Constitutional Law and Philosophy of Law
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Browsing Constitutional Law and Philosophy of Law by Advisor "Van Marle, K."
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Item Open Access Black spaces: the Group Areas Act, the material boundaries of life and grievability(University of the Free State, 2023) Goba, Nosipho Salazi; Van Marle, K.My aim in this thesis is to unpack the ways in which the Group Areas Act of 1950 and apartheid spatial planning more broadly was not only concerned with who had access to socio-economic rights but also with deciding which lives were valuable and thus grievable. The spatial expression of (post)apartheid South African life is undoubtedly racialised, gendered and classed. The central theme of this research project is to critically engage apartheid geography through the lens of Judith Butlerโs notion of โgrievabilityโ as put forward in ๐๐ณ๐ฆ๐ค๐ข๐ณ๐ช๐ฐ๐ถ๐ด ๐๐ช๐ง๐ฆ: ๐๐ฉ๐ฆ ๐๐ฐ๐ธ๐ฆ๐ณ๐ด ๐ฐ๐ง ๐๐ฐ๐ถ๐ณ๐ฏ๐ช๐ฏ๐จ ๐ข๐ฏ๐ฅ ๐๐ช๐ฐ๐ญ๐ฆ๐ฏ๐ค๐ฆ ๐ข๐ฏ๐ฅ ๐๐ณ๐ข๐ฎ๐ฆ๐ด ๐ฐ๐ง ๐๐ข๐ณ: ๐๐ฉ๐ฆ๐ฏ ๐ช๐ด ๐๐ช๐ง๐ฆ ๐๐ณ๐ช๐ฆ๐ท๐ข๐ฃ๐ญ๐ฆ? as well as Giorgio Agambenโs โbare lifeโ as put forward in ๐๐ฐ๐ฎ๐ฐ ๐๐ข๐ค๐ฆ๐ณ: ๐๐ฐ๐ท๐ฆ๐ณ๐ฆ๐ช๐จ๐ฏ ๐๐ฐ๐ธ๐ฆ๐ณ ๐ข๐ฏ๐ฅ ๐๐ข๐ณ๐ฆ ๐๐ช๐ง๐ฆ to explore an understanding of spatial injustice that is informed by the (re)production of exclusionary conceptions of a normative human those falling outside of which cannot be mourned publicly. One of the main arguments in this project is that spatial justice extends beyond the geographic arrangements of the material realm into the recognition and restoration of humanity and dignity. This thesis examines how social markers impact the ways in which certain people can navigate space and the results of not belonging in certain spaces. As a research project grounded in critical race theory, feminist theory, queer theory, class analysis and disability rights, this thesis pushes me to think about space and how we inhabit space as marginalised people in (post)apartheid South Africa. I turn to black feminist geographic thought for a grounded exploration of pathways to achieving spatial justice and conducting a critical race spatial analysis of the endurance of apartheid geography.Item Open Access The requirement of 'fit and proper' for the legal profession: A South African perspective(University of the Free State, 2022) Bloem, Martie; Van Marle, K.The research problem of this study is that our understanding and interpretation of the 'fit and proper' requirement for admission to legal practice is too superficial and one-dimensional to allow for a more diverse, broader and critical thinking needed to enable transformation of the legal profession. The question that originates from the research problem and guides this study is what the meaning, reason, purpose and importance of the current 'fit and proper' requirement is, and what it rather should be. The purpose of this research is to indicate that the requirement of 'fit and proper' for a person to be admitted to legal practice is closely related to the role of the legal professional in society and should therefore be directly linked to objectives such as public interest, access to justice and social justice if we are serious about transformation of the legal culture of South Africa. My proposal is that 'fit and proper' should be a continuous responsibility of all legal professionals instead of a prerequisite only required from legal practitioners for admission to legal practice. Furthermore, that the meaning of the concept should be informed by variable values and principles in line with the Constitution and not mere compliance with fixed rules of conduct or a specific test. Every chapter of this study indicates that changing the legal culture will necessarily entail an honest reconsideration and admission of the role and responsibility of legal professionals in their contribution to the current vision of the law and the manner in which law is practiced. What would be needed for this change is that at least the majority of legal professionals understand their responsibility in changing the traditional approach to the law in order for it to respond to the needs of a multicultural society. In my opinion, the role of legal professionals in this process is twofold: in their capacity of being professionals and therefore having an obligation to serve the public interest; and in their capacity as members of the community, having a responsibility of being self-conscious and aware of their complicity. The suggestion is that we should discontinue the practice of finding that a person is 'fit and proper' to be admitted to legal practice and rather expect of all legal professionals to continuously reconsider the role they play in society. Reimagining our understanding of 'fit and proper' requires an endless contribution to the collective effort of thoughtful thinking about the law in an attempt to imagine justice into reality and thereby becoming 'fit and proper'. A shift in focus of legal education may be the starting point or even the solution to the research problem that our thinking about the law, the role of the legal practitioner and interpretation of 'fit and proper' is too superficial to allow for transformation. The recommendation is that the focus of legal education must be adapted to enable law graduates to be critical of both the law and the political state in order to serve the law and the aims of justice and not only on delivering practically skilled law graduates.Item Open Access The value of pre-colonial conflict resolution methods in addressing sexual violations committed in internal conflict situations in Zimbabwe(University of the Free State, 2022) Gcumeni, Fungisai Gloria A.; Van Marle, K.The study considers the development of jurisprudence in conflict resolution with reference to pre-colonial African law in addressing sexual violence against women. The motivation for this investigation stems from the inadequacies of the present legal system in Zimbabwe to redress sexual violations perpetrated against women in the internal ongoing political conflict. The aim of the study is to garner insights from African traditional justice mechanisms in conflict resolution in determining their value in addressing sexual violations against women in Zimbabwe. This investigation of present-day Zimbabwe as a product of colonialism and imperialistic tradition explores its contribution to the loss of African values that shape the current approaches in addressing sexual violence. The socio-political, economic and cultural landscape of Zimbabwe post-independence mimics the political ontology under colonialism. The adopted governing principle of constitutionalism and its post-conflict justice initiatives adopted at independence until the present perpetuate coloniality. The existing conflict in the coexistence structure of Western and pre-colonial African law in conflict resolution is a foregoing challenge in the present legal system in Zimbabwe that prompts new thoughts in post-independent Zimbabwe. The aim of the study is to propagate the re-imagination of the present law and approaches to sexual violations against women from Zimbabwe's political conflict that disrupts post-colonial Zimbabwe. The present study invokes the task of recalling the pre-colonial African philosophy of Ubuntu in conflict resolution in the re-imagination of an alternative jurisprudence. The task of re-envisioning jurisprudence in the resolution of conflict-related sexual violence offers a liberating viewpoint that counters the Western domination and marginalisation of African indigenous knowledge in post-conflict justice initiatives in Zimbabwe. The study investigates the pre-colonial African philosophy of law and justice interpretation in conflict resolution to analyse and evaluate the challenges of the present conflicting existence of the two legal systems and the challenge this poses in addressing conflict-related sexual violence in Zimbabwe. The study explores the possibilities of integrating Western and pre-colonial African philosophy and systems in conflict resolution on sexual violence arising in internal conflict situations. To that end, the study proposes an integrating approach in resolving conflict-related sexual violations that assumes Ubuntu epistemology as the jurisprudence that might bridge the jurisprudential challenges and gaps in the lack of approaches on sexual violations against women in Zimbabwe.