Class notes
Fsal first year study notes (term two)
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- University Of Cape Town (UCT)
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Lecture one: Critical Jurisprudence Post-ApartheidCritical legal studies: Takes the stance that law is inherently political.
Critical post -apartheid legal studies have two dimensions:
a) Temporal dimension:
Involves the dismantlement of parliamentary sovereignty from the 2nd of February 1990, and
its replacement by constitutional supremacy in 1997.
2nd February 1990: SA began its transition to democracy, FW de Klerk announced that
negotiation is necessary to ensure peace, and that the ANC and PAC were to be unbanned
and political prisoners (including Mandela) released.
It is contended that this transition has not yet fully ended, despite the dominant historical
position that the 1996 constitution constituted the ending.
b) Spatial dimensions:
Considers the context/space of post-apartheid law.
Transformative constitutionalism provides criteria to determine whether and how our legal
order is post-apartheid.
Critical legal studies > Critical jurisprudence > post-apartheid jurisprudence
Positivism: Law is authority that must be obeyed.
Critical jurisprudence:
Exposes politics within law and adopts TC as its preferred interpretive approach.
Says that there is an implicit political decision in judging a law and questioning its validity,
interpreting law (as it is never pre-given or fixed), and placing limitations on the law, often in
favour of conscience and the “other”, completely excluding certain political views.
Transformative constitutionalism and revolution in Critical post-apartheid revolution:
Klare:
TC is the long-term constitutional enactment, interpretation, and enforcement of law,
committed to transforming a countries political and social institutions and power
relationships in a democratic, participatory, and egalitarian direction.
Non-violent- grounded in law- “revolutionary”
TC adopts the position that revolution is legal as it is mandated by law and that post-
apartheid in itself is incomplete.
Requirements for a revolution:
1. Large scale rejection of an existing government’s authority
2. Replacement of that government by extra-constitutional means (change in the location
of sovereignty)
3. freedom
Comparing criteria to TC and SAs transition to democracy:
The armed struggle used negotiations, rather than any extra constitutional means.
It is still debateable whether freedom was achieved, and we are still in the transitional
period, and the revolution has not yet been completed.
25
,Lecture 2: The post-apartheid legal order
Timeline of SA transition
o 2nd February 1990- FW de Klerk’s speech
o 11th February 1990- Mandela release
o 4th May 1990 – Groote Schuur minute
o 6th August 1990 – Pretoria Minute
o 20th of December 1991 – CODESA
o 17th of March 1992 – whites only referendum
o May 1992 – CODESA deadlock
o 17 June 1992 – Boipatong Massacre
o UN national security council resolution – 16 th of July 1992
o Bisho Massacre – 7 September 1992
o Record of understanding – 26 September 1992
o Chris Hani assassination, Mandela national address – 10 April 1993
o Apartheid parliament enacts the interim constitution – 18 th of November 1993.
o First democratic elections – 27th April 1994
o Inauguration of the country’s first democratic president, Nelson Mandela – 24 th May 1994
De Klerks speech:
Announced that only a negotiated understanding could bring peace in SA.
Unbanned ANC and PAC.
Announced the unconditional unbanning of Mandela.
Mandela’s release:
There is still speculation about his release, some believe he negotiated his own release.
Naude believes he negotiated the date of his release.
He received the Nobel peace prize jointly with de Klerk. There is controversy regarding de
Klerk’s involvement.
Conclusion of Groote Schuur minute:
The government and ANC committed themselves to the resolution of violence and
interpolation.
Removed practical obstacles to the negotiations such as providing amnesty for exiles.
Pretoria minute:
The ANC formally suspended the armed struggle against apartheid.
CODESA (Convention for a Democratic South Africa):
Round one negotiation.
Whites only referendum
De Klerk held a memorandum to test support for transitional measures among white
electorates. The result: 68% of the white population voted in support of the ending of
apartheid.
26
, There is controversy surrounding De Klerk’s explicit statement that this referendum “closed
the book on apartheid”.
Lecture 3:
CODESA deadlock:
The deadlock concerned the voting percentages required to adopt a new constitution.
It resulted from the NP and ANC’s failure to agree on a governmental decision.
The NP wanted a stipulation allowing a minority party to have an effective veto right against
decisions of the majority in certain cases, which the ANC deemed fundamentally anti-
democratic.
The NP wanted a ¾ (75%) majority vote to adopt the new constitution, while the ANC
wanted a 2/3 majority. They agreed on a 70% majority.
The ANC acceded to a 75% majority for the Bill of rights but held that if the constitutional
assembly failed to pass the final draft of the constitution with these majorities within 6
months, then a national referendum would be held, and a 50%+1 majority would secure the
adoption of the new constitution.
The NP refused this to maintain their control over the majority.
The ANC then announced their withdrawal from the negotiations.
The Boibatong Massacre:
Fatalities: 46
Cause: alleged tension between ANC and NP, ANC held that a 3 rd force was responsible for
the killings, alleging that the SA police force and de Klerk was complicit in the massacre in
order to employ a divide-and-rule strategy.
ANC, post massacre, withdrew from all negotiations arguing that the NP was prepared to do
anything to subvert the democratic movement.
UN national security resolution:
On 16 July 1992, the UN adopted Resolution 765 and urged that the parties resume
negotiations. They condemned the massacre and sent a specialised monitoring unit.
However, the parties did not comply.
De Klerk appointed the Goldstone Commission of Inquiry in 1991 to investigate political
violence and intimidation during the transitional process and it turned out there was no
evidence to support police complicity. 120 Boibatong residents were also interviewed in
1993, and the results were the same.
The TRC found conflicting information regarding the complicities of security forces. They
found first that they were indeed complicit and then later, that they were not involved.
There is no clarity, to date.
Bisho Massacre:
Fatalities: 29
Injured: 200+
ANC officials led a march to demand end of military rule of Brigadier Joshua Gqozo (ruling
Ciskei). Gqozo instructed defence force to open fire.
Record of understanding:
27
, ANC returned to negotiations to avoid more mass action, violence, and ease the diplomatic
pressure. They were also pressured an impending economic crisis in SA.
2nd stage of negotiations was called the Multi Party Negotiation forum (MPNF) (1 st April
1993).
Chris Hani assassination:
Brought the country to the brink of a race war.
Shot by a member of the conservative party at point blank range and reported to the police
by a white woman.
His driver/security guard was not present.
Clive Derby-Lewis and Janusz Walus was arrested for the murder and served life.
Mandela reacted immediately. He addressed the nation on TV as if he were already the
president of the country, allowed by the NP and pleaded for calm. His peacefulness earned
bargaining power for the ANC at the negotiation table.
Leaders, across racial divides, all called for calm and negotiations intensified, rather than
derailed.
Apartheid parliament enacts the interim constitution.
The apartheid parliament had to vote themselves out of political power.
The decolonisation position contests that the settler created state SA should continue to
remain in force.
The first democratic elections:
ANC won with 62% of the vote.
Mandela was president, de Klerk and Thabo Mbeki was his deputies.
De Klerk constituted unity, rather than black domination.
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