Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala (original) (raw)
Related papers
Contemplating a post-apartheid feminist jurisprudence
2011
This dissertation involves contemplations and reflections on a post-apartheid feminist jurisprudence. My contemplation of a feminist jurisprudence takes place within the broader search for a post-apartheid jurisprudence. Post-apartheid jurisprudence provides a critical context for the contemplation. Within this Table of Contents Chapter 1
‘The law is a disinterested arbiter. It is informed by the steady development of years of procedural rules and precedent through which it distils and pronounces the truth with neither fear nor favour.’ This statement posits the traditional view of the law as an ideal with an impartial and detached body arriving at objective conclusions through the application of neutral rules without bias. The bone of contention that arises from this statement is twofold. Firstly is the law neutral, and secondly whether or not this neutrality and disinterest produces justice or ‘pronounces the truth’ as the statement suggests. Utilising the work of feminist legal theorists this essay will demonstrate how the law as a discourse is not a neutral entity, but is a power that prohibits other, supposedly inferior knowledge’s. It will outline the difficulties in adjudication that hinder neutrality and the ‘promotion of truth’ by focusing on gender implications of legal rules and practices (in particular how legal rules and practices affect women and how law reflects and constructs gender identities). It will expose and critique the patriarchal nature of substance and methods of law. Whilst suggesting that the concept of laws essential neutrality is a strategy for concealing the role of values in law as submitted by MacKinnon, this essay will also question the desirability of legal impartiality as presently conceived. To better illustrate the matter, this essay will examine how the legal definition of rape takes precedence over women’s definitions and how law manages to retain the ability to arrogate to itself the right to define the true of things despite the mounting challenge of other discourses like feminism. “Law constitutes a plurality of principles, knowledge’s and events, yet it claims a unity through the common usage of the term ‘law. It will reveal how the law fails to ‘pronounce the truth’ when it comes to accounts of rape that do not fit into its narrowly constructed definition.
Journal of international women's studies, 2019
Introduction: The first author participated in a course related to critical feminist schools of thought while pursuing her doctoral program. Engaging with a scholarly community of feminist researchers, she gained multi-layered understandings and deeper insights on ways of knowing through the perspectives of the critical feminist schools of thought in the feminist movement. Unlike other feminist schools of thought, Afrocentric feminism is about the pluralism that captures the dynamism and fluidity of different cultural imperatives, historical forces and localized realities in the lives of African women. This feminist methodology assisted the author’s ability to link the ‘word to the world’ and ‘text to the context’ as it related to the oppression of women through the eyes of continentally based African women. Aim: Adopting an Afrocentric feminist conceptual framework, the authors sought to explore and describe the legal culture surrounding the prosecution of violence against women in...
2003
I INTRODUCTION Nine years into South Africa's democratic dispensation, the levels of violence against women, particularly sexual violence, 2 remain alarmingly high. The frequency, extent and nature of sexual violence in South Africa have gained international attention over the past years. 3 Although it is a crime that affects all South Africans, women are far more likely to be the victims, and evidence suggests that the already unacceptably high rate of sexual assault continues to increase. 4 Increasingly, too, the link is being drawn between women's sexual victimisation and their extreme vulnerability to sexually transmitted infections and HIV/AIDS. 5 Against this background, the recent publication of the South African Law Commission's 6 Report on Sexual Offences is significant. 7 This report, which includes a draft Sexual Offences Bill, represents the conclusion of the commission's comprehensive investigation into sexual *BA Hons (Crim) MA; Chief Researcher, Institute of Criminology, Faculty of Law, University of Cape Town. **B Iur LLB Hons BA (PU for CHE) LLM (UCT); Senior Researcher, Community Law Centre, University of the Western Cape. 1 Samuel Butler Notebooks (1912) Chapter 14 as cited in Oxford Dictionary of Quotations (1992) 167. 2 The term 'sexual violence' is used here as a collective term for the criminal offences recognised as 'rape', 'indecent assault' and 'crimen iniuria' respectively.
Since the first reports on gender-based crimes committed during the Yugoslav dissolution war of 1992-1995 and the Rwandan genocidal war between April and July 1994, feminist legal scholars have produced hundreds of scholarly and journalistic works on rape and other forms of sexual violence committed either in peacetime or in conflict situations. New to this body of scholarly literature addressing the legal treatment of rape in the statutory laws of international criminal tribunals, in international and regional human rights treaties, and in a wide range of different domestic penal laws, is this thought-provoking work, edited by Clare McGlynn, professor of law at Durham University, and Vanessa E. Munro, professor of socio-legal studies at the University of Nottingham. The work under review started life as a collection of papers submitted to an international conference marking the 10th anniversary of the landmark judgement of the International Criminal Tribunal for Rwanda (ICTR) in the case of Jean-Paul Akayesu, where he was convicted, inter alia, for rape as an act of genocide. This milestone judgement constituted a triumph for feminist legal scholars and activists. It was also a turning point for the international justice system, in general, and for the jurisprudence of the international criminal tribunals, in particular. The editors maintain in their introduction that the aim of this work is to provide the reader with a cross-cultural perspective and a critical evaluation of the latest developments in rape laws embodied in the statutory laws of international, regional, and domestic judicial bodies. Comprised of 22 concise chapters, the work is arranged thematically under four corresponding principal ideas: the theoretical complexities of responding to the wrongs of rape; the relationship between feminist activism and legal reform; the limits of law reform in bringing about social change; and finally, the secondary victimization of rape complainants during the criminal investigation and trial process. Moreover, the editors provide in their introduction a meticulous analysis of these themes and underline the need for a progressive reform of rape law, including reconceptualizing and criminalizing rape in international and domestic laws. Examining feminists’ debates and struggles at the national, regional, and international levels to protect victims and ensure their right to sexual and bodily integrity, they elucidate feminists’ responses to the wrongs of rape, their struggle for legal reform within international and national legal systems, and the challenges that prevent law reform from bringing about real changes. Overall, this book constitutes essential reading in view of its examination of the provisions of domestic and international criminal laws and for its exploration of the similarities and variances between rape in time of peace and in wartime settings. Moreover, by analysing and investigating different fundamental concepts in rape law, it brings together divergent perspectives of leading legal scholars from across the world on international criminal law, international human rights law, and domestic criminal justice systems, thereby moving the rape law reform agenda forward and ensuring appropriate justice for both victims and perpetrators. It is a remarkable, comprehensive work that should be read by legal scholars, jurists, actors in the criminal justice system, law students at all levels, and by those looking to deepen their understanding of the multiple tensions inherent in the shifting legal landscape of rape crime.
In the last decade South Africa has undergone an extensive process of sexual offence law reform. This process has attempted, amongst other things, to address deficiencies in the criminal justice response to rape and has also recognised some of the limits to the impact of legal reform. These limits are partly defined by rape supportive attitudes and myths that appear to influence decision-making at all points in the criminal justice process. In South Africa, and many other jurisdictions, evidence suggests that police, prosecutorial and judicial decision-making is influenced, in part, by a range of social attitudes that misconstrue sexual violence, as well as serve to undermine the credibility of complainants. This article examines the impact of myths, social definitions of rape on rape law reform in South Africa and the points at which these reforms are likely to be undermined by social attitudes and what potentially might be done to address this problem.
"Criminal Law Amendment Act, 2013 through the Feminist Lens"
'Rape harms women as a class rather than the individual victim' a matter of concern for all women fraternity. With the advent of latest reform on rape laws, police sensitization and accountability, more stringent provisions, fast track courts, better investigation, the country feels all that is needed is being done. But the predicament of safety for women still exists. Latest deterrent, the Criminal Law Amendment Act 2013 was the outcome of the nationwide protest post horrendous Delhi gang rape incident, criminalizing various forms of sexual harassment and enhancing penalty for various forms of sexual violence. Though provisions for penalizing the guilty are commendable but the unresolved problem here is that it has been a maiden year since the enactment, but with no reduction in the crime rate. Gender neutrality in the framing of 375 and 376 creates the conditions for greater harassment of women and shall substantially increase the difficulty in access to justice for women. Existence of specific women issues would not be redressed by the gender neutral laws. On the other side the existing procedural judicial practice are not victim friendly, leading to victim alienation, case withdrawal or give-up the case resulting in low conviction rates. The ways offences have been defined in criminal legislation do not reflect the experiences of women as victims which directly lead to deleterious impact on access to justice by women. Use of force for conviction under rape legislation is one of the examples often cited. Additionally, by refusing to make the State accountable, the Law continues to view widespread crimes against women in the country as matters between individuals rather than a general phenomenon and State responsibility. This article instead of venturing the procedural drawbacks will focus more on sensitizing and ensuring responsiveness of justice systems towards the needs of women, as well as empowering them as an active member in the realm of the justice chain. The impact of the impediments faced by women, if reduced will not only promote greater accessibility but also act as a vital step towards attaining practical gender equality. Below are the few incessant issues this paper would be trying to address, how has the system affected the lives of women? 1 Academician, lecturer in MATS law School, Raipur
Agenda, 2016
Philosophically it is accepted that a constitution represents a state's solemn commitment towards achieving the objectives set out within that sacred document. Given South Africa's past, the Constitution of the Republic of South Africa, 1996, holds the promise of a free, democratic and egalitarian society. Underpinning the Constitution is the African concept of Ubuntu which itself is premised on notions of dignity, compassion, humanity, forgiveness and reconciliation: substantive concepts which are intended to heal the divisions of the past and fundamentally alter the South African legal, socio-political and economic landscape. Engaging with pertinent case law emanating from the Constitutional Court, an analysis is undertaken as to whether the provisions on gender equality contained in the Constitution have lived up to the expectation and obligation placed on them to transform South African society. It is argued that the Constitutional Court has made bold and courageous decisions which have stayed true to the rule of law by developing laws to bring them into consonance with the Constitution, thereby engineering society to give meaningful effect to gender equality. However, much progress still remains to be made, particularly in light of the Court's apparent ignorance of the lack of agency, and autonomy and empowerment suffered by many women.
South African journal of criminal justice, 2007
In Masiya v DPP the Constitutional Court missed the opportunity to address the patently inadequate and unjust common law defi nition of the crime of rape. The Court had an opportunity to embrace its mandate as guardian of constitutional rights and, in adopting a conservative stance towards the development of the common law, failed to do so. Two points of particular interest that arise from the judgment are considered in this article: the Court's unwillingness to extend the defi nition of rape along gender-neutral lines; and the impact of the principle of legality on the Courts' ability to develop the common law defi nitions of crimes. There is no reason in logic or justice for why the defi nition of rape should be gender-specifi c. Furthermore, in line with the minority judgment in Masiya, there is no rule of law that prohibits the Court from executing such an extension.