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Browsing Law by Advisor "Brand, J. F. D."
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Item Open Access The impact of customary law and its constitutional protection on the social status and political participation of women in Lesotho(University of the Free State, 2022) Ramakhula, Thabang; Brand, J. F. D.; Van Marle, K.Lesotho has been experiencing a progressive decline in women’s political participation, despite the existence of numerous interventions that have been aimed towards combating this status quo. With a goal towards understanding the causes for this progressive decline as well as why interventions fail to yield positive results, I examine the possible relationship between custom, customary law, the Constitution and women’s social status and political participation in Lesotho. Towards this objective, I adopt a postcolonial and African feminist perspective to examine custom, customary law and the Constitutional protection afforded customary law in Lesotho. As a starting point, I explore the meaning and origins of custom from a general stance, and then go on to investigate the particular meaning of custom to the people who practice customs. This exploration affords a better understanding of not only custom, but also the value attributed to it by those who practice it, which value in turn enables it to exercise a form of authority over the overall being of such people. This authority, I find, makes custom instrumental in the formation and sustenance of social and political stereotypes as well as personal and communal beliefs and perspectives. I move on to customary law, particularly Lesotho’s customary law. I trace the history of Basotho’s customary law pre-colonialism into its codification during the colonial era. I argue in this discussion that the laws were instrumental in the formation and sustenance of women’s subordination under men as well as in the modelling of the hegemony, episteme and power dynamics in men’s favour, which have proven to negatively impact both women’s social status and political participation. In discussing the Constitution of Lesotho, from its inception and its final state following a number of amendments, I highlight how it contains a number of issues that signal a lack of desire to promote women’s empowerment or equality with men. I analyse the negative impact that the Constitution’s adoption of a dual legal system, the inclusion of claw back clauses, as well as the umbrella protection it affords customary law have on Basotho women’s social status and political participation. In centring women in the discussion, it becomes clear that there exists a link between custom, customary law, the Constitution of Lesotho and women’s social status and political participation. For one, I find that patriarchy is so deeply entrenched in the fabric of Lesotho, that all spheres of society exude it - whether this is evidenced through the stereotypical shaping of the social view of women, their exclusion from the public sphere and relegation to the domestic sphere, or even the denial of women’s access to the economic space of activity. The instrumental role played by law in the establishment of hegemony and episteme, which perpetuated women’s marginalization vis-à-vis power relations, citizenship and political participation is also brought to the fore. I underscore how custom and law then jointly shaped and portrayed man as the standard, while simultaneously ‘othering’ women. This then reveals how custom and law were, and still are, weaponised against women. My conclusion in this thesis is then that custom, customary law and the Constitution of Lesotho negatively impact both Basotho women’s social status and their political participation.Item Open Access To remain(University of the Free State, 2022) Mhlanga, Lindani; Brand, J. F. D.An undeniable inroad made into the regulation of property ownership has been the requirement that evictions may only take place with the permission of a court of law. In the South African context, this requirement has been further augmented by the “just and equitable” measure. This means that not only are evictions only allowed on the basis of a court order, and but also only to the extent that a court has exercised a “just and equitable” discretion. The exercise of the just and equitable discretion has resulted in three distinct types of eviction orders. The first of these orders are those instances in which the courts grant an eviction application and then suspend the order, enabling unlawful occupiers to continue living on the land/property while the State looks for alternative land to resettle the occupiers. The second, are instances in which a court grants an eviction but, for whatever reason, enforcement becomes impracticable, resulting in unlawful occupants remaining on private property that belongs to someone else. The third type of orders are those instances where a court denies an eviction application, enabling unlawful occupiers to indefinitely remain on land that belongs to someone else. In this thesis I look into the fact of remaining as a consequence of the third type of order. The effect of the court decision not to grant the eviction order results in the practical situation of the unlawful occupier remaining on such land. The unlawful occupier remains on land belonging to another notwithstanding the fact there is no countervailing right to do so. While the intervention to bring evictions under the ambit of justness and equitability more so in an unequal and deprived society such as South Africa is laudable, the failure of the courts to address the legality and tenure security posed by the eviction order not to evict despite unlawfulness of occupation having been established negates the good intention. In this regard, I contend that hesitancy to address the legitimacy and tenure security of this identified fact of remaining has to do with the structure and approach to the law, which supports indifference and detachment. This indifference and detachment minimise the law's (constricted) inherent capacity to remedy the asserted problem of tenure insecurity.Item Open Access Xenophobia against non-national academics employed at higher education institutions in South Africa: A legal perspective(University of the Free State, 2022) Naidoo, Amanda; Brand, J. F. D.In this thesis I explore xenophobia against non-national academics at higher education institutions in South Africa, with a specific focus on the legal and policy protections afforded to them. Xenophobia is a national as well as a global phenomenon and manifests in South African society. Although much research has been conducted on xenophobia in general, the position of the non-national academic in relation to xenophobia has not been extensively investigated. I this thesis, therefore, I highlight first, the need to examine the non-national academics' experience of xenophobia within the higher education space and secondly, the legislative and policy protections available to this category of employee. Since xenophobia is a type of discrimination and is linked to issues of equality, I examine xenophobia against the background of existing scholarship on equality and discrimination. The theoretical approach to the study is located in the theories of Tajfel & Turner as well as Harris which focus on xenophobia and social exclusion. The conclusions drawn from the research are that xenophobia against non-national academics in the higher education context does exist and manifests in a covert or symbolic way instead of in a violent manner. While there exist international treaties, national laws, institutional policies, and case law which cater for the rights of non-national academics to some extent, these do not provide adequate legal protection for this group. I recommend the passing of xenophobic-specific legislation to enhance enforcement and accountability and for higher education institutions to specifically provide for xenophobia in its policies. I also conclude that non-national academics would best benefit from the notion of transformative substantive equality since this notion speaks to changes being made to structures within institutions to achieve equality.