Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality

Albertyn, Catherine; Goldblatt, Beth

doi:10.1080/02587203.1998.11834979

Cited by 40 publications

(16 citation statements)

References 2 publications

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“…In theory, significant areas of women's inequality, and their subordination through genderbased violence in the home, customary and religious practices, the absence of reproductive choice and moral agency, could be addressed through court action. In addition, feminist lawyers involved in debates on social and economic rights and on the idea of substantive equality hoped that these would provide mechanisms for redistributive claims that would benefit women (Albertyn and Goldblatt, 1998;Jagwanth, 1998;Liebenberg and O'Sullivan, 2001).…”

Section: Litigation As a Strategy For Change In South Africamentioning

confidence: 98%

“…Much has been written by critical scholars of the transformative potential of this Constitution (Klare, 1998;Albertyn and Goldblatt, 1998;Davis 1999). Although, constitutions are never uncontested, South Africa's Constitution held out the possibility of advocating for real change for women in many areas of life, including those that were not traditionally subject to constitutional regulation.…”

Section: Litigation As a Strategy For Change In South Africamentioning

confidence: 99%

“…Drawing on the experience of Canadian feminists, arguments were made for an understanding of the equality right that was responsive to the needs of women and other disadvantaged groups (see Jhappan, 1998;Majury, 2002). Of particular concern was that the interpretation of the right would allow courts to consider the actual conditions of women's lives, and respond to historically and socially based differences in a manner that would seek to remedy social and economic disadvantage (Albertyn and Kentridge, 1994;Albertyn and Goldblatt, 1998). Although the equality jurisprudence that has been developed by the Constitutional Court has been criticized by feminist lawyers, it is also recognized that South Africa has developed an understanding of equality that includes key aspects of substantive equality, including attention to context, impact and difference (Albertyn and Goldblatt, 1998;Jagwanth, 1998).…”

Section: Shaping the Interpretation Of Rightsmentioning

confidence: 99%

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Defending and securing rights through law: Feminism, law and the courts in South Africa

Albertyn

2005

Politikon

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This article explores the extent to which the courts and legal processes have been engaged to address the gendered social and economic inequalities in South Africa. It thus explores the role of the courts in extending or limiting the rights of women, especially through the right to equality. It is argued that courts were not the main site for rights claims, especially in the early years of democracy, as feminist policy advocates preferred to advocate for rights through political processes. However, as the opportunities for change through political means slowed down, there was increasing reliance on the courts. Drawing on feminist theory of the law, the article examines the boundaries of inclusion and exclusion created by the two superior courts, the Constitutional Court and the Supreme Court of Appeal, as well as their mechanisms of responsiveness and resistance to women's rights claims. It concludes by suggesting that both these courts have made significant rhetorical advances within rights discourse, with some potentially transformative judgements. The courts have begun to redraw some of the social boundaries of inclusion to extend rights protection to the private sphere and to a wider set of relationships. This has begun to dislodge some traditional understandings of gender relations. However, the Constitutional Court, for a range of reasons, has also set clear limitations to this, which ultimately reinforce traditional gender relations. Despite this, there remains significant space for using litigation as a strategy for change, especially if it is embedded in wider political processes. Gender equality, rights and law: Possibilities and potentialThe advent of constitutional democracy in 1994 provided a new political and legal context in which to advance gender equality and the status of women in political, social and economic life. Human rights, entrenched in the Constitution, provided important political and legal resources for this struggle. This article explores an aspect of that struggle, that is, the extent to which the courts and legal processes have been engaged to address the gendered social and economic inequalities and power relations in society.

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Section: Litigation As a Strategy For Change In South Africamentioning

confidence: 98%

Section: Litigation As a Strategy For Change In South Africamentioning

confidence: 99%

Section: Shaping the Interpretation Of Rightsmentioning

confidence: 99%

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Defending and securing rights through law: Feminism, law and the courts in South Africa

Albertyn

2005

Politikon

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“…51 Van der Walt argues that all sources of law should display the following characteristics: They should be formally valid and of general application in that they must be adopted and promulgated publicly; 52 be expressed in understandable terms; be prospective in effect; not require conduct beyond the powers of the people; not be changed so frequently that people cannot arrange their own actions and affairs; be consistent with one another; and must be administered consistently with their wording. 53 All sources of law should also promote the following general characteristics: 54 equality; 55 the inherent human dignity of every person; 56 access to courts; 57 and access to administrative justice. 58 In addition to these general characteristics, a property system should further recognise the following specific characteristics: state regulation of property that is 'legitimate, natural and inevitable' if the regulation serves a legitimate public purpose; 59 and state interference with property must establish an equitable balance between the private interests that will be affected by the regulation and public interest that is served by the regulation.…”

Section: Characteristics Of a Property System Promoting Section 39(2)mentioning

confidence: 99%

The illegal eviction of undocumented foreigners from South Africa

Alimohammadi¹,

Muller

2019

Afr. hum. rights law j.

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In Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew & Another and Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality the courts failed to provide guidance regarding the relationship between the Prevention of Illegal Eviction from and Unlawful Occupation of Land, the Refugees Act and the Immigration Act. This article sets out to provide such guidance by contextualising South Africa as a constitutional democracy with a supreme Constitution (the principle of a single system of law) that delineates a point of departure for establishing which source of law should regulate litigation about the illegal eviction from one's home (the subsidiarity principles). The authors then overlay the principle of a single system of law and the subsidiarity principles with the systemic characteristics of a property system that promotes section 39(2) of the Constitution. Taken together, these principles and characteristics are used to evaluate PIE, the Refugees Act and the Immigration Act with a view to establishing which is the most appropriate source of law to evict undocumented foreigners from South Africa and to determine the appropriate relationship between the statutes. The article further aims to evaluate the failure to consider the procedural protection and substantive safeguards outlined in PIE, which ultimately perpetuates, or even exacerbates, the vulnerable position of undocumented foreigners who are forced from their homes.

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“…This includes addressing stigma, prejudice and violence; redressing socio-economic disadvantage; facilitating participation; and valuing and accommodating difference through structural change. It has been noted that committing to substantive equality requires the examination of the context of an alleged rights violation and its relationship to systemic forms of domination within a society (Albertyn and Goldblatt, 1998). Unlike formal equality, which does not recognize personal differences, substantive equality recognizes such personal differences and seeks to adopt a pragmatic approach to accommodate them.…”

Section: The Principles Of Non-discrimination and Equality Under Intementioning

confidence: 99%

‘Equally unequal or unequally equal’

Durojaye

Owoeye

2017

International Journal of Discrimination and the Law

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The purpose of this article is to critically assess the approach of Nigerian courts to interpreting section 42 of the Constitution. This article argues that Nigerian courts are yet to develop a substantive equality approach to interpreting section 42 of the Constitution. Rather, the courts have tended to adopt the formal equality approach to interpreting the section. Analysing some decisions of the Court of Appeal and the Supreme Court, the article argues that in order to safeguard women's rights and address gender inequality in the country, Nigerian courts should lean towards substantive equality approach to the interpretation of section 42 of the Constitution. This is not only consistent with Nigeria's obligations under international law but also crucial to addressing historical imbalances between men and women in the country.

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Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality

Cited by 40 publications

References 2 publications

Defending and securing rights through law: Feminism, law and the courts in South Africa

Defending and securing rights through law: Feminism, law and the courts in South Africa

The illegal eviction of undocumented foreigners from South Africa

‘Equally unequal or unequally equal’

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