done to formulate a response to Mahomed DP’s judgment in the AZAPO case, that: “It might be necessary … to close the book on that past.”30 Reading the silences through ethical construction (what Derrida calls “critical production”) is always done in order to respond to that assertion by saying “it may not yet be.” It is thus done in the name of a transformation and a justice of which we should always be able to say “there can be more.” In November 1997, the then Justice Minister, Dullah Omar, still tried to take business to task: “Those beneficiaries of apartheid, including business, especially big business, must go further and say what they propose to contribute towards making reparation real” (SAPA 1997f). Omar was highly critical that those who benefited from apartheid and continued to enjoy economic privilege were not prepared

The Spectre of Reparation in the Archive 121 to make any sacrifices or to contribute to promoting reconciliation. This call on government’s part for remembrance soon faded away into an insistence on forgetting. In the end, and contrary to Krog’s hopeful impression during the business sector hearings, the rich indeed turned out to be above the law. On 15 April 2003, President Mbeki announced that government would not impose the recommendations of the TRC in relation to business reparations (Mbeki 2004, 15–28). With this announcement, the transitional negotiation according to which amnesty would be given on the more than implicit condition that comprehensive reparation would follow—forged by the Constitutional Court in order to ensure that the TRC process moved forward—was blatantly misowned.31 When disappointed apartheid victims sought to hold business responsible elsewhere,32 government (through then Justice Minister Penuell Maduna) submitted a memorandum in June 2003 to the US courts in which apartheid reparation claims were to be heard under the 1789 US Alien Tort Claims Act (ATS) (Maduna 2003). The memorandum quickly became notoriously known as the “Maduna declaration.” Claiming that the government of the new South Africa addressed reparation through a broad programme of socio-economic transformation, while admitting in fact, that this programme is market driven, it vehemently argued that any verdict in favour of the complaints would be likely to prejudice investment in the new South Africa and asked the court to dismiss the cases. Mbeki, moreover, objected to the fact that South Africa’s sovereignty was being undermined by this litigation, stating that the government considered it “completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts which bear no responsibility for the well-being of our country” (Anon 2003). In November 2004, these lawsuits were dismissed, the judge holding in agreement with the South African government that allowing these claims to proceed might discourage investment in the country (Khulumani 2004). When the appeal against the dismissal of the lawsuit was upheld (Khulumani et al 2007),33 the government again, through then minister of Justice and Constitutional Development, Bridgette Mabandla, strongly opposed the claim—ostensibly on the grounds that it is an unwarranted indictment against the South African government that will frustrate market-driven programmes aimed at broad-based socio-economic transformation (Terreblanche 2007). But as the amici curiae for the so-called “Khulumani plaintiffs” pointed out in the course of the litigation, even if one applauds the government for its successes in the “broad socio-economic” arena, it still does not erase the fact that many corporations benefited unduly from apartheid as a system of racial capitalism and by virtue of this benefit owe the people who were exploited a debt payable as reparation. After all, the apartheid reparation claims under the ATS did not seek reparations from the South African government. The apartheid reparation lawsuit under the ATS was ultimately unsuccessful.34 A final outcome on these cases was reached in 2016 when the US Supreme Court declined the plaintiffs’ appeal (Reuters 2016) against a decision of the lower court that the US Supreme Court’s decision in the Kiobel (2013) case, “plainly bars” lawsuits such as the apartheid reparations lawsuit because the ATS cannot be used to sue a US corporation “for conduct occurring in the territory of another sovereign,”

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unless it could be proved that there was a sufficiently close connection between the corporations’ activities in the United States and human rights abuses in South Africa during apartheid. Simply put, the decision of the American courts was that ATS jurisdiction does not extend “to claims involving foreign conduct by [foreign] subsidiaries of American corporations” (South African Apartheid Litigation 2014). Reflecting on the government’s attitude when the apartheid reparation cases were launched in the American courts, former TRC Commissioner Dumisa Ntsebeza (2001, 348) noted that “[i]t is a sad state of affairs” that “the democratic government that was behind the establishment of the TRC in the first place” turned out to be opposed to reparations. Simultaneously, Ntsebeza also explicitly acknowledged the TRC’s failure to interrogate the role of big business for their part in sustaining and perpetuating the apartheid order (289). On a separate occasion, Ntsebeza neatly summarised the TRC’s failures in relation to holding big business accountable: The TRC failed as an institution to find the evidence that would show that the role of business was such that they were complicit in South African apartheid. That failure was due to lack of time, lack of resources and lack of full cooperation from big business. (Bond and Sharife 2009, 120) With this statement, Ntsebeza confirmed the multiple lacks that beset the TRC and that this book suggests as the sources of the spectres of reparation. Why, one might ask, did the same government which insisted on remembering and established the TRC for that very purpose, and whose members had in the past vowed almost ominously that when “the time comes, the South African people will not be unmindful” (Rustomjee 2004) of the role business played in apartheid, so quickly change its mind? Is it because business reparation payments are bad for business and the African Renaissance in general, as government via Mbeki said? Is it also because there is a not-so-new “tacit” consensus between big business and government—a consensus founded in seemingly unshakeable orthodox neoliberal capitalist assumptions and fundamentals, and cast in the expedient political vocabulary of “transformation”? These questions can of course not be answered without reference to the geopolitical situation that prevailed after 1989 in which a triumphant End of History was announced in the form of twinning of liberal democracy with capitalism in the aftermath of the collapse of institutionalised communism in the West. However, this “end” of history, as Derrida (1994, 57–69) repeatedly points out in his Specters of Marx, routinely hides its empirical contradictions behind the positing of the neoliberal ideal as the telos of history. In the case of the postcolony, the empirical contradiction of the supposed arrival at the End of History is all too palpable. As Gillian Hart (2002, 20) writes: “(w)hat is painfully clear [in the new South Africa] is the intense and persistent material deprivation of the large majority of black South Africans in the face of stark—albeit somewhat de-racialized—concentrations of wealth and privilege.” In October 2003, Sampie Terreblanche told the Black Management Forum that the “powerless poor” still live in the “darkness of the night” as they did during apartheid (see

The Spectre of Reparation in the Archive 123 Spierenburg and Wells 2006, 4). It was also Terreblanche who, in 2002, powerfully critiqued both the old white and the new black elites for their indifference to the plight of the impoverished majority (Terreblanche 2002, 135). The bottom line is that almost 30 years down the line, with the country having descended into the politics of rating agency downgrades, rampant corruption and state capture, those who suffered most under the atrocious economy of apartheid, those who would most definitely be entitled to reparation payments from big business, continue to suffer under the so-called “rainbow nation” economy of the putatively new South Africa. The 2003 Maduna declaration did not address the basic fact that at that point it was already clear that the government’s neoliberal macro-economic policy was failing the victims of apartheid. The Zuma government’s 2009 about-turn by way of Justice Minister Jeff Radebe’s letter to the US courts to the effect that it supported the apartheid reparation litigation, in the light of all of this, came as too little too late (Mail & Guardian 2009). Many of those who are and were part of and responsible for the possibility of the relatively peaceful transition and the first democratic government, today occupy the chairs and board positions of those same companies that perpetrated and benefited from the violations of the apartheid economy. Moreover, government moved in the early 2000s from the “Reconstruction and Development Programme” that wanted to “meet the basic needs of all South Africans” and promised that its policies would be “people driven” (ANC 1994), to the neoliberal GEAR (Growth, Employment and Redistribution) and the euphemistic 2004 ASGISA (Accelerated Shared Growth Initiative for South Africa) programmes, which explicitly and unashamedly leave it to the market to sort out the hungry family of five crouched in their two by two shack in Khayelitsha (IOL 2006). The latest iteration of these programmes that refuse to depart from the fundamentals of neoliberalism exists in the form of President Ramaphosa’s Economic Reconstruction and Recovery Plan after the 2020–2021 COVID pandemic, but this plan has already been rubbished as “unworkably broad and ambitious,” “neither a plan nor a strategy” which stands “no chance of returning the country to growth or much-increased employment” (Bernstein 2022). It seems like the more things change in South Africa, the more they stay the same—the neoliberal consensus has survived even the vicissitudes of a global pandemic. In the meantime, the Khulumani Support Group has not relented in its efforts to secure reparations for apartheid’s victims, but these efforts have been largely ignored and sidelined by the Ramaphosa administration.35 When large-scale looting and destruction broke out in July 2021 in the midst of the COVID pandemic that exacerbated South African wealth inequality and poverty, voices linking these events to the failure and lack of reparation, were few and far between (but see, for instance, Mhaka 2021). Although many issues were at play in terms of the cause of the July 2021 unrests, it cannot be denied that the frustration and anger in relation to the lack of reparation was a contributing factor. My sense is that the psychoanalytic counterpart of the stubborn neoliberal consensus between politics and capital that emerged during the final years of the transition and that continues to hold sway might well be akin to a process of memory suppression, closely associated, as I have intimated, with the death drive. And, as

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Derrida tells us, the death drive is not external to the archive—the archive carries within itself always the possibility of the death drive’s completion. The death drive of the archive is its tendency to figure as the singular, official or One (Kujundžić 2003, 166). Is it not uncanny how the TRC Report-as-archive anticipated the anarchival moment that started in the early 2000s in which big business, again in bed with government, wants to forget, precisely because such forgetting is now regarded as being to the (economic) benefit of both? Freud’s (2005, 26) assertion that forgetting makes economic sense as a compromise solution to avoid punishment that would otherwise ensue, is particularly relevant in this context. As the previous sections have aimed to illustrate, the role of what has not been said or of silence in this insistence on forgetting cannot be underestimated (Derrida 1995, 16–18). The very fact that Khulumani’s consistent efforts in South Africa to secure reparations have been met with governmental silence is resounding testimony to the link between forgetting and silence. In most cases, it is the silence of business and its failure rather than what was said that brings censure. In this context, I am reminded of Yasmin Sooka’s (2004, 2) remarks about big business at the ten-year anniversary of the transition. Sooka thoughtfully pointed to the interplay of silence and absence, on the one hand, and what has been said, on the other hand—an interplay that continues to haunt the present: When they have spoken, they have talked about their role in Black empowerment and their contribution to dealing with Aids. It is interesting that ten years into democracy, Black business demanded that government pass laws to assist black empowerment as it is quite clear that there has been little or no empowerment. While their effort in the Aids arena is commendable, it cannot replace their responsibility for the wider aspect of reparation. But while, as Freud (1953, 219–252) tells us, the death drive is present in every vital process and is inherent in every process of civilisation, the drive to conserve and re-member, to leave a trace, is what makes survival and memory possible. How does or how should this dialectic play in the context that we have been addressing? For the sake of the future: Becoming conversant with the spectre of reparation Re-conceptualising the archive

The failure of the TRC process to secure a law for the victims of the past is at least partially explicable in light of how the TRC understood its process and work as archivist of South Africa’s apartheid past and of how the understanding of that role was, in turn, exploited by big business. In the context of the enquiry into the role of business during apartheid, the TRC was presented and represented itself as “shutting the book on the country’s past,” as coming to terms “once and for all” with South Africa’s dark past and “closing a horrendous chapter” in the history of the nation, while having provided what was presented to be as complete a picture

The Spectre of Reparation in the Archive 125 as possible of South Africa’s apartheid past. But this closing of the book once and for all is only possible because of what has not been recorded, what has been left out, what remains outside the archive: “There is no archive without … a certain exteriority. No archive without outside” (Derrida 1995, 1). As Harris (2000, 8) argues, constructing an archive “frames what is consigned […] as a unified whole and represses what is left outside, […] denying its existence and consigning it to oblivion.” While visiting South Africa in 1998, Derrida (2002, 38) concluded that “perhaps this is the unconfessed desire of the Truth and Reconciliation Commission. That as soon as possible the future generation may have simply forgotten it.” In this assertion, Derrida is pointing to the denial of the spectre of reparation that haunts the archive, for if the desire of the Truth Commission is that it may have simply been forgotten by future generations, then this forgetting is itself a denial of the necessity of becoming conversant with the ghost of the unfinished business of reparation that haunts this archive. It is precisely because there is (in relation to business reparations for apartheid) this archive in the form of the TRC Report which represents forgetting more than remembering, that the archive has failed to elicit a law that addresses the structural and economic violence of apartheid in this context. In other words, the anarchival tendency of the Report undermines both the principles of commandment and of beginning as they are combined in any responsible notion of archiving and of the archive proper. It is also precisely because of this fact that it remains relevant and necessary to continue, even more than 25 years later, returning to the archival moment and to enquire into the ways in which the spectre of reparation in the archive will not allow a final act of oblivion which will consign the archive to forgetting. The TRC’s archiving exercise has, at best, provided only “a sliver of a window” (Harris 2002, 135) into South Africa’s past. Freud and Derrida’s caution regarding all appropriations of memory and the distrust of state archives and bureaucratic filing institutions, flow from the awareness that, as Harris (2002, 136) puts it, we are in “deep, amnesic trouble” if we believe assertions that a single repository (the National Archives, the TRC Report) can hold a nation’s collective memory, because collective memory requires acknowledgement of the existence of a multitude of remembrances and mnemonic experiences (Matienzo 2002, Harris 2002, 136). For Derrida (1995, 4) the failure to acknowledge the failure of the archive points to a failure of democratisation itself: “Effective democratisation can always be measured by this essential criterion: the participation in and access to the archive, its constitution, and its interpretation.” Harris (n.d.) argues that Derrida’s reflections on the archive “opens the door to a re-imagination of archival endeavour and a re-imagination of the TRC’s work.” Along such lines, Harris (n.d.) re-orientates the archive through a plea for an ethical understanding of the archive as a process: “a process of remembering, forgetting and imagining, a process without beginning and without ending.” He continues that this space should embrace contestation and that we should all guard against impulses in and around it to entice “amnesia, erasure, secreting and control” (Harris 2007, 291).

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Derrida, he argues, suggests an alternative archival practice in calling for the archive as an ongoing and open process, oriented towards the future: “[P]erhaps … the question of the archive is not a question of the past […] It is a question of the future, the question of the future itself, the question of a response, of a promise and of a responsibility for tomorrow” (Derrida 1995, 36). In Derrida this conception of the archive is conceptually much closer to justice because it accords with the understanding of justice as a process.36 Among the many wise words of Archbishop Tutu that did not make it into the TRC archive, the following remarks, made in his opening address at the business sector hearings, are probably most supportive of an understanding of archive as process and its relation to business reparation payments: [T]he process is not complete because there is the matter of restitution, of seeking to repair the wrong that accrues from whatever was done for which the person is contrite. … It will be wonderful to have someone here say we did this, we did that, we want to participate and we want so say here is something that will assist in pouring oil on wounds. (Business Sector Hearings Transcript 1997 (emphasis added)) Given the deplorable reaction to this plea, I want to suggest immediately that the victims of apartheid can no longer rely on the benevolence of big business in order to begin this work of completion that will never be complete. Apartheid’s victims should rather deny the inscription of boundaries between the ethical and the juridical in their own names. There is, on the one hand, an ongoing ethicopolitical responsibility on all South Africans “to continue giving life to the TRC process, to be always finding the TRC archive, safeguarding, using, promoting and taking it outside the domains of elites” (Harris 2002, 7). This archive will and wants to remember in order to address the atrocities of the past. On the other hand, it is also this very archive/these archives that hold/s and can command the possibility of a new law which will address the big business of apartheid, precisely because these archives will have founded a new beginning in relation to the business sector, and also precisely because the TRC’s business sector archive did not found such a new beginning. Every victim of apartheid has her own memories of the violence suffered at the hands of the disaster we have named apartheid. In understanding archiving as a process, all the victims of apartheid will have to operationalise their memories and deny the power behind the “official” archive—that is to say deny the power that is usurped in writing the official archive. The is that couples reading and writing rips apart when those who remain concerned with reconciliation read the archive and the silences of the archive, insist upon the openness of the archive and then proceed to write the archive anew through the effort to instantiate a law that is truly of the new beginning.37 What I am outlining, then, is a way of becoming juridically conversant with the spectre of reparation that haunts the TRC’s archive. An understanding of archive as process, “inspires a radically activist practice” (Harris n.d.). For “what is no longer archived in the same way is no longer lived in the same way” (Derrida 1995, 18). To stay with the language of the TRC’s

The Spectre of Reparation in the Archive 127 mandate: To draw “as complete a picture” of the past as possible, this reconceptualisation of the archive would require a drawing that never stops, that is, in fact, without a stop (see Cixous 1998, 27). Such an archive has been described as “a crucible of human experience,” “a space and place of ever-shifting power plays,” it listens “intently for the voices of those who are marginalised or excluded by prevailing relations of power” (Harris n.d.). What is needed is a creative juridical politics that can draw on the resources of activism: “A creative legal activism […] invests itself in the potential not to find but to found responsibility. This potential exists in the role of memory and the presence of the past in the very constitution of the law, at the time of the law’s constitutional mo(nu)ment” (Jonker 2005, 35). But how to become conversant with the spectre of reparation in a productive way? How to think concrete measures inspired by consorting creatively with the spectre? For, if anything the fact that the spectre remains means that “we” are its inheritors and, as Derrida (1994, 54) put it so well, to be inheritors means that we are enjoined to “bear witness” to the spectre. How, then, to bear witness—a legal notion par excellence—to the spectre in a way that transforms the (haunted) present? In the next section, I will suggest that the answer to these questions in our context depends on the extent to which we could become able to respond to, and take responsibility for, the challenge to find ways in which existing South African “private” law can open up to or be transformed by notions from the traditionally “public” (which is to say the properly archival) to address the future and thus provide a basis for material reparation. Potentialities

If, as Derrida (1994, 63) suggests, the insistence of the ghostly and the inheritance of the spectre means that we also inherit the “logic of the ghost,” then we must acknowledge and take responsibility for the ways in which the logic of the ghost “exceeds a binary or dialectical logic, the logic that distinguishes or opposes effectivity or actuality […] and ideality.” In the context of this chapter and, specifically of this section, the logic of the ghost means that we have to complicate the opposition between the effectivity or actuality of law, on the one hand, and the ideality of morality, on the other; or between the ideally ethical and the empirically juridical. Thus, the TRC’s finding that business has “at the very least, a moral obligation to assist in the reconstruction and development of post-apartheid South Africa” (TRC Report Vol VI 2003, 143–144) should not in any way be interpreted to mean that there exists no legal basis for such an obligation in South African law. The logic of the ghost demands that we exceed this simple binary through an argument that recognises that the empirically legal is interlinked or mixed in with the ideally moral. As pointed out above, the TRC itself raised at least two figures of South African law which could ground reparation claims at the same time as it insisted on the moral obligation of business for apartheid. Reading these two invocations of the moral, on the one hand, and the empirical, on the other, together yields a third concept of the quasi-juridical which is at the same time quasi-ethical. It is these interstitial sorts of obligations that this section tries to pursue.

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However unsuccessfully and inchoately the TRC enlisted the figures of South African law and thus negotiated unsuccessfully between law and morality, the onus continues to rest on those who remain concerned with justice and reconciliation (those who inherit the spectre of reparation) to show how South African law can begin to face up to its moral and ethical obligations.38 This would be one way, yet another way, of identifying with the lack of the TRC as a big Other. Of course, this “facing-up”/identification with the lack of the TRC must itself be thought as failure, but here in a different sense, namely in the sense that there will always be an unbridgeable gap between justice and law. However, “[t]his excess of justice over law and calculation, this overflowing of the unpresentable over the determinable, cannot and should not serve as an alibi for staying out of juridico-political battles” (Derrida 1990, 971). It is in fact and in effect, the archive itself that commands law and calculation, precisely by virtue of consigning only a glimmer of the incalculable justice that would have to be done and that can never be done.39 It is here, in a certain sense, where the conventional archive turns on itself in an affirmative gesture towards the future of the archive-as-process. An essential part of this command in the name and on the basis of the archive, to calculate in the name of incalculable justice, exists in the growing sense today that corporate business must and can embrace the ethos underpinning human rights and contribute to their realisation without losing sight of the rationale and the core objective of its own existence. Obviously, money cannot bring back the dead, or undo the historical treatment of human beings as though they were simply bare life, but it can have an impact on the way survivors live on. On a symbolic level, the payment of reparations also proclaims the illegitimacy of past acts. As the TRC noted: Where there has been inequity, especially of a singularly brutalizing kind, of a kind that robs one side of its most fundamental attribute – its humanity – it seems only appropriate that some form of atonement be made, in order to exorcise that past. Reparations, we repeat, serve as a cogent critique of history and thus a potent restraint on its repetition. (TRC Report Vol VI 2003, 138) It is time to consider, urgently so, the practical domestic foundations on which the law of the new beginning might be built. Now, more than ever, government and courts can simply not afford to be seen as indifferent to the plight of apartheid-era victims (Du Toit 2007, 179–181). This obligation on the part of government has been written into an international law instrument that specifically deals with the question of reparation. The United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law make it explicit that “where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim” (United Nations 2005, article 15). The Basic Principles and Guidelines go even

The Spectre of Reparation in the Archive 129 further than this when it provides that “States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered” (article 17). Of course, these “domestic judgements” do not yet exist in relation to business, but the tenor of the document is clear. Accordingly, this section reflects briefly on the horizons for action that the law can open up in order to provide reparation payments for the victims of apartheid big business and so, in some very incomplete and oblique way, begin to address the exploitation under (and because of) apartheid. I explore here the possible legal bases for reparation in an attempt to also reinvigorate the policy aspects of government’s reparative measures that have, up to now, relied on market-driven forces instead of progressive interventionism. I explicitly want to include the possibility of reparation legislation founded in extensions of the private law principles discussed below and in fulfilment of the United Nations Basic Guidelines and Principles. Of course, it appears that government is currently very far away from enacting such legislation. This, however, does not mean that the people of South Africa cannot, through the type of democratic activism which has driven Khulumani, compel a change in this scenario. Beyond Voluntarism, a research report on human rights and the developing international legal obligations of companies by the International Council on Human Rights Policy (ICHRP 2002), provides a particularly useful starting point. While the report acknowledges that “[a]s yet international legal rules have not been agreed that determine when a company is complicit in human rights violations committed by others” (121), it points to ways in which “legal rules of culpability might deal with … accusations of complicity” (121) for participating in or assisting human rights violations committed by others, especially government authorities and armed groups. The TRC Report, as I have mentioned, also contains pertinent suggestions that are worth exploring. Together, these bodies have identified contract law, tort law (delict) and the law of unjustified enrichment as the relevant areas of private law that can open up to the “public” notion of human rights violations. There are, of course, many problems that the extension of private law liability for reparation would have to overcome. However, a number of arguments have indeed suggested that this is both possible and necessary (see, for instance, Hall 2004; Hylton 2004; Brophy 2004). Contract law

As indicated above, in respect of the legal basis for reparation payments by foreign banks and other lenders to the apartheid government, the TRC itself pointed to the common law principle that contracts contrary to public policy cannot be enforced (TRC Report Vol VI 2003, 146). In this regard, the TRC referred to the UN AntiApartheid Convention which entered into force on 18 July 1976.40 This stated that any credit institution or private money-lending company that financed apartheid should be targeted as a profiteer of an immoral and illegal system. On this basis, the TRC contended that foreign banks’ debt-financing agreements with the apartheid government were contrary to public policy because they were concluded in violation of international law that had declared apartheid a crime (TRC Report Vol VI

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2003, 146). This means, the TRC continued, that the money lenders were not entitled to repayment of monies advanced, because contracts contrary to public policy are unenforceable (Van Huyssteen, Reinecke and Lubbe 2016). In South African contract law, the operation of the ex turpi causa non oritur actio maxim precludes a party to a contract from claiming performance in terms of a contract tainted by illegality or immorality (Van Huyssteen, Reinecke and Lubbe 2016). Where performance did occur in terms of such a contract, the in pari delictum rule may be applicable which would mean that a party can be precluded from claiming back her performance in terms of the illegal or immoral contract because she was herself in pari delictum. However, the appellate decision in Jajbhay v Cassim (1939) explicitly held that the application of the in pari delictum rule is subject to considerations of public policy. The rule has been relaxed on numerous occasions41 and the history of this relaxation may well be used to ground a claim for the development of the common law according to the “spirit, purport and objects of the Bill of Rights” as mandated by section 39(2) of the 1996 Constitution. Extending the above principles to sovereign debt agreements concluded between the apartheid government and foreign lenders would, on a reasonable construction, not only yield the result that these contracts were concluded in pursuit of an immoral—and, from the conclusion of the UN Anti-Apartheid Convention, also illegal—purpose. Performance, of course, did take place in terms of these contracts: Foreign lenders advanced money to the apartheid government and the post-apartheid government paid back the apartheid era debt. If, hypothetically speaking, the South African government did not perform its obligations in terms of these agreements, the operation of the ex turpi rule would mean that a court would refuse to enforce the repayment with interest. Were the foreign lenders then to raise the in pari delictum rule—on the basis that the apartheid government was in pari delicto as regards the contravention of international law—to claim back their performance, a reasonable construction of the role of public policy in the test would support a conclusion that foreign lenders could not rely on the application of the rule (Hopkins and Roederer 2004, 142). Reference should here be made to the doctrine of odious debt which embodies the general principle that debts incurred for illegitimate purposes by illegitimate parties are unenforceable (142). The TRC was of the view that the non-entitlement to repayment could be regarded as a form of reparation. However, as indicated above, the post-apartheid government decided to play by the rules of capitalism and took responsibility for the country’s apartheid era foreign debt (in excess of $21 billion) (see Bond 2004, 599–616). This, however, does not mean that the matter ends there. There is in principle no reason why these payments cannot be claimed back on the basis that they were not due. The very least that these foreign lenders could have done was to return the interest payments to the South African people in acknowledgement that the contracts with the apartheid government were contrary to public policy. It now falls, once again, on the people of South Africa to insist that the illegitimacy of these contracts obligates foreign lenders to take reparative measures in South Africa. Of course, even if foreign

The Spectre of Reparation in the Archive 131 lenders were to yield to this insistence, a proper programme that would channel reparative payments to the people who need it most will have to be devised. Tort law (Delict)

Beyond Voluntarism describes tort law (called the law of delict in South Africa) as “ideally suited” (ICHRP 2002, 121–122) to provide individuals with a tangible reparation remedy in national courts as there is no closed list of tortuous injuries which means that it could expand in the direction of human rights protection (122). Furthermore, tort law already protects some of the same interests as are protected by human rights law (122). Although the common law has a conservative streak in this area, a leading tort scholar said, as early as 1998, that “the strength of these sentiments is steadily being sapped by an increasing sense of heightened social obligation and other communitarian tendencies in our midst” (Fleming 1998, 163 as quoted in ICHRP 2002, 134). The Beyond Voluntarism report explores the notion of complicity in tort law noting that this area of law deals with complicity by describing “some very limited situations” in which a person could be responsible for a tort committed by another. The responsibility is usually founded in the special relationship between the individual and either the victim or the person committing the tort (ICHRP 2002, 123). In the context of business responsibility for human rights violations, the charge of complicity is typically that the human rights violations would not have taken place or would not have been perpetuated, had it not been “for the presence or support of the company” (125). This principle might be applied to a company in a variety of circumstances (123). First, a company may directly or indirectly actively assist in human rights violations committed by others (ICHRP 2002, 126). Here, it is the company’s action that causes another to bring about a human rights violation. The classic South African example of such a violation would occur when a company called in the police violently to disperse workers who were striking peacefully. The fault attributed to the company would be that it knew or should have known the consequences of its actions (126). Second, a company in a joint venture might be directly liable under principles of tort law for intentionally inflicting harm (e.g., assault and battery) if, in carrying out this joint plan, it knowingly and deliberately assists in the commission of abuses (130). The law would require evidence of an agreement between the parties to carry out a common purpose or common design (130). It would, of course, also be necessary to establish a sufficient causal link between the company’s act and the harm. Typically, the charge made is that “when it entered a commercial agreement with the government, the company knew that it would be substantially assisting or encouraging the government to commit acts which in law amounted to a tort” (130). Big business’s participation in the government’s “total strategy” during the apartheid years and its involvement in the apartheid parastatals (particularly Armscor) could well qualify as examples of such joint enterprises. The degree of participation by the company required by English and Australian courts has been described as “very similar to the criminal law concept

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of conspiracy or aiding and abetting” (130). In this regard, some of the evidence adduced in the Apartheid Reparation Litigation in the United States could be usefully repurposed for domestic claims against these big businesses. In the absence of a joint enterprise, a company could nevertheless be liable for negligently inflicting harm if it owed a duty of care to the victim. A duty of care only exists where (in the absence of other public policy considerations) the relationship between the parties is of such a nature that the defendant could have reasonably expected that carelessness on his part, was likely to cause the plaintiff damage (123). Beyond Voluntarism notes that the extent of this duty is still very controversial, but argues that a company should owe a duty to the people with whom it has some close connections, such as workers and members of a local community, and that the duty should cover violations committed by people with whom the company has close relationships (137–139). There are important exceptions to the rule in most common law jurisdictions that there is no general duty to rescue or control the harmful actions of another person (137–139). A person who stands to gain economically from a relationship with another person can be obliged to prevent injury to that person within the context of their relationship (137–139). Thus, where a company has a special relationship (e.g., employment contract) with the injured person or the person committing the tort, the common law often imposes a duty on the company to prevent injury to other persons or to control other parties who might cause injury (137–139). Hence, by neglecting safety in the mines and by calling upon state security forces during mining strikes in the awareness that excessive force was likely to be used, many mining companies may have breached the duties of care they owed to their employees during the apartheid years. Unjust enrichment

Beyond Voluntarism argues further that the idea is gaining ground that companies are morally complicit if they passively benefit from violations. The TRC asserts that the legal basis for reparation payments by the mining companies stems from the fact that the decades of profits made by these companies were based on systematic violations of human rights (TRC Report Vol VI 2003, 155). In legal terms, this could be based on unjust enrichment, which, as a restitutionary remedy, consists in essence in the principle that a benefit that wrongfully accrued to a person at the expense or cost of another, cannot legally be retained by that person (155).42 In this context, the mining companies as the enriched parties (beneficiaries) would have a legal obligation to restore the extent of their enrichment to the impoverished parties (victims). The UN Global Compact warns that “should a corporation benefit from violations by the authorities […] corporate complicity would be evident” (as quoted in ICHRP 2002, 132). SANLAM’s share-shopping in the wake of the Sharpeville massacre comes to mind here. The argument centres on the idea that “to accept the benefits of measures by governments or local authorities to improve the business climate which themselves constitute violations of human rights, makes a company a party to those violations” (132).

The Spectre of Reparation in the Archive 133 Acknowledging that unjust enrichment is not a general source of liability in South African private law, Hopkins and Roederer (2004, 146–148) have explicitly proposed that a general extended enrichment action is constitutionally mandated in South Africa and could be used to litigate successfully for apartheid reparation. Visser and Purchase (2002, 268) have gone as far as proposing that the arrival of a general enrichment action in South African private law is “inevitable.” For the victims of apartheid-related unjustified enrichment its arrival is urgently necessary. Conclusion: “because the future too, is another country”43 The resistance of the ANC-in-government to take the TRC’s recommendations further was, at the time, attributed to the fact that “after ten years of democracy, South African society is truly starting to move on” (Kemp 2005, 11). Now, almost 30 years later, South African society cannot move on if we are moving on to a future that does not sufficiently take account of and hold the perpetrators responsible for, the gross human rights violations of the past. Moving on to a future that reproduces the past is in fact no moving on. As Mr Koza from the South African Chamber of Business (SACCOB) submitted at the business sector hearings: Our future cannot be defined by our past. …We acknowledge the role … of the TRC in trying to help South Africa deal with the past as opposed to burying the past. And in order to do that, it might require that we dirty our hands, but give the future a shape we desire, as opposed to colliding with that future. (Business Sector Hearings Transcript 1997) I have argued here that the TRC’s treatment of the role of business in apartheid created an archive which represents forgetting more than it represents remembering. This means that a lack opens up in the archive and that it is a lack out of which arises the spectre of reparation in the many ways in which I have described the spectre in this chapter. True, the TRC is neither solely nor predominantly responsible for an archive that is haunted and that remains haunted by the spectre of reparation. It has even been suggested that the TRC was uniquely conscious of its lack in relation to the business sector and intentionally left open the avenues for future legal pursuit against business (Simcock 2011, 252). Be that as it may, the TRC, as part of the negotiated settlement and as an institution of government, was only granted space in which it remained under government’s power and pliable to its new economic policies. But this chapter has contended that more could have been done and if more had been done—if the TRC had employed its legal and its moral authority to the full—business would not have escaped responsibility as easily as it did by invoking the private/public dichotomy supplemented with the portrayal of itself as victim. Professor Sampie Terreblanche contended in his submission at the business sector hearing that without a clear understanding of the structural nature of the whole process of exploitation “it would not be possible for business and other beneficiaries to make the necessary confessions, to show the necessary

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repentance, to experience the necessary conversion and […] to be prepared to make the necessary sacrifices” (Business Sector Hearings Transcript 1997). Despite the TRC’s unqualified finding that business in general benefited from apartheid, the business sector hearings and the chapters devoted thereto in the TRC’s report did not sufficiently contribute to the kind of understanding that Terreblanche had in mind. For such an understanding to have taken root, to have both grounded and founded the law, much more was needed. There is nothing that would exclude the beneficiaries of apartheid—those big white-controlled business corporations—from a wider interpretation of the category “perpetrator”; simply because these corporations were directly and indirectly, through commission and omission, responsible not only for the perpetuation of a radically evil system but also for many individual human rights violations. Yet businesses, relying on the public/private dichotomy and a distinction between perpetrator and beneficiary, never saw themselves as perpetrators. This, unfortunately for business, does not mean that they did not perpetrate or were not complicit in the perpetration of a crime against humanity that does not prescribe (Jankelevitch 1965). The fact that the crime against humanity does not prescribe, means that the juridical bases for claims against business as apartheid’s beneficiaries remain alive and can be pursued in the courts. Moreover, a reliance on the non-prescription of apartheid as a crime against humanity is also in line with ubuntu. As Ramose (2001) argues: “Philosophically, the peoples hold that molato ga o bole, that is, extinctive prescription is untenable in the African understanding of law.” It is, then, in the name of the peoples that archiving will have to continue— but in a radically different form, one “that refutes the economic principle of the archive, aiming to ruin the archive as accumulation and capitalization of memory in an exterior place” (Derrida 1995, 12). A singular, closed archive will always be beset with “the trouble of secrets, of plots, of clandestineness, of half-private, half public conjurations, always at the unstable limit between public and private” (Derrida 1995, 90). The law of the new beginning depends not on the archive of the TRC, but on the archive inside that is once again given voice—this is what all the efforts over the years by Khulumani and its allies implicitly understand and explicitly attempt to achieve. Its potentiality lies in developing the law so as to explode the myth of a purely private domain in which the beneficiaries of apartheid remained innocent of the atrocities committed by state perpetrators. Only then will South Africa truly acknowledge the illegitimacy of the source of the suffering of all apartheid’s victims and begin to remove its consequences. Crucial for this process is the ability of all individuals who fell victim to the atrocities of business in apartheid to archive their experiences collectively, as this would allow them to insist on if not command a law for their new beginnings. As the Kinross mine example illustrates, apartheid was in many senses aimed at destroying names and it is perhaps in the possibility that these names, the memory of these and all the other names, can indeed be used to institute or claim a new law, that we find some hope and some ironic beauty amongst all the horror and disappointment.

The Spectre of Reparation in the Archive 135 Blanchot (1995, 44) writes that the beginning of downfall happens when the law starts commanding in its very failing and “thereby escapes safe and sound yet again as law.” Considering the manner in which the absence of reparation law in South Africa constitutes a vivid example of how the law commands in its very failing and considering also Blanchot’s assertion that the disaster is always inextricably bounded up with forgetfulness without memory, I would ask: Are we not in allowing these things to be and to happen in this very present, are we not in denying our responsibility for and before silence,44 are we not—contrary to everything the “we” has been telling us—are we not (re)writing the disaster on an everyday basis in the postcolony? When one turns the last page of volume 6, chapter 5 of the TRC Report and so closes the chapter that makes up the TRC’s archive on reparations and the business sector, one is faced with the front page of the chapter on reparations and civil society (Figure 4.2). This consists of a photograph of a wrinkled, elderly, coloured woman with a facial expression and a gaze from which the traces of suffering are apparent. Spatially, she is not adequately represented in the business sector archive. In post-apartheid “life,” this archive fails to memorialise her—but it is for her, as a representative of the oppression and suffering perpetrated by apartheid white business, that the spectre of reparation in post-apartheid South Africa will have been dealt with.

Figure 4.1 Front Page of TRC Report Vol 6 Chapter 5.

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Figure 4.2 Front Page of TRC Report Vol 6 Chapter 6.

Notes 1. As a reminder, the epilogue to the Interim Constitution stated that “Parliament under this Constitution shall adopt a law […] providing for the mechanisms, criteria and procedures, including tribunals, if any” through which “amnesty shall be dealt with.” This “law” of course eventually took the form of the PNURA and the powers of the TRC in terms of this law included, but was in the Act by no means limited to, the amnesty mechanism. Indeed, the subject matter of this chapter focuses on the powers and work of the TRC outside the amnesty mechanism. 2. In the context of the texts of the TRC, the words “remembering” and “forgetting” are and must be read to be closely related to the word “disaster”; for in the end, the TRC’s work was a remembering and forgetting—and thus a writing—of apartheid—the singular and untranslatable disaster. On the writing of the disaster see Blanchot 1995. On apartheid’s resistance to translation see Derrida 1985, 290. 3. See Clarkson (2007, 361–373). Clarkson raises the problematic question of the “we” as a linguistic shifter in the context of disembodied communities and the desire to “belong” in post-apartheid South Africa: ‘“We’ simultaneously announces the presence of a speaking position, and the absence of those co-opted into it” (370). She also raises Van Roermund’s argument that the “we” rests on political presuppositions “involved in doing something together” (371). Clarkson concludes that “the extraordinary potential of literature [is that] the text retraces the limits of ‘we’, and in the process it challenges our assumptions about the location and the limit of the self” (373). 4. As should already be evident, I argue here that these two texts should in no way be considered as “special,” or “untouchable” simply because they constitute part of the official archive of the TRC. Of them we can, we are allowed to, say all that is to be said

The Spectre of Reparation in the Archive 137

5. 6. 7.

8.

9.

10.

11.

12. 13.

14.

about texts, specifically for my purposes that these texts are texts because they hide the law of their composition and the rules of their game. And for this reason, we can not only expose that a text says all that it means to say but we can also say (write) what it does not (mean or intend) to say. This is possible because of the very considerability of these texts. In fact, the text never escapes from the law that it hides. That which it hides, as I will tentatively suggest, ruins and contaminates it from within (see Derrida 1990, 1007). TRC Report 1998 Vol IV, 152: Here it is already necessary to note that the Report describes how “the blueprint for ‘grand apartheid”’ was provided by the private activity of the mines—how apartheid “was not an Afrikaner state innovation.” Stated differently, only such a “quasi-hallucination” of the violence of business during apartheid would be capable of productively being with and especially being conversant with the spectre of reparation. See Freud (2003, 43) and Freud (1953, 219–252). Also see Derrida (1995, 10–12) and Saunders (2001, 88) who conceives of the non-corporate agent, the un(der)employed, the migrant labourer as the personification of an uncanny (repressed) presence on the stage of late capitalist globalised existence. This person/persona constituted the prime target of economic oppression during apartheid and remains as the uncanny presence on the stage of post-apartheid neoliberal capitalism. Needless to say, it is the subject, ultimately, to whom reparation is radically owed in post-apartheid South Africa. This point was first raised by Prof Sampie Terreblanche in his book, A History of Inequality in South Africa 1652–2002 (Terreblanche 2002, 128), who argues that the TRC was under massive political pressure in relation to its investigation of the role of business during apartheid. Shakespeare, Hamlet “Thou art a scholar, speak to it, Horatio.” Derrida (1994, 12) argues that when Marcellus in Hamlet utters these words, he is not asking Horatio merely to speak to the ghost of Hamlet’s father. Rather, he is telling Horatio to “call it, interpellate it, interrogate it, more precisely to question the Thing that it still is.” When Horatio responds by enjoining the Thing to speak, he is at once ordering and summoning the ghost while conjuring it. This means that the injunction to speak crosses with the conjuration of the ghost. In other words, the ghost is properly conjured/confronted by way of the very injunction of the scholar to speak. I think of these instances as ways in which the spectre becomes embodied in post-apartheid South Africa. As Derrida (1994, 6) argues, the spectre is the assumption of body of the spirit, the spectre becomes “some ‘thing’ that remains difficult to name: neither soul nor body, and both one and the other.” That these instances of the becoming body of the spirit as spectre in post-apartheid South Africa, partakes of both soul and body, cannot seriously be denied. John Caputo (1997a, 78) writes that Derrida’s 1967 statement “there is nothing outside the text” is “one of the most thoroughly misrepresented utterances in contemporary philosophy.” Derrida himself remarked that he was actually quite surprised that it ever came to be understood as a declaration that there is nothing to be done beyond or besides linguistic study. As Caputo (1997a, 77) puts it: “The idea is not to jettison the classical discipline, but to disturb it by way of exploring what systematically drops through its grid and, by so disturbing it, to open it up.” These off-the-record narratives and my approach to them is informed by what Karin van Marle has called pursuing the practice of “slowness.” Van Marle describes the ethical aim of this strategy of delay as the endeavor “to expose the violence inherent in institutional and legalistic approaches.” See Van Marle (2003, 250). Van Marle (2003, 250) links her exposition of a “strategy of delay” to Ijselling’s assertion that “deconstruction draws our attention to the ‘unsaid’, to the open spaces in a text.”

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15. I will return to Steve Biko and to the company that literally owned the site of his death. 16. Nicoli Nattrass (1999, 374) argues that a “broad, systemic” version of the beneficiary “underpinned the recommendations concerning business.” 17. “Force” here is intended to bear the dimensions attributed to it in Derrida (1990, 929): “For me, it is always a question of differential force, of difference as difference of force, of force as différance.” 18. The report here cites, inter alia, to Nattrass (1991, 654). 19. Also see African National Congress “Submission to Special Truth and Reconciliation Commission Hearing on the Role of Business” as cited in Nattrass (1999, 378). 20. See Chapter 3 in this regard and especially the argument there that the failure of the Commission in relation to apology’s reparative value raises the spectre of reparation in another guise in relation to the amnesty proceedings. 21. The Commission cites to Mamdani (1996). Mamdani developed this argument in Mamdani (2002, 33–59). Krog (1998, 240) also notes that the business hearings constituted the first instance in the proceedings of the TRC where the idea of the beneficiary—as opposed to the perpetrator—“surfaced in full force.” 22. See also Terreblanche (2002, 130) who points out that the TRC did not unequivocally support any of the two positions on the relationship between apartheid and capitalism. 23. This determination of the essential undeconstructibility of responsibility obviously takes part of a deconstructive key in which justice/responsibility is “the undeconstructable condition of any deconstruction.” Otherwise, Derrida writes “it rests on the good conscience of having done one’s duty” and so it “loses the chance of the future” (Derrida 1994, 28). 24. The headquarters of the Anglo American Corporation in Johannesburg, which directly and indirectly controlled most of the wealthy South African companies during this period. 25. This section of PNURA makes it explicit that the TRC could call upon “any person” to appear before the TRC’s hearings. 26. Also see Dispatch Online (1998): “[T]he commission presented beneficiaries of gross human rights violations as victims by inviting them to join the real victims in a public outrage against the perpetrators.” 27. However, Nattrass (1999, 375–376) argues that the TRC did group business with perpetrators and categorically distanced itself from the argument that business was a victim of apartheid. 28. This could be effected by enforcement of the National Supplies Procurement Act of 1970, National Key Points Act of 1980, Atomic Energy Act of 1967 and the Petroleum Products Act of 1977. 29. Which was banned overseas by other mining industries already in 1968. See Plimmer (1995) and Anon (1986, 4–5). 30. Azapo 1996, 676H–I. This statement of Mahomed, DP’s must be read with another assertion in the same judgment: In holding that the amnesty was necessary, he stated that “the shroud of silence that has enveloped the activity of perpetrators for too long would otherwise go on doing so” (Azapo (1996, 700H). The concern with silence thus lies at the heart of the court’s decision in this matter; the entire decision rests upon the attempt to produce sound, give voice to the silence and the secrecy associated with the gross human rights violations of the apartheid regime. 31. See generally Azapo (1996) and Dewhirst & Valji (2003). As the previous section attempted to show, it cannot admit of any doubt that the lack of economic reparation law is directly related to the detail that has been left off the record—the particularity that hides in the silences or what Mahomed, DP in the AZAPO decision, called “the crevices of obscurity in our history” (Azapo 1996, 684B). 32. For an overview of the history of the apartheid reparation litigation in the United States see Osborne (2007, 231–293) and Hutchens (2008, 639).

The Spectre of Reparation in the Archive 139 33. Also see Khulumani Support Group 2007 and Anon 2007. 34. However, the bankrupt General Motors settled, in February 2012, a reparations claim in the amount of $1,5 million by 25 victims of apartheid. The settlement was ratified by a United States court. See Ephraim (2012). 35. In December 2018, Khulumani wrote to President Ramaphosa to appeal for the inclusion of some 80 000 victims of apartheid in reparation payments from the President’s Fund (Pather 2018). In June 2019, Khulumani staged a protest at the Union Buildings in Pretoria (the seat of government), demanding that victims and survivors should be paid a minimum of R1 million each (Maromo 2019). In October 2021, supporters of Khulumani protested with sit-ins at the Constitutional Court’s seat in Braamfontein, Johannesburg and at Parliament in Cape Town (Nkosi 2021). In May 2022, Khulumani, under the banner of “Galela” (meaning “poor” in Xhosa) staged a thirteen-day sitin in at the Constitutional Court, demanding to meet Justice minister Ronald Lamola to voice their demands. The minister eventually met with the campaigners, but told them that “the department could only pay reparations in line with existing regulations and processes, and claimed only the President or Parliament could resolve the issue” (Forbes 2022). The liberal press continues to profile the struggle of Khulumani supporters and their allies (see Banda 2022). 36. The idea of process is inherent in any alignment of deconstruction with justice. See Derrida (1990, 945). Also see Cilliers (2004,19–26). 37. “If reading and writing are one, as is easily thought these days, if reading is writing, this oneness designated neither undifferentiated (con)fusion nor identity at perfect rest; the is that couples reading with writing must rip apart.” (Derrida 1981, 69). As I have indicated above, the TRC’s work can be understood as an exercise in remembering and forgetting in the context of its writing of the disaster uniquely, untranslateably, named apartheid. Of the disaster, Blanchot (1995, 120) writes that it obliterates our relation to the world as presence or as absence; but “it does not thereby free us from this obsession with which it burdens us: others.” It is precisely because the disaster does not free us from our responsibility to others, that the “is” that couples reading and writing must also rip apart in our engagement with the TRC. 38. Against the backdrop of the United Nations General Assembly’s adoption, in 2005, of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (see United Nations 2005), it is also clear that these are no longer simply domestic moral and ethical obligations but indeed obligations – juridical, at the very least, if not entirely legal - that are now owed under and in terms of international law. 39. See in this regard Moon (2006, 180) who argues that compensation, while unable to fully address the harm suffered under apartheid, directly engages victims and beneficiaries in a negotiation that entails an acknowledgement of the harm. Moon also points to the darker side of compensation, namely that it might shut down attempts to do justice more fully. However, where the compensation is paid on the explicit understanding that it can never repair the harm done, it negotiates a space for future calls for justice while bringing at least some inadequate relief from injustice in the present. 40. Convention on the Suppression and Punishment of the Crime of Apartheid, adopted and opened for signature and ratification by General Assembly resolution 3068 (XXVIII) on 30 November 1973 and entered into force on 18 July 1976 in accordance with Article X. 41. See, for instance, Jajbhay v Cassim (1939), Padayachey v Lebese (1942), Visser v Rousseau (1990) and Klokow v Sullivan (2006). 42. For an excellent argument on the relevance of unjust enrichment for slave trade related reparations, see Armstrong (2002). The argument is, mutatis mutandis, applicable to the exploitation of black labour under apartheid.

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43. Archbishop Desmond Tutu in TRC Report Vol I (1998, 4). 44. See Derrida (1985, 299): “This silence calls out unconditionally; it keeps watch on that which is not, on that which is not yet, and on the chance of still remembering some faithful day.”

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Forbes, David. 2022. “Veterans Seeking Apartheid Reparations Finally Force Meeting With Minister, But Come Away With Nothing: Again.” Daily Maverick, 11 May. https://www .dailymaverick.co.za/article/2022-05-11-veterans-seeking-apartheid-reparations-finally -force-meeting-with-minister/ Freud, Sigmund. 1953. “The Uncanny.” In The Standard Edition of the Complete Psychological Works of Sigmund Freud Vol XVII, translated and edited by James Strachey. London: The Hogarth Press. Freud, Sigmund. 2003. “Beyond the Pleasure Principle.” In Beyond the Pleasure Principle and other Writings, translated by John Reddick. New York: Penguin. Freud, Sigmund. 2005. Forgetting Things. London: Penguin. Goldstein, Andrea E. 2000. “Big Business and the Wealth of South Africa: Policy Issues in the Transition from Apartheid.” University of Pennsylvania, Christopher H. Browne Center for International Politics, Working Paper, 00–02. Hall, David. 2004. “The Spirit of Reparation.” Boston College Third World Law Journal 24(1): 1–12. Harris, Brent. 2000. “Introduction: The Past, the TRC and the Archive as Depository of Memory.” https://www.oslo2000.uio.no/program/papers/m3c/m3c-harris.pdf Harris, Brent. 2002. “The Archive, Public History and the Essential Truth.” In Refiguring the Archive, edited by Carolyn Hamilton et al. Dordrecht: Kluwer Academic Publishers. Harris, Verné. 2002a. “A Shaft of Darkness: Derrida in the Archive.” In Refiguring the Archive, edited by Carolyn Hamilton et al. Dordrecht: Kluwer Academic Publishers. Harris, Verné. 2002b. “Contesting Remembering and Forgetting: The Archive of South Africa’s Truth and Reconciliation Commission.” Innovation 24: 1–8. Harris, Verné. 2002c. “The Archival Sliver: A Perspective on the Construction of Social Memory in Archives and the Transition from Apartheid to Democracy.” In Refiguring the Archive, edited by Carolyn Hamilton et al. Dordrecht: Kluwer Academic Publishers. Harris, Verné. 2007. Archives and Justice: A South African Perspective. Chicago: The Society of American Archivists. Harris, Verné. n.d. “Seeing (in) Blindness: South Africa, Archives and Passion for Justice.” http://scnc.ukzn.ac.za/doc/LibArchMus/Arch/Harris_V_Freedom_of_Information_in _SA_Archives_for_justice.pdf Hart, Gillian. 2002. Disabling Globalization. Places of Power in Post-apartheid South Africa. Berkeley: University of California Press. Hopkins, Kevin and Roederer, Christopher. 2004. “Righting the Wrongs of Apartheid Justice for Victims of Unjust Profiteers” Theoria 51(105): 129–153. https://doi.org/10 .3167/004058104782267079 Hutchens, Kristen. 2008. “International Law in the American Courts: Khulumani v. Barclay National Bank Ltd.: The Decision Heard ‘Round the Corporate World.” German Law Journal 9(5): 639–682. https://doi.org/10.1017/S2071832200000055 Hylton, Keith N. 2004. “A Framework for Reparations Claims.” Boston College Third World Law Journal 24(1): 31–44. In re South African Apartheid Litigation. 2014. United States District Court, Southern District of New York, Case 02 MDL 1499 (SAS). http://hrp.law.harvard.edu/wp-content/ uploads/2011/01/Order-08-28-14.pdf International Council on Human Rights Policy (ICHRP). 2002. Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies. Versoix: ICHRP. https://books.google.co.za/books/about/Beyond_Voluntarism.html ?id=FCjf1fflTH4C&printsec=frontcover&source=kp_read_button&redir_esc=y#v =onepage&q&f=false

The Spectre of Reparation in the Archive 143 Jajbhay v Cassim 1939 AD 537. Jameson, Fredric. 1981. The Political Unconscious: Narrative as a Socially Symbolic Act. London: Methuen & Co. Jankelevitch, Vladimir. 1965. “L’Imprescriptible.” La Revue Administrative 18(103): 37–42. Jonker, Julian. 2005. “The Silence of the Dead: Ethical and Juridical Significances of the Exhumations at Prestwich Place, Cape Town, 2003–2005.” Unpublished MPhil thesis, University of Cape Town. Kemp, Gerhard P. 2005. “Moving from Conflict to Reconciliation: A Brief Evaluation of the South African Truth and Reconciliation Commission.” Griffin’s View on International and Comparative Law 6(1): 5–11. Kennedy, Duncan. 1982. “The Stages of the Decline of the Public/Private Distinction.” Pennsylvania Law Review 130(6): 1349–1357. Khulumani et al v Barclay National Bank Ltd. 2007. https://caselaw.findlaw.com/us-2nd -circuit/1089266.html Khulumani et al. n.d. Complaint in the United States District Court, Eastern District of New York (copy on file with author). Khulumani Support Group. 2004. “Apartheid Lawsuits Dismissed.” Khulumani Support Group, 30 November. https://khulumani.net/in-the-news/apartheid-lawsuits-dismissed /2004/11/30/ Khulumani Support Group. 2007. “Khulumani International Lawsuit Appeal Victory Removes an Obstacle to Justice for Victims and to the Advance of Corporate Accountability.” CADTM, 14 October. http://www.cadtm.org/spip.php?page=imprimer &id_article=2883 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013). Klokow v Sullivan 2006 (1) SA 259 (SCA). Krog, Antjie. 1998. Country of My Skull. Johannesburg: Random House. Kujundžić, Dragan. 2003. “Archigraphia: On the Future of Testimony and the Archive to Come.” Discourse 25(1&2): 166–188. https://doi.org/10.1353/dis.2004.0006 Mamdani, Mahmood. 1996. “Reconciliation Without Justice.” Southern African Review of Books, November/December. Mamdani, Mahmood. 1998. When Does Reconciliation Turn into a Denial of Justice?, Sam Molutshungu Memorial Lectures. Pretoria: HSCR Publishers. Mamdani, Mahmood. 2002. “Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC).” Diacritics 32(3–4): 33–59. Maromo, Jonisayi. 2019. “Victims of Apartheid Demand R1m Each in Reparations.” IOL, 18 June. https://www.iol.co.za/news/victims-of-apartheid-demand-r1m-each-in -reparations-26635730 Matienzo, Mark A. 2002. “On Anarchivism: Perpetuating the Postmodern Turn within Archival Thought.” https://matienzo.org/storage/2002/2002-OnAnarchivism.pdf Mbeki, Thabo. 2004. “Statement to the National Houses of Parliament and the Nation at the Tabling of the Report of the Truth and Reconciliation Commission, 15 April 2003.” In To Repair the Irreparable: Reparation and Reconstruction in South Africa, edited by Erik Doxtader and Charles Villa-Vicencio. Claremont: David Philip. Mhaka, Tafi. 2021. “South Africa’s Unrest and the ANC’s Many Failings.” Al Jazeera, 18 July. https://www.aljazeera.com/opinions/2021/7/18/south-africas-unrest-and-the-ancs -many-failings

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Ministry of Justice and Constitutional Development. 2003. “Declaration by Justice Minister Penuell Maduna on Apartheid litigation in the United States.” 11 July. https://www.gov .za/sites/default/files/gcis_document/201409/apartheid1.pdf. Moon, Claire. 2006. “Reconciliation as Therapy and Compensation.” In Law and the Politics of Reconciliation, edited by Scott Veitch. Hampshire: Ashgate Publishing Limited. Naas, Michael. 2003. “History’s Remains: Of Memory, Mourning and the Event.” Research in Phenomonology 33: 75–96. Nathan, Laurie, Batchelor, Peter and Lamb, Guy. 1997. “Submission to the Truth and Reconciliation Commission: Business Sector Hearing.” Centre for Conflict Resolution, University of Cape Town, October. National Key Points Act 102 of 1980. National Supplies Procurement Act 89 of 1970. Nattrass, Nicoli. 1991. “Controversies about Capitalism and Apartheid in South Africa: An Economic Perspective.” Journal of Southern African Studies 17: 654–677. https://doi .org/10.1080/03057079108708297 Nattrass, Nicoli. 1999. “The Truth and Reconciliation Commission on Business and Apartheid: A Critical Evaluation.” African Affairs 98(392): 373–391. Newsletter of the National Union of Mineworkers Special Edition. 1992. “Kinross Day: How 177 Workers Perished in Mine Accident.” September. https://www.sahistory.org.za /sites/default/files/archive-files/NuSep92.1684.4890.000.000.Sep1992.7.pdf Nkosi, Ntombi. 2021. “WATCH: Protest for Reparations to be Paid to Victims of Apartheid.” IOL, 21 October. https://www.iol.co.za/news/politics/watch-protest-for-reparations-to -be-paid-to-victims-of-apartheid-3ccbef68-8feb-4fd6-a392-da984bdc05f7 Osborne, Michael. 2007. “Apartheid and the Alien Torts Act: Global Justice Meets Sovereign Equality.” In Repairing the Past?, edited by Max du Plessis and Steve Pete. Netherlands: Intersentia. Padayachey v Lebese 1942 TPD 10. Pather, Raeesa. 2018. “Ramaphosa Under Pressure to Support Reparations for Apartheid Victims.” Mail & Guardian, 17 December. https://mg.co.za/article/2018-12-17 -ramaphosa-under-pressure-to-support-reparations-for-apartheid-victims/ Petroleum Products Act 120 of 1977. Plimmer, Fleur. 1995. “Safety is a Daily Concern.” The Shopsteward 4(6). Promotion of National Unity and Reconciliation Act 34 of 1995. Ramose, Mogobe. 2001. “An African Perspective on Justice and Race.” Polylog: Forum for Intercultural Philosophy 3. https://them.polylog.org/3/frm-en.htm#s8 Reuters. 2016. “US Top Court Declines to Revive Apartheid Claims against IBM, Ford.” Reuters, 20 June. https://www.reuters.com/article/us-usa-court-apartheid -idUSKCN0Z61KA Richards, Howard and Swanger, Joanna. 2006. “Power and Principle in South Africa.” In Dilemmas of Social Democracies: Overcoming Obstacles to a More Just World, edited by Howard Richards and Joanna Swanger. Lanham: Lexington Books. Rustomjee, Cyrus. 2004. “A Case Study for the UKZN Project Entitled: Globalisation, Marginalisation and New Social Movements in post-Apartheid South Africa.” Jubilee South Africa. http://ccs.ukzn.ac.za/files/Rustomjee%20JSA%20ResearchReport.pdf SAPA. 1997a. “Armscor’s Mandate Has Not Changed: Hayward.” 11 November. https:// www.justice.gov.za/trc/media/1997/9711/s971111h.htm SAPA. 1997b. “Sanlam Rejected Violence of Anti-apartheid Struggle, TRC Told.” 13 November. https://www.justice.gov.za/trc/media/1997/9711/s971113a.htm

The Spectre of Reparation in the Archive 145 SAPA. 1997c. “Some Glaring Absences in Business Submissions to TRC: Tutu.” 11 November. https://www.justice.gov.za/trc/media/1997/9711/s971111c.htm SAPA. 1997d. “Oil Giants Fail to Explain Apartheid Role.” 7 November. https://www .justice.gov.za/trc/media/1997/9711/s971107d.htm SAPA. 1997e. “TRC Did not Pose Questions to SAAU, So no Submission.” 11 November. https://www.justice.gov.za/trc/media/1997/9711/s971111b.htm SAPA. 1997f. “ANC Calls for Apartheid’s Beneficiaries to Pay Up.” https://www.justice .gov.za/trc/media/1997/9711/s971118e.htm Saunders, Rebecca. 2001. “Uncanny Presence: The Foreigner at the Gate of Globalization.” Comparative Studies of South Asia, Africa and the Middle East 21(1&2): 88–98. Simcock, Julian. 2011. “Unfinished Business: Reconciling the Apartheid Reparation Litigation with South Africa’s Truth and Reconciliation Commission.” Stanford Journal of International Law 47(1): 239–264. Smith, James K.A. 2005. Jacques Derrida: Live Theory. London: Continuum. Snyman, Johannes. 1998. “Interpretation and the Politics of Memory.” Acta Juridica: 312–337. Sooka, Yasmin. 2004. “South Africa, its Past, Human Rights and Reparations.” Keynote address at the Public Seminar on Reparations: International, Social, Legal, Economic Dimensions, Wits Institute for Social and Economic Research, 6 July. Spierenburg, Marja and Wells Harry. 2006. “The Search for Equity in Organization and Management in South Africa.” In Culture, Organization and Management in South Africa, edited by Marja Spierenburg and Harry Wells. New York: Nova Science Publishers Inc. Staff Reporter. 2009. “SA Does About-turn on US Apartheid Case.” Mail & Guardian, 3 September. https://mg.co.za/article/2009-09-03-sa-does-aboutturn-on-us-apartheid -case/ Staff Reporter. 2012. “US General Motors Settles Apartheid Reparations Claim.” Mail & Guardian, 29 February. http://mg.co.za/article/2012-02-29-us-general-motors-settles -apartheid-reparations-claim/ Terreblanche, Christelle. 2007. “Apartheid Victims Vow to Fight On.” IOL, 22 October. https://www.iol.co.za/news/politics/apartheid-victims-vow-to-fight-on-375798 Terreblanche, Sampie. 2002. A History of Inequality in South Africa: 1652–2002. Pietermaritzburg: University of Natal Press. Truth and Reconciliation Commission. 1997. Business Sector Hearings Transcript. Johannesburg. https://www.justice.gov.za/trc/special/business/busin1.htm Truth and Reconciliation Commission Report Vol IV. 1998. https://www.justice.gov.za/trc/ report/finalreport/Volume%204.pdf Truth and Reconciliation Commission Report Vol VI. 2003. https://www.justice.gov.za/trc/ report/finalreport/vol6_s2.pdf United Nations. 1976. “International Convention on the Suppression and Punishment of the Crime of Apartheid.” https://www.un.org/en/genocideprevention/documents/atrocity -crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and %20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf United Nations. 2005. “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” https://www.ohchr.org/sites/ default/files/2021-08/N0549642.pdf Van Huyssteen, L.F., Reinecke, M.F.B. and Lubbe, G.F. 2016. Contract General Principles 5th edition. Cape Town: Juta

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5

The Spectre as Refusal Reparation and Forgiveness in the Work of Mourning

Exergue At around 20h00, on 27 April 1994, Vuyani Papiyana and his younger brother, Madoda, went out to celebrate. Both were excited and happy, because they had just cast their votes in South Africa’s first democratic elections. After 21h00 on that night their 60-year-old father, Zenam Papiyana, was called to the telephone. It was the police. Madoda was found injured and in a state of shock. Vuyani was dead. In the legal proceedings that followed it became clear that Madoda (21) and Vuyani (26) were the tragic victims of a racist drive-by shooting. Their attackers were James Wheeler and Cornelius Pyper, two supporters of the AWB - a white rightwing organisation that in the runup to the elections called on its members to militantly oppose the transition to a democratic South Africa. Both Wheeler and Pyper were found guilty and sentenced to 15 years’ imprisonment. In September 1994, while the criminal trial was in progress and the perpetrators were out on bail, Zenam Papiyana received a letter from his legal representative, Mr Botha. The letter stated that Cornelius Pyper was willing to pay the funeral costs and indicated that he wished to see Mr Papiyana face to face, as he wanted to apologise to the family. Zenam Papiyana spoke to his wife and she said that she would not be able to face the murderer of her son. On 3 October 1994 Papiyana met alone with Pyper and his wife in Botha’s office. This is how Zenam Papiyana remembers that meeting: When Mr Pyper and his wife entered the office I immediately knew that it was the best thing I could ever have done – to see the man who murdered my son face to face. This meeting helped me to overcome some of the emotional problems. I will never forget the faces of Mr Pyper and his wife. […] He said more than once that it was a very foolish thing he had done and that he was sorry. Before this meeting, I thought I would never have the ability to forgive my son’s murderers for what they did. In my wildest dreams I never thought this meeting would end with a situation where I was the one comforting my son’s murderer and [his] wife. [Reference omitted.] (emphasis added)

DOI: 10.4324/9781003290278-5

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Reflecting on this real-life, detailed example helps me to clarify the meaning of “forgiveness.” One of the first things that struck me was the fact that Papiyana’s forgiveness of his “son’s murderers” appeared to have happened unexpectedly, within a moment. However, the rest of his statement makes it clear that, two years after the meeting he stills seems to struggle to overcome some hard feelings against James Wheeler, the murderer who did not show remorse. And even as far as Pyper is concerned, the meeting has helped Papiyana only to deal with “some of the emotional problems” (my emphasis). And he stated that “no amount of money can bring back my son” – though he has declared his forgiveness, the sadness and the loss remain, like the scar of an old wound. These statements confirm my experience with other victims within the TRC, namely that forgiveness is more than a single event. Especially where serious wrongdoing is at stake, forgiveness is typically a process. (Verwoerd 2003, 166–168) Introduction What is the relationship between reparation and forgiveness if we posit that both are in one way or another involved in the work of mourning? To begin with forgiveness: Does it, quite simply, occupy a definite, ineluctable space and place in the work of mourning that is consequent upon traumatic violation and injury? In other words, does one mourn and then one forgives as part of the mourning process? Or, does one mourn and therefore, never forgives? Can one forgive without mourning? Should forgiveness be radically separated from the work of mourning as but the slightest of its possibilities or is it the other way around? Does the work of mourning demand the possibility of forgiveness as the rhetoric in the South African context so unproblematically seem to suggest? As for reparation: Should we accept that reparation is simply another name for the work of mourning as Sanders (2007, 134) seems to intimate? So that there can be no account of/for the work of mourning without reparation? But if we hold the aporia of reparation—its impossibility—foremost in our minds, as I have suggested we do, then how do we ensure that the work of mourning is not thereby debilitated beyond recovery? In other words, how do we ensure that the work of mourning is not rendered itself concretely impossible, absolutely paralysed, if it is inscribed in the impossibility of reparation? Possibility/impossibility are already troubled words here. But what can the account of forgiveness in the exergue—a double account in fact, or an account of an account—tell us about the relationship between violation, loss, the work of mourning (as reparation) and forgiveness? How does the spectrality of reparation influence and bear upon the role of forgiveness in the work of mourning? These are questions I want to think about here, but admittedly from a particular vantage point which will be the uncanny distinction, drawn by the thought of Jacques Derrida, between forgiveness and a central theme in his philosophy—the work of mourning (Derrida 2001a, 27; Derrida 1989; Derrida 1993; Derrida 1994; Derrida 1997;

The Spectre as Refusal 149 Derrida 2003). By way of continuous reference to this double account of forgiveness offered in the exergue, I want to interrogate the ethical and political implications of the Derridean distinction between the work of mourning and forgiveness. And I want, particularly, to ask after the question of the role of reparation’s spectrality in this distinction between the work of mourning and forgiveness. The separation between the work of mourning and forgiveness on which Derrida insists suggests questions such as: Does forgiveness—in the context of what is so easily called transitional justice—constitute a certain end or outcome of the work of mourning? Does forgiveness essentially consist then in a certain refusal of—a saying no to, a suspension of—the work of mourning? On the other hand, how does the refusal to forgive mark/affect the work of mourning? Should this refusal to forgive perhaps be thought as an affirmation of the work of mourning? If, for the moment, one assumes without more that reparation is (part of) the work of mourning, then the question acquires a particular valence, namely, is “forgiveness” an outcome of reparation as the work of mourning? If so, does forgiveness (susp)end reparation? And, by contrast, is the refusal to forgive an affirmation of reparation as the work of mourning, a certain insistence that without reparation as the work of mourning, no forgiveness can be had? In this chapter, I will suggest that we understand the relationship between reparation as the work of mourning, on the one hand, and forgiveness, on the other, in terms of the metaphor of refusal. Stated differently, I will argue that the spectre of reparation constitutes itself in terms of refusal in relation to forgiveness. What is at stake is a non-sovereign version of forgiveness which we can only appreciate once we come to a thoroughly psychoanalytic understanding of forgiveness. I shall pursue this psychoanalytic understanding of forgiveness via the work of Julia Kristeva. But first, let me attend to the sense of refusal that shall detain us. The non-relational relation by way of which Derrida distinguishes/separates the work of mourning from forgiveness can, in my opinion, be meaningfully understood by way of involving an understanding of refusal which in this context relates closely to the kind of ethical refusal we find in Hanafin’s (2004, 3) discussion of Blanchot’s insistence on a right to refusal to take arms against the Algerian people. As Hanafin indicates, this insistence on refusal is, above all, invoked in the name of the other. Karin van Marle (2007, 199–200) has explicitly related this understanding of refusal as an ethico-political “no” that relates closely to the concept of resistance, to the context of post-apartheid living and dying.1 Because post-apartheid society is very much still coming to terms with the wounds of its past and therefore still exemplifying the work of mourning, I believe that Van Marle has implicitly asked us—by involving refusal in the post-apartheid context—to think about refusal within the context of the work of mourning as reparation and its relation to the possibility of forgiveness. From what follows we will see that the correspondence that I wish to establish between reparation and the work of mourning is always already itself a certain refusal to let go, a certain unfaithful fidelity—a never-ending, always unfinished process (Derrida 2004, 160) that can indeed be conceived of as a mode of refusal when it is thought in the context of forgiveness: Precisely and often, reparation,

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or, at least, its insistence as the work of mourning can be seen as grounded in an ethico-political refusal to forgive if we mean by that word a simple and unproblematic end to the work of mourning. A forgiveness that would posit as its condition a certain absenting/absence/ending of the work of mourning as reparation can itself then come to be thought of as a refusal of the work of mourning. Indeed if forgiveness posits as its condition the absence or end of the work of mourning, then it can be seen as a refusal of the refusal that lies at the heart of the work of mourning, namely the refusal simply to let the Other go. I want to argue here that forgiveness—as a process—can never succeed in finally refusing or bringing to an end, the work of reparation as the work of mourning and, on the other hand, the work of mourning—as interminable reparative work—in a sense is always already refusing forgiveness as a finite, closed-off endpoint or “moment.” I draw here on Kristeva’s (2002a, 284) understanding that “there is no such thing as forgiveness once and for all” to which I want to add that the aporia of reparation reminds us that there can be no such thing as mourning once and for all— there are only more or less incomplete works of mourning/reparative works, just as there are only more or less complete works of forgiveness. In addition, I continue to complicate this matter by arguing that where there is the declaration of forgiveness (such as we find in the exergue and in so many places and spaces that surround the TRC)—as a certain interruption of the work of mourning—this represents only the beginning of an ongoing, never complete, never ended process of refusal of the work of mourning at the same time as the consequent refusal to “finally” forgive2 constantly affirms the work of mourning. Strictly speaking, then, the declaration “I forgive” renders both forgiveness and the work of mourning impossible or, at least, emphasises the aporetic nature of both these concepts. As Guyer (2006, 89), therefore writes: “In other words to forgive is to render forgiveness impossible.” These two movements of refusal are heterogeneous and yet indissociable. Refusal ties them together and keeps them apart. On the one hand, refusal “sides” with reparation as the work of mourning, on the other it “sides” with forgiveness. Thinking the work of mourning and forgiveness in terms of refusal exposes to us this ongoing tension between forgiveness and reparation as the work of mourning. In the context of the Derridean idiom, one should perhaps rather speak here of an ongoing negotiation between forgiveness and the work of mourning—a negotiation by way of refusal—for as Derrida (2002, 12–13) reminds us, negotiation is “un-leisure … the impossibility of stopping, of settling in a position. There is negotiation when there are two incompatible imperatives that appear to be incompatible but are equally imperative.” I think that reparation and forgiveness are examples of such incompatible yet equally imperative processes that can be usefully understood by way of involving an ethico-political notion of refusal. In order to come to terms with the terms of such a negotiation between forgiveness and the work of mourning, it is necessary, first, that we look more closely at the relationship between reparation and mourning, after which I will turn to Derrida’s opposition of the concepts of mourning and forgiveness. Via the work of Gillian Rose (1996, 69–76), I will ask after the role of forgiveness in her distinction between aberrant and inaugurated mourning. Rose argues that Derrida’s model of mourning

The Spectre as Refusal 151 represents aberrant mourning and as we shall see, she argues that forgiveness only has a place/chance in inaugurated mourning. I shall dispute this latter aspect by way of referring to some problems inherent in Rose’s ontology in the context of forgiveness as well as some problems/difficulties in relation to her reading of Derrida on mourning. Finally, I will suggest by relying on Kristeva that we need a thoroughly psychoanalytic conception of forgiveness in order to hold the double imperatives of reparation and forgiveness in the tension of refusal which this chapter supports. Reparation and the work of mourning As I explained in the introductory chapter, reparation is intimately connected with the work of mourning. Here, I want to review only the critical literature out of which the connection between mourning and reparation emerges. In the first instance, there is Segal’s (1973) reading of Klein in which Segal (70) explicitly uses the word “mourning” in relation to the depressive position. Segal (69) argues that introjective processes are intensified in the depressive position due partly to “the lessening of projective mechanisms” and partly to the infant’s discovery of their dependence on the object which is perceived as independent and “liable to go away” (69). This, in turn, leads to an increase in the infant’s need to possess their object, to “keep it inside” and, if possible, to protect it from their own destructiveness (69). She then writes that the infant in the depressive position experiences new feelings unknown to the paranoid–schizoid position. Segal describes these “new feelings” as “the mourning and pining for the good object felt as lost and destroyed” (70 (emphasis added)). This “experience of depression” as a result of the feeling that the good object has been lost and destroyed, then gives rise in the infant to a “wish to repair his destroyed object” (72): They long to “make good the damage inflicted” upon the good object. Segal argues that, ultimately, “[t]he pain of mourning experienced in the depressive position, and the reparative drives developed to restore the loved internal and external objects, are the basis of creativity and sublimation” (75). We find, then, at the heart of the initial stages of psychic development, an irreducible intertwinement of the work of mourning and reparation. Klein (1975, 345– 346) herself seems to confirm this early occurrence of mourning and reparation in psychic development when she writes in “Mourning and its relation to manicdepressive states” that there is a close connection between adult “normal mourning” and early phases and “states of mind” that are related to the depressive position and thus to reparation. Klein, in fact, goes to great lengths in this essay to show the relationship between mourning, the depressive position and reparation by arguing, for example, that the objects that have been destroyed by the infant in phantasy are experienced as lost and lost as a result of their “uncontrollable greedy and destructive phantasies and impulses” (345) against their mothers’ breasts. Sanders (2007, 132) writes that the result is that mourning in the depressive position amounts to “a making-good-again” of the objects against which the infant aggressed. There can thus be no doubt that Klein thought of reparation as intimately connected to the work of mourning.

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In the book-length conversation between Allen and Ruti (2019), to which I referred in the Introduction, this connection between the depressive position, mourning and reparation is further strengthened. From the start, Allen makes the case for an understanding of Kleinian subjectivity according to which the depressive position is “closely bound up with guilt, the fear of loss, mourning, and ultimately the drive for reparation, which is the urge to repair the damage that was done, whether in reality or in phantasy, to the object” (5). In fact, Allen goes as far as suggesting that in Klein adaptation to reality is “simply a matter of resignation to the inevitability of loss” (126). She then argues that this resignation is the key “not only to the reparative work of mourning but also central to psychic growth and intellectual and artistic creativity” (126). In bringing the connection between Klein and transitional justice to the fore, Allen refers in this regard to the work of David McIvor who views truth and reconciliation commissions as “potential spaces for a democratic politics of mourning” (Allen and Ruti 2019, 154) and posits that we have to understand by “mourning” the constant work of working through the trauma. “Reconciliation,” Allen says, “is therefore an ongoing democratic practice by means of which communities can form and reform a fractured, fractious, and internally contested – and thus necessarily incomplete and open-ended – whole” (154 (emphasis added)). In the South African context, Mark Sanders (2007) famously suggested that apartheid was an interdiction on mourning (36) and that the TRC was an invitation to the nation to join in a process of collective mourning (10). In his chapter on reparation, Sanders (2007) considers Klein’s account of reparation in detail (confirming the connection between mourning and reparation in “Mourning and its relation to manic-depressive states” (132)) and explicitly suggests that mourning involves a “making-good-again” of the objects that have been attacked, destroyed and damaged. “One could say,” Sanders writes, that from Klein’s writings one derives a concept of reparation that is a mourning in a general sense, because the loss (or lost object) it attempts to make good is not restricted to (actual) death (or actual dead people). If there is a Kleinian ethics – of reparation, responsibility – then it is strongly linked to the work of mourning. (133) Sanders suggests that “the structure of reparation set to work by the Truth Commission” (128) involves a perpetrator who makes good for a violation done by them and thereby makes the victim whole. He explicitly argues that this making good or making whole involves the “bringing of condolence” and therefore, mourning (128). It is thus no exaggeration to say that the modality of reparation is always mourning and that reparation is the work that is accomplished through mourning. Here we have to bear in mind Freud’s (1957) distinction between mourning and melancholia where melancholia locks the bereaved into a stasis in which they resurrect the loved object internally through identification. Relying on the work of Lacan,

The Spectre as Refusal 153 Russell Grigg (2015) has suggested that the melancholic state is a form of psychosis in which the object is “unabandoned.” From the above, it appears, then, that reparation as work undertaken in relation to the lost object, bears the potential of shifting a melancholic out of their psychotic state by putting to work the work on the (lost) object. Elsewhere, I have suggested, relying on the work of Cornell and Seely (2016), that apartheid was in fact such a state of enforced melancholia as enforced psychosis (Barnard-Naudé 2022). Therefore, if we are interested in the ways, means and possibilities that open up after apartheid, it is essential that we think of the post-apartheid as a period of mourning and a mourning in which the work involved in mourning acquires a specifically reparative dimension. Now that we have established the close correspondence, synonymity even, between reparation and the work of mourning, it is time to move on to Derrida’s account of the work of mourning, all the while bearing in mind this intimate connection between mourning and reparation. Derrida’s model of mourning In order to reflect on the meaning of the work of mourning (reparation) in the context of forgiveness, it is necessary to take stock of the Derridean model of mourning in general. Derrida’s model of mourning disrupts—and so depathologises—the classic psychoanalytical account of mourning according to which “mourning demands that we revive, relive and then relinquish the memories that tie us to the dead” (Kirkby 2006, 464).3 As Kirkby (2006, 471) puts it: “there is in the normal accounts of mourning, a refusal to submit to transformation / to be reorganised and reconstituted in relation and response to the lost other (whose gaze continues to look at us within us).” In Derrida, however, mourning affirms transformation because it is constitutive of the relation with the other (and therefore of the self),4 and for this reason, mourning is at once impossible and necessary. It is impossible because the one (the other) who is no longer living (and this “no longer living” is already present at birth5) is both within us and also beyond us, unreachable— “nothing we say of or to them can touch them in their infinite alterity” (Derrida 2003, 11).6 Yet, fidelity to the Other consists in mourning and so is worked out—at least initially—in the interiorisation of the dead Other—in the necessity of an interiorisation that is at once impossible.7 In this sense, “the possibility of the impossible commands here the whole rhetoric of mourning” (Derrida 1989, 34). Inevitably and according to this logic interiorisation must fail and, as Derrida (2003, 144) puts it, interiorisation must “fail well” in order for mourning to be successful, in order to be faithful to the Other. If mourning is simply successful, it would amount to an introjection/incorporation of the Other which would deny both the otherness of the Other and the otherness of death. Thus, the ethical imperative of mourning is that it remains and remains as impossible. It suggests an undeniable responsibility—an infinite responsibility which cannot and does not leave us with “any form of good conscience” (Derrida 1994, xv). The work of mourning then “which is not one work among others but the overdetermining mark of all work” (Derrida 2004, 159) consists in the taking

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up of this infinite responsibility knowing that it will and must fail (159–160). Note here the correspondence that is established between Derrida’s account of mourning as infinite responsibility and the aporia of reparation—in both the responsibility is infinite because it is strictly impossible: Faithfulness prescribes to me at once the necessity and the impossibility of mourning. It enjoins me to take the other within me, to make him live in me, to idealize him, to internalize him, but it also enjoins me not to succeed in the work of mourning: the other must remain the other. He is effectively, presently, undeniably dead, but, if I take him into me as part of me, and if, consequently, I “narcissize” this death of the other by a successful work of mourning, I annihilate the other, I reduce or mitigate his death. Infidelity begins here, unless it continues thus and is aggravated further. (Derrida 2004, 160) The work of mourning—the active taking up—of this infinite responsibility reveals the political aspect of mourning. And the politics of mourning is not unrelated to the ethics of mourning. As Derrida (1993, 61) puts in Aporias: I would say that there is no politics without an organization of the time and space of mourning, without a topolitology of the sepulcher, without an anamnesic and thematic relation of the spirit as ghost [revenant], without an open hospitality to the guest as ghost. This quotation delivers us neatly back to the very heart of the question of the spectre of reparation and of how it influences and bears upon the work of mourning. If there is “no politics” without the organisation of a time and space for mourning, then the spectre of reparation demands that there can be no such time and space without a topolitology of the work, of the act of making good (again) for the violation and the loss. In this quotation, Derrida in fact invites us to invite the spectre in, to accommodate it in our everyday practices, activity and conduct, all the while being aware that the work of mourning as reparation must fail and, in fact, it must “fail well” in order to be any sort of “good” ethical work. Once again, this is no alibi to stay out of reparation, out of mourning—it is no alibi through which we can conceal our responsibility to that which has gone before us. If anything, Derrida’s hyper-ethics of mourning intensifies our relationship with the spectre of reparation to a point where it becomes impossible not to encounter the spectre, impossible not to be haunted. The political risk and danger to which the TRC, however, exposed us, relates not so much to the life of the commission as an invitation to join in mourning. Rather, it relates to the death of the commission as a closure, a burial, that would have raised no spectre. The political risk and danger of the TRC, then, was that it will have created the impression in the minds of South Africans and especially in the minds of the beneficiaries that the responsibility for apartheid is over and done with, that the mourning has been concluded and that no further work is required.

The Spectre as Refusal 155 It is against this more or less classical account of the work of mourning as something that is strictly limited, finite in time and space, that Derrida’s ethics of mourning in general rebels. Walker (2004, 115) indicates that in Derrida “there is an irreducibility between the ethical and the juridical-political” but in such a way that the two are nevertheless indissociable. As Derrida (1999, 115) himself puts it in Adieu to Immanuel Levinas: “it is necessary to deduce a politics and a law from ethics. This deduction is necessary in order to determine the ‘better’ or the ‘less bad.’”8 In a certain sense, then, politics—including the politics of mourning and thus also the work of mourning as reparation—is always already tied to failure—it always already suggests failure, namely the failure of our infinite responsibility to the Other and to all the other Others.9 Yet, Kirkby (2006, 470) suggests that the politics of mourning resides in the openness to be transformed by the Other, “a provocation to think new paths, new ways through apparent impasses.” Surely, the work of reparation is a crucial way of overcoming “apparent impasses” in a country as plagued by injustice as postapartheid South Africa. Moreover, the politics of mourning that we deduce from the ethics of mourning clearly suggests, in more than one sense, the refusal of the sovereignty of the subject and its ability to decide. Politics, as Critchley (1998, 271) argues, suggests a “realm of risk and danger. Such danger calls for decisions or … ‘political invention’, an invention taken in the name of the other.” To take a decision in the name of the Other is always already to refuse the narcissistic sovereignty of the self-enclosed subject. Reparation as the work of mourning is thus clearly other-orientated, rather than self-obsessed. In Chapter 6, we shall consider in detail how such an “invention” presupposes the work of reparation as a nonsovereign “making.” For now, however, it is important to turn our attention to how the refusal of sovereignty in the logic of the decision becomes a crucial aspect of Derrida’s thought on forgiveness. The movement of refusal in Derrida’s aporia of forgiveness In his work on forgiveness, Derrida (2004, 161) argues—along the same lines as the elucidation of his aporetic conception of mourning—that we have to concede as a matter of fidelity to the heritage—that there is, within the Abrahamic tradition, “two contradictory logics in dispute” with regard to forgiveness. On the one hand, there is the conditional logic: a logic that demands apology, repentance, selftransformation, and exchange. On the other hand, there is the unconditional—or impossible—forgiveness: “I forgive regardless of the attitude of the guilty party, even if he does not ask for forgiveness, even if he does not repent. I forgive him insofar as he (or she) is guilty or even insofar as he (or she) remains guilty” (161). Derrida affirms that when it comes to the analysis of a pure concept of forgiveness—forgiveness itself—there is always already implied the unconditional, the impossible: “pure forgiveness must forgive the one who or which remains unforgivable” (Derrida 2004, 161). Pure forgiveness, the only forgiveness worthy of the name according to Derrida (n.d.), is not “it should not be, normal, normative, normalizing. It should remain exceptional and extraordinary” (Derrida 2001a, 32).

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When forgiveness “aims to re-establish a normality by a work of mourning … then the ‘forgiveness’ is not pure” (32). Although in the story of Mr Papiyana’s forgiveness it is unclear whether his forgiveness can be situated at the level of the unconditional,10 we certainly witness the aspect of forgiveness as something unexpected and extraordinary—as something that interrupts the normal course of events, that does not establish a normality: “I thought I would never have the ability to forgive my son’s murderers for what they did. In my wildest dreams I never thought this meeting would end with a situation where I was the one comforting” (Verwoerd 2003, 168 (emphasis added)). We clearly see in these remarks a certain concession to the non-sovereignty of the subject when it comes to forgiveness. Such nonsovereignty is clearly tied to the extraordinary and the unexpected. Yet, as is clear from Derrida’s remark in the previous paragraph, this non-normalising, non-normal forgiveness is to be differentiated from the work of mourning. From what Derrida says in the above quotation it is clear that the work of mourning has precisely to do with this normalisation—“some therapy or ecology of memory” (Derrida 2001a, 32). A few pages on, Derrida again makes this point with even more emphasis: It is always the same concern: to see to it that the nation survives its discords, that the traumatisms give way to the work of mourning … But even where it could be justified, this “ecological” imperative of social and political health has nothing to do with “forgiveness.” (41) In fact, Derrida’s main criticism of Archbishop Desmond Tutu’s role in the TRC relates precisely to this simple “collapsing” of forgiveness into the work of mourning which, as Derrida elsewhere argues, results in “forgiveness mourning forgiveness” (Derrida 2001b, 42). The TRC, Derrida says, was an institution uniquely destined to treat “politically” motivated crimes by way of amnesty (Derrida 2001a, 42). Yet, Tutu “christianised” the language of this institution by introducing the vocabulary of repentance and forgiveness. Derrida sees this as highly problematic because the introduction of the language of forgiveness in the political institution that was the TRC—as an essential part in the “national” work of mourning—does not only risk losing account of the unconditional aspect of forgiveness—it also tends to reduce forgiveness to a normality, banality or technology, a reciprocal exchange in terms of a contract. This apart from the fact, of course, that it generally tends to collapse the ethical into the juridico-political. Derrida’s concern with distinguishing the work of mourning from forgiveness is motivated by the desire to keep in play the assertion that forgiveness comes from the other and as that which comes from the other it cannot—it should not—be instrumentalised; for instrumentalisation immediately propels us into the realm of the self and its narcissistic tendencies (which, we shall see is not something that Derrida entirely denies but which he also does not want to concede as merely inevitable). Be that as it may, this concern with the instrumentalisation of forgiveness (which fails to hold open the possibility of the impossible forgiveness) is further

The Spectre as Refusal 157 played out in Derrida’s account of one of the women who came to testify before the TRC whose husband had been killed by police torturers. In her testimony, this woman resists the normalisation and institutionalisation of forgiveness within the vocabulary of the TRC by way of not only claiming that forgiveness is not a right of the Commission but entirely hers (there can be talk here of the right of first refusal in relation to forgiveness); her resistance consists in the refusal to forgive: “A commission or a government cannot forgive. Only I, eventually, could do it. (And I am not ready to forgive.)” (Derrida 2001a, 43). Commenting on this passage, Derrida (2001a, 44) indicates that the widow, as a survivor, “was not ready to substitute herself, abusively, for the dead,” to forgive, on behalf of the ultimate or absolute victim who is the dead husband. One sees here that the refusal to forgive is tied up with the affirmation of the work of mourning— an affirmation which is moreover an affirmation of the other. The woman is not ready to forgive because the work of mourning is not at the stage where forgiveness can be declared; the fidelity to the dead other—the other inside—is still such that forgiveness is not allowed, cannot take (its) place, or as Kluger (2002, 312) puts it: “their ghosts are unforgiving.” The responsibility to the dead, the impossible interiorisation, is (still) at work and of course it will remain at work. The work of mourning is not yet ready to allow its interruption by way of which forgiveness is declared. Mr Papiyana’s declaration of forgiveness confirms the interruptive character of the declaration of forgiveness, its unexpected, uncontrollable nature. Yet Mr Papiyana also confirms that the declaration of forgiveness—as an interruption11— does not end the work of mourning. As Verwoerd (2003, 168) indicates: The rest of Mr Papiyana’s statement “makes it clear that, two years after the meeting he stills seems to struggle to overcome some hard feelings.” This experience exemplifies that the work of mourning continues beyond the interruption that consists in the declaration of forgiveness—a declaration which is always made to another other (Allain 2008, 6–7). It is at this point, at the point where the work of mourning continues beyond the interruption or the simple declaration of forgiveness, that forgiveness reveals itself as a process. As Verwoerd (2003, 168) indicates: Of course, Papiyana may have said “I forgive you” to Pyper, on 3 October 1994, in Botha’s office. But forgiving should not be reduced to the utterance of these words, at a particular time and place. … One should therefore be careful not to see evidence of ongoing struggle, such as is the case with Zenam Papiyana, as a sign that he has not “really” forgiven. Beyond the declaration of forgiveness, then, forgiveness as a process itself becomes inscribed in the work of mourning as a process but here in a contradictory way if it is to stay true to the Derridean logic, namely in a way that consists precisely in a renewed refusal of forgiveness which is a renewed affirmation of the impossibility of forgiveness—a saying no to forgiveness in forgiveness’s attempt to bring the work of mourning to an end or close, for as Derrida tells us—the work of mourning is interminable. And this is also why the work of mourning refuses forgiveness as a

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simple moment of the declaration “I forgive.” In this way, the aporetic character of both forgiveness and the work of mourning is simultaneously affirmed. The declaration, on the other hand, that one is not (yet) forgiving similarly asserts that forgiveness has a processual character albeit that in the declaration that one is not forgiving one is declaring that one is not yet involved in the process that will at some future contemplated time be marked by the interruption as the declaration of forgiveness.12 Forgiveness as part of the process of working through trauma, as part of thecoming-to-terms-with—forgiveness as tied to the work of mourning—must retain both its conditional and its unconditional logic in order to remain true to itself. The work of mourning by the same token must retain both its dimensions of possibility and impossibility. Forgiveness and the work of mourning must remain interlocked in this double posture of refusal in order for these concepts to remain true to the future of a justice to come.13 I believe that it is also by way of the movement of refusal in the relationship between forgiveness and the work of mourning that we can understand Derrida’s insistence that the unconditional idea of forgiveness remains inseparable from the order of “conditions, repentance, transformation, as many things as allow it to inscribe itself in history, law, politics, existence itself” (Derrida 2001a, 44): These two poles, the unconditional and the conditional, are absolutely heterogeneous, and must remain irreducible to one another. They are nonetheless indissociable: if one wants, and it is necessary, forgiveness to become effective, concrete historic; if one wants it to arrive, to happen by changing things, it is necessary that this purity engage itself in a series of conditions of all kinds … It is between these two poles, irreconcilable but indissociable, that decisions and responsibilities are to be taken. (Derrida 2001a, 45) If then, we want forgiveness to arrive, to change things for the better, it is necessary that it negotiates with the work of mourning, but never so as to become reduced to the work of mourning, for then there would no longer be negotiation. Derrida has also elsewhere characterised this figure in relation to justice and has also argued that the incalculable and giving idea of justice, left to itself, is always very close to the bad: And so incalculable justice requires us to calculate … Not only must we calculate, negotiate the relation between the calculable and the incalculable …; but we must take it as far as possible, … Politicization, for example, is interminable even if it cannot and should never be total. (Derrida 1990, 971) In addition, Derrida (2001a, 45) adds that the engagement of forgiveness in the work of mourning does not divest forgiveness of its unconditional character: [D]espite all the confusions which reduce forgiveness to […] the work of mourning […] it must never be forgotten […] that all of that refers to a

The Spectre as Refusal 159 certain idea of pure and unconditional forgiveness […] pure and unconditional forgiveness […] must have […] no finality. It should come as no surprise, then, that this book posits reparation as the condition under which forgiveness may enter the scene of the work of mourning. With Derrida we can say that if we want forgiveness to arrive and change things, for the better, in post-apartheid South Africa, then we have to be prepared to enter into difficult and challenging works of reparation as a constitutive part of our work of mourning after apartheid. In other words, the spectre of reparation demands that the work of mourning must refuse forgiveness until such time and moment as adequate, but not completed, reparation has taken place. On the other hand, this does not preclude the arrival of forgiveness—forgiveness may always arrive in the course of the work of mourning as reparation, and so interrupt, but not conclude, the work of mourning as reparation. But what must be absolutely refused is the idea that one can transact for forgiveness, the idea that if only one does certain things and say certain words, the other is obliged to deliver forgiveness. This, unfortunately, is a legacy of the kind of forgiveness that was mostly at stake in the TRC. The work of mourning as reparation must understand that forgiveness may never arrive, even in the face of a multiplicity of reparative acts. Nonetheless, reparation can, in the words of the late Chief Justice, Pius Langa (2006, 359), create a “climate for forgiveness”; it can produce the conditions that are conducive to forgiveness but it can never expect that such forgiveness will be forthcoming: “the most effective manner to summon the rain of forgiveness is … through social justice which must include a levelling of socio-economic conditions” (359). When such forgiveness arrives, it must, moreover, as Kristeva (2002a, 281) makes clear, be understood as not effacing the act or the culpability: “It takes into account and comprehends both the act in its horror and the guilt.” Thus, through this interlocking of forgiveness and reparation, the conditional logic of forgiveness refuses the unconditional logic of forgiveness at the same time as the unconditional refuses the conditional. That is why the two remain indissociable and yet irreducible to one another. To put this into the context of the work of mourning, we might imagine that the work of mourning (as itself an aporetic concept) dances with the aporia of forgiveness according to a choreography in which the unconditional is interlocked with the conditional and never reduced to it. And this means that when forgiveness arrives in the space of the in-between, above the simply conditional, then “it exceeds all institution, all power, all juridico-political authority” (Derrida 2001a, 54). And this brings me to yet another dimension of the relationship between forgiveness and the work of mourning that can be understood through the movement of refusal. This is the nature of forgiveness as a “madness of the impossible” (Derrida 2001a, 45) as requiring a non-sovereign act, doing what I cannot do, “which means that it is not me, it is not myself who does this, it is the other in me, someone stronger than me … it is the other who forgives” (Derrida n.d.). If it is the other who forgives, if the Other who is stronger than me makes the decision14 to forgive, then it is not me, it is not myself who does this and this means that I am

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powerless—without sovereignty—in relation to forgiveness which powerlessness first of all consists in this refusal of the sovereignty of the self, in this decision—of the other—to forgive (Derrida 2001a, 59). Gillian Rose’s “inaugurated mourning” and a psychoanalytic concept of forgiveness Gillian Rose’s work, Mourning Becomes the Law (1996), represents a remarkable critique of the Derridean model of mourning—a critique which I want to invoke here because of Rose’s concern for politics and because of her fear that what she believes to be post-modern ethics, has deadened politics. This deadening of politics, Rose believes, occurred precisely because of post-modernism’s insistence on what she sees as melancholic stasis: Post-modernism in its renunciation of reason, power, and truth identifies itself as a process of endless mourning, lamenting the loss of securities which, on its own argument, were none such. Yet this everlasting melancholia accurately monitors the refusal to let go, which I express in the phrase describing post-modernism as “despairing rationalism without reason.” (Rose 1996, 11–12) Rose (1996, 12) affirms that a reassessment of reason and a rediscovery of “its own moveable boundaries” can resist postmodernity’s melancholic stasis and complete the work of mourning. She introduces the concept of inaugurated mourning as the end of mourning, which she at once distinguishes from post-modernism’s “aberrant mourning” and defines as “the recognition of our failures of full mutual recognition, of the law which has induced our proud and deadly dualisms” (Rose 1996, 76). In relation to reparation, I think that “inaugurated” mourning suggests (or risks) precisely that kind of reparative act by way of which redemption is secured, in other words, an understanding of the mournful reparative act as a transactional counterpart to forgiveness. Despite Rose’s definition of inaugurated mourning as involving the failure of “full mutual recognition,” I think that her version of mourning as, specifically, “inaugurated” (thus complete and discrete) risks opening the work of mourning up to an economy of transactional exploitation so that the reparative work of mourning remains involved in an economy of property and what is proper which I contested in Chapter 2—reparation, the reparation that matters, that will change things for the better, is precisely the reparation that exceeds and so falls outside of any economy of property. There is, as I have suggested, a certain endlessness to reparation which refuses the notion of a discrete totality, completion or “inauguration.” In other words, what I am contesting in Rose is the subtle suggestion that reparation can be some kind of an inaugural act that completes mourning as a social relation. For Rose (see Wood 1996), “death is not for nothing only when mourning becomes the law that is when it returns to reason and puts an end to the endless dying of life under tyranny.” With reference to Sanders’ account of apartheid as a

The Spectre as Refusal 161 proscription on mourning, we find in Rose an account of mourning, on the other hand, in which mourning is explicitly brought into relation with law, indeed sanctioned by the law. This at once suggests a complication for the idea above that Rose synonomises inaugurated mourning with the end of mourning. It seems that Rose is saying something different than simply a discrete end to mourning with the idea of inaugurated mourning, for when mourning becomes the law it becomes part of the ordinary and everyday processes of the city and therefore does not come to an end at all. This undeniably resonates with Derrida’s assertion above that the work of mourning bears the “overdetermining mark of all work” (Derrida 2004, 159). So with Rose, Sanders would agree that death is not for nothing only when mourning becomes the law and the TRC could, in consequence, be seen as precisely an institution in which mourning became the law. However, Rose’s insistence on “inaugurated” mourning does risk the trouble of death without a spectre—the death of an institution in which mourning was the law, but a country in which mourning is the law no more. This ethical risk, I believe, lies inherent in the concept of inaugurated mourning. Rose acknowledges that action has a “creative involvement” in the (re)configuration of power and law. It thus seems clear that Rose would regard reparation as an essential element of the work of mourning. Moreover, “mourning becomes the law” implies for Rose (1996, 12) the acknowledgement of the involvement of a gradual process in which this action occurs, which seems, on her own terms, to undermine the idea of an end or closure to the work of mourning. Rose also writes of an “enhancing” of the law as part of overcoming melancholia, again gesturing at the reparative potential of her concept of inaugurated mourning. However, in a criticism of Blanchot’s (1995, 27) assertion in The Writing of the Disaster that “responsibility is itself disastrous – the responsibility that never lighten the Other’s burden (never lighten the burden he is for me), and makes us mute as far as the word we owe him is concerned,” Rose argues that, on the contrary, [t]his hyperbole amounts to the refusal of the work of mourning—refusal of entering into any experience which comes to learn that will, action, reflection and passivity have consequences for others and for oneself which may not be anticipated and can never be completely anticipated; which comes to learn its unintended complicity in the use and abuse of power; and hence to redraw again and again, the measures, the bonding and the boundaries between me and me, subject and subjectivity, singular and individual, non-conscious and unconscious. (Rose 1996, 122) It seems, then, that what irks Rose most in the post-modern account of ethics is the idea of stasis, fixation or the foreclosure of action – muteness in Blanchot’s idiom, melancholia in Freud’s. But Rose seems to miss the point that the Derridean account of mourning as involving an “infinite responsibility” is not at all predicated on melancholic stasis and the end of politics. On the contrary, the Derridean

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account of mourning is precisely aimed at the overcoming of melancholic stasis in such a way that we can never do enough, we can never be free from our responsibility to those who have gone before us, we can only ever lighten the burden that they left us with in an incomplete and tentative way. That politics is an essential and non-negotiable aspect of such “infinite” ethical responsibility is borne out in Derrida’s already quoted remark from Aporias: “In an economic, elliptic, hence dogmatic way, I would say that there is no politics without an organization of the time and space of mourning, without a topolitology of the sepulcher, without an anamnesic and thematic relation to the spirit as ghost” (Derrida 1993, 61). This idea of an infinite responsibility that demands constant political (and legal) action in the name of the dead is well known in African culture and, at least in Ramose’s version, an essential component of the jurisprudence of ubuntu. Because of her preoccupation with post-modern stasis, Rose (1996, 38) proceeds to advocate a concept which she calls “activity beyond activity” (in opposition to the Levinasian “passivity beyond passivity”), which she believes “restates the risks of critical rationality and of political action.” Rose believes that the responsibility to the dead Other “requires a work, a working through, that combination of self-knowledge and action which will not blanch before its complicities in power” (121). She continues that [t]he work of these experiences bears the meaning of meaning—the relinquishing and taking up again of activity which requires the fullest acknowledgement of active complicity. The work of mourning is difficult but not interminable; beginnings may be made in the middle. (122) In these passages with their references to complicity, it again seems clear that Rose would support the idea of reparation as the crucial component of the work of mourning, but her supposition that the mourning is terminable remains the main bone of contention between her and post-modern ethics. I should like to propose a reading of Rose that overcomes this contention. Despite Rose’s (1996, 11) criticism of Derrida’s aphorism “I mourn, therefore I am,” I do not read her as advocating in the above passage that, temporally speaking, mourning in fact comes to an end in that it ceases, stops, closes or terminates. While it is true that Rose (in the opening passages of Mourning Becomes the Law) foreshadows the completion of the work of mourning (12), I read her as at best equivocating later in the book on the idea of the completion of mourning. In reading the above passage, we have to bear in mind that Rose’s concept of inauguration as terminable mourning is responding to Blanchot who argues that “eventually we have to put a term to the interminable” (113). Inaugurated mourning, I suggest, was Rose’s answer to Blanchot’s question of putting a term to the interminable. In asserting that “the work of mourning is difficult but not interminable; beginnings may be made in the middle” (122), Rose can be read as calling us to the broken middle, to the politics of mourning—to put a term to (express/name) the

The Spectre as Refusal 163 interminable work of mourning, to what she calls “transcendent but representable justice” (36). That Rose is not here calling for mourning to cease is evident in the very next sentence following the above passage: This work of mourning is the spiritual-political kingdom – the difficulty sustained, the transcendence of actual justice. Though tyrants rule the city, we understand that we, too, must constantly negotiate the actuality of being tyrannical … to know and yet not to know, to be known, to mourn, I incorporate that actual justice in activity beyond activity.15 (122–123) Reading Rose in this way leads not only to a conclusion that she herself equivocates about the completion of the work of mourning towards the end of Mourning Becomes the Law; it also has consequences for the relationship between her work of mourning and that of Derrida. I believe that Rose’s (mis)identification of Derrida’s “I mourn, therefore I am” as melancholic stasis—or as aberrant mourning—rests on an incomplete understanding of the Derridean model of mourning. What is important to bear in mind is that Derrida himself refused melancholia as a distinct pathological category in his disruption of the Freudian melancholia/mourning dichotomy. Yet Derrida (seemingly in recognition of the later Freud) admits/accepts/insists that an element of narcissistic melancholia remains in any relation with the Other. This is clearly borne out in the following passage: Narcissism! There is not narcissism and non-narcissism; there are narcissisms that are more or less comprehensive, generous, open, extended … I believe that without a movement of narcissistic reappropriation, the relation to the other would be absolutely destroyed, it would be destroyed in advance. (Derrida 1995, 199) But the entire point about mourning in Derrida, the point that Rose seems to miss, is that precisely because of this narcissism, mourning must—it is imperative that it does—fail and also fail well, it does not accord to the Freudian “from melancholia to successful mourning” passage. The narcissism of melancholia must be resisted and it is precisely for this reason that mourning as reparation must fail. I must never be able to fully incorporate the other into myself because that would be the epitome of infidelity to the other. Moreover, if I succeed, through the work of reparation, to fully incorporate the dead other (in the broadest sense of the term) it means that I have not separated myself from the object, that the object is still “unabandoned” and therefore I am locked in psychotic melancholia. Elsewhere Derrida also asserts the imperative refusal of narcissism in his model of mourning. In his tribute to his friend Jean-Marie Benoist, Derrida (2003, 107) affirms, through a reading of Benoist, that we must not taste a tear: “The act of tasting the tear is a desire to reannex the other” (110). And to this, Derrida adds:

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One should not develop a taste for mourning, and yet mourn we must. We must, but we must not like it – mourning, that is, mourning itself if such a thing exists: not to like or love through one’s own tear but only through the other, and every tear is from the other, the friend, the living, as long as we ourselves are living, reminding us, in holding life, to hold on to it. (110) This passage has multiple implications for the concept of reparation that is proposed in this book. For one thing, it suggests a separation of the ego’s narcissism from the reparative act. This is important in terms of staging a resistance to socio-political acts of “reparation” that are in fact none such or are in fact narcissistic acts of “reparation” that has no effect. One can think here of empty apologies and empty promises that so pervade the political terrain of post-apartheid South Africa. Be that as it may, Rose’s assertion that Derrida’s mourning forms part of what she sees as a despairing rationalism without reason or an endless melancholia, is to my mind, not sufficiently cognisant of the way in which Derrida’s philosophy itself resisted the dreadful lure of narcissistic melancholia. Rose’s opposition between her Mourning Becomes the Law and Derrida’s “desire for presence and acceptance of absence in mourning” (Rose 1996, 11) is, therefore, to my mind an exaggerated opposition. By this I do not mean to contend that Derrida and Rose are philosophical allies through and through – I only mean to gesture at the potential overlaps between philosophies once we start looking for the resonances rather than the stark divergences. I believe that Rose’s concept of inaugurated mourning—a mourning that re-engages with loss and that sustains the difficulty (122) (as Rose is likely to say) is in fact close to, or at least shares similar concerns with, Derrida’s work of mourning. However, in one specific respect, Rose’s activity beyond activity that leads to inaugurated mourning differs vastly from that of Derrida, for Rose prefers that the sovereignty of subjectivity remains firmly in place, while Derrida’s project is to draw out a differential version of subjectivity that no longer relies on sovereignty or, at least, in which sovereignty does not predominate. Still relying heavily on a Hegelianism of sorts, Rose (1996, 74) argues that “the presentation of otherness has a motility which the post-modern gesture towards otherness is unable to conceive.” She continues to argue that it is in fact the failure of full mutual recognition between two self-consciousnesses that separates out otherness (74).16 The relation with the other thus arises out of misrecognition between two selves (74–75). Thus, in Rose sovereign power is not something that can be overcome. The best that we can do is continue the investigation into “the dynamics of the configuration and reconfiguration of power – which is our endless predicament” (21). Thus Rose refuses to see in otherness a motility that directs its course away from sovereignty. In many ways, we can say that for Rose, otherness is a kind of byproduct or collateral of sovereignty, but we can never escape the operation of sovereignty as such. What are the implications for forgiveness of Rose’s refusal to part with sovereignty? I want to argue that, paradoxically and ironically, it confirms what Blanchot (1995, 53) says about forgiveness in The Writing of the Disaster:

The Spectre as Refusal 165 I cannot forgive – forgiveness comes from others – but I cannot be forgiven either, if forgiveness is what calls the “I” into question and demands that I give myself, that I subject myself to the lack of subjectivity. And if forgiveness comes from others, it only comes; there is never any certitude that it can arrive, because in it there is nothing of the (sacramental) power to determine. If subjectivity remains firmly in place, as it does in Rose, if the sacramental power to determine remains untouched, if the relation between self and other is in fact simply the constant (mis)recognition of self-relations, then, the space for forgiveness becomes unnecessarily and severely restricted. According to its logic, for forgiveness to have a place inside the work of mourning, as I have shown, it should remain in place outside the work of mourning. On my reading this latter primary or ‘pure’ dimension of forgiveness is rendered ineffectual in Rose’s inaugurated mourning. Rose’s ultimate concern for politics therefore undercuts, as it were, (and unintentionally so I am sure) the ethical dimension of forgiveness or at least that which renders forgiveness a concept that is situated at the uncomfortable intersection of ethics and politics. If we reduce forgiveness purely to its political dimension without keeping the ethical dimension constantly in play, then forgiveness becomes susceptible to its instrumentalisation, institutionalisation and normalisation on the vertiginous scene of international “relations” or politics. Essentially and finally, this would mean the refusal of forgiveness (itself). As for the relationship between reparation and forgiveness, keeping sovereignty firmly in place would ultimately collapse forgiveness into a transactional counterpart of the reparative act. In such an instance, forgiveness would lose precisely the quality of gift that forms so deeply a part of its etymology and therefore its discursive value. Rose herself seems to support a transactional version of forgiveness when she argues that inaugurated mourning (what I would be tempted to read as the discrete and completed act of reparation, see below) leaves open the way to forgiveness (Rose 1993, 209–210). And, in an argument for a feminist ethics of forgiveness, Anderson (2001, 152–154) also involves Rose’s discussion in Mourning Becomes the Law of Plutarch’s tale of the wife of Phocion the Good by way of which Rose illustrates her concept of inaugurated mourning. Phocion was an Athenian statesman of the highest virtue who was killed in a temporary tyranny in Athens. His body was ordered out of the city to Megara to be burned there by a slave. His wife and her servant, in contravention of the law, ventured outside the walls of the city and collected his ashes (Rose 1996, 23). Rose argues that the act of Phocion’s wife is not only an act of infinite love, it is also a finite act of political justice (25)—an act nevertheless that does not protest “power and law as such” (26). Anderson points to Rose’s comparison of Phocion’s wife with Antigone: Both women carry out that intense work of the soul, that gradual rearrangement of its boundaries, which must occur when a loved one is lost—so as to let go to allow the other fully to depart, and hence fully to be regained beyond sorrow. (36 (emphasis added))

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From this, Anderson (2001, 153) discerns that forgiveness would seem to involve a similar process of emotional and rational transformation of the soul. So release from resentment occurs as the transgressed or grieving person recognizes justice not in the transgression but beyond in representations (and new acts) of justice. I would suggest that these “new acts of justice” are precisely the work of reparation that is at stake in the work of mourning, but I would contest that we should see this as the instalments in an exchange such that forgiveness is given for these reparative “new acts of justice.” The configuration which this book supports, namely of both reparation and forgiveness as falling within the remits of gift rather than economy, militates against the idea of exchange, transaction or barter. In addition, the position of this book is that there is and cannot be simply “finite” acts of political justice which “allow the other fully to depart”—the whole point is that our responsibility in mourning and thus in reparation is infinite and as infinite it is spectral. I thus do not support a supposition of forgiveness in relation to any finite act of political or social justice. Such a supposition of forgiveness would, again, divest forgiveness of its exceptional, unexpected and non-transactional character. What is, however, clear is that what is shared between Derrida’s account of forgiveness and the account inspired by Rose is the idea of forgiveness as a process. In the latter argument, however, it is only the conditional and finite logic or dimension of forgiveness that is in play—forgiveness, thus collapsed into the work of mourning (or “politics” in Rose’s idiom). Ultimately, Rose’s account of the locus of forgiveness as part of inaugurated mourning (which is in turn animated by activity beyond activity) does not satisfactorily account for the rich and aporetic process that is forgiveness, even if we were to construct inaugurated mourning as close to the Derridean idea of mourning. This is the case because ironically, her concept of activity beyond activity (that still is intent on saving sovereign power) does not leave space for both the orders of forgiveness. While Rose (1996, 76) herself complains of “our proud and deadly dualisms,” she defends a dualism between aberrant and inaugurated mourning that I think undermines the very transformational movement of forgiveness that is forced to straddle these dualisms. The confinement of forgiveness within the strict remit of political and legal sovereignty does not and cannot explain Mr Papiyana’s extraordinary account of forgiveness as he himself effaces or denies the sovereignty in his act of forgiveness at the same time that he affirms/claims the work of mourning: “I thought I would never have the ability to forgive my son’s murderers for what they did. In my wildest dreams I never thought this meeting would end with a situation where I was the one comforting my son’s murderer.” We might think that Rose’s account of forgiveness as part of inaugurated mourning explains the words of the woman who came before the TRC and refused forgiveness because she was not ready. After all, she is the one who says that “only I eventually could do it” and on the face of it claims a sovereign right. Yet the analysis above suggested that this woman refuses forgiveness precisely in the name of the other, in the name of the ghost of the other

The Spectre as Refusal 167 as unforgiving and so refuses not only her own sovereignty but also the sovereign normalising tendency in the TRC’s rhetoric on forgiveness. She refuses forgiveness precisely because the other “in her” is not ready to forgive, precisely because the instrumentalising order is trying to force her to forgive.17 How do we move away from the TRC’s version of forgiveness as law in which the sovereignty of subjectivity remained firmly in place? Is there another scene of forgiveness to which we can look to discover and so support Derrida’s nonsovereign version of forgiveness? I believe that only a thoroughly psychoanalytic version of forgiveness can move us beyond the insistence on sovereignty when it comes to forgiveness. We are in need of forgiveness that would thoroughly account for the non-sovereign dimension of our subjectivity, namely the unconscious. As Kelly Oliver (2003) has suggested: “the radical responsibility of a hyperbolic ethics [of forgiveness] that demands impossible ideals […] requires that we account for the unconscious” (283). Oliver suggests that the psychoanalytic account of forgiveness takes sovereignty as the effect of forgiveness rather than its cause. Starting off with a critique of the Hegelian mutual recognition that is so prevalent in Rose, Oliver suggests that such mutual recognition is, in psychoanalysis replaced or displaced by a notion of reconciliation as “the attempt to live with the otherness of the unconscious” (284). This attempt at living with the otherness of the unconscious concerns the bringing into signification of affects that represent the unconscious. In this context, Kristeva (2002a, 281) calls forgiveness the giving of meaning beyond non-meaning. The way in which unconscious affects are brought into signification is through the process of free association in the transference. Kristeva writes of a “narrative of free association and … regenerative revolt against the old law” through which the singular autonomy of both free association and “intimate revolt” is asserted to create a “renewed link with the other” (Kristeva 2002b, 440). Elsewhere, Kristeva (2010, 191) writes that if there is success in psychoanalysis, it is “rooted not in the evacuation of the hatred inherent in the link to the object, but in the patient dismantling of various cogs of drive-related imaginary, and symbolic negativity that sweep away the subject’s links to the other.” What is thus foremost in the psychoanalytic version of forgiveness is the establishing or re-establishing of the relation with the Other beyond hatred. That reparation is critically implied in this dismantling of drive-related imaginary and symbolic negativity inherent in the link to the object should be clear from the foregoing discussion of Klein and the depressive position. Oliver (2003, 284) argues that the body becomes central in Kristeva’s notion of psychoanalytic forgiveness, precisely because of the concern to bring unconscious drive force into signification: “the semiotic element of language is associated with the rhythms and tones of the body that give signification its deeper meaning in our lives.” Supplementing the Hegelian dialectic of confession and forgiveness with the unconscious means that the body is involved in a process of oscillation in the very logic and structure of that dialectic. Thus, Oliver sees psychoanalysis as the exchange of affects between bodies, rather than as any kind of symbolic operation (285). Oliver insists that this account of, or accounting for, the unconscious,

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implies that “the motor that drives forgiveness … is neither intersubjective nor conscious” and, as a result, non-sovereign. Rather, Oliver suggests that the action of forgiveness is a result of the process of mediation in the transference or of what psychoanalysis has come to call the Third (285): “the agency of forgiveness is the operation of this Third that should not be attributed to either one party or the other. Rather the agency of forgiveness is the effect of meaning as it is lived between people” (285). In the end, psychoanalytic forgiveness is the co-creation of meaning beyond the meaninglessness of the trauma and “reparation” can be understood as but another name for such co-creation. Kristeva’s notion of psychoanalytic interpretation as the par-don (through-gift) rests on the assumption that while forgiveness does not erase the horror of the act, it requires a “hearing” of the subject who requests forgiveness and, once this request has been heard, allowing a rebirth or renewal. Such a renewal or rebirth can only take place, Kristeva (2002a, 285) asserts, by giving an interpretation to the act which is not a rational understanding of the act as much as it is an emotional one, one that gives sense to the senselessness of “unconscious hate” and one that is “perceptible in analytical listening that neither judges nor calculates, but is content to untangle and reconstruct” (194).18 I believe that it is in psychoanalysis that the TRC encountered the very limit of its discourse on forgiveness as a lawlike injunction. As Oliver (2004, 11) suggests: Psychoanalytic reconciliation is not the reconciliation of Truth and Reconciliation Committees that would have us forget the past for the sake of unity. Rather, community is possible only by vigilantly and continually acknowledging otherness and negativity within. As Kristeva describes it, psychoanalytic forgiveness is a process of questioning in order to open onto otherness, and reconciliation is an encounter with the other rather than an assimilation of the other. This forgiveness as encounter with otherness requires infinite questioning. Quasi-juridical and strictly limited in time as it was, the TRC could not and did not provide for an instance of “vigilantly and continually acknowledging otherness and negativity within,” nor for analytical listening that was content with untangling and reconstruction. If, for the moment, we assume that “untangling” was analogous to the “full disclosure” requirement of amnesty, then the critique of full disclosure as voiced by Sitze in Chapter 3 undermines any sense in which full disclosure could be regarded as an untangling—full disclosure simply became the question whether the applicant for amnesty had given an honest account. And as we have seen from the Derby–Lewis example in Chapter 3, the TRC was less interested in the acknowledgement of otherness and negativity within than it was in obtaining a “full disclosure” from without. Another example can be found in Sanders’s (2007, 99–112) reference in the context of forgiveness to the amnesty hearing of Jeffrey Benzien and the way in which he was “forced” to reconstruct the wet bag torture method that he had used on his victims. Sanders accounts how this reconstruction went awry when Benzien turned the tables on his victims, now his

The Spectre as Refusal 169 cross-examiners, and reminded them of how quickly they buckled under torture or the threat of it. So, the TRC and commissions like it cannot fulfil the condition of an analytical listening that is content merely with untangling and reconstruction— its inherent institutional and quasi-juridical nature militates against the necessary stoppage that is required in untangling and reconstruction. Even if we were to concede that Benzien’s forced reconstruction of the torture he engaged in is reflective of a TRC attempting to confront Benzien with otherness and negativity in himself, the example shows how the quasi-juridical constraints of the TRC turned such a confrontation into its very opposite, namely a macabre celebration of violence. Unlike an analyst, the TRC also could not suspend judgment: The question whether an applicant would or would not be granted amnesty always already implied a certain judgment on the part of the commission. This is why it is so important to bear the words of the women who refused to forgive into account: “A commission or a government cannot forgive. Only I, eventually, could do it.” Thus, while the TRC could grant amnesty as a kind of political forgiveness for wrongdoing, it was actually incapable of granting the ethical kind of forgiveness that matters most. It is for these reasons that Kristeva insists that the sphere of forgiveness is one that must be excluded from the social. Kristeva (2002a, 282) speaks of a “sort of enclave in the public sphere that can only be the private sphere” as the appropriate setting for forgiveness. In this, she is echoing Derrida (2001a, 42) who writes that forgiveness must “engage two singularities: the guilty […] and the victim. As soon as a third party intervenes, one can again speak of amnesty, reconciliation, reparation, etc., but not of pure forgiveness in the strict sense.” With reference to my insistence in Chapter 4 on the mythical distinction between the private and the public, I would not opt to call this sphere of forgiveness that Kristeva and Derrida insist upon the “private” sphere—there are too many negative associations with and deconstructive interventions in relation to, the “private” sphere to sustain it as a distinct “sphere” even if it is the only “sphere” of forgiveness. I would rather like to refer to the sphere of forgiveness as the “intimate” sphere, thus not denying that there is a sphere that should remain sheltered from the public eye. Further, Derrida’s reference to a “third party” in the passage above should not be confused with the psychoanalytic Third that I have referred to. On the contrary, one could say that as soon as a third party intervenes, the possibility of the psychoanalytic Third is in fact annulled, because the conditions of the transference are thereby rendered inoperative. Kristeva is exceptionally clear that pure forgiveness can only emerge “in strict privacy [what I would call intimacy], notably that of the analytic cure” (282). Kristeva (2010, 193) forcefully asserts that it is only through the “endless analysis of the lack of being” that analytical interpretation “can give sense to the successive and stratified stages of negativity.” “One can imagine,” Kristeva (2002a, 284) says, “that the unforgivable can be forgiven [in this way], not as an erasure but as a recognition of the suffering, the crime, and the possibility of beginning again.” Mary Beth Mader (2004, 21) argues on this point that psychoanalytic forgiveness amounts to restoration and rebirth without exoneration. Kristeva (2010, 283) is, moreover, absolutely clear that “there is no forgiveness to offer” without

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reparation: “[t]hose who call on an absolute forgiveness without repentance … fail to take into account the bond. Once there is a bond there is a need to safeguard a certain number of prohibitions and limits” (emphasis added). As should be clear, “rebirth,” in Kristeva’s language, is associated with a process that knows no end. In the interview on forgiveness that Kristeva published in PMLA in 2002, she is asked whether forgiveness has an end and she answers that forgiveness “once and for all” “would mean something that is in line with erasure, not rebirth, which is indefinite” (284). Kristeva thus insists that the par-don of psychoanalysis is interminable: “it is in the continuity, in the perpetuation of this never-ending work of naming and symbolizing, that forgiveness takes place in the sense of incompletion and infinity” (284). Kristeva’s concern for rebirth is deeply bounded up with her concern for what she calls “opening up psychical time” (2010, 193). She argues that the religions that promise forgiveness of believers corresponds to the vital need of opening psychical time in a modern age in which psychical time and space are increasingly threatened with destruction (193). In Chapter 7, I shall demonstrate how literature has imagined the psychoanalytic encounter between the guilty and the victim. I shall thus have reason to argue for the possibility of the psychoanalytic encounter between coloniser and colonised in which the coloniser assumes the tentative position of patient and the colonised assume the tentative position of analyst. In this, I don’t think that the suggestion is anything like a proposal that all perpetrators and beneficiaries of apartheid should enter into the formal clinical analysis (as advisable as such a course of action may nonetheless be). Rather, I shall suggest that the analytic encounter between coloniser and colonised is a social possibility that has been successfully, though incompletely, imagined in literature. As we shall see from the example in Chapter 7, psychoanalytic forgiveness is intimately bounded up with reparation, but can never be reduced to an effect of reparation. With Derrida, we might say that psychoanalytic forgiveness and reparation are two absolutely heterogeneous processes/orders that are nonetheless indissociable. Mader (2004, 21) has made this point succinctly and clearly. She argues that the absolution which psychoanalytic forgiveness offers does not erase the debt—it simply says that “I will not count it now, though I was counting it until now.” She argues that for Kristeva the “now” of forgiveness “is extracted or exempted from a temporal location that would allow it to be part of any equation. It will not equal, it will be without equal, because it will not be seen as a moment among other moments” (21). With this Mader confirms the non-transactional nature of the forgiveness that psychoanalysis offers despite its insistence on the co-implication of reparation. Psychoanalytic forgiveness separates forgiveness out of the economy of one-foranother, the analytic setting “effaces” “a temporal sameness that would permit comparability, substitution, and the one-for-another that found the lex talionis of an eye for an eye … Hence, it cannot repay and it cannot not repay” (21)—Mader’s concise statement of the aporia of reparation that remains involved in forgiveness. Thus, we can imagine a shift of the discourse of forgiveness away from its institutionalisation and normalisation in the TRC. A psychoanalytic notion of forgiveness does precisely that in that, on the one hand, it reserves forgiveness for

The Spectre as Refusal 171 the sphere of intimacy and, on the other, takes seriously the force of the spectre of reparation in such a process. These are aspects of forgiveness which the TRC transgressed with as much confusion as goodwill. In the context of the overarching concern of the book to analyse the TRC as a subject of lack, we could say that psychoanalytic forgiveness is the form of forgiveness that lacked in abundance at the TRC. This is not to suggest that the forgiveness that emerged out of the TRC is somehow inauthentic and cheap. Rather, it is to say that the TRC created room only for a very limited repertoire of forgiveness that did not accommodate a major portion of the victims. My wager, in other words, is that psychoanalytic forgiveness offers victims like Mr Papiyana not only a way of understanding and enhancing their forgiveness—it also offers victims who still struggle with forgiveness, whose “ghosts are unforgiving,” a possibility of forgiveness above and beyond the TRC. Conclusion It cannot admit of any doubt that forgiveness requires an infinite amount of work and of work as the work of mourning and reparation as that work of mourning. In this chapter, I have argued that refusal is a concept which can teach us much about the relationship between forgiveness and the work of mourning as reparation. Derrida’s aporetic thought on forgiveness and his aporetic model of mourning coupled with the way in which he separates forgiveness from the work of mourning reveals to us that a double movement of refusal is at play in the relationship between forgiveness and the work of mourning. Forgiveness and the work of mourning are interlocked in a process of coming to terms with loss and violation. As the work of mourning momentarily refuses forgiveness, forgiveness momentarily refuses the work of mourning. And these “moments” are part of an infinite process. In this interlocked posture between forgiveness and the work of mourning, it is perhaps true that we are closer to Gillian Rose’s concept of inaugurated mourning. This is the case because forgiveness and reparation does involve a certain transformation of the soul. But this transformation is not and can never be complete. This is what the Derridean model of mourning tells us. It is a transformation that comes and only comes from the other. Thus, Rose and I part company on two fronts: First, in the idea that finished or completed mourning is a condition for forgiveness. Second, even if inaugurated mourning is reconciled with Derrida’s assertion that mourning is an endless process, Rose and I part company as regards the retention of sovereign power as the force behind “activity beyond activity” which is the condition of inaugurated mourning. Derrida shows us that forgiveness is and is not—should not be—simply part of the interminable work of mourning. The relationship requires that the one exists as a continuous refusal of the other—a refusal, moreover, each and every time in the name of the other; a refusal of and without sovereignty. And it is by way of the negotiation that is presented here between forgiveness and the work of mourning, that one can begin to come to terms with the haunting words of Joyce Mtimkulu19 when she is asked by the TRC whether she will forgive those responsible for her son’s death, to which she replies: “Not today.”

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Notes 1. Van Marle draws specific attention to Hanafin’s description of a refusal of the language of law as a device that taxonomises the subject. This refusal is of course also crucial in relation to a non-instrumental thinking of forgiveness. 2. That is, the return to the work of mourning consequent upon the declaration of forgiveness as we find in Mr Papiyana’s account of forgiveness. 3. As Kirkby (2006, 464) illustrates, in the work of both Freud and Abraham and Torok, the problematic premise is that the work of mourning is about the “second deadening” of the other by way of either introjection or incorporation. In introjection, the other simply becomes myself. In the classical account of incorporation, the Otherness of the Other is denied in the sense that the premise here is that incorporation can be complete. This form of incorporation in the classical literature is also pathological because it amounts to a denial of loss. See in this regard Freud (1957) and Abraham and Torok (1994). 4. See Cornell (1993, 41): Transformation is imperative precisely because “there is no self-enclosed subject who can truly cut herself off from the Other.” 5. See Derrida (2004, 160): “One does not wait for the death of the other to deaden and absorb his alterity.” Also see Derrida (1989, 33). 6. As Derrida puts it elsewhere, “crypt … its rightful place is the other’s. The crypt keeps an undiscoverable place, …” Derrida (1986, xii). 7. Derrida (2003, 9): “‘To keep alive, within oneself, is this the best sign of fidelity?’ And he seems to answer in the affirmative, so long as we understand that this “within oneself” is always already a response to the friend we mourn. 8. Also see Critchley (1998, 271): “Ethics is defined as the infinite responsibility of unconditional hospitality, while the political can be defined as the taking of a decision without determinate transcendental guarantees.” 9. See Derrida (1995, 78–94). Also see Derrida (2003, 24). 10. He declares his forgiveness in a situation where his son’s killer repents. 11. See Derrida (2002, 298): “Without this interruption – and this interruption is what defines the structure of urgency that I am talking about – there would never be a decision or responsibility, but only the deployment consequent to a determinate knowledge, the imperturbable application of rules, of rules known or knowable … the chain of consequence must be interrupted.” 12. As Heidi Grunebaum (2002, 308) points out, “[f]orgiveness relates to memory and recognition, then, not as a right, a claim, or a demand but as the deferred outcome of a long process that includes mourning the loss, honoring the dead, restituting the land, and reclaiming the language of resistance and survival over the silence of abjection, trauma and despair.” On the logic of the interruption see also Blanchot (1995, ix): “‘the interruption of the incessant’ does not simply mean an intervention arresting the heretofore continuous; it also means the interruption that the incessant introduces – the break which the uninterrupted, the unbroken, is.” 13. Bernstein (2006, 398) argues the necessity of both dimensions of the Derridean aporetic concept (with reference to forgiveness) somewhat differently: “forgiveness that is worthy of the name is never simply conditional forgiveness. But neither is it absolutely unconditional. The unstable ‘space’ of forgiveness is the irreducible, heterogeneous tension in-between these two poles.” 14. Derrida’s logic of the decision is well known. In essence the decision is always—but not simply—a leap of faith: “For there to be decision and responsibility, I am not saying that one needs to know and one needs to know as much as possible and as well as possible, but between one’s knowledge and the decision, the chain of consequence must be interrupted” (Derrida (2002, 178). 15. Elsewhere in Mourning Becomes the Law, Rose (1996, 13) describes the work of activity beyond activity as “the constant risk of positing and failing and positing again.”

The Spectre as Refusal 173 16. Rose (1996, 74): “my relation to myself is mediated by what I recognize or refuse to recognize in your relation to yourself.” 17. See in this regard also the words of TRC witnesses quoted in Verwoerd (1998, 11). 18. Mary Beth Mader (2004, 20) makes it clear that the psychoanalytic form of forgiveness suspends judgement rather than erases it. Mader argues that the analyst, to be an analyst, must still be capable of judgement but in the act of forgiveness simply withholds such judgement: “the analyst must be guilty of being able to judge, yet generously restrain that capacity”. 19. These words are those of the character Joyce Mtimkulu in Michael Lessac’s musical play about the TRC, Truth in Translation. See Nightingale (2007). The character was modelled on Joyce Mtimkulu who came to testify before the TRC about the disappearance of her son, Siphiwo Mtimkhulu. Also see the remarkable film by Mark Kaplan Between Joyce and Remembrance (2004).

Bibliography Abraham, Nicolas and Torok, Maria. 1994. The Shell and the Kernel: Renewals of Psychoanalysis Volume I. Edited, translated and introduced by Nicholas Rand. Chicago: University of Chicago Press.Allais, Lucy. 2008. “Forgiveness and Mercy” South African Journal of Philosophy 27(1):1–9. Allen, Amy and Ruti, Mari. 2019. Critical Theory Between Klein and Lacan: A Dialogue. New York: Bloomsbury Academic. Anderson, Pamela Sue. 2001. “A Feminist Ethics of Forgiveness.” In Forgiveness and Truth: Explorations in Contemporary Theology, edited by Alistair I. McFadyen, Marcel Sarot and Anthony Thiselton, 145–156. Edinburgh: T&T Clark. Bernstein, Richard J. 2006. “Derrida: The Aporia of Forgiveness?” Constellations 13(3): 394–406. Blanchot, Maurice. 1995. The Writing of the Disaster. Translated by Ann Smock. Lincoln: University of Nebraska Press. Cornell, Drucilla. 1993. Transformations: Recollective Imagination and Sexual Difference. New York: Routledge. Critchley, Simon. 1998. “The Other’s Decision in Me (What are the Politics of Friendship?)” European Journal of Social Theory 1(2): 259–279. https://doi.org/10.1177 /136843198001002010 Derrida, Jacques. 1986. “Foreword: Fors: The Anglish Words of Nicolas Abraham and Maria Torok.” In The Wolf Man’s Magic Word: A Cryptonymy, by Nicolas Abraham and Maria Torok, translated by Nicholas Rand. Minneapolis: University of Minnesota Press. Derrida, Jacques. 1989. Memoirs for Paul de Man Revised Edition. Translated by Cecile Lindsay, Jonathan Culler, Eduardo Cadava and Peggy Kamuf. New York: Columbia University Press. Derrida, Jacques. 1990. “Force de loi: Le ‘fondement mystique de l’autorité.’” Cardozo Law Review 11: 920–1045. Derrida, Jacques. 1992. The Gift of Death. Translated by David Wills. Chicago: The University of Chicago Press. Derrida, Jacques. 1993. Aporias. Translated by Thomas Dutoit. Stanford: Stanford University Press. Derrida, Jacques. 1994. Specters of Marx: The State of the Debt, The Work of Mourning, & the New International. Translated by Peggy Kamuf. New York: Routledge. Derrida, Jacques. 1995. Points … Interviews, 1974–1994. Edited by Elisabeth Weber and translated by Peggy Kamuf and others. Stanford: Stanford University Press.

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Derrida, Jacques. 1997. Politics of Friendship, translated by George Collins. London: Verso. Derrida, Jacques. 1999. Adieu to Emmanuel Levinas. Translated by Pascale-Anne Brault and Michael Naas. Stanford: Stanford University Press. Derrida, Jacques. 2001a. “On Forgiveness.” In On Cosmopolitanism and Forgiveness, translated by Mark Dooley and Michael Hughes, 25–60. Abingdon: Routledge. Derrida, Jacques. 2001b. “To Forgive: The Unforgivable and the Imprescriptible.” In Questioning God, edited by John D. Caputo, Mark Dooley and Michael J. Scanlon. Bloomington: Indiana University Press. Derrida, Jacques. 2002. Negotiations: Interventions and Interviews 1971–2001. Edited, translated and with an introduction by Elizabeth Rottenberg. Stanford: Stanford University Press. Derrida, Jacques. 2003. The Work of Mourning, edited by Pascale-Anne Brault and Michael Naas. Chicago: The University of Chicago Press. Derrida, Jacques. n.d. “Jacques Derrida On ‘Forgiving the Unforgivable.’” https://www .youtube.com/watch?v=SfIbHwZj3cY Derrida, Jacques and Roudinesco Elisabeth. 2004. For What Tomorrow… A Dialogue. Translated by Jeff Fort. Stanford: Stanford University Press. Freud, Sigmund. 1957. “Mourning and Melancholia.” In The Standard Edition of the Complete Psychological Works of Sigmund Freud Vol XIV, translated and edited by James Strachey. London: The Hogarth Press. Grigg, Russell. 2015. “Melancholia and the Unabandoned Object.” In Lacan on Madness: Yes, You Can’t, edited by Patricia Gherovici and Manya Steinkoler, 139–158. New York: Routledge. Grunebaum, Heidi. 2002. “Talking to Ourselves ‘Among the Innocent Dead’: On Reconciliation, Forgiveness and Mourning.” PMLA 117(2): 306–310. https://doi.org/10 .1632/003081202X62051 Guyer, Sara. 2006. “The Pardon of the Disaster.” SubStance 35(1): 85–105. https://doi.org /10.1353/sub.2006.0019 Hanafin, Patrick. 2004. “The Writer’s Refusal and Law’s Malady.” Journal of Law and Society 31(1): 3–14. https://doi.org/10.1111/j.1467-6478.2004.00276.x Kaplan, Mark. 2004. Between Joyce and Remembrance. Bullfrog Films. http://www .bullfrogfilms.com/catalog/bjar.html Kirkby, Joan. 2006. “‘Remembrance of the Future’: Derrida on Mourning.” Social Semiotics 16(3): 461–472. https://doi.org/10.1080/10350330600824383 Klein, Melanie. 1975. Love, Guilt and Reparation and other works 1921–1945. London: Vintage. Kluger, Ruth. 2002. “Forgiving and Remembering.” PMLA 117(2): 311–313. https://doi.org /10.1632/003081202X62060 Kristeva, Julia and Rice, Alison. 2002a. “Forgiveness: An Interview.” PMLA 117(2): 278– 295. https://doi.org/10.1632/003081202X62006 Kristeva, Julia. 2002b. The Portable Kristeva Second Edition. Edited by Kelly Oliver. New York: Columbia University Press. Kristeva, Julia. 2010. Hatred and Forgiveness. Translated by Jeanine Herman. New York: Columbia University Press. Langa, Pius. 2006. “Transformative Constitutionalism.” Stellenbosch Law Review 3: 351–360. Mader, Mary Beth. 2004. “Fore-given Forgiveness.” The Southern Journal of Philosophy XLII: 16–24.

The Spectre as Refusal 175 Nightingale, Benedict. 2007. “Truth in Translation.” The Times, 10 August. https://www .thetimes.co.uk/article/truth-in-translation-9znz89h7q6b Oliver, Kelly. 2003. “Forgiveness and Subjectivity.” Philosophy Today 47(3): 280–292. Oliver, Kelly. 2004. “Forgiveness and Community.” The Southern Journal of Philosophy XLII: 1–15. Rose, Gillian. 1993. “Walter Benjamin: Out of the Sources of Modern Judaism.” In Judaism and Modernity: Philosophical Essays, 175–211. London: Verso. Rose, Gillian. 1996. Mourning Becomes the Law: Philosophy and Representation. Cambridge: Cambridge University Press. Sanders, Mark. 2007. Ambiguities of Witnessing: Law and Literature in the Time of a Truth Commission. Stanford: Stanford University Press. Segal, Hanna. 1973. Introduction to the Work of Melanie Klein. London: Karnac Books Ltd. Van Marle, Karin. 2007. “Laughter, Refusal, Friendship: Thoughts on a ‘Jurisprudence of Generosity.’” Stellenbosch Law Review 18(1): 194–206. Verwoerd, Wilhelm J. 1998. “Forgive the Torturer, Not the Torture.” Sunday Independent, 6 December 11. Verwoerd, Wilhelm J. 2003. Equity, Mercy, Forgiveness: Interpreting Amnesty Within the South African Truth and Reconciliation Commission. Unpublished DLitt et Phil dissertation, Rand Afrikaans University. Wood, Michael. 1996. “Preface.” In Mourning Becomes the Law: Philosophy and Representation, by Gillian Rose. Cambridge: Cambridge University Press.

6

Creative Haunting Towards the Poetic Justice of Reparative Citizenship

Introduction: The Irreparable The state of the lack of reparation in South Africa and the spectres of reparation that arise out of the South African Truth and Reconciliation Commission’s (TRC’s) constituting and constitutive lack of reparation raises anew the question of what is to be done and of what remains possible. In this chapter, I want to take seriously, as a point of departure, the 2003 statement by former President Mbeki that reparation is a responsibility for all of us and that everyone in South Africa is interpellated by the question of reparation (Doxtader & Villa-Vicenzio 2004, 26–28). This is not to dismiss the government’s ongoing and irreducible responsibility for reparation but rather to consider the South African people’s responsibility alongside that of the government or to derive a concept of personal responsibility for reparation that can then be enlisted to ground governmental interventions in relation to reparation. If we are all responsible for reparation, then it seems to me that it is important to consider the modality in which such a responsibility can be assumed. In what mode of being can we envision the kind of giving by beneficiaries of themselves to reparation that was broached in Chapter 2? Which apparition of Being is conducive to the kind of shameful apologies that are conducive to reparation as considered in Chapter 3? What kind of existential orientation towards the law is required for the shift in juridical responsibility that is required in the aftermath of the spectres that haunt the TRC’s archive on the role of business, as discussed in Chapter 4? And, finally, which kind of existence can ground the psychoanalytic orientation towards forgiveness that I argued for in the previous chapter as an essential condition of reparation in post-apartheid South Africa? Here I argue that this modality of being in which reparation can be assumed, this being-as-reparation, involves a radical departure from the “business as usual” approach that seems to be the order of the day―an approach in which we are predominantly and powerfully encouraged to think of each other exclusively in terms of utilitarian considerations; an approach in which the Kantian “dignity” of “everyone” as proclaimed and legally protected by the post-apartheid Constitution, indeed becomes, as critics of dignity have warned, no more than an empty signifier. Against this approach, I will suggest, following the work of Giorgio Agamben, that the alternative mode of being in which the responsibility for reparation can be assumed, critically relates to a certain becoming: a becoming aware again of

DOI: 10.4324/9781003290278-6

Creative Haunting 177 and affirming once again this priceless “dignity,” which Agamben (1999a, 67) describes as man’s “poetic status” on Earth. We must begin, again, with Sanders’ critical reading of the question of reparation as constituting an aporia: while reparation is called for and affirmed as urgently necessary, reparation remains strictly impossible (Sanders 2007, 116). This impossible necessity and necessary impossibility of reparation is what gives it its spectral character, one that engages an aporia which calls for decisions, decisions that require of us, moreover, to act in the “night of non-knowledge and non-rule” if we truly want those decisions to be responsible ones (Derrida 1990, 968). Whatever such decisions on reparation may entail, whatever actions are to be taken in the name of reparation, they cannot, precisely because they arise from or through the structure of an aporia, escape the givenness of the Irreparable. The Irreparable is, to follow Agamben (1993), what is given and what remains―the world broken as it is, post-apartheid South Africa as a pronounced continuation of the broken social order for which apartheid was responsible. Despite the Constitution’s lofty proclamation in its preamble to “heal the divisions of the past,” there can be no apprehension of South Africa after apartheid that would have it that our social order has substantially healed or recovered—there is just too much injustice involved in the everyday existence of the majority of our people after apartheid for there to be any sense in which the divisions of the past can be said to be healed—the Irreparable has not been repaired, cannot be repaired. South Africa thus remains irreparably broken, irremediably unjust. The term “Irreparable” has been invoked in transitional justice (for instance, in the aporetic title of Doxtader and Villa-Vicencio’s (2004) edited collection, To repair the irreparable), although not nearly as prominently as “reparation.” It is telling that when Doxtader and Villa-Vicencio invoke the Irreparable in their introduction to the book, they do so with reference to Agamben’s The Coming Community (1993) to argue that the Irreparable “cannot continue” (Doxtader and Villa-Vicencio 2004, xxi). And while it is absolutely necessary, as a matter of ethico-political responsibility, to assert that the Irreparable “cannot continue,” it does so nonetheless, regardless. Doxtader and Villa-Vicencio make common cause with Sanders on the aporetic character of reparation to assert that the impossibility of reparation “is not a reason to conclude that what’s past is past or that legacies imply an inevitability which defies correction” (Doxtader and Villa-Vicencio 2004, xiii). Differently stated, the Irreparable as such, does not and should not militate against reparative work. Agamben’s own formulation of the Irreparable, at first glance, rings much more sceptical: The Irreparable is that things are just as they are, in this or that mode, consigned without remedy to their way of being. States of things are irreparable, whatever they may be: sad or happy, atrocious or blessed. How you are, how the world is – this is the Irreparable. (Agamben 1993, 90)

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For Agamben, then, the world as such and as thus is Irreparable and there is an overt resonance here with the theological concept of “Paradisiacal exile”1 (Willemse 2017, 681), with fallenness. The formulation of the Irreparable as “without remedy” suggests that Agamben’s thought is firmly located in the strict impossibility of reparation and thus does not touch on reparation as aporia, because it does not see a possibility arising from the impossibility of reparation. It would thus appear that Agamben is resigned to a fallenness from which it is not possible to recover in any redemptive sense. However, Agamben (1993, 101) also writes—paradoxically, it seems—that “we can have hope only in what is without remedy,” and in so doing, he designates the Irreparable as the source of hope and so opens it out to the aporia of reparation. As Bartolini (2008, 54) has pointed out, this sentiment is echoed in The time that remains as follows: “it is the unredeemable that makes salvation possible” (Bartolini 2008, 54). Prozorov (2014, 167) has interpreted this sentiment as the assertion that while “[w]e can never go back on nihilism […] it does not follow from this that the horizon of salvation is itself to be annulled.” Van Riessen (2010, 91), in turn, believes that approaching the world from the point of view of the Irreparable allows for the perspective of seeing it not just in terms of its “being thus” but also in terms of its “unfulfilled promises.” These sentiments are confirmed by Leland de la Durantaye (2008, 54) who concludes that Agamben means the term “irreparable” in a highly specific sense—in the sense that it is “transient” and “profane”—and that to say that the world is “irreparable” is not to suggest that nothing can be done, “that nothing in the world could be bettered.” Rather, de la Durantaye argues that accepting the irreparability of the world “is the necessary precondition for bettering situations most in need of our attention and action.” What would be at stake for reparation, then, would be the redemption of “what is not” (yet), the redemption of what remains possible among and within impossibility. The reason why the Irreparable does not as such annul the horizon of salvation is because, as Bartolini explains, Agamben invests the Irreparable as such with an infinite worth: With the concept of the Irreparable, and the category of suchness, Agamben intends to conjure up a mode of being whose exposure to the world, and the things of the world, is no longer postulated by the opposition and separation of subject/object, predicate and pronoun, but on the awareness of an irreparable belonging based on mutual relations by which the facing of each other as things as such generates an availability that transcends the objectification of the other. (Murray and Whyte 2011, 109 (emphasis added)) For Agamben, it is thus this very Irreparable suchness of beings that is worthy of salvation and to have hope only in that which is “without remedy” is to transform the valence of the Irreparable from despair to hope. It is not that what is being presented here is a simple binary choice between despair and hope but rather a hope with despair or, indeed, a hopeful despair as well as a despairing hope.2

Creative Haunting 179 This reading is supported by Bartolini’s (2008, 53) remark, elsewhere, that Agamben’s thought on the relationship between the Irreparable and hope is indebted to Paul’s statement about hope in the letter to the Romans. That statement reads: we are saved by hope: but hope that is seen is not hope: for what a man seeth, why doth he yet hope for? But if we hope for that we see not, then do we with patience wait for it. (Bartolini 2008, 53) This means, Bartolini suggests, that “what is left for us to do [in the face of the Irreparable] is to patiently make hope, toil towards it, actively and incessantly” (Bartolini 2008, 55). Most pertinently for the purposes of this chapter, Bartolini (2008, 52) writes that for Agamben hope “needs to be negotiated,” and if we follow Derrida on negotiation, as I have suggested in the previous chapter, then we will see that the making of hope is a negotiation that arises out of the two “heads” of the aporia of reparation: impossibility and necessity. To put it somewhat differently, Agamben’s philosophy holds that what is given to us as the living present, as here, is the Irreparable world impossibly reparable and what is not given to us is hope—we are responsible for “making” hope, “actively and incessantly” out of the very irreparability of the Irreparable. Moreover, as a “making,” hope relies on our capacity as homo faber to create out of “given substance” (Arendt 1998, 139) and in Agamben this given substance out of which we make reparation is the Irreparable. These statements thus neatly return us to the aporia of reparation as a non-road that does not allow passing and that demands “incessant” responsibility. Yet, as Derrida (1986, 133) argues, the aporia “provokes a leap of memory and a displacement of thinking” which leads to a new thinking of the disjunction, new decisions, decisions of a different nature. Thus facing the aporia of reparation does not mean that reparation (and the responsibility before it) is foreclosed and that nothing can be done to “pour oil on wounds,” as Archbishop Tutu once put it (Du Bois & Du Bois-Pedain 2008, 198). Indeed, I want to suggest that the “mode of being” which Agamben “conjures up,” “whose exposure to the world, and the things of the world, is no longer postulated by the opposition and separation of subject/object, predicate and pronoun” is the mode of being as haunted being and being haunted. The spectres of reparation—neither objects nor subjects—haunt nowhere else than in the Irreparable, and hope is negotiated—made—in the encounter between the Irreparable and the spectres of reparation. In other words, it is in a particular—haunting—encounter with the spectres of reparation that the valence of the Irreparable changes from despair to hope. Bartolini (2008, 55) is careful to emphasise that “[h]ope is found in what is not seen or possessed, and, as such, hope is beyond us, irreparably unpossessable”—like a spectre. In addition, as Sanders indicates, if reparation is a relation to the Irreparable, then all reparations are “symbolic” (including those made by use of the “symbol” of money) (Sanders 2007, 119), and as such, they retain an essential spectral quality that cannot be discounted. What this means, quite simply, is that reparation

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cannot do what it promises, namely the literal or direct repair of that which has been broken. In this aspect, reparation presents as thoroughly un- or non-economic in that it does not admit of something like equivalent exchange as I have suggested in Chapter 2. At best, reparation can be viewed as involving acts and gestures of which the wager is that it provides the possibility of making the breach as it exists irreparably, less unbearable, less painful. Obviously, we cannot go back in time, we cannot undo the wrong or the suffering. We cannot, as the South African poet Ingrid de Kok (2006, 121) has written, restore “an uncut arm, unbruised genital / untroubled sleep, unscarred face, / unweeping mother, children, faith / or wide unwatching private space.” As De Kok’s words make clear, the Irreparable is haunted by the spectre of (an impossible) reparation, but precisely because it haunts, impossible reparation insists in the Irreparable. This would entail coming to terms with the Irreparable in a reparative way, that is, in a way that will make it possible to endure and inhabit the Irreparable differently. I must confess that I do not know what, exactly and practically, a reparative approach to the Irreparable would entail in relational situations in South Africa that are as manifold as they are complex. But this chapter is interested in a point prior to the consideration of practical and concrete measures aimed at reparation, namely a change in the quality or character of the action at stake. Sanders has drawn attention to the fact that reparation involves “a setting forth, a making” (as in “making good”) and has argued that restoration undertaken in the name of reparation unites responsibility with the kind of making and remaking that is involved in the production of intellectual and artistic work (Sanders 2007, 132). I want to argue that we will be better equipped to imagine what is required of us to “make” reparation in this way when we become aware (again) of and orientated to the poetic disposition or mode of being that would attune us to a creative engagement with the Irreparable. As regards the processual nature of such a making, Van Marle (2010, 350–353) has explicitly invoked the notion of “becoming” in the general legal and political discourse around the South African transition and the understanding of the term “post-apartheid” in that discourse. Relying on the work of Deleuze and Guattari, Van Marle argues that the post-apartheid question would involve a “double movement” in politics “one in which an identity (stability) is asserted, but in the same move, one in which a becoming, a ceaseless challenge is asserted” (Van Marle 2010, 351). As Van Marle argues, at stake here is what Antjie Krog calls the “kind of self I should grow into in order to live a caring, useful and informed life—a ‘good life’—within my country in southern Africa” (Krog 2009, 95). Šumič (2011, 139) has suggested that what is given to us as the task for thought in the wake of the Irreparable is to restore the possibilities that dwell in that which has been hopelessly missed, and my wager here is that what has been hopelessly missed is reparation. For that to happen, Šumič writes, we have to turn our attentions “not to things as we find them solidified in concepts, but rather to things as they are in their ‘becoming’” (139). It is my contention in this chapter, relying on the work of Agamben, Nancy and Nussbaum that a reparative approach to the Irreparable would entail a process of

Creative Haunting 181 becoming-human (again) and that such a becoming-human involves the adoption of a certain poetic attitude towards the world from which a conception of politics as creative potentiality (and a “poetic” engagement with the political and legal question of reparation) would ensue. I refer to this political stance harboured in an ontology of the poetic, this being-member or inhabiting of the polis poetically, as reparative citizenship. I am well aware that I am here involving what Homi Bhabha (2017, 22) calls that troubled “psycho-affective site” we call citizenship. But I want to make it clear from the outset that I intend “citizenship” not only in the broadest possible sense, namely as designating membership of the polis/political community in general, but also in the most emancipatory sense, the sense in which Hannah Arendt refers to it when she writes about revolution’s citoyen who was a “new revolutionary concept,” a “new concept of man” (see Arendt (1994, 170)). In the post- and de-colonial context Achille Mbembe (2021, 63) has drawn attention to what he calls “an original human citizenship” in Fanon’s vision of a “fundamental similarity between men” after the decolonial abolition of race. For Mbembe this notion of a fundamentally horizontal allegiance between persons is the key to the “disenclosure of the world” on which decolonisation critically turns. It is precisely such a revolutionary, new concept of the human and such a radically horizontal allegiance between humans that I think Agamben is after in his discussion of man’s poetic status on Earth. Reparative citizenship is an articulation of citizenship that would face head on the aporia of repairing the Irreparable, that would realise that the making involved in reparation can only be a product of man’s poetic status, because it is constitutively reliant on the uniquely human potentiality to create, make or give oneself a world, precisely in the face or in full view of the Irreparable. Man’s poetic status In her celebrated book, Country of my skull, Antjie Krog (1998) describes the involvement of her fellow South African poet, Adam Small, in the heated arguments about the justifiability of the TRC at the time of its inception. Krog, accounting for the appearance of Small before the government panel that was tasked with the appointment of the commission’s staff, writes as follows: “Considering the enormous task ahead, it is clear that Adam Small’s ambivalent rambling is not appreciated by the panel” (Krog 1998, 18 (emphasis added)). She goes on to quote Small’s address to the commission: “I am a man of two hearts and not of this world. This Truth Commission thing is useless―it wastes hard-earned money to listen to a bunch of crooks. Only literature can perform the miracle of reconciliation” (Krog 1998, 18 (emphasis added)). Krog continues: After three quarters of an hour in this vein, Fink Haysom [from the panel] asks: “But you are so critical―do you want to serve on this commission?” [Small answers:] “If there is space on the Commission for an independent, critical, stubborn, sometimes naughty voice―then I will be there with my heart―but I will always remain critical.” (Krog 1998, 18)

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Years after accounting this anecdote, Krog would write at the conclusion of the third instalment of her reflections on and experiences and accounts of the South African transformation process, in a book entitled Begging to Be Black, that “once again, poetry has taught me how to live a lived life” (Krog 2009, 274). Adam Small’s encounter with the TRC as narrated by Krog in some ways puts me in mind of the (in)famous censure and subsequent eviction of the poets from the walls of the city and therefore from the realm of the law,3 in Plato’s Republic. From this moment on, the poet becomes an outlaw—a citizen of neither Athens, nor Jerusalem4—a citizen, rather, of Glaucon’s city of the swines or, as the translation puts it, the “community of pigs” (Plato 1993, 63). From the point of view of the imagination of the ideal city, the poet is at best a useless figure and at worst a decided danger, a threat. In the Republic the poet—as opposed to the virtuous philosopher sovereign—comes to represent not only the supreme figure of vice but also the figure of a non-sovereign being. The non-sovereign poets’ virtues correspond directly and immediately to the sovereign philosophers’ vice. The vice that particularly irks Socrates is the poet’s vice of irrationality coupled with their corresponding “inspiration” (Plato 1993, 355–356). This renders the poets as not of sound mind and for this reason liable to be exiled from the polis. In the Ion Socrates describes the irrationality and inspiration of the poets as the quality of being “possessed”: For all good poets, epic as well as lyric, compose their beautiful poems not by art, but because they are inspired and possessed. And as the Corybantian revellers when they dance are not in their right mind, so the lyric poets are not in their right mind when they are composing their beautiful strains: but when falling under the power of music and metre they are inspired and possessed; like Bacchic maidens who draw milk and honey from the rivers when they are under the influence of Dionysus but not when they are in their right mind. And the soul of the lyric poet does the same, as they themselves say; for they tell us that they bring songs from honeyed fountains, culling them out of the gardens and dells of the Muses; they, like the bees, winging their way from flower to flower. And this is true. For the poet is a light and winged and holy thing, and there is no invention in him until he has been inspired and is out of his senses, and the mind is no longer in him: when he has not attained to this state, he is powerless and is unable to utter his oracles. (Plato n.d. (emphasis added) So poets we might say come to stand in direct opposition to the rationalism of sovereignty, to the making of the good city, to the utilitarian and teleological “welfare” of the polis. Small clearly deliberates a kind of outlaw status for poetry in the process of making or remaking the good city through reconciliation and instead states an essential connection, even a constitutive one, between poetry and reconciliation—only poetry can perform the “miracle” of reconciliation—a statement that resonates well with Socrates’ description above of the poet as a “holy thing”: the poet is the holy thing that makes miracles occur. Thus on Socrates and Small’s

Creative Haunting 183 version of things reconciliation and poetry belong together and they are not of this world—miraculous, holy. This is a profound poetic contestation of the very raison d’etre of the Truth Commission. The poet is not simply suspicious of the process of the Truth Commission as a reconciliatory one—he in fact denies that the TRC can perform what it sets out to do, what its reason for being is. With this, Small seems not only to be concerned to shift reconciliation away from the legalism, institutionalism and indeed instrumental rationalism that pervaded the TRC—he also tells us that there is a remainder to the TRC which is irreducible and that this remainder is an artful one. This remainder is in fact reconciliation itself, the “miracle” of reconciliation as something that does not come from a sovereign process and a moral economy but that belongs to a notion of subjectivity that is altogether different from the rational Kantian subject as a “self-legislating” one. This is a notion of subjectivity as inspiration and possession, of non-rationalism and non-calculation, of exception and extraordinarity. It is a notion of subjectivity that is clearly closely to be associated with the unconscious and the dynamic processes for which it is responsible. It is also clear from the above that both Small and Krog connect literature with the concept and power of transformation. For Small, literature performs reconciliation as a transformation par excellence —a miracle—and for Krog, poetry is what transforms mere existence into a “lived life.” In this section, I want to explore how “the poetic status of man on earth” (Agamben 1999a, 67) is a condition for the transformative potential of the literary. Agamben’s articulation of man’s unique poetic status and its possible meanings and implications are primarily articulated in his book The Man without Content (1999a, 68). One of the challenges as regards the “readability” of Agamben’s argument in this book is that it relies, to a great extent, on familiarity with Heidegger’s earlier essays on poetry and specifically the discussion of Hölderlin’s question, “What are poets for in a destitute time?” (Heidegger 1971, 87–140), the “destitute time” here referring not only to the flight of the gods from the Earth without the possibility of their return but also to the absence of what Heidegger calls the “divine radiance” that would have given ground to the world (Heidegger 1971, 89). The “destitute time” is the age of the night of the world in which “the abyss of the world must be experienced and endured” (Heidegger 1971, 90). Agamben’s name for this abyssal world is, of course, the Irreparable, and he relates humanity’s destitute time explicitly to the subjection, in modernity, of his poetic status to his practical status, the status that primarily involves her in the maintenance of a strictly biological notion of life. Heidegger argues that the return of the shine of divine radiance in “everything that is” is the precondition of any abode to which a god could return (Heidegger 1971, 90). The notion of redemption that Agamben derives from Heidegger, the return of the shine of divine radiance, is a radically immanentist one and so the references to a god and to the divine here must be read as Heidegger’s way of articulating a non-technological/artful relation to Being, thus the aspect of Being that first has to do, precisely, with the literary, namely the creative (and thus “godly”) potentiality of our human existence. Read with Heidegger (1971, 90), the inference can be drawn that it is only through a resuscitation of man’s poetic status that the

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destitute time of abyssal life/the Irreparable can creatively be endured although never overcome. My wager is that the name of such a creative endurance is “reparation” understood as the making/doing of justice—what Ruti Teitel (2000), in her landmark work on transitional justice, calls “reparatory justice” (119). Heidegger (1971, 94) tells us that “to be a poet in a destitute time means: to attend, singing, to the trace of the fugitive gods.” And what does it mean to attend, singing, to the trace of the fugitive gods? What are the fugitive gods if they are not the flight of justice from our world? What is the destitute time if not the time of injustice? What is the Irreparable if it is not the supreme reign of injustice? What are poets for in a destitute time if not for the return of the glimmer of justice to our world? This is what I think Small is after in his criticism of the TRC: he in fact argues that the TRC is a creature of the order of law (statute) and legality, as such it cannot do/make justice, because justice is the remainder that always lies outside of the law and its calculative processes, its mechanistic application of rules and regulations. As Derrida (1990, 947) has written: Every time that something comes to pass or turns out well, every time that we placidly apply a good rule to a particular case, to a correctly subsumed example, according to a determinant judgment, we can be sure that law (droit) may find itself accounted for, but certainly not justice. Law (droit) is not justice. The poet attends, singing, to the trace of justice that is left in our world, and in her attending (which is also to say in her presencing or presenting ) she prepares the space, holds open the possibility and hopes for the perhaps of justice. In order to understand better the stakes of Agamben’s attempt to draw attention to man’s poetic status (suppressed to the point of loss in the destitute time), we need to know a little bit more about his understanding of life in general and human life in particular. As Claire Colebrook (2008, 109) points out, for Agamben the difference between animals and humans is not biological per se. The difference is rather between biological life and poetic life. Whereas biological life “lives only to maintain itself,” poetic life belongs to the potentiality of human life to give itself a world, that is, “a life that does not just circle around and maintain itself,” but rather “a life that creates and brings forth what is not itself,” a life that brings forth an end which is not yet given (109). Behind this distinction between biological life and poetic life in Agamben lies Hannah Arendt’s (1998, 136) distinction between the animal laborans and homo faber. For Arendt, the animal laborans is the being totally subject to necessity and immediacy, whereas homo faber makes and literally “works upon” that which is given, to bring forth the durable and more or less permanent, the artefact. Agamben’s notion of human life as poetic life or the potentiality of creativity challenges the notion of life as simply willing to maintain itself as what it is, grounded in necessity as Arendt writes. Through this challenge he asserts “a supposedly lost higher sense of life as that which creates from itself in order to be more than itself: divine, poetic life―the life of man” (Colebrook 2008, 109). What we are dealing with here is thus in the first and last place not a conception of human life

Creative Haunting 185 as directed towards a telos that posits the future return of some metaphysical and transcendental god from some unknown, external, mystical non-space or non-time. Rather, Agamben’s radical immanentism presents a re-awakening of the divine in man through a re-awakening of his poetic status as his creative potentiality. Put differently, what is at stake is an understanding of the human being not simply “as a being alongside the animal” (Colebrook 2008, 109), but rather as the being that emerges from animality through poetic speech and the work of art. Šumič (2011, 142) puts the essence of this position as follows: What restores the human being as “a potential being” [reference omitted], or, to be more precise, what restores the poetic status of man in the world, the potentiality that we are, is not the world, which confronts us in its unfathomable givenness, but a perspective which opens us to the transformation of the world that is presented to us precisely as given and immutable into a space in which the possibility of the world being otherwise than it is, indeed, the possibility of another world, can be brought to presence. For Agamben, it is the work of art that should disclose the potentiality of human life, but in late modernity we are precluded from recognising art as disclosive of potentiality, because the work of art has come to be understood in terms of praxis― a mere “object created by a will” (Colebrook 2008, 108). In the modern age, poiesis (or man’s productive capacity) has come to be understood in terms of, or as dominated by, praxis. But it should be clarified that here praxis is no longer understood in its frail, unpredictable, nascent and innovative Greek sense―in the sense that Arendt used and celebrated it as authentic political action (Arendt 1998, 175–247). Rather, for Agamben praxis refers to the rise of the determinist will to power. In the modern age, he argues, praxis becomes, in essence, the “manifestation of a will that produces a concrete effect” (Agamben 1999a, 68). Agamben writes that the original distinction between praxis as the manifestation of a will “that finds its immediate expression in an act” and poiesis, as a mode of “truth as unveiling” completely disappears with the rise of Western metaphysical thought (Agamben 1999a, 69). This trend in Western metaphysics, apart from eclipsing the original meaning of praxis, comes to totally eclipse the original Greek essence of poiesis which “has nothing to do with the expression of a will” (Agamben 1999a, 72) but whose essence “is found instead in the production of truth and in the subsequent opening of a world for man’s existence and action” (72). This disappearance is accompanied by the rise to central value of the activity of work. Praxis now becomes the name of the manifestation of the will producing a concrete effect overwhelmingly calculated at the maintenance of a merely biological form of life. Praxis simply becomes work: “Today this pro-ductive doing, in the form of work, determines everywhere the status of man on earth, understood from the point of view of praxis, that is, of production of material life” (Agamben 1999a, 59). Under these circumstances, poiesis becomes eclipsed because it does not fit within the scheme and priorities of work as the maintenance and sustenance of that which relates to the material condition of life as labour and consumption.

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The age of praxis affects the work of art in this age in such a way that it increasingly itself acquires the character of the industrial product standing ready to be consumed (Colebrook 2008, 109–110). Agamben is very close to Heidegger on technology here when he describes this character of the product as a “mere beingavailable” (Agamben 1999a, 66). As Colebrook (2008, 108) puts it: Art today either is mere potential for enjoyment or is valuable only insofar as it is the product of an irreducible will; there is no sense of the (once essentially human) power to produce art as other than mere life, as the opening of a world other than the human as it already is, but nevertheless of human making. Below, I turn to the particular engagement with time on which “the opening of a world other than the human as it already is” would depend. The time of poetry, the time of reparative citizenship and the dead time of law Agamben thus distinguishes in strong terms between the artwork that has acquired the character of the industrial product and the work of art in its authentic sense. He argues that while both the industrial product as art/poiesis and the authentic work of art is “finished,” the industrial product is finished in a way that is radically incongruent with the work of art (Agamben 1999a, 65). The reproducibility of the industrial product means that, as finished, it is ineluctably separated from its “principle of origin” (65) and thus not original—it never possesses itself “in its own shape as in its own end, and thus the product remains in a condition of perpetual potentiality” which Agamben describes as a mere “availability” (65). This is to be distinguished from the work of art whose “entry into presence” has the character of a “being-at-work” (65). Agamben thus opposes this mere availability of the work of art for aesthetic enjoyment to what he calls the obscured “energetic” character of the work of art, its “being-at-work” (65–66). Agamben (1999a, 66) argues that museums and galleries in our time warehouse the work of art as if it is a raw material that is at any time available for consumption through spectatorship. “Wherever a work of art is pro-duced and exhibited today, its energetic aspect, that is the being-at-work of the work, is erased to make room for its character as a stimulant of the aesthetic sentiment” (66). This dynamism of the work of art as a mere availability for aesthetic enjoyment (consumption) has obscured the energetic character of art in “its final station in its own shape” (66). In the postmodern age, then, with the predominance of the industrial product and the work of art conceived in terms of such industrial production, we have, or our status as poetic has, shifted from the sphere of being-at-work to mere availability as means. In such a situation, the work of art no longer functions to deliver a form of transcendence from our biological existence as beings that are merely available as means one to another. The remainder of The Man without Content is devoted to the thinking of a return to the time of the origin of the work of art in order to rediscover man’s poetic status, since it is only in the work of art, the poetic, that man truly experiences his

Creative Haunting 187 being-in-the-world (Agamben 1999a, 101). For Agamben this origin or essence of the work of art, its energetic character, its being-at-work, is closely connected to what he calls the “rhythm” of the work of art: “rhythm is not structure […] but is instead […] the principle of presence that opens and maintains the work of art in its original space. As such it is neither calculable nor rational; yet it is also not irrational” (Agamben 1999a, 98 (emphasis added)). Agamben understands rhythm as that dispositif through which the distinction between the rational or calculation, on the one hand, and the irrational or the playful, on the other, is blurred. Noting that the word rhythm comes from the Greek word for “flow,” Agamben argues that this “flow” always occurs in a temporal dimension such that the popular understanding of time sees it as a flow of successive moments (99). Rhythm, though, must be understood not as the linear flow of time, but as introducing a split or interruption (one could also say a hesitation) in the flow of chronological time, rhythm as “the presence of an atemporal dimension in time” (Agamben 1999a, 99). Rhythm, thus, as the arrest of time: we perceive a stop in time, as though we were suddenly thrown into a more original time. There is a stop, an interruption in the incessant flow of instants […] and this interruption, this stop, is precisely what gives and reveals the particular status, the mode of presence proper to the work of art. (Agamben 1999a, 99) I think that it is clear from what Agamben says about time as the “incessant sequence of instants,” as opposed to rhythm as a “split and a stop” (99) in time, that he would associate the time of Arendt’s animal laborans, of biological life, with chronological time, whereas rhythm is the dispositif of time through which the human experiences her poetic status. By extension, it could be argued that the Irreparable is governed by chronological time, whereas reparation or the reparative occurs or should occur in a moment of rhythm that interrupts the smooth operation of (Irreparable neoliberal) time. Yet Agamben (1999a, 99) also makes clear that rhythm is not timeless—it cannot be outside of time, and he is emphatic that rhythm returns us to the chronological and linear dimension of time. But rhythm is a mode of time in which we are arrested in time, and this being arrested is “also a being-outside, an ek-stasis in a more original dimension.” Therefore, if we are to have an experience of a world that is not yet given, that is still to be made, if we are, in a sense, to interrupt the Irreparable, then we have to start from rhythm “which opens up for man the space of his world, and only by starting from it can he experience freedom and alienation, historical consciousness and loss in time, truth and error” (Agamben 1999a, 100). For Agamben (1999a, 101), rhythm is the “authentic temporal dimension” that opens the space of belonging to the world. The “proper meaning” of man’s poetic status on Earth is revealed then as a poiesis that founds the “original space” of the world. In a sense we could say that rhythm reveals the original time in which an original space of the world can be experienced. Nancy, in turn, describes this atemporal temporal dimension of the work of art with reference to what he calls

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the “present of poetry.” For Nancy “the present of presence is not in time but ahead of time, before it. […] It is pure time, time shielded from temporality: the space in which pure time opens out and is unexposed” (Nancy 2006, 192): Poetry […] is technique productive of presence. Presence is not a quality or a property of the thing. It is the act through which the thing is brought forth: prae-est … [T]he present in time is nothing; it is pure time, the pure present of time. (Nancy 2006, 191–192) Both Agamben and Nancy describe the time of the work of art in terms of presence, but it is crucial to note that this is not a presence in time as the givenness of time, presence simply as that which is the “incessant flow of instants.” It is, rather, a description of presence in terms of an activity or a being-at-work, or to follow Nancy, a production of presence. Poetry depends on a bringing into being, the creation of a presence (and a present) that is not (yet) given. Bringing it all together, Agamben (1999a, 102) writes: “so in the work of art the continuum of linear time is broken, and man recovers, between past and future, his present space.” I want to suggest that the time of reparative citizenship as rooted in man’s poetic status depends upon such a reorientation towards rhythm, on creative acts of “presencing” the aporia or abnormality of repairing the Irreparable, of not coming to terms with it, but rather of being interminably confronted with the difficulty that it engages us in and the being-at-work that it demands of us. The “reparative” of reparative citizenship distinguishes the concept from reparation. Whereas reparation gestures at a finality, a certain closure, the reparative is an opening, a gesture at a process, a being-at-work, that must be without end, always still in the making, its incessance comes to stand against the incessance of linear time. Reparative citizenship demands that we incessantly arrest the incessant flow of instants characteristic of neoliberal time and biological life in order to open ourselves up to the possibility of a reparative being-at-work that works against neoliberalism’s hollowing out of the subject as one grounded in pure necessity—we must realise that we are capable of, that our dignity depends upon, more than, a supplement to, a necessary creative addition, that “brings forth” a work, a reparative creation. To make reparation, we will understand that the “now” of the post-apartheid is not equal to presence, that presence as the time of the reparative depends on an appreciation of the precariousness of the now, depends on a working towards a socio-political order that is more capable of endurance like a work of art. Reparative citizenship will understand that the post-apartheid now as Irreparable stands in urgent need of a “technique productive of presence” that would bring forth, give birth, to a future that will truly live up to Nelson Mandela’s famous promise of “never again.” What I mean is that what is demanded of us by reparative citizenship is a relationship to the imagination in which we can creatively think about and work upon the conditions of possibility of a socio-political order that would interrupt the Irreparable suchness of things in the postcolony. I have in mind an artful way of being that will enable us to begin again (Agamben 1999a,

Creative Haunting 189 101). Agamben mentions in this regard that art is architectonic in the sense that it relates us to the origin, to the beginning, it puts us in touch with the initiatory capacity of our existence, the fact that we can intervene in the incessant flow of instants to bring about a change. Reparative citizenship in this sense is always already a revolutionary concept, one which reminds me of what Justice Langa (2006, 352) writes about transformation, namely that it is nothing less than “a social and economic revolution.” In its focus on a non-rectilinear relationship between past and future, reparative citizenship is necessarily an inter-generational concept―a concept that requires us not only to recognise, as Jacqueline Rose (2022, 34) writes, how one generation’s (unspoken) trauma can “slip into the bloodstream of the next,” but also one that demands an imagination of the future generation to which we will stand accountable not simply for the terminated apartheid past that lies behind us but also for the post-apartheid as a continuation of that past, the active becoming past of the “now” of the Irreparable. Reparative citizenship, then, does not belong to the time of the mere being available, rather it has to be brought into existence― presenced. As such, it involves a coming to terms with the past (the Irreparable) by way of the imagining, in the present, of a future that remains radically, but urgently, to come. It thus cannot merely be given or “in” existence, conceived as a “now” in terms of a rectilinear concept of time. It is a bringing forth from the future, rather than a challenging forth of what is already given as a “now” standing in reserve from the past (Heidegger 1977, 14). As such, reparative citizenship will understand that politics finds its place neither in the romanticism of the past nor in the yearning for a utopian future but, rather, in a profound presentness, in the realization that within the present lies the possibility/potentiality of change and transformation. Radical change must begin with the time of the present and in this world. (Salzani 2012, 224) In this respect, there is a crucial dimension of the rise of praxis that Agamben neglects in his discussion, but that is a dimension which Heidegger before him had realised as an essential characteristic of the technological mode of revealing that Heidegger called the enframing. With reference to a line from Rilke where man is described as being “before the world” (Heidegger 1977, 108), Heidegger reasons that “[t]o put something before ourselves is to represent it for ourselves: Nature is brought before man by the positioning that belongs to representation” (Heidegger 1977, 110). This implies that “where Nature is not satisfactory to man’s representation, he reframes or redisposes it” (Heidegger 1977, 110). Heidegger thus recognises that this willing has, as he puts it, “the character of command” (Heidegger 1977, p. 110). The time of the rise of the reframing and redisposing will that has in it the character of command is the time of the enframing―the time in which law becomes the supreme medium by way of which man commands the challenging forth of the

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enframing. This is the linear time of capitalist utilitarianism and exchange coupled with a thoroughly bureaucratic version of law―a faceless form of law that has become the handmaiden of utilitarian means-end administration, a form of law that Arendt (among many others) did not even recognise as law (Klabbers 2007, 10–11). For the Arendt of On Revolution thought of law as “what relates.” Indeed, she goes as far as saying that “without human law the space between men would be a desert, or rather there would be no in-between space at all” (Arendt 1965, 302 (emphasis provided)). Unfortunately, this original meaning of law as the foundation of the social bond has become thoroughly eclipsed in our time. It is well known that Agamben’s Homo Sacer project posits the state of exception as the now permanent structure of modernity. We can say that with Agamben we come to realise the generalised suspension of the law in the state of exception and with it the disappearance of the distinction between lawfulness and lawlessness. In other words, the time of the state of exception is supremely and utterly a time of command. Moreover, as Šumič (2011, 138) has intimated, this generalisation of the exception grounded in command succeeds through its very lawlessness to implement a status quo that is “immune to all change.” Šumič writes that the progressive realisation of the indistinction between observance and transgression of law strictly implies that there is no “outside” to the law anymore, no outside to the law in its very lawlessness. Agamben strictly sees this state of affairs as terminating in only one end: catastrophe. These thoughts on the state of exception bring me back to the “normal emergency” to which I referred in Chapter 2. It should be clear to anyone familiar with post-apartheid South Africa that vast swathes of our population continue to live in a country in which a state of exception prevails without it being declared as such. I am thinking particularly about the socio-economic state of exception in which so many continue to live in our townships on the peripheries of cities, on our urban streets and in rural areas where there are no services, and so on. This state of exception is, moreover, as thoroughly racialised as it is normalised—it is black people who continue to live in a situation where there is no hope of enforcing the rights in the Constitution, where violation of those rights is an everyday, routine experience. This is a concrete and palpable continuation of apartheid such that it is not possible, considering the scale at which this situation is present, to speak of anything like the “post”-apartheid. It cannot and should not admit of any doubt that for Agamben these spaces and places of exception would qualify strictly as instances of the Irreparable. We are thus called by Agamben’s work to realise the complicity of lawless command in the perpetuation of the “normal” emergency in South Africa and to insist that nothing is more urgent today than to call a halt in the way in which this machine ticks over from one day to another eternal day and, in so doing, “to find a way to wrench from it a potential for transformation” (Šumič 2011, 138). For Šumič, finding such a way depends on a different repertoire of resistance than the simple subversion of the law. I think that reparative citizenship can be thought as such a different repertoire of resistance, one that is intent on productive resolution of the plagues that beset

Creative Haunting 191 the postcolony rather than one that resigns itself to the inevitable and necessary destruction of the now for the new to come into being. My suggestion is that rhythm in the authentic experience of the work of art gives us to think the possibility of a world and thus a law that truly relates, that is, relates in a post-apartheid way and a law that is not yet given or, as Rose refers to it, a “poetics of law” (Rose 1996, 76). If it is true, as Small contends in his statement above, that reconciliation, and by my extension, reparation, is a miracle that only literature can perform, then reconciliation and reparation involve a mode of being-together that do not or, at least, do not primarily, proceed from the force of law as lawless command in the state of exception, but are, rather questions of “differential force” (Derrida 1990, 929), of what Derrida calls a counter-law, an a priori counter-law which is the condition of possibility of law itself, an “axiom of impossibility that confounds law’s sense, order and reason” (Derrida 1980, 57). In earlier work (Barnard-Naudé 2012), I have argued that the name of this force, this counter-law, is poetry, if this word is strictly understood in terms of its Greek heritage as poiesis―the generic name of all art (Nancy 2006, 191), which originally included the art of law-making. Agamben’s argument that man’s ontological status, that is, his status as a unique being among beings, is a poetic status implies then that it is to be considered in terms of or as this counter-law (Barnard-Naudé 2012, 468) which is nevertheless the condition, as Derrida argues, of the law as such. Below, I argue that the poetic as this counter-law invites us to inhabit the political and the legal reparatively, which is to say, transformatively. Poetic justice, politics and poetry’s resistance Viewed in this light, poiesis could be considered to be the name for the time and space in which questions of the argumentative (law and politics) and the poetic overlap and resonate; where the poetic stands the chance of “transforming” or “abnormalising” the argumentative. Jacques Rancière has remarked that [p]olitical invention operates in acts that are at once argumentative and poetic, shows of strength that open again and again, as often as necessary, worlds in which such acts of community are acts of community. This is why the “poetic” is not opposed here to argument. (Rancière 1999, 59) This is where the notion of “poetic justice” becomes helpful as a phrase that articulates the coming together or the “community” of the convergence between the poetic and the argumentative. Small and Krog’s observations above clearly link the poetic or the “literary” to the question of transition as an ethical, political and legal―thus argumentative―project. As such these statements are both argumentative and poetic in the sense described by Rancière and thus open up a space in which the confrontation of the argumentative with the poetic could lead to something that is productive of community and the transformative in ethics, law and politics.

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The poetic justice of reparative citizenship would recognise that it is only by way of a revival of our uniquely human poetic status that we access the realm of sense in which light it is possible to imagine a bringing forth (into Being) of a political practice of reparation. Thus, reparation as a bringing forth is always already also a making of sense, a sense-making of the senselessness of trauma. Reparative citizenship is thus and can only be a work of art in Agamben’s sense of that phrase. Moreover, from our exploration of the time of the work of art, we have seen that reparative citizenship as poetic is always a work in progress―a presencing―in the face of the givenness of the now. As such it is a kind of hesitation and a difficulty, a “sense that is always still to be made” (Nancy 2006, 4). Moreover still, reparative citizenship depends on a notion of politics not simply as a means that would produce given ends, but rather as a creative realm―a realm in which potentiality can be seized to produce and maintain something more than mere life, that is, a “fuller life” (Colebrook 2008, 108), thus a becoming-human of life through “creating and bringing forth an end that is not yet given” (Colebrook 2008, 110). In what follows, I draw heavily on Martha Nussbaum’s celebrated plea for the literary imagination in public discourse as articulated in her book, Poetic Justice (1995) in order to claim that such a bringing forth of reparation through actions harboured in reparative citizenship necessitates new and revivified acts of the imagination. Although Nussbaum’s focus is explicitly the existential and political importance of the genre of the novel, I believe that her argument can be appropriately expanded to cover a truth about poetry as art in general or in the generic sense. I find support for this belief in Nussbaum’s own (at least partial) reliance in Poetic Justice on poetry (that of Walt Whitman in particular (Nussbaum 1995, 79)). I also believe that without unduly stretching the interpretation, her argument for the literary or “metaphoric” imagination in political life resonates with Valéry’s celebrated definition of poetry: “The poem: a prolonged hesitation between sound and sense” (Agamben 1999b, 109). The metaphoric imagination would involve a hesitation in which the sound of political speech would not simply precipitate an instinctual or visceral reaction, but rather a hesitant response that would be informed by consideration and reflective judgement—a sense-making. The successful case for the connection between Nussbaum’s argument for the literary imagination in politics and Valéry’s description of the poem as a hesitation between sound and sense also depends on the understanding, first articulated by Arendt (1995, 208) and later developed by Nancy (1997), that sense is profoundly a matter of the public or political sphere as the realm of the space of appearance, of the creation of a world. For Nancy, we accede to such a dawning of sense, only poetically, that is, artistically (Nancy 2006, 3). In Poetic Justice (1995) Nussbaum begins by opposing the literary imagination to political utilitarianism or, if you will, the argumentative to the poetic. She points out that one of the key characteristics of utilitarianism is that it does not leave room for the space of appearance, for the separation that makes all relations possible and therefore for the Agambenian idea of man as world-creating. To quote Nussbaum (in turn quoting Sen and Williams):

Creative Haunting 193 Essentially, utilitarianism sees persons as locations of their respective utilities―as the sites at which such activities as desiring and having pleasure and pain take place. Once note has been taken of the person’s utility, utilitarianism has no further direct interest in any information about him […] Persons do not count as individuals in this any more than individual petrol tanks do in the analysis of the national consumption of petroleum. (Nussbaum 1995, 14–15) As Nussbaum points out, from the utilitarian point of view, this means that the qualitative distinctions and differences between persons and the boundaries between them will not count as salient (20–21). Ultimately, the picture of humanity that utilitarianism paints is one that “effaces personal separateness as well as qualitative difference” (21). It sees persons as “mere containers or sites of satisfaction” (28). In Nussbaum, then, the subordination that worried Agamben, namely of the work of art to mere availability for aesthetic enjoyment, becomes, in fact, the subordination of the human being herself to such a form of mere satisfaction. There is a long and painful history in South Africa of precisely this utilitarian rendering of the black body for it cannot, today, admit of any doubt that apartheid was not simply a form of racial segregation or separate “development” as the National Party politicians liked to call it. Rather and of course as Chapter 4 made abundantly clear, apartheid was a form of racist exploitation par excellence, a form in which the black body was treated in exactly the manner that Heidegger thinks of technology as the enframing, namely as a resource standing ready in reserve for exploitation at any time—a mere “being available.” After apartheid this situation has not seen enough of a significant change under the neoliberal policies of the post-apartheid governments, and so thinking the literary imagination as opposed to political and social utilitarianism demands that we finally come to terms with this continuation of apartheid as grounded in the exploitative utilitarianism of liberalism. Against utility, Nussbaum pleads for the literary imagination which, by contrast, “sees the boundaries between one person and another as among the world’s most salient facts” (Nussbaum 1995, 28). It is important, however, to point out that she explicitly does not reject economic science and does not see her project as antiscientific (11)—she in fact pleads for an overlap of the poetic and the argumentative. In this regard, Nussbaum paraphrases Dickens “who said that we should come upon ‘Reason’ (by which he meant formal scientific reasoning) ‘through the tender light of Fancy,’ not that we should confine ourselves to ‘Fancy’ and live in the circus all our lives” (11). Nussbaum’s proposition is, rather, that economic science should accommodate the kind of “human data” that are revealed to the imagination through the literary work (11). The way in which I read Nussbaum is that she is in fact pleading for a deconstruction of the economic/non-economic binary by arguing in favour of the literary as an essential part of economic science’s quest for a “more complicated and philosophically adequate set of foundations” (11). In other words, Nussbaum is pleading for an essential “dangerous” supplementation of the traditionally economic with the traditionally literary or at least a disruption

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of their strict separation according to the utilitarianism that she opposes. Nussbaum calls this approach “economic-philosophical” and writes: there is every reason to think that an approach that includes the sort of insight I claim to find in literature permits a kind of modelling and measurement more predictively fruitful, and more capable of giving good guidance to policy, than the types otherwise available in economic science. (11–12) Thus, Nussbaum (1995, 72) defends the emotions that are foregrounded in the literary imagination and an “emotional rationality” as an essential part of social rationality. She explicitly states in this regard that the emotions that are important for the literary supplementation of social rationality are not the emotions of the self and the same: “we must omit that part of the emotion that derives from our personal interest in our own well-being” (74). It is this poetic stance towards the world that in turn allows us to see, through empathy, the complexity, worth and importance of things and human beings outside ourselves. It is, in other words, the literary imagination that allows us to see the Other as Other and to engage the Other as Other. For Nussbaum, it is literature that represents the “complex cast of mind” that “is essential in order to take the full measure of the adversity and suffering of others, and that this appraisal is necessary for full social rationality” (66). Here Nussbaum is close to Agamben (1999a, 101) for the latter similarly intimates that it is only through poiesis, “the most uncanny power, the power of pro-duction into presence” that the human is also capable of the rationality of praxis of “willed and free activity.” While I am here largely in agreement with Nussbaum, I would characterise her emphasis on the literary in somewhat different terms. I do this in order to show that her arguments can be read specifically as a resistance or Derridean “dangerous supplement” to the utilitarian enframing of late capitalist public discourse. My fear is that if this resistance is not repeatedly emphasised, Nussbaum’s argument could be appropriated in the service of the kind of “aestheticisation of politics” that worried Walter Benjamin and, in our times, continues to worry Žižek (2012, 31) among others—an aestheticisation of politics that ultimately amounts to the fascist adornment of power. This is a view to which Benjamin (2009, 228)―in the afterword to his famous essay, The Work of Art in the Age of Mechanical Reproduction―refers to as “the kind of aestheticization of politics that Fascism pursues” (Benjamin 2009, 259). Benjamin sees Fascism as the political movement that depends ultimately on the aestheticisation of political life; without changing the ownership structure, it consists in giving the masses a voice, but not giving them their due (257). Thus, what worried Benjamin was precisely a kind of separation of the poetic and the argumentative, the creative and the economic. The resistance that I would claim for Nussbaum’s defence of the literary imagination is rather that which Nancy (2006, 16) identifies specifically as poetry’s resistance, a resistance that belongs to it, that is as old as it. This constitutive resistance that belongs to poetry is exemplary in the Republic’s exile of the poets,

Creative Haunting 195 precisely because they set themselves against and is perceived as a danger for the rule of the instrumental totalitarian reason of rational discourse in the ideal citystate. It is for this reason that the poets are exiled from the Republic in Book X, only to resist this exile by returning, like Marlee’s ghost, in the guise of the myth of Er at the end of the work (Plato 1993, 371–379). Nancy’s explanation of the twofold nature of poetry’s resistance can perhaps explain to us why poetry always comes back to so-called rational discourse in this haunting, subversive way, why the poetic is itself a spectre that haunts rational discourse. The first resistance Nancy identifies in poetry is what he calls its resistance to “exhausted discourse” (Nancy 2006, 16). Exhausted discourse is tired discourse, discourse that has run its course, that has run out of breath, that has reached its limit: banal discourse. It is most often accompanied by thoughtlessness, marked by what Arendt has called the repetition of “truths” that have become trivial and empty (Arendt 1998 p. 5). It is characterised by attempts to finalise and still all contestation, dissent and dissonance in language, the attempt to silence and finally solidify meaning. An excellent example of exhausted discourse is that of apartheid at the end of the eighties when no amount of discursive ruses in defence of its necessity, no more obscene pleas of its benignness, of its “good neighbourliness,” could breathe life into its already decaying body. This exhausted discourse marked, extraordinarily, the return/resistance of poetry when Nelson Mandela inaugurated the new South Africa with Ingrid Jonker’s poem Die kind wat doodgeskiet is deur soldate by Nyanga (The child that was shot dead by soldiers at Nyanga), a poem which, when it was written, itself marked a profound resistance to the political hegemony of apartheid, a resistance, moreover, from within the exhausted language of apartheid discourse―Afrikaans. Poetry’s resistance to exhausted discourse is closely associated with the second iteration of its resistance, which is its insistence on “that which, in or within language, announces or keeps more than language” (Nancy 2006, 17). For Nancy, this “more than language” is not any “superlanguage” or “overlanguage” but the articulation that precedes language “in” itself (and that might equally be termed “affection,” “praxis,” or “ethos”) […] I would go as far as to say, […] that it insists in the “unconscious” and as the “unconscious” that language is. (Nancy 2006, 18) Although Nancy makes it clear that he means something entirely different, it was Lacan who explicitly reserved this link between language and the unconscious when he claimed as follows: “The unconscious is constituted by the effects of speech on the subject, it is the dimension in which the subject is determined in the development of the effects of speech; consequently, the unconscious is structured like a language” (Lacan 1978, 149). While Lacan claims that the unconscious is structured like a language, Nancy claims that the unconscious is a language. Despite this difference in emphasis, I nonetheless believe that Nancy and Lacan make common cause when it comes to the assertion that language is never simply instrumental or cybernetic, not simply a means of conveying information or news,

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that language constitutively has an affective dimension harboured within it which reaches beyond its use value. It is this resistance of poetry in the unconscious that makes all literature and all arguments for literature possible in the first place. Reparative citizenship as a praxis of poiesis Krog (2012) has argued that in South Africa “each creative work makes a political point” and so has posited an essential connection between the argumentative and the poetic. Quoting Nobel Prize winner Horace Engdahl, she writes that “one is either part of […] ‘the great dialogue of literature about the improvement of humanity’, or suggesting that one doesn’t particularly care for it.” Krog movingly pleads for contemporary power in South Africa to listen, once more, to its poets, that is to say to its artists. And the reasons she provides are compelling: “[L]iterature inflects the anguish of reality in a way that theoretical discussions of the same issues cannot achieve, making possible a kind of understanding not accessible by other means” (Krog 2012 (emphasis added)). It provides a “visionary vocabulary”; its continuous presencing of the world “creates reflexivity and nuanced knowing” (Krog 2012). Let me turn again to post-apartheid citizenship as reparative citizenship, that is, as an active being-member of the polis as a creative being-at-work. I think that the success of South Africa’s reparative efforts crucially depends on an understanding of post-apartheid citizenship as civic friendship, but I have insisted that it is better rendered in South Africa as reparative citizenship since it is reparation that so persistently inheres in the social link after apartheid and, furthermore, that reparative citizenship is not possible without the literary imagination or what I would call a poetic stance towards the world. Reparative citizenship is the phrase I use to describe what is needed for the South African demos to move towards an Arendtian version of civic friendship or, to evoke Sitze’s terminology from Chapter 2, to move from indemnity to the accountability of reparation. Reparative citizenship is indeed a need in this sense, for I believe that without it the ideal of civic friendship cannot be approximated. Against the backdrop of the ongoing trauma of apartheid in South Africa, there must be an indubitable connection between the notion of civic friendship and the notion of repair—which I think is articulated in reparative citizenship—such that there can be no lasting version of civic friendship without reparation. Arendt resuscitated and defended a “politics of friendship” that I think is closest to an account of politics both post-individualist and post-liberal. In fact, Arendt’s theory of civic friendship invokes an understanding of citizenship as a radically “horizontal allegiance to friends” (Stortz 1994, 414). She sees in this understanding of political life the possibility of words [that] are not empty and deeds [that are] not brutal, where words are not used to veil intentions but to disclose realities, and deeds are not used to violate and destroy but to establish relations and create new realities. (Arendt 1998, 200)

Creative Haunting 197 As Martha Stortz comments on Arendt’s concept of civic friendship: “Civic friendship of all sorts emphasizes the interdependence of citizens in public life. It articulates a horizontal understanding of citizenship, which prizes the relationship to another citizen and places that relationship at the centre of civic life.” Most importantly, though, this form of friendship is not at all about the association of the self and the same. At its heart, Arendt’s understanding of civic friendship turns on plurality, that is, the “law of the Earth” (Arendt 1971, 19) as the fact of difference, because it is plurality in Arendt that is constitutive of the political. And plurality conditions us in the sense that our very individuality only takes shape through our recognition that we share the world with others. Drucilla Cornell (2004, 669) has explicitly linked such a version of friendship to ubuntu, as follows: In Kant, I am a friend to myself because of the dignity of my humanity. Under ubuntu, I am a friend to myself because others in my community have already been friends to me, making me someone who could survive at all, and therefore be in the community. It is only because I have always been together with others and they with me that I am gathered together as a person and sustained in that self-gathering. This relational emphasis of ubuntu immediately implicates the idea of respect for without respect there can be no durability for plurality. And as Arendt puts it in The Human Condition: “what love is in its own, narrowly circumscribed sphere, respect is in the larger domain of human affairs.” … respect, she continues, “is a kind of ‘friendship’ … it is a regard for the person from the distance which the space of the world puts between us, and this regard is independent of qualities which we may admire or of achievements which we may highly esteem”(Arendt 1998, 243). For Arendt then there can be no talk of civic friendship without this respect which, to emphasise, does not depend on conditions of the self and the same. However, Arendt conceded that the modern age is characterised by the loss of respect, and this “constitutes a clear symptom of the increasing depersonalization of public and social life” (243). It is also because of Arendt’s acute awareness of the implications of this depersonalisation due to the loss of respect that she insists famously at the end of the preface to The Origins of Totalitarianism that, in the aftermath of the disasters of modernity, “human dignity needs a new guarantee which can be found only in a new law on earth” (Arendt 1968, ix). If we recall Derrida’s assertion in Politics of Friendship that there is no friendship without respect for the other, that “the co-implication of responsibility and respect can be felt at the heart of friendship” (Derrida 1997, 252), we will begin to see the trembling overlap between the ethical, the political and the juridical in the South African Constitution in which respect for the dignity of all others comes to play a constitutive role. Emeritus Justice O’Regan (2008, 86) has referred explicitly to respect and responsibility as “the building blocks of the Constitution.”. And this respect is owed to the equal human dignity of everyone. Here, there is a convergence between the radical but necessarily aspirational horizontality of the Constitution and the lived “reconfiliation” that Mogobe Ramose (2012) writes

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about. For Ramose, reconfiliation as the coming together of sons and daughters “adds an absolute dimension to the peace-making and harmonizing thrust of reconciliation by emphasizing the equal dignity of all persons who need to be reconciled” (35). For Ramose, such a reconfiliation is already in the process of occurring in the context of extreme poverty. Ramose writes about “the face that has come into being not by legal fiat but born out of the existential necessity to recognize the other as a brother or a sister and promote their well-being instead of killing them softly or instantly” (36). While I have some reservations about the implicit fraternity/sorority in Ramose, this unconditional horizontality referenced in Ramose and aspirationally in the South African Constitution appeals to a prioritisation of Arendt’s but also Derrida’s vision of friendship in which the Greek form of love as philia is instituted as a socio-political concept but in Derrida beyond any condition of fraternity or confraternisation. Shin Chiba (1995, 509) argues that it is this form of love that permeates Arendt’s search for a new and durable vinculum or social bond, which, let us recall, is the original name for law. The implication of this institutionalisation is that it is in fact respect, as phronesis and praxis for the Other—respect that resides in love of the Other—that becomes constitutive of the legal order. This, then, implicates a version of law far removed from the simple subversion of law in that it demands in fact a reinvention of the very nature of law. In a lecture delivered at the University of Stellenbosch law faculty in 2006, the former Chief Justice, Pius Langa, explicitly invoked the work of art as the medium through which reconciliation (and by my extension, reparation) could come to be, by asserting that “[a]ll South Africans, beneficiaries, victims and perpetrators, must work together to create a climate of reconciliation. There are many ways to foster that climate: through public dialogue, art and music” (Langa 2006, 359 (emphasis added)). By situating public dialogue within the series of examples of such a creation, Langa emphasises the potentiality of political speech (which is not divorced from action but an inherent part thereof) as itself disclosive―a work of art―and here comes close to Agamben’s argument that it is through the fact of speech (the saying) that the subject is in existence as such, that is, as pure potentiality and as such capable of the creation of a free, open, not already actualised space (Colebrook 2008, 114–117). In the same lecture, Langa stated unequivocally that the processes implicated in transitional justice (reconciliation and forgiveness) is “beyond the power of the law. We cannot legislate reconciliation and we cannot order forgiveness” (Langa 2006, 358). Thus the Chief Justice of South Africa makes common cause with Adam Small, the poet. Langa added that reconciliation requires material reparation, what he called “an improvement of socio-economic conditions” a levelling of the socio-economic playing field (Langa 2006, 359). This is the case because where socio-economic conditions are such that they can barely maintain bare life, potentiality is lost in advance. Where there is nothing more than bare life, there is no potentiality, no language and no creative speech, only the expression of desperate material need. (Agamben illustrates this with the example of the silent

Creative Haunting 199 Muselmann who is neither simply deprived of humanity nor fully human, marked by “the absence of saying as such” and thus non-existent, evacuated potentiality (Colebrook 2008, 115)). In invoking Langa’s emphasis on “material” reparation as the improvement of socio-economic conditions, I want to emphasise that I am not arguing that the plea for becoming aware again of our poetic status through reparative citizenship amounts to an argument that we should all become poets but rather that proceeding from an awareness of our poetic status can give us to imagine our responsibility for “material” reparation in ways that would direct it away from yet again reducing the Other to a unit of material utility to whom we, in this instance, owe a debt. The direction in which the becoming aware again of our poetic status would point is the direction of engaging the Other from the point of view of her own uniquely human potentiality and what that potentiality requires in order to actualise itself. Such an engagement would pivot on engaging the Other from the point of view of her potentiality as a friend who is not, as Aristotle would have it, another self, but is, rather, an Other the realisation of whose potentiality, under ubuntu, is a condition of the realisation of my potentiality. In this respect, Agamben argues that friendship is an awareness of the pure fact of my existence simultaneously with yours. As Agamben puts it: “The friend is not another I, but an otherness immanent in self-ness, a becoming other of the self” (Agamben 2004, 6). In a very real sense, then, the literature on civic friendship reveals that there can really be no authentic politics without the literary imagination, for, as Nussbaum shows, it is the literary imagination that makes us alive to the fact of alterity, to difference, the plight of the Other. It is a poetic stance towards the world that reveals others to us in their singularity and reveals us to them in ours. And as Johan van der Walt (2001, 472) has shown, the recognition of alterity is the very beginning of politics: “The surprising advent of the political, the very dawn of not just another, but an other, non-murderous progression – would this not be the heart of progressive politics?” Civic friendship as reparative citizenship is a way of signifying that there can be no healing for the body politic, no healing of the divisions of the past, without reparation, without this recognition, empathy, compassion that the poetic stance can attune us to see. It is a way of being-in-the-world that allows one not just to hear the voice of the Other but to respond to her voice/call in a way that might render her suffering less unbearable. In this sense, it is not just a being-in-the-world as passive spectator or onlooker but rather as Agamben has it: a being-at-work. It is also a being-involved, a being that demands outcry and resistance in the face of the injustices that crude utilitarian economic calculations perpetrate and perpetuate. Karl Jaspers’ notion of metaphysical guilt is, in addition, strongly implicated in Chief Justice Langa’s assertion that “[a]ll South Africans, beneficiaries, victims and perpetrators must work together to create a climate of reconciliation” (2006, 359 (emphasis added)). Jaspers writes: metaphysical guilt is the lack of absolute solidarity with the human being as such―an indelible claim beyond morally meaningful duty. This solidarity is

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violated by my presence at a wrong or a crime. It is not enough that I cautiously risk my life to prevent it; if it happens, and I was there, and if I survive where the other is killed, I know from a voice within myself: I am guilty of being still alive. (Jaspers 2000, p. 65) This means, obviously, that for Jaspers we are all guilty and therefore responsible, even though some are more guilty and therefore more responsible than others. From this point of view, reparative citizenship requires also the duty to speak out creatively against ongoing injustices perpetrated in the material or economic sphere—a duty which has been intensified as a result of the politics of “state capture” in South Africa but also a duty that has catastrophically attracted the risk of murder. Sanders invokes in this context Émile Zola’s famous “J’accuse!” letter concerning the Dreyfuss affair in France and observes that the duty to speak arises from the desire or will not to be complicit in injustice: The duty to speak out is linked with a will or desire not to be an accomplice. Responsibility unites with a will not to be complicit in injustice. It thus emerges from a sense of complicity — […] the actively assumed complicity of one whose silence could allow crime to go undiscovered. (Sanders 2002, 4) The question remains where reparative citizenship, grounded as it is in the metaphorical imagination, leaves the role of government. To this question, I will give Nussbaum’s answer: Government cannot investigate the life story of every citizen in the way [literature] does; it can, however, know that each citizen has a complex history of this sort, and it can remain aware that the norm in principle would be to acknowledge the separateness, freedom, and qualitative difference of each in the manner of [literature] […] [G]overnments, wherever they are, should attend to citizens in all their concreteness and variety, responding in a sensitive way to historical and personal contingencies. (Nussbaum 1995, 44–45) In the South African context, it is clear from Nussbaum’s reference to “qualitative difference,” “concreteness and variety” and especially from her reference to “historical and personal contingencies” that reparation must become a key priority of a government if it truly wants to be premised on the dignity of everyone, for such a dignity inheres precisely in the poetic status of each one of us as we inhabit the Irreparable. Given that the recognition of human dignity and the right to have it respected and protected is a constitutional and thus legal obligation, it cannot admit of any doubt that reparation, in addition to its ethical and political dimensions as elaborated in this book, also has a distinctly legal and current dimension. In other words, it is a matter of presently existing, unavoidable and imperative law in South

Creative Haunting 201 Africa, as derived from the human dignity clause in the Constitution, that reparation should be made. Krog puts the matter as follows: Because a government hears only its own voice, it knows it hears only its own voice, yet it likes to harbour the illusion that it is hearing the voice of the people, and it demands that the people too should harbour this illusion. That is why a cabinet should read literature. Neither the state which it controls, nor the good plans to turn the country around, would help in the absence of a visionary vocabulary (produced best by writers and poets) to create what Martha Nussbaum described as an inspired emp[athe]tic social cohesion. (Krog 2012) The reparative, or, what Pandora did Let me turn in conclusion to literature and art—in fact, the first-ever work of art, at least according to the myth—in order to provide an illustration of how we might be otherwise with the spectre of reparation in and through reparative citizenship. I want to focus on the myth of Pandora because I think it tells us something important not only about being with the spectre of reparation but also about the unconscious that must, as we have seen, be factored in any account of citizenship as full political embodiment (see further Frosh 2001). The popular version of the Pandora myth is Hesiod’s, according to which Pandora originates from Zeus’ wish to punish men for the theft of fire from the gods by Prometheus (Hesiod 2009, 73). He accordingly ordered Pandora made from clay by Haephastus and sent to Earth with a box or, rather, a jar which contained “gifts” from all the gods of Olympus but which were “a bane to men” (Hesiod 2009, 74). Epimetheus accepted Pandora (who is the first work of art and whose name literally means “all gifts”), but she opened her jar and out flew all the evils that we have since known in the world. The only thing that remained in the box was hope (elpis). Hesiod’s Pandora is, clearly, a version of the myth of Paradisiacal exile to which I refer above and thus of the origin of the Irreparable. There are many interpretations of this version, but the one that concerns us here is the radical departure from Hesiod by the classicist, Jane Harrison, upon careful philological reinvestigation of the Pandora myth (Harrison 1900). Harrison’s undertaking revealed that Pandora’s “box” was nothing more than a grave and that the “evils” that Hesiod’s “curious and fatal woman, his Eve,” are supposed to have let loose upon the world “are in fact nothing but ghosts, issuing from a […] grave” (Harrison 1900, 103). According to Harrison, the popular version of the myth as it is attributed to Hesiod is grounded in a “misconception” (100). Time and space do not allow a full discussion here, but suffice it to say that Pandora ended up with evil, as opposed simply to ghosts, as a result of the rise of the monotheistic cult of Zeus in which Pandora became the “duly subordinate devil” (108). Harrison reminds her reader that Pandora is in fact none other than the Earth goddess, Gaia, Mother Earth in anthropomorphic form, and she is such as a work

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of art. It was when Pandora “emerged in human shape,” one could say when she became a citizen, a dweller of the Earth, that she became the natural patron of all ghosts: “her spirit, the ghosts, were the source of all good and all evil” and her cult was “a ghost and ancestor cult” (Harrison 1900, 108). Harrison is also, of course, at pains to remind us that it is as this goddess of the Earth and of ghosts and only as the goddess of the Earth and of ghosts that Pandora remains in charge of hope (109). What, therefore, does it mean that the first work of art is so closely associated with the grave, with burial and most importantly with ghosts, spectres? I would suggest that Harrison’s version of the Pandora myth reveals that a particular sort of encounter with the spectre generates/makes hope. The first clue as regards the specificities of the encounter is that Pandora in human form and as a work of art is charged with tending to a grave, in other words, to the remains/to what remains. The so-called opening of the jar in Hesiod is nothing more than a tending to a grave. Second, Pandora tends to the grave/the remains in such a way that ghosts are liberated. Third, this tending which liberates ghosts leaves hope behind in the grave. In other words, the remains become hope, hope is generated/made out of the remains. Now, to return to our terminology, it is not difficult to see that the remains/the grave represents the Irreparable, for that is what the remains in the grave inevitably are “without remedy.” But, through Pandora’s reparative action, the remains are transformed into hope. There is here, then, a close correspondence with Agamben’s assertion that the Irreparable—that which is without remedy—is the source of hope. It is, however, critical to underscore that Pandora produces/makes hope out of an encounter with ghosts and that it is a particular encounter, one that liberates the ghosts—the liberation of ghosts and the production of hope are thus, in the Pandora myth, two sides of the same coin. In truth, the liberation of ghosts becomes the condition for hope to be left behind. One could therefore argue that the Pandora myth teaches us how to negotiate hope in the encounter with the remains. The spectre’s one condition is that it be liberated, and it is liberated through a tending. The etymology of the suffix of the word “reparative” indicates tending to something, here, most obviously, tending to, or towards, reparation—“without ever fully accomplishing it”—is of course the implication. But a tending to also evokes the remains—that which is left in the grave and reparation undertaken in relation to those remains. It is this “tending” to the grave that can be understood as harboured in a reparative undertaking, because the reparative intervention is a “tending.” Vered Lev Kenaan (2013, 104) has argued that Harrison’s reading of the Pandora myth which “brings back an unknown content from oblivion” was deeply influenced by the dynamic notion of the unconscious in Freud. Here Kenaan (105) quotes Henk de Berg as follows: Like the conscious, the unconscious is not a place, but a process, always active, always in motion, always exerting its influence. Therefore, to think of the unconscious as a kind of cellar where we stack away our unwanted urges and memories is to overlook its most fundamental feature, dynamism.

Creative Haunting 203 Our unconscious is a force that is always operative, not some Pandora’s box effective only when its contents are brought to the light of day. Kenaan (2013, 106) concludes from his excursion into the unconscious that the “unknown dark region represented by Pandora’s jar does not simply disappear from sight”—it is both presenced and presented by the appearance of the spectres. The opening of Kenaan’s essay reminds the reader that Pandora was the “paradigm of an appearance whose beauty alludes to an invisible inner content by way of concealment” (98). He argues that Hesiod explicitly refers to the creation of Pandora as involving the marking out of a “space of interiority” (98). This cavity within Pandora is then linked to the first element of the universe, Chaos, which constituted the Earth goddess’s “dark space” (98). Kenaan concludes that “[v]iewing the female cavity through the analogy of Chaos enables us to consider it as the psychological locus of brooding desires and latent drives” (98), in other words, Pandora brings to us a primordial figuration of the unconscious of Man, and it is this unconscious that is put in touch with/tends to the grave, liberates the ghosts in such a way that hope remains. In this version, Pandora as the first work of art is also the first work of the unconscious. As Kenaan writes: “the woman is the first to present the dynamic play between open and latent layers of meanings that introduces the idea of the unconscious into the history of humanity” (113). It is as if Harrison’s version of the Pandora myth communicates the message that it is only by (at)tending (to) the unconscious that we can attend to the ghosts in such a way that hope is made which is to say that the unconscious exercises an unfathomable influence on our ability and liability to make reparation. It is also as if the Pandora myth endeavours to convey that (at)tending (to) the unconscious as a tending to the ghosts can only be done in an artful key, through a reliance on our poetic status. As Jacqueline Rose (2022, 40) emphatically writes: “only if we entertain our ghosts will we have the remotest chance of moving forwards into the next stage of historical time.” Nicholas Rand (1994, 167), the editor of Abraham and Torok’s The Shell and the Kernel Vol I, contends that Abraham’s concept of the phantom calls for an understanding of psychoanalysis as a “cult of ancestors” and a form of “honoring the dead with rightful burial.” He continues: in the psychoanalytic realm, laying the dead to rest and cultivating our ancestors implies uncovering their shameful secrets, understanding their nameless and undisclosed suffering. We should engage in this unveiling and understanding of the former existence of the dead not because we may want to appease them or prevent them from perpetrating their nocturnal pranks, but because, unsuspected, the dead continue to lead a devastating psychic halflife in us. (Rand 1994, 167) With Rose, Rand is saying that the spectre always already demands attention in psychoanalysis, that there is no way in which we can hope for the transformation

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associated with the psychoanalytic cure without being prepared to make reparation by rightfully honouring the dead. Further, the “dead” is not just those who are literally dead. Rather, the dead are those who are, as Foucault suggests in his Society Must Be Defended, expelled, exposed to death, “every form of indirect murder: […] increasing the risk of death for some people, or, quite simply, political death, expulsion, rejection, and so on” (2013, 75). I also think that the “unveiling and understanding” that Rand refers to must be extended to involve a necessary material dimension, because the dead in this expanded sense of the word have very particular needs and wants that reparative action can and must attend to. There are obvious resonances between this understanding of psychoanalysis and indigenous belief systems and cultural practices in Africa that assign a paramount role to the relationship with the ancestors and in which conversing and consorting with, as well as appeasing, the ancestors, forms a major part of ritual (Kopytoff 1971). Indeed, according to Teffo and Roux (2003, 200) the distinction between the material and the spiritual world “has no place in African thinking,” but ritual is critical in terms of facilitating communication/correspondence between the living and the ancestors. Sanders (2007, 40–49) has compellingly drawn attention to the important role that literally “according funeral rites to the dead” played in the life of the TRC. Against the backdrop of his contention that apartheid should (also) be understood as a “massive refusal to mourn,” Sanders (2007, 40) accounts how witnesses came before the commission with requests for assistance in “supplying components necessary for completion of those rites.” In so doing, witnesses asked the TRC to join “materially and affectively in the work of mourning,” and, given that the commission represents the national public, the enlistment of the commission is an enlistment of the whole country. In his extremely sensitive and insightful discussion of the testimony of Joyce Mtimkulu, Sanders (2007, 46) shows how Mrs Mtimkulu’s holding up of her dead son, Simphiwo’s, hair attached to the scalp, during her public testimony, is “a reparative symbolic gesture,” which accompanies her attempt to “at least materially” complete “the required funeral rites.” Stated in the terms of this chapter, the implication is as follows: in order for there to be hope for South Africa, the spectre of reparation has to be encountered, a negotiation with the spectre has to be had, during which a reparative intervention in relation to the remains takes place so as to liberate the spectre. My wager has been that such a reparative intervention should be thought in the key of the poetic or the literary. In short, reparation requires the making of a work of reparation that can liberate the spectre of reparation. It requires a creative being-at-work as reparative citizenship. Then, and only then, in this confluence of the spiritual and the material, would/will the Irreparable remains generate hope. I want to suggest that reparative citizenship must cease upon the literal extension of burial rites in the TRC and turn it into a figurative concern. Figuratively, we need to tend to the grave of our apartheid past which is still with us to such an enormous extent. Such a figurative tending to the remains by way of reparative undertakings must realise that it is futile to insist, as some commentators still do, that the spiritual and the material dimension of reparation can somehow be neatly separated—the reparative psychic encounter with the remains as spectre has a necessary material dimension, one that

Creative Haunting 205 is too often under-emphasised in the discourse on and of transitional justice; one that indeed grounds the demand for material reparation as an indispensable part of the mourning process where political wrong and violation lies at the root of loss. Conclusion In this chapter, my wager has been that reparative citizenship, as an active beingmember of the post-apartheid/still apartheid polis critically depends on a reactivation of the human’s poetic status on Earth. Such a poetic status, in turn, turns on a re-appreciation of and a reorientation towards the energetic character of the work of art as a being-at-work. I have suggested that such a being-at-work in reparative citizenship critically depends on an accession to rhythm as an interruption/halt in the utilitarian and neoliberal capitalist machine that has insinuated itself so disastrously in the postcolony after apartheid, especially so in the permanentisation of undeclared states of exception in which lawless command reigns supreme. I have, in addition, attempted to stake a claim for the literary imagination as an essential component of an expanded social rationality. Here we encountered Nussbaum’s argument for an essential supplementation of the economic with the literary—an argument which I extended to include an essential deconstruction of the opposition between the argumentative and the poetic. In the course of this argument, I called upon poetry’s resistance as a form of counter-law through which the demands of reparative citizenship can be contemplated and acted upon. To the extent that poetry educates what Nussbaum calls the “capacity for humanity” (Nussbaum1995, 121), it is a crucial aid in the pursuit of restorative justice. Reparative citizenship requires acts of the imagination through which concretely material reparative action can be undertaken and realised. This is no doubt a difficult task, but it is by no means an impossible one. Nancy remarks that poetry is the “praxis … of difficulty itself” (Nancy 2006, 5). “It sits there,” he says, “and refuses to go away, even when we challenge it, cast suspicion on it or detest it” (15). Poetry’s justice, therefore, is not the easy full and finite justice of law, but rather the difficult justice that Derrida identifies―the justice that is always still to be done and still to come (Derrida 1990). What is fundamentally at stake, then, is a change of perspective and paradigm— one that I tried to elucidate with reference to the Pandora myth in which a haunting and a particular sort of creative encounter with the spectre produces hope. In this, I have insisted that reparative citizenship can and must be thought as the task of liberating our ghosts. Thus, the importance of reckoning with the unconscious cannot be overstated in this regard. Such a reckoning with the spectre would not only refuse the distinction between the spiritual and the material but would also proceed from an acute awareness of the urgency of justice precipitated by the abyssal precariousness of what is given by the Irreparable post-apartheid now. It would be harboured in a willingness to become otherwise through a process of action-asrisk, participation-as-discomfort, intervention-as-dissent and, perhaps most importantly, a form of giving of oneself and one’s own without the expectation of a return―the justice, then, of difficulty, of difficult becoming and becoming difficult.

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It is poetry’s justice, a poetic justice without which reparation is destined to remain but an evasive impossibility. With which, it bears the true potentiality of becoming and bringing into being something that is truly reparative. Notes 1. Willemse (2017, 686) uses this term to indicate that, for Agamben, “all the elements and creatures of the world” are exiled from Paradise and / but, as such, enjoy an “incorruptible fallenness”. 2. One should note here also the contrasting way in which recent critical theory has reengaged the question of hope. On the one hand, Žižek (2017) insists on the trope of “hopelessness” in his recent The Courage of Hopelessness while, on the other hand, Terry Eagleton (2015) renders a hope “without optimism.” 3. Arendt (1998, 63–64) notes the combination of “law” and “hedge” in the Greek name for law, nomos. According to Arendt, the walls of the Greek city-state ensured the political community, and these walls were, literally, its laws—their making was, of course, a matter of poiesis. The importance of walls and hedges in the apartheid (and post-apartheid) aesthetic is discussed in Barnard-Naudé (2009, 177–192). 4. I am deliberately involving here Gillian Rose’s critique of postmodernism in Mourning Becomes the Law (1996) in which Athens is understood as a cipher for reason, rational politics and power, as opposed to Jerusalem as the city governed by pure (Levinasian) ethics.

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Introduction: Anxiety and the Master’s discourse in the postcolony S1 S → 2 S a Anxiety is rife in the postcolony. In 2015, the literary critic, Shane Graham wrote that “[p]erhaps the most apt single word to characterize the mood and attitude of South African culture in the twenty-first century is ‘anxious.’” On 6 October 2016, amid a second wave1 of countrywide student protests, the respected South African public intellectual, Richard Pithouse (2016a (emphasis added)), wrote that the “cycle of struggle in universities has marked a significant moment in the decline of liberal authority. This has resulted in profound existential anxieties in some quarters. Rational discourse has sometimes been eviscerated by the sharp edges of escalating hysteria.” Since Pithouse’s article and since the 2015–2017 protests that shook the foundations of higher education in South Africa, protest in South Africa has continued to be a general modality of public subjectivity in the postcolony. I would go as far as to say that the most emphatic modality in which the spectres of reparation haunt post-apartheid South Africa is through protest. Indeed, the spectres of reparation have animated South Africa to the point that as early as 2013, South Africa was already dubbed the “protest capital” of the world (Bianco 2013). This suggests that protest has become the primary form of public discourse and disclosure in South Africa and a signature feature of the relation between State and citizen. Since all these protests are about or in relation to pervasive material and symbolic lack in the South African body politic, it is no exaggeration to surmise that they can all be traced back to the specific lack of reparation that this book has investigated. I take it as given for purposes of this conclusion that anxiety and hysteria continue to be the signature features of these protests, as Pithouse above clearly indicates. In the Lacanian analytic, protest is unequivocally associated with the discourse of the Hysteric (Bracher 1988, 45; Verhaeghe 1995, 10) which some commentators also identify, without more, as the discourse of anxiety (Hillier and Healy 2016, 526). But as Lacan argued in Seminar XVII, the discourse of the Hysteric cannot be properly apprehended without simultaneous consideration of the discourse of the Master, for the discourse of the Hysteric is a particular mode DOI: 10.4324/9781003290278-7

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of, response to, or engagement with, the discourse of the Master. While Pithouse does not, in the extract above, use the tropes of anxiety and hysteria in any strict analytical sense, I believe that a focus on the anxious Hysteric in Lacanian terms can help us to consider the relationship between protest and the lack of reparation that this book has investigated, but not before first traversing the discourse of the Master. In the postcolony, the discourse of the Master (S1) as the discourse of what Pithouse calls “liberal authority” has functioned as a discourse of what constitutional theorist, Lourens du Plessis (2000, 388), once called an “overarching, allencompassing super law,” a “written law-text” that professes to “constitute the moral high ground of justice all by itself.” This prompted legal philosopher Karin van Marle (2007, 411), a few years later, to describe the situation as having given rise to the “spectacle of post-apartheid constitutionalism.” Joel Modiri (2016, 34), later on, highlighted the effect of this mode of S1’s operation at the level of belief: The Constitution’s protections of “liberal human rights have the tendency,” Modiri wrote, to make us “believe” “that all our problems can be solved by the Constitution and the courts.” Such an operation of S1 may very well be a particular postcolonial instance of a general symptom of global rights discourse. As Salecl (1994, 127 (my emphasis)) points out in reference to human rights discourse as such (and in terms that are more directly Lacanian): “[t]he discourse of universal human rights strives to produce the impression that the object has already been attained.” So it is no exaggeration to say that the discourse of the Master in post-apartheid South Africa has worked to cover up the lack of reparation and has worked to produce a lack of the lack of reparation in South Africa, for to say that human rights strive to produce the impression that the object has already been attained is to say that something comes to stand in the place of the nothing/lack that the objet petit a is. As we shall presently see, this production of a lack of the lack is Lacan’s highly specific definition of anxiety. Such a production of the lack of the lack of reparation can, of course, be traced all the way back to President Mbeki’s parliamentary discourse in the aftermath of the Truth and Reconciliation Commission (TRC) in which Mbeki in fact countermanded the Interim Constitution’s “need for reparation” with the assertion that the payments of the reparation that was, in the end, effected, were made “with some apprehension” (Doxtader and Villa-Vicencio 2004, 22). “We are convinced,” Mbeki cynically said, that “there is no prize bigger than freedom itself” (22), thus contributing to the illusion that the object has in fact already been attained, that there was no further or more freedom to be had. Ever since, the Master’s discourse of the positive law of the Constitution and its Bill of Rights has operated on the basis of a masterful pretence/deception that the Constitution is the direct embodiment of justice, that it lacks nothing, that we (must) now simply “enjoy” our rights and the freedom represented by such rights. This may very well have everything to do with the extraordinary amount of libidinal investment that was placed in the achievement of a Bill of Rights for South Africa through the liberation struggle. As a matter of historical fact, it is arguable that the very possibility of the South African transition came to be predicated upon

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the Constitution and its Bill of Rights as precisely an “all-encompassing super law,” a law that lacked nothing. From the moment that the apartheid government adopted the 1993 Interim Constitution and thereby voted itself out of power, it was clear that the emergence of the new South Africa as a collective legal subject was predicated on the notion that the Constitution was not simply a product of a deeply flawed compromise—thus constituted in the very midst of the lack of reparation as the Interim Constitution in fact made clear—but rather that it was one of the best, if not the best, instantiation of justice in the world. Many readers will recall that this is exactly what is often said of the South African Constitution—that it is the “best in the world.” Harvard law professor Cass Sunstein called it “the most admirable Constitution in the history of the world” (Anon 2014). In 2014, a staff writer for the organisation Brand South Africa—which describes itself as “the official custodian of South Africa’s nation brand”—went as far as writing that “[w]e live and breathe guided by a Constitution” (Anon 2014). Discursively, at least, the exact same operation can be detected in relation to the TRC which was considered as the critical counterpart to the introduction of the Constitution. All over the world, the TRC has been lauded as the model for post-conflict societies in transition without there being nearly enough by way of attention to the TRC’s structural and affective lacks, the most prominent of which, at least on the terms of this book, is the lack of reparation. Especially during the so-called Mandela years, and well into the second postapartheid parliament, the South African Constitution and the rights that it protects were together held up all over the world as the exemplar of how to reconstitute a liberal State after a prolonged period of violent authoritarian and totalitarian rule coupled with racialised civilian and ethnic conflict. In general, liberal human rights discourse in South Africa has consistently worked to produce what Žižek (2008b, 85) calls “the complete coincidence” of “the enunciation” with the “enunciated content” in that the mere inclusion of the rights in the Constitution (the enunciation) has been pretended as the achievement of Justice itself. This emphasis on and celebration of the Constitution as the ultimate juridical achievement has been described as the “monumental” approach, founded in “an exaggeration of the security provided by a new legality” (Van Marle 2007, 415). As Van Marle shows with reference to Chanock, the idealisation of legal language (“the enunciation”) that underpins this approach does not only conceal the State’s incapacities, it also leads directly to the exclusion of fantasy in that the idealisation has a profoundly detrimental effect on how the future “might be imagined” (416). This detrimental effect of the monumental approach arises because, as Du Plessis argued, it assigns to the Law (and here we have to once again remind ourselves that the TRC was also an institution created by Law) the “human obligation to do justice” (Du Plessis 2000, 388), which, if we translate it into Lacanian terms, is none other than the human obligation not to give way on one’s desire. It is as if the master’s discourse of human rights has managed to perform a massive conjuring trick that would have produced a collective foreclosure on desire, a production in/of the postcolonial subject as a subject supposed to believe that it is in fact not

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only legally obligatory to give way on desire, but, at the same time, obligatory to enjoy such a foreclosure on desire. When S1 functions in this way, it in fact fails to regulate enjoyment, because it fails to function as a signifier of the lack in the Other. All that there is left to do is to obey and, as Russell Grigg indicates below, to derive a secret, but nonetheless obligatory, “enjoyment” from this obedience. Grigg (2001, 68) points out that the master, who occupies the place of S1 is there to be obeyed. The master's discourse is a discourse of imperatives, to be obeyed for no other reason than that they are the master's imperatives. Do this! Do that! Not because you, or we all, will be better off, not because it is to our advantage that you do so, not for the general well-being, but simply because it is the master's imperative. Obey, because! Just because! Next, Grigg (2001, 68–69) writes that We do not obey the law because it is in our interest to do so, not even when it is in our interest to do so. One obeys the law for the sake of obeying the law – and, moreover, one derives a secret satisfaction from doing so. There is no ultimate justification for the law; it is a brute fact, irrational and arbitrary. It is because of this law, which we all erect in our own hearts, whose advantages for ourselves and society are dubious, that it is possible to claim a foundational and universal place for the master's discourse. If, as Lacan (2007, 43) suggests, we call S1 “the law,” we can see that law practised and disseminated in this way makes it “blind” to the object-cause of its desire, its lack. Ordinarily, this object-cause is associated with the “justice” of which Derrida (1990, 925) writes as follows: I want to insist right away on reserving the possibility of a justice, indeed of a law that not only exceeds or contradicts “law” (droit) but also, perhaps, has no relation to law, or maintains such a strange relation to it that it may just as well command the “droit” that excludes it). It is this notion of justice that I have tried in this book to align with both the lack and the spectres of reparation that arise from it in that it is this justice that the spectres of reparation evoke. In Seminar XVII, Lacan (2007, 43) similarly refers to “this law [cette loi] that constitutes the law [le droit]” which “must certainly not be taken as a homonym for what may be spoken of elsewhere under the heading of justice.” But contrary to Schroeder’s (2008, 41) argument that the Master’s discourse produces this justice (what she calls “morality”) as the object-cause of its desire, I claim that the experience in the postcolony has been that the Master’s discourse as the liberal rights discourse of an undivided, fully formed and whole positive Law overwhelmingly cuts off/suffocates the production of a as lack (of/ in the Law) and as lack, specifically of reparation. This, I claim, would at least

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partially explain the euphoria of the so-called “rainbow” years in South Africa (the first 10 to 15 years immediately after the 1994 election). When the Master’s discourse functions, effectively, as a denial of lack, what emerges in the place of the lack is the object of anxiety, the voice and gaze of the oppressive superegoic agency that Žižek (2008a, 143) calls the anal FatherEnjoyment of the Real. Žižek explicitly describes this figure as the “clearest embodiment of the phenomenon of the ‘uncanny’ (Unheimliche)” and associates it with “an unbearable and self-destructive anxiety” (Žižek 1991, 102–103). To be clear, Žižek’s argument is that when the law as public letter fails, what emerges is the anal Father-Enjoyment of the Real (what Žižek (1994, 925) at times simply calls “superego”). My contention, on the other hand, is that the experience in the postcolony has shown that if the Master’s discourse succeeds in its deception and, as a result, S1 fails to function as a signifier of the lack in the Other; when it functions as the discourse of the Master as positive law/Constitution/human rights that have already attained the object, that is already the direct embodiment of Justice; then the product in the place of the lack is the voice/gaze of the obscene underside of Law as the Father-Enjoyment of the Real. And it is this voice/gaze that we can call the object of anxiety, because it is this voice that announces to us that “we're going to be taken back onto the lap” (Lacan 2014, 53). This is why Bruno Bosteels (2006, 142) is absolutely right when he writes that anxiety is “only the revealing counterpart of a violent superego injunction, which constitutes the obscene and unlawful underside of the public law.” What has become patently clear in recent years in the postcolony is that at the same time as the discourse of a full and whole liberal authority became the official discourse of Power, ever more criminal, ever more violent, forms of enjoyment (state capture, corruption, theft, rape, murder, robbery, hijacking, xenophobia, racism, hate speech) have proliferated and are pervasive. What has not been considered is that there may be a connection between these two extremities and that the intensification of obscene forms of enjoyment is linked to the proliferation of S1, or, rather, directly linked to the proliferation of the failure of S1 to function as a signifier of lack in the Other (Grigg 2001, 64). It is, arguably, precisely this failure of S1 to function as the signifier of lack that Miller (2006, 26) describes as the “authoritarian and artificial return of the master signifier.” Accordingly, this “making present in the real,” this “objectivization” in the place where there should be nothing, is a sign that, “on the symbolizing level,” something “has not worked out” (Žižek 1991, 104). And my claim here, as paradoxical as it may sound, is that what “has not worked out” on the symbolising level in the postcolony is the installation of the Law/S1 as a signifier of the lack of reparation. Instead of functioning as a signifier of lack, S1 has managed to deploy itself and to function in the postcolony as a signifier of “the lack of the signifier of lack” (Rodríguez 2016, 52). By actively promoting a discourse that offered the Constitution and human rights as the object already attained, the Master’s discourse of liberal legalism and the proliferation of constitutional rights, has paradoxically exposed many South Africans to the lack unmediated by fantasy and, moreover, to the “horrifying” object that has appeared in the place of the lack. For when S1 fails

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to function as a signifier of lack, the Law as identical to desire (Lacan 2014, 80, 150) disappears/dissolves/fades into the background. Now, Žižek writes that anxiety emerges when desire disappears which, again, would generate the logical conclusion that when the law disappears anxiety appears. But I claim that anxiety appears when the law gets too close, when it “over” appears. If, as Lacan (2014, 152 (emphasis added)) writes, anxiety is “a specific manifestation of the desire of the Other,” then we must also pay attention to what sort of a “manifestation” it is that he refers to. And Lacan (2014, 152 (emphasis added)) is very clear here: He says that the signal of anxiety is a warning of “a demand […] which pertains to nothing other than my very Being, that is which puts it in question.” Thus, without desire identified with law, without law as the signifier of lack, the subject herself is threatened with imminent inexistence/ deconstitution, because “desire and law […] are but one and the same barrier to bar our access to the Thing” (Lacan 2014, 80). This is also why Lacan is justified in saying that anxiety is a signal of the Real. We are left exposed to the voice and gaze of the obscene, unbearable proximity of the pre-Oedipal Father-Enjoyment of the Real and it is this “object” in the place of lack that produces anxiety. Anxiety is a signal from the Real, and, moreover, a signal that “does not deceive” (Lacan 2014, 160)—it is a signal of the threat of the subject’s imminent deconstitution, which is why Lacan situates it between jouissance and desire (Lacan 2014, 154). Thus, the production by post-apartheid law of a lack of the lack of reparation has had a disastrous effect on post-apartheid subjectivity in that it has worked to produce an unbearable, constituted anxiety to which such subjectivity has, in addition to obscene forms of enjoyment, responded at the discursive level primarily by way of hysteria (which is the reason why South Africa is dubbed the protest capital of the world). The discourse of the Hysteric and the affect of anxiety S S → 1 a S2 The disquisition above does not mean to suggest that the successful operation of S1 as a Master’s discourse that exposes the subject to the production of the object of anxiety has necessarily produced the obscene forms of enjoyment also referred to above. The claim is rather that a Master’s discourse that functions in this way— in the manner of an exhortation to unquestioning obedience—is conducive to the production of anxiety and, second, that there may be a link between the production of the object of anxiety by the Master’s discourse and the emergence of ever more violent forms of Enjoyment in the postcolony. Not all anxiety is simply resolved or displaced in obscene forms of enjoyment that amount, ultimately, to a foreclosure on the Symbolic. For that to happen (and it does happen all too often in the postcolony), there must be what Lacan (2014, 77) calls a passage to the act or passage à l’acte.

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Against the backdrop of a diagnosis of anxiety as produced by the Master’s discourse of post-apartheid authority, I now want to move the focus to the protesting subject as a specific subject who suffers from the anxiety that a successful/ deceitful Master’s discourse as outlined above can produce. This subject is the anxious Hysteric and the discourse she practices. To be sure, the claim is not at all that all postcolonial subjects suffer anxiety in this way, but rather that the anxious Hysteric is a figure that is prominently on the public scene in the postcolony and that, as such, her discourse (which is to say also her actions that have a bearing on her social bonds) call out for an analysis that could connect such subjectivity with the spectres of reparation that this book has focused on. In a sense, the Hysteric is the subject that is most haunted by the spectres of reparation, but in a particularly productive way: The Hysteric is the subject who has the power to unmask the discourse of the Master (Voruz 2007, p. 175). Part of my argument here will be that her anxiety can be resolved in a way that re-instates S1 as the master signifier of lack in the Other—the potential of the Hysteric thus resides fundamentally in her ability to reintroduce the lack of South Africa as the lack of reparation which can ground its desire and reconnect it with the law. In this sense, the Hysteric is a subject that is most productively haunted by the spectres of reparation. The Hysteric possesses the power of unmasking the discourse of the Master primarily because the Hysteric is “a subject impossible to pin down to the signifier which tries to fix it, name it, assign it a place” (Lacan 2007, 143). With reference to the preceding discussion, the Hysteric is the subject who, in a sense, escapes the totalising, “artificial” and authoritarian return of S1. In short, the Hysteric remains the subject of desire, she is driven, as the matheme of the Hysteric above indicates, by the a that undergirds her discourse as its truth. Ragland (2006, 85) remarks that the Hysteric “lives castration at the surface of her life and discourse.” For this reason, she is differently disposed to the deceitful operation of S1. While she might well be the first to suffer the anxiety produced by the failure of S1 to function as a signifier of lack, she is also the one whose discourse can prevent her from succumbing to the obscene voice/gaze of the Father-Enjoyment of the Real as the object of anxiety. This potential of her discourse, however, depends on the action that she will take in order to displace her anxiety. In Lacan’s structure of the Hysteric’s discourse, the lacking or split subject ( S ) takes up the position of the agent and addresses the master signifier (S1) who is in the position of the other. The point of the address is the production of knowledge (S2), or as Žižek (2008b, 89) puts it: “what she expects from the Other-Master is knowledge about what she is as object.” The form of the address (more specifically, the demand) to S1 is, ultimately, always a version of the Che vuoi? question: “What wouldst thou with me?” (Lacan 2014, 81). In this way “the hysteric seeks to divine the Other’s desire and to become the particular object that, when missing, makes the Other desire” (Fink 1997, 120). But, as Verhaeghe (1995, 10) argues, this S2 savoir will always for the subject be beside the point in that S1 is unconsciously or consciously understood by the Hysteric to be “unable to produce a particular answer about the particular driving force of the object a at the place of the truth”: S2 is unable as product of the discourse

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to “match” a at the position of the truth. This is why there is eternally within the Hysteric’s discourse a sense that ce n’est pas ça, that the demand, even if met, will not satisfy the Hysteric’s desire, which is why it is always followed by more demands. However, the result of the Hysteric’s discourse is that the Master’s truth is revealed as castration/lack (Voruz 2007, 290). The Hysteric is the one who finally puts an end to the “successful”/deceitful operation of the Master’s discourse as a discourse of fullness and self-contained completion. Through her ceaseless interrogation of S1, the Hysteric finds an Other (S1) that lacks. Salecl (2000) argues that the subject can only answer to this lack in the Other with her own lack. It is, however, critical to remember that the Hysteric remains, as Bracher (1988, 45) indicates, despite her refusal to follow the master signifier, “in solidarity with it” “because of the subject's attunement to the a. This solidarity manifests itself in the quest of desire for an object that will satisfy it.” The point is thus that the Hysterical subject does only (ever) answer this lack in the Other with her own lack. Vis-àvis the spectres of reparation we can say that the Hysterical subject confronts the post-apartheid Master with its lack of reparation which, on the subjective level, is answered with her own particular lack of reparation, a lack that can only ever be filled partially and in a transient way. The problem, though, of the Hysteric is that she remains invested in the master as the one who can answer to her lack by producing knowledge of what she is for the Other. In a profound sense, then, the Hysteric is not so much interested in a displacement or replacement of the Master, but rather in the ways in which the Master can respond to or transform in a way that would accommodate her lack. I’m not saying that this form of discourse is not important—it clearly has produced and can produce profound transformations of the master and of mastery in general. To relate this account of the Hysteric’s discourse back to the discourse of protest, Law and the legal subject in the postcolony, we need to go back to Pithouse who points (in a characteristically Hysterical move) to the lack of/in the discourse of “liberal authority” through a series of associations: liberalism, both in theory and practice, was a constitutive ideological and political force driving the colonial project – including dispossession, enslavement and genocide. This body of scholarship notes the active commitment to racist ideas, and to the colonial project, in the work of liberal thinkers such as John Locke, Mill and others. It also notes the centrality of liberal forms of power to modern forms of colonialism and imperialism. (Pithouse 2016a) Pithouse’s words point to the fact that the discourse of liberal authority lacks the basic coordinates of anti- or post-coloniality that it would necessarily require in the postcolony. Furthermore, it lacks the non-racialism and non-imperialism that are implicit in the very idea of postcolony. Accordingly, Pithouse (one example out of a multitude) relentlessly unmasks the Master’s discourse of liberal authority as completely lacking in the major desires of the postcolonial subject. It seems clear

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that there is no room for reparation in the discourse of liberal authority. Rather, it should be understood as a form of power that grievously exacerbates the lack of reparation while working all the time to cover up this lack by way of a deployment of rights discourse. But, at the same time as the Hysteric points relentlessly to this lack in the Master’s discourse, she refuses to give up on the master signifier (here as Law/rights discourse). Nowhere is this aspect of the Hysteric’s discourse more visible than in the student protests of the last few years. In the 2015 iteration of the #FeesMustFall protests, students repeatedly and vociferously agitated for a prioritisation by the current (liberal authoritarian) government, of funding for higher education, relying on their right to education as enshrined in the Constitution (SASCO 2015). When, in response to the groundswell, the government deployed the police, arrested student protesters and fired tear gas and stun grenades to disperse the crowds, the students answered by appealing, once more, to their constitutional right to protest and assembly (De Vos 2016). Yet, at the same time, a signature feature of the student protest discourse remains its vehement criticism of the Constitution which students describe as a “colonial” and “imperial” code, produced as a compromise that facilitated no more than a transfer of power from the apartheid to the post-apartheid regime, a code that, in other words, left the apartheid society fully intact (Calland 2017). This criticism of the Constitution was a remarkable exposure of the lack in the Other, but at the same time, there remains an investiture in the Other on whom the subject relies for protection from the very Other whose lack she has exposed. What we see here is a textbook illustration of Lacan’s statement that what the Hysteric is looking for is a Master over whom she can reign: “Despite its expression of alienation and division, then, the discourse of the Hysteric remains in thrall to master signifiers (S1) and a system of knowledge/belief (S2) which it has not itself embodied and produced” (Bracher 1988, 45). And in this way, we end up in the current discursive position in the postcolony of a seemingly endless oscillation between the discourse of the Hysteric and the discourse of the Master: The more the Master’s discourse of the Constitution and its Bill of Rights produces itself as the one and only truth, as the One to rule them all, the more the Hysteric’s discourse in the form of protest, finds its lack, demands that it produces knowledge. These latter forms of protest are often articulated as the Constitution and the Bill of Rights’ inability to bring about “decolonisation,” redistribute “the land” or alleviate inequality and poverty in general. They thus expose the lack of reparation profoundly. Such a discourse is, of course, entirely necessary in the postcolony in terms of holding power and law accountable/conscious of its lack. It is even, as Verhaeghe (1995, p. 10) indicates, the discourse of revolution. But insofar as the revolutionary discourse of a mass protest movement is predicated upon idealisation, it reproduces the conditions for the resurgence of the Master (Bracher 1988, 43). But what of the role of anxiety as the lack of support of the lack in the discourse of the Hysteric? If it is true (and there is no reason, as I have shown, to believe otherwise) that, as Pithouse argues, the Hysteric is a figure plagued by anxiety in the postcolony, then how does the presence of anxiety affect the discourse of the

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Hysteric? My answer to this question is that anxiety impacts the action that the Hysteric takes as part of her discourse. There are two distinct possibilities here, “two possible transformations of anxiety, two destinies for the subject in anxiety” (Harari 1991, xiii): Acting out or passage à l’acte. First, if anxiety is always a signal of the imminent deconstitution of the subject, the “irruption of an overwhelming part of the real,” then anxiety can be “an infallible guide for a possible new truth” (Bosteels 2006, 142). This is the power of anxiety. Salecl (2004, 28) writes about this power in anxiety as follows: “it creates a state of preparedness so that the subject might be less paralyzed and surprised by the events that might radically shatter his or her fantasy and thus cause the subject's breakdown or an emergence of a trauma.” This form of anxiety is what Žižek (2012, 497), following Benjamin, calls the “constituent anxiety.” We get this anxiety, Žižek argues, only if we shift from desire to drive, when the subject “traverses the fantasy” and confronts the lost object as a void. In the shift from desire to drive, the objet petit a is directly confronted as the loss itself. The “weird” circular movement of the drive is a movement that directly enacts the loss itself: “the drive is quite literally the very ‘drive’ to break the All of continuity in which we are embedded, to introduce a radical imbalance into it” (498). I would argue that this is a version of hysteria that productively confronts the spectres of reparation and the lack that it designates, it is a realisation of the lack of reparation as one that can never be filled and for that very reason introduces into the network of socio-symbolic authority after apartheid a radical gap that could be exploited to ground concrete, though necessarily partial, reparative interventions. Lacan (2014, 114) says that “anxiety is the cause of doubt.” Elsewhere in Seminar X, he states that: The Other concerns my desire to the extent of what he lacks and to the extent that he doesn't know. It's at the level of what he lacks, and at the level of him not knowing, that I'm concerned in the most prominent way, because there is no other way for me to find what I lack as object of my desire. (Lacan 2014, 23) Read in this way, anxiety holds the power of radically re-introducing or re-instating S1 as the signifier of the lack in the Other. Anxiety thus holds the power to reintroduce the identification of law with the desire to make reparation. This outcome of the discourse of the Hysteric affected by anxiety, is, however, only possible as long as the subject remains in the field of the Other, as long as the Hysteric is still appealing to and addressing the Other. This is the resolution of anxiety through acting out. “The demonstrative accent in any acting out is,” writes Lacan (2014, 123), “its orientation towards the Other.” We can conclude, then, that acting out remains within the discourse of the Hysteric as fundamentally an address to the Other. As Žižek (1991, 139 (emphasis added)) writes: acting out is an attempt to break through a symbolic deadlock (an impossibility of symbolization, of putting into words) by means of an act, even though

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this act still functions as the bearer of some ciphered message. Through this act we attempt (in a ‘crazy’ way, true) to honor a certain debt, to wipe out a certain guilt, to embody a certain reproach to the Other, etc. Acting out can therefore be a powerful modality through which the spectres of reparation can be productively confronted. Examples of forms of acting out that remain within the discourse of the Hysteric abound in the postcolony. The most spectacular/iconic/publicised version of acting out in the postcolony in recent years is probably the events initiated by the #RhodesMustFall campaign which resulted in the removal of the statue of Cecil John Rhodes from its plinth located in a focal position on the University of Cape Town’s Upper Campus (Schmahmann 2016, 90–115). This removal of the statue can be understood as a powerful moment of symbolic reparation. These events included the occupation of the University’s administration building, protest marches, sit-ins, seemingly endless meetings with management and other university structures, vigils, covering up the statue and defacing it, etc. Other examples include the vociferous protests, occupations and demonstrations that occurred in 2015 under the #FeesMustFall banner. These latter protests culminated in a march to the Union Buildings (the seat of government in Pretoria) and had the effect of a 0% fee increase in institutions of higher learning for 2016 (Areff 2015), which may not strictly be a reparation in itself but nonetheless moves in the general direction of what reparation would require. The culmination of these protests in the eventual announcement of free higher education for students who cannot afford it, could, on the other hand, be understood as a more complete example of reparation in the sector. Unfortunately, the practical realities that followed the announcement of free higher education for those who cannot afford it have belied the very freedom of higher education in post-apartheid South Africa. However, the former campaigns together consolidated what I think of as a new master’s discourse, articulated first as the #MustFall campaigns and later on as “decolonisation.” These forms of acting out not only unmasked the deceitful and artificial operation of S1 in the postcolony—they also constituted a new truth of the postcolonial subject as a subject of desire (Manjra 2016). In other words, one can say that they radically re-introduced the discourse of “justice” (and thus of the lack of reparation) in the (legal) discourse of “constitutionalism.” We see in these protests a substitution of constituent anxiety for constitutionalism. There have been, and will continue to be, instances where the discourse of the anxious Hysteric does not have this effect. These are instances where protest is accompanied by seemingly senseless, violent and even violently suicidal gestures, moments where the resolution of anxiety amounts to “the moment when the real kills, rather than divides, the symbolic” (Bosteels 2006, 142), when anxiety lets the existing order be only as “a dead order” (Bosteels 2006, 142). This is the moment when the Father-Enjoyment of the Real takes over and completes, or almost completes, the threatened deconstitution of the subject. This moment designates the passage à l’acte. Lacan’s imagistic language is instructive here: passage à l’acte designates the moment when the subject “rushes and topples off the stage, out of

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the scene” (Lacan 2014, 115). As Žižek (1991, 139) explains: “The ‘passage to act’ entails […] an exit from the symbolic network, a dissolution of the social bond.” What happens in these moments is a foreclosure on the possibility of re-instating S1 as the signifier of lack in the symbolic. Of these moments, there have also been vivid examples in the postcolony. In service delivery protest, they take the form of looting and arson, often of the affected community’s already severely constrained resources such as schools (Tau 2016). In the student protests, they have taken the form of what Pithouse (2016b) describes as a “turn to burning”: Setting alight libraries, residences, computer laboratories, transport buses and cars, a lecture hall and administrative offices. The 2016 iteration of the #FeesMustFall movement saw a heightened prominence of this “narcissistic, suicidal aggression” (Lacan 2006, 153) characteristic of the passage à l’acte. As Pithouse (2016b) writes so aptly: “The turn to burning is not a sign of a productive new militancy. On the contrary, it is symptomatic of the current weakness of the movement.” In these acts, anxiety radically derails the discourse of the Hysteric and the paradoxical upshot is that the Master’s discourse is not unmasked and continues as the deceitful functioning of a master signifier without lack, as the object already attained. Yet, as Žižek (2011) has argued à propos of the UK riots of 2011, the passage à l’acte is by no means simply meaningless: “[it] tells us a great deal about our ideological-political predicament and about the kind of society we inhabit, a society which celebrates choice but in which the only available alternative to enforced democratic consensus is a blind acting out.” In passage a l’acte the Hysteric’s discourse derails as a result of the lack of the lack in the place of the objet petit a and so we have a foreclosure on the Symbolic order itself and a return to what Cornell and Seely (2016) have referred to as an enforced psychosis that so painfully characterised the apartheid era. For the discourse of the analyst—in politics and law S a → S2 S1 The overall discursive result, I think, is, at this moment in the postcolony, something akin to Lacan’s description of the relationship between the Hysteric and the Master: “she reigns and he does not govern.” There are many ways in which one can read this phrase. Suffice it to say that there are very good reasons, positive and negative, why South Africa is the protest capital of the world, a country, in other words, where the Hysteric reigns and thus where the spectre of reparation haunts in more or less painful and oppressive ways. Yet, as we have seen, the Hysteric is the subject capable of exposing the Master and so hysterical discourse’s involvement in a production of new knowledge about the post-apartheid subject should not and cannot be discounted—protest has been and can be productive of reparative knowledge from the master in ways that cannot be otherwise guaranteed. As for the “he does not govern,” well, one only has to glance at news reports from South Africa

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on any day of the week, month, year or last few years in order to have knowledge of the ways in, and extent to which, “he does not govern,” how the post-apartheid master fails to produce reparation. How long such a situation of reigning and not governing—with the incremental changes that it secures here and there, in a movement akin to one step forward and two steps back—can be sustained, is, of course, anybody’s guess. I seriously doubt, however, that it is a situation from which we can bring about the kind of radical transformative encounters with the spectres of reparation that are so urgently necessary in South Africa. Those transformations, I believe, would depend for their emergence on the proliferation of another kind of discourse, one that lacks radically in the postcolony, namely the analyst’s discourse. It was not, after all, arbitrary whim that led the Nazis to burn Freud’s and other psychoanalytic books on a bonfire in Berlin in 1933 (Jones 1961, 496; 498) and once they took power, immediately began liquidating psychoanalysis in Germany. I’m not hereby attempting to hint at a ridiculous and indeed quite ludicrous correspondence between Nazism and neoliberal postcolonial jurisdictions. Rather, the point is that fascism, proto-fascism and authoritarianism—wherever they may be—are antithetical to the discourse of the analyst, precisely because the analyst’s discourse aims at the subject’s freedom from the master signifiers that oppress them. The reason why this is so is because the discourse of the analyst is the inverse of the discourse of the master (Lacan 2007, 136). In the post-apartheid context, one of the wagers of this book has been that such freedom from oppressive master signifiers cannot be thought without reparation. Reparation is integral to any sense of freedom that the post-apartheid subject may attain. The discourse of the analyst is by turns described as the discourse of care, of love, of transformation and of revolutionising (Bracher 1988). It is, of course, called the discourse of the analyst in order to call to mind the psychoanalytic setting and the psychoanalytic relation and this tells us much about the qualities of the social link that it aims at. According to Žižek, the analyst’s discourse is interruptive (2008b, 82) in that it takes place in a state, and thus in a time, of emergency or suspension of the ordinary course of things. This interruptive or suspensive nature of analytic discourse calls to mind my discussion of rhythm as a condition of possibility of reparative citizenship in Chapter 6. Psychoanalysis, Žižek (2008b, 81) writes, “asserts a violent passion to introduce a Difference, a gap in the order of being.” The analyst’s discourse thus has everything to do with the confrontation of lack, and this is the fundamental reason why it is the analyst’s discourse that must concern those interested in the reparative intervention through which freedom can be approximated. In Lacan’s version of the discourse of the analyst, the analyst (as agent) is placed in the position of the a, the lost object-cause of the subject’s desire, in a word, her lack. This a “addresses” the divided subject on the couch although it is of course the case that this “address” occurs in an inverse way, because it is the subject on the couch that is invited to address the analyst by way of free association. What the analyst does, however, is that she reduces herself to the void “that provokes the subject into confronting the truth” of her desire (Žižek 2008b, 89). Žižek (2008b, 90) relates this void of the analyst’s position directly to the lack in the big Other: The analyst stands for the “ultimate inconsistency and failure of the big Other, i.e., for the Symbolic order’s inability to guarantee the subject’s symbolic identity.”

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Moreover, the analyst, in taking up this position of lack, ultimately stands for what Lacan called “subjective destitution”: as an embodiment of lack she stands for a break from the “vicious cycle of intersubjective dialectics of desire” and for an “acephalous being of pure drive” (91). As such, the analyst’s discourse can help to sustain the subject in her constituent anxiety precipitated by the encounter of the objet petit a as loss itself. Bracher (1988 46–47) argues that whatever the analyst’s response to the subject, it is “efficacious to the extent that it represents to the patient the effect of what has been left out of discourse.” Translated to the concerns of this book, the analyst in the analyst’s discourse stands for the radical confrontation of the post-apartheid subject with the lack of reparation and the effect that this lack of reparation has in terms of the subject’s symptoms. Analytic discourse, therefore, is a discourse in which the lack (of reparation) can become institutionalised and, as institutionalised, can be acted upon. So, this confrontation with the lack is productive in the sense that it enables the split subject to “cough up” a new master signifier, which is Lacan’s name for the subject’s new primary identification. The major difference between the Hysteric’s discourse and the analyst’s discourse resides in this transformation of the master signifier. Whereas the Hysteric remains in thrall to master signifiers that have been imposed and aims at knowledge about herself as object which this master signifier must produce, such authority from an externally imposed master signifier is radically cancelled out by the analyst’s discourse in that the subject produces the master signifier herself as a result of her confrontation with the lack in the Other embodied by the analyst. As such, the analyst’s discourse asserts a radical agency on the part of the subject vis-à-vis an overdetermined big Other of which the essence is a lack of reparation. Bracher (1988, 48) remarks in this regard that taking up the position of analyst in relation to culture, society and politics involves confronting it with the unconscious fantasy that “operates from behind the facade of the master signifiers and the entire signifying apparatus.” In the post-apartheid unconscious as we have seen this fantasy is one of a completion of reparation, of reparation as having come to an end. It is this fantasy that a position of analysis vis-à-vis society and politics can radically expose for the lack that it is. The master signifier or primary identification that the subject produces as a result of analysis is, however, of a different style to the master signifier that has hitherto been imposed on the subject from outside (Lacan 2007, 176). This is, as Bracher (1988, 46) writes, “a style which, we might surmise, is less absolute, exclusive, and rigid in its establishment of the subject’s identity, and more open, fluid, processual, constituted, in a word, by relativity and textuality.” To paraphrase Jacques-Alain Miller, it is a master signifier that signifies that there can be no master signifier, at least not one that can stand alone, it is the master signifier that stands for the fact that there is a hole in the Other, that the big Other does not exist as such. To this, Dany Nobus (2000, 97 (emphasis added)) adds the following: psychoanalysis is geared towards making discoveries, towards the creation of wonder and surprise at the revelation of the unexpected, in short towards the crystallization of new signifiers that reduce the painful necessity of repetition and are therefore able to change the analysand’s life,

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or to translate it in political terms, to change the life of the polis. Bracher adds in this regard that the exposure of the real of society by analytic discourse can interpellate subjects in such a way that they activate their “alienated condition, their non-identity with their master signifiers” towards a production of new master signifiers that are less restrictive and more conducive to the achievement of subjective freedom. This is or becomes the case, as Žižek suggests, because the master signifier produced by the analyst’s discourse is in fact the “unconscious sinthome,” now made present, to which the subject was unknowingly subjected. Thus, in an operation of exposure to the lack of reparation, this very lack of reparation can come to function as the master signifier itself. To return the discussion to the constitution, constituent anxiety and the monumental version of constitutionalism, I would say that the analyst’s discourse in the South African postcolony would support what Van Marle (2007, 419) and others have referred to as “memorial” constitutionalism. Lourens du Plessis (2000), relying on the work of Johan Snyman (1998), first distinguished between a memorial and a monumental approach to constitutionalism. The main thrust of the distinction was that monuments celebrate while memorials commemorate. Van Marle used this distinction to argue that the memorial approach is intent on remembrance of the atrocities of the past and, at the same time, positions itself as critically aware of the limits of constitutionalism. In line with the memorial approach, Van Marle (2007) wrote that it inheres in the recognition that “a written constitutional text alone” cannot provide justice, “but rather reminds us to strive for justice” (420). In earlier work, (Barnard-Naudé 2013, 352–353), I connected the memorial approach explicitly with a call for mourning to become the law, in Gillian Rose’s phrase as discussed earlier in this book. The point is thus not at all that the argument advanced here can somehow be aligned with the recent calls for constitutional abolition (see Modiri 2021). I do not believe that the answer to white supremacy and a lack of reparation in South Africa lies in the abolition of the Constitution. Rather, I believe that part of South Africa’s answer may well lie in the way in which the Constitution is engaged, lived with, operationalised. Engaging the Constitution from the point of view of the analyst’s discourse might be a way of being with the Constitution that could both operationalise it (in a mournful as opposed to melancholic way) for the emergence of new, less crippling, reparative master signifiers, while at the same time realising that our salvation does not lie in the law tout court. In this way, then, psychoanalysis makes the new beginning and elicits the natality which Arendt (1998, 247) equated to “[t]he miracle that saves the world, the realm of human affairs, from its normal, ‘natural’ ruin.” It is thus also this natality which is the condition of possibility of the interruptive reparative intervention as a form of action. “Only the full experience of this capacity [for natality],” writes Arendt, “can bestow upon human affairs faith and hope” (Arendt 1998, 247) (and, as such, it is natality which militates against the Hesiodic reading of Pandora in which hope counts among “the evils of illusion” (Arendt 1998, 247)). Ultimately, we realise through the analyst’s discourse, Joe Slovo’s (1992) emphatic insistence that “without [...] reparation no law will stop the apartheid ghost from haunting our society.”

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I want to be as clear as I can that I am not advocating anything as naïve and simplistic as a wholesale transposition of the discourse of the analyst to the political, although, at the same time, I would reserve a place precisely for the madness which is “perhaps not so mad,” of which Derrida writes—and there are no surprises here—in the context of forgiveness. Instead, I am interested in a political discourse that bears the ethical features and orientations of the analyst’s discourse, because I think that such a discourse provides a conducive matrix for the kind of reparative interventions that can generate hope. First of all, it is useful to re-emphasise that the etymology of the word “analysis” refers us to the solution of a problem in the manner of the untying of a knot. Žižek (2008b, 91) explains that the political value of the discourse of the analyst lies in the way in which it is able to position the political agent as “the symptomal point, the ‘part of no part,’ of the situation,” who regains “the explosive effect of truth” and addresses the subject in a way that confronts it with its lack to the point of hysteria. In her “Psychoanalysis and the polis,” Julia Kristeva (1982, 78 (emphasis added)) writes about how this discourse is ultimately aimed at counter-weighing the discourse of political authority: Psychoanalysis, critical and dissolvant, cuts through political illusions, fantasies and beliefs to the extent that they consist in providing only one meaning, an uncriticizable ultimate Meaning, to human behaviour. If such a situation can lead to despair within the polis, we must not forget that it is also a source of lucidity and ethics. The psychoanalytic intervention is, from this point of view, a counterweight, an antidote, to political discourse which, without it, is free to become our modern religion: the final explanation. Analytic discourse in JM Coetzee’s Waiting for the Barbarians Let me turn, in conclusion, once more to literature in order to illustrate how the analyst’s discourse might work to shift subjective dispositions that are resistant to reparation in post-apartheid society—JM Coetzee’s 1978 novel Waiting for the Barbarians. Most of the action in Waiting for the Barbarians takes place in a colonial town at the frontier of a larger colony designated as the Empire. As the late Stephen Watson (1986, 370) puts it: Waiting for the Barbarians is “a novel of an imaginary empire, of an imperialism which is merely an extension of colonialism.” Coetzee’s insistence throughout the novel on these signifiers of generality, however, has to be read both in light of the fact that the book was written by a South African author during apartheid, and in light of Nadine Gordimer’s (1984) assertion that Coetzee “chose allegory for his first few novels.” It is, accordingly, impossible to miss that Waiting for the Barbarians is also specifically a novel about apartheid—that “colonialism” which the liberation movements famously described as of “a special type” (Bozzoli and Delius 1990, 14). How can one fail, for instance, to see the parallels between the antagonistic and sadistic Colonel Joll’s detentions, torture and murder of the Barbarians, and the detention, torture and murder of political activists under apartheid? Moreover, as David Attwell (2015, 107–113) has noted, the fact that specific events in the history of apartheid—such as the

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death of Steve Biko in police detention in 1977, together with the outrage that it generated amongst white liberal South Africans at the time—inexorably found their way into the novel via the voice of its protagonist (who the reader comes to know only as “the magistrate”), means that Waiting for the Barbarians is also a novel about a specific time during apartheid. Against the backdrop of these specificities, Coetzee’s novel is at pains from the start to narrate that the magistrate is a cipher of colonial juridical agency gone awry, veritably recoiling on itself. Time and again, the magistrate is opposed to Colonel Joll who is installed from the start as the cipher of unequivocal, resolute colonial agency. Colonel Joll is the Sadean hangman who pathologically follows his duty to Empire as the Lacanian big Other, the ubiquitous third on the scene of his tortures. The magistrate, on the other hand, to borrow Watson’s use of Albert Memmi’s (1974, 63) term, is “a coloniser who refuses.” Watson (1986, 378) notes that all of Coetzee’s protagonists up to but not including Michael K, “are colonizers who wish to elude at almost any cost their historical role as colonizers.” As such, they are “wrought to a pitch of desperation in their efforts to escape the intolerable burdens of the master-slave relationship” (378). There are many indications in the novel that the magistrate, in the course of the novel, progressively becomes just such a coloniser—from the way in which he responds to Joll’s killing and torture of the barbarian prisoners; to his release of the prisoners that Joll sends to the town; to his care, in what I call the ministration scenes, for the barbarian girl who is left behind after the prisoners are released; to his ultimate outright revolt and condemnation for treasonously consorting with the enemy. I want to focus specifically on the ministration scenes of Waiting for the Barbarians to illustrate how an encounter between coloniser and colonised may function analytically and thus bring us closer to reparation and, specifically, a productive encounter with the spectres of reparation. A becoming uncolonial, as opposed to decolonial becoming, is perhaps a good description for that which is embarked upon, but never quite completed, in fact left radically incomplete, by the magistrate in this novel and especially so in the book’s ministration scenes. Becoming uncolonial, then, could be described as a form of abandoning the certitudes of imperialism as colonialism/apartheid, of unlearning both its proclivities and reflexes, both its will to power and its unconscious drive for power. Unlearning imperialism, argues Ariella Azoulay (2019, 8), entails attending to the “conceptual origins of imperial violence, the violence that presumes people and worlds as raw material, as always already imperial resources.” Those conceptual origins lie in the psyche of the coloniser and given, as Rachel Langford has argued, that this imperial violence is profoundly spatial, becoming uncolonial, then, and as unlearning, is the encounter of psychic space with the spatial injustice of imperialism. I accordingly wish to focus on the ministration scenes in the novel from a point of view that connects reparation with the form of justice that perhaps lacks most in the postcolony, namely spatial justice. Across South Africa, we continue to live an apartheid spatial planning, a de facto apartheid, in the spatial configurations of our towns, cities and farms. There are a number of indications in Waiting for the Barbarians that the magistrate, as a coloniser who becomes, in the course of the narrative, a coloniser who

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refuses, has begun the difficult task of unlearning empire, even before he takes the blind barbarian girl off the street and into his rooms. First of all, there is the magistrate’s choice of residence. Early on, he tells the reader that he does not reside in the “official lot” of the civil magistrate which he describes as being on the “quietest street in the town,” “an attractive villa with geraniums in the windows” (Coetzee 1980, 22). Instead of taking his place amongst the props of this bucolic scene, he has made a conscious decision to occupy “the rambling apartment over the storerooms and kitchen intended for the military commandant we have not had for years” (22). The magistrate’s private space could accordingly be described as a liminal one. Stewart Motha (2012) has pointed to the importance of liminality in the postcolonial context, arguing that a “character of being in the postcolonial setting,” which he describes as a liminal one, “might provide another range of political possibilities” (142). Motha points specifically to the spatial aspect of liminality as the occupation of the “space in-between.” The magistrate’s rooms as a liminal space/place facilitate another range of political possibility, a range that has been foreclosed by Empire and my wager is that this range of political possibility that opens up as a result of liminality intimately concerns the analyst’s discourse. For example, after Colonel Joll returns from the frontier to the town with the barbarian prisoners, the magistrate begins “to see the disadvantages of living” in this apartment: “the noises coming from the yard below,” the yard that has now been turned into a “permanent prison yard,” disturbs his peace, confronts him anew with the tyranny of Empire—and it does so by infiltrating the most private of the spaces that he occupies. In other words, the space facilitates an encounter with his conscience as a coloniser. Yet, although he could move to the villa at any point, he refuses to do so; he endures the becoming discomfiting of the liminal space that he has chosen to occupy. This points to a range of political possibility in which the private sphere no longer shuts out the destructive politics of Empire, but in fact allows itself to be affected and troubled by it. Motha (2012) also suggests that liminality might “be the resistant or emancipatory flipside of in-finite sovereignty” in that it might open the possibility of a non-sovereign subjectivity (143). It is precisely to the possibility of such a nonsovereign subjectivity that Waiting for the Barbarians opens up when the magistrate brings the blind barbarian girl, whose feet were broken during torture, into his rambling, liminal apartment. And it is in this liminal middle that he becomes able, first, to wash her feet (Coetzee 1980, 30), deformed by the Empire’s torture, and, later, to attend to her entire pained body (31–32). Andreas Philippopoulos-Mihalopoulos (2015, 190) writes: “the middle can be thought of as the space of struggle. It is a space of encounters with other bodies, a space in which one’s body affects and is affected by other bodies.” Because the middle is a space of struggle, the affect here is not mercy. The narrative evokes no mercy for the magistrate—he remains mercilessly guilty when he reports that “the distance between myself and her torturers, I realize, is negligible” (Coetzee 1980, 29). There is no suggestion of an absolution of this complicity by the action that follows (this is not the law performing its merciful double, à la Nussbaum, in relation to the girl).

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Instead, the narration that follows makes it clear that these ministrations undo the magistrate as a magistrate, as a man of what we might call, after Carl Schmitt (2003), the nomos of Empire. In other words, in and through these scenes the magistrate himself becomes what Motha (2012, 143) calls a “liminal being” (a name which I regard as another, amongst others, for the coloniser who refuses). In Lacanian language, these events represent an unmooring—if ever there was one— of the magistrate from the institutional master signifier (the S1) of Empire. Lacan attributed an enormous significance to the role of shame in such an analysis and in Seminar XVII he says: Today I have brought you the dimension of shame. It is not a comfortable thing to put forward. It is not one of the easiest things to speak about. This is perhaps what it really is, the hole from which the master signifier arises. If it were, it might perhaps not be useless for measuring how close one has to get to it if one wants to have anything to do with the subversion, or even just the rotation, of the master's discourse. (Lacan 2007, 189) My sense, therefore, is that the ministration scenes confront the magistrate, more than anything, with the shame of Empire, with the hole, the void, from which his master signifier arises, with the spatial injustice of this nomos of Empire and thus with what Agamben calls the Irreparable. This shame is, for the magistrate, embodied in the blind barbarian girl with her feet broken by torture, lost to her people; and it is in attending to this body broken by Empire that the magistrate finally becomes undone. The narrative is at pains to remain consistent with regard to the way in which the ministration scenes undo the magistrate. There is, for instance, no verbal communication between him and the girl during the repeated performances of the ministration ritual: “it is a week since words have passed between us,” writes the magistrate at the beginning of the episode (Coetzee 1980, 32). To this absence of verbal communication we must add the fact that, during the performance of the ritual, the magistrate literally struggles to stay awake: “I lose myself in the rhythm of what I am doing […] There is a space of time which is blank to me: perhaps I am not even present” (30 (emphasis added)). This passage should be read with what the magistrate says later on: in the very act of caressing her I am overcome with sleep as if poleaxed, fall into oblivion sprawled upon her body, and wake an hour or two later dizzy, confused, thirsty. These dreamless spells are like death to me, or enchantment, blank outside time. (33) In the ministration scenes we have, then, a concrete instance of what Agamben means when he writes about rhythm in relation to the poetic status of the human. Moreover, in his The Fall of Sleep, Jean-Luc Nancy (2009, 1) writes that sleep sums up all our falls: “Sleep is proclaimed and symbolized by the sign of the fall,” “the

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more or less swift descent or sagging, faintness.” What emerges in such a reading, then, is that the narration is concerned to register not only the fall of a certain language, but indeed the fall of a certain consciousness and, perhaps most importantly, the fall of a certain sovereignty as the force of nomos. This is the fall of nomos as land appropriation, of terra nullius as performing a clearing. In these scenes, the “land” is no longer empty, the “barbarian” is no longer cleared away. Instead, she is attended to, encountered without conflict, ministered, not administrated. Without ever saying as much, it is clear that Coetzee is gesturing at the practical unlearning of Empire in these profoundly spatial, profoundly intimate scenes. This unlearning in the form of the ministrations takes place despite the magistrate, in spite, even, of himself (which is why Attwell’s (2015, 106) description that Waiting for the Barbarians is a novel about “baulked desire,” is so appropriate). This aspect becomes clear, when the magistrate, in a moment of “rational” consciousness, suffers fits of self-resentment “against my bondage” (Coetzee 1980, 44 (emphasis added)) not to the girl, but to “the ritual of the oiling and rubbing, the drowsiness, the slump into oblivion” (44). From the point of view of the link between possessive appropriation and nomos, the novel cannot be more explicit that, whatever takes place between the magistrate and the girl, it is precisely not possessive appropriation, it is precisely not nomos in territorial terms, it is, rather, “emplacement without the priority of appropriation” (the version of nomos that Chryssostalis (2013, 158) retrieves from Arendt’s reading of nomos). This is not simply the case because the magistrate cannot decide whether he desires the girl sexually (“angry with myself for wanting and not wanting her” (35)), but indeed also because he does not “know what to do with her, no more than one cloud in the sky knows what to do with another” (36). This un-nomic impropriety, as we might call it, carries on until it reaches its apogee when the magistrate’s desire becomes so frustrated that he asks the girl “speaking thick and muffled into her ear” (Coetzee 1980, 43): “And why do I want you here?” and she replies: “You want to talk all the time.” As “improper” as this itself might sound, one cannot but ask at this point if this is not precisely the reply that a psychoanalyst – if pressed by the analysand—would be forced to give? To be sure, we have gone, as the repetition of the ritual progressed, from a magistrate who could barely stay awake, let alone talk, to one who wants to “talk all the time.” What if we were, on this basis, then, to suggest that the space that is being inaugurated here is the space of the analyst’s discourse; that it is in fact the girl who functions as an analyst for the magistrate in these scenes and not the magistrate who is an analyst (as has been elsewhere suggested (Yuan 2000, 79))? From the point of view that Lacan (2007) argued that the discourse of the analyst is the inverse of that of the master it would appear that it is not so inappropriate in the context to suggest such a reading. Through this lens, it becomes, for instance, possible to see that discursively the position of the girl corresponds to that of the agent in the analyst’s discourse, “addressing” by making visible, finally visible to the magistrate, his divided subjectivity, the “unbudgeable void” at the core of his consciousness. For if there ever was a concrete representation of the lack of reparation, it is the barbarian girl. Lacan insisted that the relationship between the analyst

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as agent and the analysand as other is impossible “because it turns the other into the cause of desire of the other” (Verhaeghe 1995, 96), eliminating her subjectivity. Yet it is precisely this impossibility that functions as the condition of transference through which the subject becomes able to “encircle his object,” an ability to which the magistrate does eventually accede when he, confused and angry as he is about it all, finally admits that the presence of the girl has forced him “to interrogate” his desire and, even further, that she has forced him to look into himself and “see only a vortex and at the heart of the vortex oblivion” (Coetzee 1980, 51). In this sense, then, the space between the girl and the magistrate functions analytically and, as such, it is an irreducible disruption of the master’s discourse. I would not describe these scenes as spatial justice/reparation in the sense of ordinary liberal or social justice, but rather as approximating the kind of spatial justice of which Philippopoulos-Mihalopoulos (2015, 175) writes; a spatial justice that demands “a rearticulation of justice as something that might – just might – emerge from within the spatiolegal operations.” Philippopoulos-Mihalopoulos (2015) argues that this notion of spatial justice manifests in the “embodied gesture” of withdrawal: “the only way in which a body can question the emplacement of itself as well as other bodies [is] by withdrawing from an atmosphere of fixed positions” (175). This withdrawal is precisely what the magistrate enacts: He withdraws himself and the girl from their “fixed positions” in the atmosphere of Empire, when he takes her into his liminal rooms and does not treat her as a coloniser would ordinarily, nomically, treat the colonised. Philippopoulos-Mihalopoulos also writes that spatial justice can only emerge as “an ontology that resists pre-formed hierarchies and boundaries” (177). In our context, such resistance means resistance to the nomos and the logos of Empire that produced the lack of reparation—and what happens in the magistrate’s rooms begins to resemble the rudiments of something like a spatial justice as reparation after Empire/apartheid. Of course, this is not a full and final justice; rather it is a justice which is incompletely, transiently attended to there in his rooms to that body and a justice which is forever still to come, still to be done—universally so. It is thus no coincidence that Coetzee renders the character of the barbarian girl as blind—the allusion to the classically blindfolded lady Justice is impossible to miss. It is only much later in the novel that the magistrate expresses this justice in the form of a question when he asks: “Justice: once that word is uttered, where will it all end?” (Coetzee 1980, 118 (emphasis added)). The fleeting, liminal uncolonial spatiality between the girl and the magistrate thus does not offer us a “final” solution in the form of Edward Soja’s (1996) third space, rather, its strangeness, its uncanny texture, takes the form of a question mark (Philippopoulos-Mihalopoulos 2015, 178)—as all analyses do. But it is a question mark that changes everything. One can be forgiven for thinking at least initially, that socially, spatially speaking, nothing changes or is changed after the ministration scenes—the magistrate is still the magistrate and the girl is still a blind barbarian girl who now works in the kitchen (there is, thus, a return to the humdrum reality of Empire as the “manoueuvering space of the lawscape” (Philippoppoulos-Mihalopoulos 2015, 175)). However, the unshakeable feeling that everything is different and is radically

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changing is soon confirmed when the magistrate hosts a dinner for the leader of a relief detachment from the capital in the course of which he ends up condemning the vacuity of the logic of Empire, openly wishing for a barbarian triumph and thereby sealing his fate as a traitor (Coetzee 1980, 54–56). According to Lacan, the end result of the analytical process is radical difference (Verhaeghe 1995, 96). And, in accordance with this logic, the paradoxical upshot of the impossible “objective” positioning of the girl as an analyst in the discourse is that the magistrate does come to see her in her irreducible otherness, first, in a dream that has “taken root” (Coetzee 1980, 57). In it he sees the girl as herself, “herself as I have never seen her,” he says, “a smiling child, the light sparkling on her teeth and glancing from her jet-black eyes” (57). Much later, this dream transforms into reality. Having taken the girl back to her people, as she says goodbye, he sees her as “a stocky girl with a broad mouth and hair cut in a fringe across her forehead staring over my shoulder into the sky; a stranger; a visitor from strange parts now on her way home after a less than happy visit” (79). Lacan also argued that it is “impossible to be an analyst, the only thing you can do is to function as such for somebody during a limited time” (Verhaeghe 1995, 96). To this Verhaege adds that “the greatest danger is that of reducing each discourse to one concrete implementation” (98). We should, finally then, not be surprised that shortly after the incident where the magistrate seals his fate, the space of analysis begins to give way to the space of another kind of discourse when, at the end of Chapter 2, the girl begins sexually to encourage the magistrate and he declines—to her bitter chagrin (Coetzee 1980, 59). The magistrate’s refusal here of course has everything to do with the subjective transformation that is taking place, the giving way of his own discursive position as master. What is clear is that the power dynamic that has sustained the relationship between coloniser and colonised has profoundly come undone by virtue of the liminal space that facilitated an encounter of a different order—and it is this undone nature of the relationship that ultimately leads to the magistrate returning the girl to her people (77–79). I want to suggest, therefore, that the ministration scenes in Waiting for the Barbarians not only function analytically but that they also function reparatively or that they function reparatively because they function analytically. This is evident not only in the magistrate’s ritual washing of the girl’s feet and then her entire body, but also in the magistrate’s final return of the girl to her people. It is further reparative in the sense that it provokes in the magistrate an unmooring from the master signifier of Empire as exploitation. As a result of the ministration scenes, the magistrate becomes able to confront the Empire with its irreducible responsibility for reparation to the colonised. Conclusion The wager of this book has been that the lack of reparation that arises out of the TRC and the spectres of reparation that, in turn, are conjured out of such a lack of reparation can be encountered in a differential way, that is, in a way that makes

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such a lack less alienating and more productive of an emancipatory post-apartheid subjectivity. Chapter 2’s proposition of an affirmative biopolitics of the obligatory gift aimed at driving home the point that there is a way in which reparation as the biopolitical lack of the postcolony can be productively addressed by those who benefitted and continue to benefit from apartheid. Chapter 3 built on this logic to argue that a demonstration of shame in apology can be an effective way of addressing the breakdown in the TRC of the link between reparation and apology. As such, I suggested that shame can be understood as an affect through which the spectre of reparation can be confronted in a more constructive key. In Chapter 4, I suggested that the spectre of reparation in the archive haunts in a way that re-interpellates the law to take responsibility for reparation and I illustrated how the law can do more today to practically come to the aid of those who are in need of reparation for a crime against humanity that does not prescribe. With this, I was concerned to demonstrate a lack or a gap in post-apartheid law itself—a gap or lack opened by the spectre of reparation—upon which those who desire reparation for the postapartheid republic can cease in order to secure such reparation. To be sure, this law cannot be countenanced in the ordinary key of business as usual, but must be understood in the terms of a heteronomous law that is conjured by the spectre of reparation. No doubt, there are many obstacles in the way of reparation claims in courts in South Africa, but I nonetheless want to insist that a basis for such claims does exist in law—if we are prepared to stretch or re-interpret the law in the direction of reparatory justice. Chapter 5 demonstrated how the spectre of reparation can be understood as a refusal of forgiveness while at the same time reinvigorating the work of mourning. The work of mourning and forgiveness can be understood to be locked in a posture of a double refusal such that the one constantly refuses the other and so prevents either from ever coming to an end. Here I insisted on a psychoanalytic notion of non-sovereign forgiveness to move us beyond the strictures of forgiveness that permeated the TRC. Chapter 6 encompassed the most openly affirmative proposal of the book, namely of reparative citizenship as a mode of being through which the spectre of reparation can be confronted in an overtly political way, a way which is also and must be at the same time poetic. With the notion of reparative citizenship, I insisted on an ongoing deconstruction of the stock metaphysical distinction between the poetic and the political, the aesthetic and the argumentative—against the backdrop of the Irreparable given of South Africa, reparative interventions have a creative engagement with politics as their condition of possibility. Let me end with a few words on “decolonisation” as the master signifier that I think has been produced as a result of a combination of hysterical and perhaps analytic discourse in the last few years. Achille Mbembe (2021) has argued that the philosophical aim of decolonisation can be summed up in one (spatial) phrase: “disenclosure of the world” (61). Mbembe cites Jean-Luc Nancy who writes that disenclosure denotes “the opening of an enclosure, the raising of a barrier.” The term is, writes Mbembe, “synonymous with opening, a surging up, the advent of something new, a blossoming.” For Mbembe, the fundamental object of decolonisation resides in this disenclosure of what has been shut in and shut up, so that

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what had been enclosed can “emerge and blossom” (61). From the point of view that enclosure was, as Ellen Meiksins Wood (2017, 108) has demonstrated, such a fundamental process in the origin of the late capitalistic world that we are living in today, the notion of disenclosure cannot but be linked to an anti-capitalist, anti-economic, gift-bearing orientation that this book proposes. Mbembe links such a disenclosure to the question of autonomy as the giving of one’s own laws to oneself, what Mbembe calls the “self-creation of humanity” (62). He argues that humanity in the colonial orientation is never given, instead it is constantly enclosed, reserved for some but not for colonised others. The result is that in anti-colonial thinking humanity must be “made to rise [faire surgir],” surge up, “through the process by which the colonized subject awakens to self- consciousness, subjectively appropriates his or her I, takes down the barrier, and authorizes him- or herself to speak in the first person” (62). The process thus involves a simultaneous assertion of or “ascent into” humanity at the same time as it is a “realization of the self” (62). These references to disenclosure and the rising up of a previously enclosed I could be read as references that have analytic discourse in its crosshairs, so to speak. This book has been premised on the idea that such a “new beginning of creation” is unthinkable without a confrontation with the spectres of reparation that arises out of the lack of reparation as we find it in the TRC and announced at the dawn of the new South Africa in the form of the Interim Constitution’s “need for reparation.” As such, there is a causal connection between reparation and decolonisation—the one is not possible as praxis nor thinkable as theoria without the other. It is thus imperative that the lack of reparation and the spectres of reparation that arises out of it be treated as the ground or foundation out of which freedom for the colonised can be disclosed. In short, we have to disenclose reparation itself. The disclosure of freedom through reparation and the disenclosure of the world through decolonisation are, accordingly, strictly correlative. In a country where beneficiary and victim/survivor continue to live face to face with each other, the disenclosure of the world through decolonisation cannot be thought without the obligation on beneficiaries to give back, to pay the unpayable debt, to make good by joining in the work of mourning. As such decolonisation is not simply the task of the colonised in isolation – the very disenclosure of the world means that the coloniser must be brought into a new relation with the colonised that would exceed, though it can never overcome, the colonial trauma. Joel Modiri (2012, 436) writes as follows: “Though the binaries of black and white; rich and poor and victim and beneficiary haunt and divide the nation, they also confirm that our futures, destinies and fortunes are inextricably linked.” This book asserts that it is possible to think reparation as such an inextricable linkage beyond the binaries that haunt and divide the nation. Some would object that the idea of an excessive giving as reparation, a shameful apology that repairs, the idea of a law that does reparatory justice and of a non-sovereign forgiveness that immerses itself in the notion of repair, all these are unrealistic, hopelessly naïve. To these objections, I would answer in the manner that Derrida (n.d.) did when he was told that it’s a “naïve request” to ask the owners of capital to be hospitable. To this Derrida answered the following: “Perhaps, but I still do.” To insist on the responsibility

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of those who own to those who do not own may very well be naïve in a world as unequal and divided as ours, but as Derrida intimates in his answer, even if such a request is naïve, it is by no means unintelligible. Without an insistence of and on reparative responsibility beyond that which is given, beyond the Irreparable, we may as well give up on any idea of the future as that which is not yet and resign ourselves to the eternal reoccurrence of the worst. But if we are so to resign, we must be aware that this resignation would be a resignation of humanity itself, for as Arendt and a long line of thinkers after her make clear, what distinguishes the human and humanity from bare life is precisely its capacity to begin something new, to intervene in the ordinary course of things. Reparation is a notion that refuses to give up on this poetic version of humanity to give itself a world beyond and above that which seems at times predestined. The haunting words of Jean-Luc Nancy (Lacoue-Labarthe and Nancy 1997, 158) impose themselves here in the final instance and with these words I conclude: What will become of our world is something we cannot know, and we can no longer believe in being able to predict or command it. But we can act in such a way that this world is a world able to open itself up to its own uncertainty […] [I]t is ineluctable to invent a world, instead of being subjected to one, or dreaming of another. Invention is always without a model and without warranty. But indeed that implies facing up to turmoil, anxiety, even disarray. Where certainties come apart, there too gathers the strength that no certainty can match. Note 1. The first wave of student protests occurred in March 2015 at the University of Cape Town with students agitating for the removal of a statue of Cecil John Rhodes that, at the time, was located at a focal point on the university’s campus (Roelf 2015). The initial demand for the removal of the statue, quickly escalated into a general demand for the “decolonization” of the university as such—a demand that covered everything from course content, to artworks publicly on display at the university’s campuses, to names of buildings, to bureaucratic processes, to the glaring lack of Black academics on the university’s academic staff, etc. (Pather 2015). For a comprehensive account of this first wave of student protests, which eventually culminated in a nationwide protest in October 2015 under the banner #FeesMustFall, see generally Booysen (2016) and, in particular, chapters 24 and 25 in Ray (2016, 352–374).

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Index

Note: Page locators followed by ‘n’ refer to notes. Adieu to Immanuel Levinas (Derrida) 155 African National Congress (ANC) 65, 71, 96, 111, 133 Agamben, Giorgio 15, 34, 72, 176–177, 181, 183, 185–188, 198–199; and biopolitical horizon 39; on biopolitics 43–44; on friendship 199; and given substance 179; Homo Sacer (project) 43, 190; Irreparable 177–179, 202, 228; on Irreparable and hope 179; on juridicopolitical order 34; on man’s ontological status 191–192; on mere being-available 186; and notion of redemption 183; on poetic life 184; and poetic status 177; on rhythm 187; on sovereignty 41–42; on the sphere of the polis 34 Allen, Amy 23–26, 152; on nonviolent ethics 24; on reparative acts 25 Althusser, Louis 20 amnesty: “international legitimacy” of 3 Amnesty Committee of the TRC 52, 63 ANC see African National Congress anxiety 21–22, 211, 215–216, 218–219, 221; affect of 215; constituent 223–224; discourse of 210; and hysteria 210; object of 214, 216; paranoid 21; resolution of 219–220; self-destructive anxiety 214 apartheid: and black labour 114; crime against humanity 5, 28, 72, 105, 134–135, 232; forms of involvement in 98–99; impact of business 96; and multinational corporations 103; as a political economy 97; race war 43–44, 48–49, 51; role of arms manufacturers in 107; role of banking industry in 105; role of business(es) in 89, 104, 112, 120, 122; role of mining companies in 106; South

African contract law 130; sovereign debt and 130; and trade union movements 97; and ubuntu 134 Apartheid Reparation Litigation in the United States 132 apology: and forgiveness 74–79; and reparation 10–11, 63–65; as requirement of amnesty 77; and shame 74, 80–81; and sorrow 75 Archbishop Desmond Tutu 67–69, 126; on reparation 179; role in TRC 156; and transitional justice 15 Arendt, Hannah 181, 184–185, 190, 195–197; animal laborans 184, 187; civic friendship 197; homo faber 184; law of the Earth 197; natality 224 argumentative, the: and the poetic 191–194, 196–197, 205, 232; Rancière on 191 Armscor (company) 100–101, 108–110, 117, 131; in TRC Report 109 ATS see US Alien Tort Claims Act Azapo case/judgment 2, 33, 53, 73, 120 Bartolini, Paolo 178, 179; and Irreparable 178 Begging to Be Black (Krog) 182 Being and Nothingness (Sartre) 9 Benjamin, Walter 194 Beyond Voluntarism (International Council on Human Rights Policy) 129–132 The big Other 5, 10, 28, 64, 69, 70, 80, 82–84, 222–223 Biko, Steve 95, 111, 226 Bill of Rights 130, 211, 212, 218 biopolitical governmentality 40, 46, 51, 54; and ex gratia payments 51 biopolitics 5, 33, 35, 37, 39–40, 42–44, 46–47, 51, 54–57; affirmative 10, 37,

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55–58, 60–61, 232; and governmentality 37–40, 42–43, 45–47, 51; and obligatory gift 55, 57, 59–61, 232; and sovereignty 37, 38–39, 40–44; thanatopolitical declension 35, 44–45, 51, 55, 57, 59–60 bios politikos (political life) 34 Black Management Forum 97, 118, 122 Blanchot, Maurice 135, 149, 161, 162, 164 Botha, PW 109–111, 117 Brudholm, Thomas: negative emotions 74–75 capitalism: apartheid and 96–98; neoliberal 6, 16; racial 17, 94, 97, 102, 121 CCR see Centre for Conflict Resolution Centre for Conflict Resolution (CCR) 108–109, 117 Chamber of Mines 100, 119 colonial racism 44 The Coming Community (Agamben) 177 Commission of Enquiry 5, 46 communism 18, 117–118, 122–123 Communitas (Esposito) 56–57 compensation committee: ex gratia payments 53 conditional amnesty 52, 69, 70 Congress of South African Trade Unions (COSATU) 96, 98 Constitutional Court 33, 52, 73, 121 COSATU see Congress of South African Trade Unions Country of my Skull (Krog) 94, 181 creative legal activism 10, 94–95, 127 decolonisation: discourse of 29, 218; in South Africa 7, 181, 220, 225–227, 230–233 Defence Advisory Council 117 de Kok, Ingrid 180 depressive position 21–23, 25, 151–152, 167; in Klein 22; and reparation 25 Derrida, Jacques 6, 13, 16, 47, 84, 88, 107; aporia of justice 13, 15, 27; on Archbishop Tutu 68; on archival practices 126; on archive 134; critical production 92, 120; death drive 5, 24, 123–124; ecology of memory 156; end of history 122; on forgiveness 158; forgiveness and mourning 148; hauntology 7–8, 12–13, 16; incorporation 154–155, 172n3; interiorisation 153–154, 157; logic of the ghost 127; mourning 153; on mourning

and forgiveness 149; narcissistic melancholia 163–164; and public/private 119; on refusal of narcissism 163; on state archives 125; on TRC 125; on the work of mourning 157 discourse of the analyst 7, 29, 221–222, 225, 229 discourse of the Hysteric 210, 215–221 discourse of the Master: 210–213, 215, 217–221, 228; failure of 214; operation of 211, 216 disenclosure 7, 29, 181, 232–233; and decolonisation 233 Du Bois-Pedain, Antje 16, 71 Electricity Supply Commission 105–106, 120 Eng, David 31–32n2 ESKOM see Electricity Supply Commission Esposito, Roberto 37, 55; and biopolitics 55 The Fall of Sleep (Nancy) 228 Father-Enjoyment of the Real 214–216, 220 forgiveness: in Abrahamic tradition 155; aporia of 155, 159; declaration of 150, 157–158; institutionalisation of 157; non-sovereign version of 232–234; psychoanalytic 167–171; psychoanalytic conception of 151; psychoanalytic version of 6, 167 Foucault, Michel 34, 37; and biopolitics 39–41, 43; and colonialism 37, 43; and governmentality 38–39, 42; and racism 43 Freud, Sigmund: on death drive 5, 24, 123–124; on forgetting 87–88, 90–91, 108, 120–121, 124–125, 133; on mourning and melancholia 152–153 Fukuyama, Francis 16; and end of history 16 full disclosure requirement 52, 69–73, 77, 80, 168 ghost of: inattention 5, 107–108, 111; the public/private distinction 107, 114, 119; time 5, 107, 112, 114 Gobodo-Madikizela, Pumla 57–58 Gordon, Avery F. 17; on haunting 17 Grigg, Russell 153, 213; on melancholic state 153

Index Harrison, Jane 6, 201–203 Heidegger, Martin 8; Dasein 8–9; on poetry 183 Homo Sacer: Sovereign Power and Bare Life (Agamben) 34 A Human Being Died That Night (GobodoMadikizela) 57 The Human Condition (Arendt) 197 Human Rights Violations Committee 78, 104 hysteria 210–211, 215, 219, 225 The Hysteric 217; and the Master 218, 221; and the Other 219; as the subject 216, 221 The Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission (Sitze) 35, 38, 52, 57 imprescriptible 28–29 incorporation 153, 172n3 indemnity: and liability 41; in South African law 42; and sovereignty 41 indemnity jurisprudence 38, 42, 70; colonial 52 Interim Constitution of 1993 1, 33, 65–66, 212; and ubuntu 18, 57 interiorisation 153, 157 International Council on Human Rights Policy 129 Jajbhay v Cassim case 130 Jameson, Fredric 12, 108; on political unconscious 108 jurisprudence: colonial-apartheid 41, 57, 70; therapeutic 69 justice: and law in Derrida 13; poetic 23, 176, 191–192, 206; reparatory 184, 232–233 Klein, Melanie 6, 16, 21, 27, 28, 29–30n2, 151; on depressive position 22–23; and mourning 151; on paranoid-schizoid position 22–23; phantasy-building 22–23, 25; primary object relation 24; reparation 22, 24–26, 151–152; on subject formation 23; on subjectivity 152 Kojève, Alexandre 8 Kojève on negativity/negation 8–9 Komape case 28 Kristeva, Julia 149, 151, 167, 169–170; and analysis of the lack 169; on forgiveness 150, 159, 167, 169–170; psychoanalytic forgiveness 167–168

241

Lacan, Jacques 7–10, 20, 23–24, 63, 79, 195, 214–215, 220–221, 231; on anxiety 211, 215, 219; das Ding 23; and discourse of the analyst 29, 222, 229; empty speech 63; Hysteric 210–211, 216, 218; jouissance in 9; Master 221–222; on ontology of lack 7–8; the (big) Other in 10, 12, 82, 226; and S1 213; on shame 228; subjective destitution 223; on the Symbolic Order 20; and thinking of lack 9, 23; and ubuntu 20–21; and the unconscious 195 lack: and abundance 2; in being 7, 26; forms of 1; and hauntology 12; in having 7, 26; in Lacan 7; and language 8; and negativity 9; ontology of 8, 12, 13, 21; in political ontology 9; the politics of 7; of reparation 10; of shame 10, 77, 79, 80, 83; subject of 1, 8, 11, 23, 171 law: and justice 14 Law of Forgiveness 69–70 law of reparation 90, 93–94, 119 Less Than Nothing: Hegel and the Shadow of Dialectical Materialism (Žižek) 82 life: biological 184, 187–188; poetic 184 Love, Guilt and Reparation (essay by Klein) 22 Mabandla, Bridgette (minister of Justice and Constitutional Development) 121 Madikizela-Mandela, Winnie 78–79, 81, 83 Maduna declaration (2003) 121, 123 Mamdani, Mahmood 27, 58–59; perpetrators/victims and beneficiaries/ victims 102–104, 110, 116 The Man without Content (Agamben) 183, 186 Mandela, Nelson 188, 195 Marchart, Oliver 8, 167, 168; being in 12; emancipation in 10; on forgiveness 168; ontology in 8 Marikana (massacre) 35 Master’s discourse: and the Constitution 211; imperatives 213; and justice 213 master signifier 214, 216–218, 221, 223–224, 228, 231; as decolonisation 232 Mbeki, Thabo (president): on reparation 3, 176; and TRC report 54, 73 Mbembe, Achille 7; and decolonisation as disenclosure 29, 232–233; human citizenship 181; and racism 43–44 McAfee, Noëlle 25; on reparation and mourning 25

242

Index

Miller, Jacques-Alain 79, 223; on master signifier 223 mourning 6, 25–26, 87, 148–150, 171; collective 152; in the depressive position 151; Derrida’s model of 153–155; and forgiveness 148; reparation 152–153; reparative 6; work of 156–159, 162–163, 165–166, 232–233 Mourning Becomes the Law (Rose) 160, 162–165 Nancy, Jean-Luc 6, 228, 232, 234 narcissism of melancholia 163 Native Affairs Commission of 1903–1905 48 neoliberal: capitalism 6, 16, 122, 137n7, 205; colonialism 18; declension of salus 57, 59; order 36, 60 neoliberalism 17, 54, 123, 188 Nussbaum, Martha 6, 192, 201; on capacity for humanity 205; fancy 193–194; literary imagination 6, 192–194, 196, 199, 205; utilitarianism 190, 192–194 objet petit a 24, 211, 219, 221, 223 obligatory gift 10, 37, 55, 57, 59–61, 232 odious debt 103, 105, 130 Old Mutual (company) 98, 109–110, 117; Tongaat-Hulett submissions 117 Oliver, Kelly 167 One Night in Bethlehem (Steinberg) 81 On Revolution (Arendt) 190 The Origins of Totalitarianism (Arendt) 197 Other of the Other 79–80, 83–84 Pandora 6, 201–202, 205, 224–225; and ghosts 201–203; and grave 201–202; reparation 200, 202–205; and tending 202–203; as work of art 203 paranoid-schizoid position 21, 22, 24–25, 151; splitting 21–22 parastatals 99, 104–105, 131 Philippopoulos-Mihalopoulos, Andreas 227, 230 PNURA see Promotion of National Unity and Reconciliation Act Poetic Justice (Nussbaum) 192 Politics of Friendship (Derrida) 197 postcolony: and anxiety 210 principle of indemnity 52, 70 production of knowledge 216 Promotion of National Unity and Reconciliation Act (PNURA) 2, 52, 65, 72, 87

Ramose, Mogobe 18, 21, 162, 197–198; on African law 134; on justice 21; on metaphysics of ubuntu 18; on prescription 134; on reconfiliation 198 Rancière, Jacques 191 Rand, Nicolas 19, 203–204 reconciliation: and forgiveness 69; psychoanalytic 168 reconfiliation 197, 198 Reconstruction and Development Programme 123 remembering: and forgetting 91 reparation: and apology 64; aporia of 28, 148, 150, 154, 170, 178–179; and beneficiary relationship 58; as biopolitical intervention 5; and businesses 101; and coercion 28; and forgiveness 148; “legal basis” for 2; material 76, 102, 127, 198, 205; and mourning 150; mourning and 151; spectrality of 148, 149; spectre of 6, 16–18, 21, 35–36, 45, 60–61, 90–94, 106–108, 124–126, 133, 135, 154, 232; symbolic 63, 74–79, 220; as work of mourning 155 Reparation and Rehabilitation Committee 104 reparation law 95, 120, 135 Reparations and Rehabilitation Committee (RRC) 2, 52–53, 73 reparative citizenship 181, 188–189; and Irreparable 189; and material reparation 199; and role of government 200, 201; and spectre of reparation 232; spectre of reparation in 201; and spectres of reparation 23 reparative interventions 219, 225, 232 restorative justice: and forgiveness 69 rhythm 15, 191, 205, 222, 228; in Agamben 187–188 Rose, Gillian 6, 150, 160, 224; activity beyond activity 162–163, 166; creative involvement 161; inaugurated mourning 160, 161, 164, 166; and kinds of mourning 150; poetics of law 191; on reparation and mourning 162; and sovereignty 164–167, 171 Rose, Jacqueline 189, 203 Ruti, Mari 7–8, 23–26, 152; das Ding and subject formation 23 S1 see discourse of the Master S2 see production of knowledge

Index salus populi: neoliberal 55 salus publica 41, 43–45, 53–54, 57, 71, 73 Sanders, Mark 6, 15, 25–26, 152 SANLAM (insurance company) 103, 111–112, 132 Segal, Hannah 21–23, 151 shame: demonstration of 10, 75, 79, 82–84, 232; as jouissance 81; reintegrative 80, 83–84; in restorative justice 76; as spectre of reparation 80 shaming: reintegrative 75–76, 80 Sharpeville massacre 42, 50, 111, 132 The Shell and the Kernel Vol I (Abraham and Torok) 19, 203 Sitze, Adam 4–5, 35, 38; on Amnesty Committee’s work 70; on Azapo 53; and biopolitics 37; on compensation committee 51; on fiscal declension 73; full disclosure requirement 168; on government 47; on governmentality 40; and indemnity jurisprudence 52; on racism 49; on TRC Bill 52; on ubuntu 57 Small Business Development Corporation 98 Society Must Be Defended (Foucault) 43, 204 South African Agricultural Union (SAAU) 115 South African Chamber of Business (SACCOB) 133 South African Communist Party 96 South African Truth and Reconciliation Commission (TRC) 1, 33, 63–64; and amnesty 169; on amnesty 54; archive of business sector 92; on the big Other 83; and constitutive lack of reparation 11; critique of the 1, 4; and indemnity jurisprudence 54, 71; and insistence on apology 78; and lack of reparation 4, 107, 231; and pressure to forgive 68; and restorative justice 69; and the role of business in apartheid 133; and spectre of reparation 55 sovereignty 39–44, 47–49, 54–55, 60, 66, 155, 166–167; and biopolitics (Foucault) 35–37, 39–40, 42–44, 47, 51, 54–57, 60; and forgiveness 6, 155, 156, 160, 164–167; and governmentality 37–40, 42–43, 48 spatial justice 226, 230 Specters of Marx (Derrida) 13–14, 17, 107, 122 spectrality 7, 12, 15, 21

243

spectre of reparation 45; in African belief systems 19–20; and business sector 90, 93; in colonial-apartheid context 60; and forgiveness 159; and injustice 17; and mourning 154; and mourning and forgiveness 6; in post-apartheid South Africa 92; and spectres of Marx 17; and subjectivity 216; in the TRC report 101; and TRC’s archive 126 state racism 43–44 Terreblanche, Sampie 35, 102–103, 122, 133 thanatopolitical: declension of biopolitics 35, 44, 51, 55, 57, 59–61; and ex gratia payments 50–51, 53, 60, 73; history 45; process 44 thanatopolitics 43 Tierney, Thomas 37, 44, 56, 59 total strategy 117, 131 Total Strategy programme 102, 106 transitional justice: and forgiveness 149; and reparation 4, 16 TRC see South African Truth and Reconciliation Commission TRC Report: and archive on reparations 135; arms industry in 100–101; and business sector hearings 95–96; and definition of ill-treatment 98; forgetting and remembering in 91; mining industry in 100; multinational oil giants in 115; and strikes in gold mines 118 Tumult Commission 38–39, 45–51, 55, 60; on extra-judicial executions 49 ubuntu 5, 18–19, 20–21, 55, 57, 59–60, 134, 197; jurispuredence of 162; justice and 67; and obligatory gift 57, 59, 60; and potentiality 199; and privilege and reparation 60; and reparation 18, 21, 55, 57–58, 199; and social harmony 67; translation of 57 UN Anti-Apartheid Convention 129 United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 128–129 unjust enrichment 106, 132–133 Urban Foundation 98 US Alien Tort Claims Act (ATS) 121–122

244

Index

van der Walt, Johan 34, 199 van Marle, Karin 17, 149, 211 Verwoerd, Wilhelm 64, 68, 74–76, 78, 148, 156–157 Waiting for the Barbarians (Coetzee) 7, 225–227, 229, 231 The Work of Art in the Age of Mechanical Reproduction (Benjamin) 194

The Writing of the Disaster (Blanchot) 164 Žižek, Slavoj 10, 65, 83, 212; on anxiety 215, 219; and democracy 10; on inexistence of the big Other 82–84; on passage to act 220–221 zoē (bare life) 34–35, 61 zone of indistinction 34, 36, 42, 54, 72