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Term 2 Summary of Lectures 1-14
**These are key points taken from Prof. Naude’s PowerPoint presentations. SOME parts are directly quoted, others have been simplified
by me. I do not take credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I
found important**
BIBLIOGRAPHY:
BIBLIOGRAPHY:
- Naude, Barnard. “FSAL Lecture [1-14]” 24 June. 21
- Meintjies,
- der Walt. Introduction
Naude, Barnard.to SouthLecture
“FSAL African[1-14]”
Law. 3rd edition,
24 June. 21Pearson Education South Africa, 2019.
- Barnard-Naudé, Jaco. "The post-apartheid legal order." Humby ea (reds.) (2012).
- Meintjies, der Walt. Introduction to South African Law. 3rd edition, Pearson Education South Africa, 2019.
- Didcott, J. "Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others." (2017).
- Madlingozi, Tshepo. "Good victim, bad victim: Apartheid’s beneficiaries, victims and the struggle for social justice." Law, memory and the legacy of apartheid: Ten years after AZAPO v President of South Africa (2007).
- Assembly, Constitutional. "Constitution of the republic of South Africa." Cape Town 230.38 (1996).
- Barnard-Naudé, Jaco. "The pedigree of the Common Law and the ‘unnecessary’constitution: a discussion of the Supreme Court of Appeal’s decision in HR v DE." South African Law Journal 133.1 (2016).
- Klare, Karl E. "Legal culture and transformative constitutionalism." South African Journal on Human Rights 14.1 (1998).
- Langa, Pius. "Transformative constitutionalism." Stellenbosch L. Rev. 17 (2006): 351.
- Sibanda, Sanele. "Not purpose-made! Transformative constitutionalism, post-independence constitutionalism and the struggle to eradicate poverty." Stellenbosch Law Review 22.3 (2011).
- M Modiri, Joel. "The colour of law, power and knowledge: introducing critical race theory in (post-) apartheid South Africa." South African Journal on Human Rights 28.3 (2012).
Lecture 1
Introduction to Critical Post-Apartheid Jurisprudence
2 primary dimensions
• temporal / formal
temporal dimension concerns the time – ‘post-apartheid’, a time
after apartheid
• spatial / substantive
consider the content / the space of the temporal moment called
the ‘post-apartheid’
• ‘institutional, formal dismantling’ : end apartheid as a state, racism was
overthrown during late 1990s, during ‘transition’
• abolition of minority rule parliamentary sovereignty
• replacement with constitutional supremacy.
• transition began on the 2nd of February 1990 when then President FW de
Klerk spoke to parliament
• announced the unbanning of ANC, Pan Africanist Congress
and the SA Communist Party, release of political prisoners
(Mandela)
• not accept the idea that there is a historical end to transition.
• opposes idea that transition ended when the Constitution (1996)
was signed into law.
, • interrogate political and legal history between 2
• February 1990 and February 1997 when constitution came effect
• ‘transformative constitutionalism’ provides a set criteria for determining
whether our legal order is authentically ‘post-apartheid’
• positivism – the authority of the law’s source determines its validity,
not its morality
when the law is judged as valid, there is decision involved in
determining what this valid law means – why? Humans are not
neutral so why is that law considered valid
• universal idea of freedom for all – as such it is unapologetically a
movement of the Left –pro-feminist, pro-queer, anti-colonial, etc.
Transformative Constitutionalism
• meaning: inducing large-scale social change through nonviolent political
processes grounded in law
• Klare says that constitutional democracy does not mean that the legal
order experienced a revolution.
requirements for revolution:
1) large scale rejection of an existing government’s authority
2) change in the location of sovereignty
3) freedom
• In SA: only partial requirements for revolution – the armed struggle was
forced to negotiate a hand over of power, it did not take power by extra-
constitutional means
• incomplete revolution –it is still in the making
• endless journey
Lecture 2 and 3
, Timeline of transition from 1992-1997
• 2 Feb 1990 De Klerk speech
• 11 Feb 1990 Mandela release
• 4 May 1990 Groote Schuur Minute
• 6 August 1990 Pretoria Minute
• 20 Dec 1991 CODESA Round 1
• 17 March 1992 Whites-only referendum
• May 1992 CODESA deadlock
• 17 June 1992 Boipatong Massacre
• 16 July 1992 UN Security Council Resolution 765
• 7 September 1992 Bisho Massacre
• 26 September 1992 Record of understanding
• 10 April 1993 Assassination of Chris Hani by Walus, Derby-Lewis, CP
• 18 November 1993 Apartheid parliament enacts the Interim Constitution
• 27 April 1994 First democratic election
• 24 May 1994 Inauguration of the first democratic parliament by Nelson
Mandela
• Promotion of National Unity and Reconciliation Act 1995
• 8 May 1996 Constitutional Assembly adopts first final version of the ‘final’
1996 Constitution
• CC declines to certify the first ‘final’ Constitution (34 principles)
• TRC First Hearing 15 April 1996
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