Law, Nation-Building & Transformation: The South African Experience in Perspective

Law, Nation-Building & Transformation: The South African Experience in Perspective

Hardback Series on Transitional Justice (Hardcover)

Edited by Catherine Jenkins, Edited by Max Du Plessis

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  • Publisher: Intersentia Ltd
  • Format: Hardback | 350 pages
  • Dimensions: 156mm x 246mm x 25mm | 710g
  • Publication date: 31 January 2014
  • Publication City/Country: Cambridge
  • ISBN 10: 1780681844
  • ISBN 13: 9781780681849
  • Edition statement: New.

Product description

In this volume, fifteen contributors from the disciplines of law, politics and sociology reflect on South Africa's transition to democracy and the challenges of transformation and nation-building that have confronted the country since the first democratic elections of 1994. The range of topics covered is expansive, in keeping with a broader than usual definition of transitional justice which, it is argued, is more appropriate for states faced with the mammoth tasks of reform and institution-building in a context in which democracy has never been firmly rooted and the existence of widespread poverty gives rise to the dual demands for both bread and freedom. In the case of South Africa, the post-apartheid era has been characterised by wide-ranging attempts at transformation and nation-building, from the well-known Truth and Reconciliation Commission to reforms in education and policing, the promotion of women's rights, the reform of land law, the provision of basic services to hundreds of thousands of poor households, a new framework for freedom of expression, and the transformation of the judiciary. In the light of South Africa's commitment to a new constitutional dispensation and to legal regulation, this volume focuses in particular, but not exclusively, on the role that law and lawyers have played in social and political change in South Africa in the post-apartheid era. It sets the South African experience in historical and comparative perspective and considers whether any lessons may be learnt for the field of transitional justice.

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Table of contents

Editors' Foreword Chapter 1. Transitional Justice: Lessons from South Africa? Catherine Jenkins 1. Introduction 2. South Africa: A Transition from What? 2.1. The 'Deep Wounds' of Colonialism 2.2. Apartheid 3. The Post-Apartheid Project: A Transition to What? 3.1. Transformation 3.2. Nation-Building 4. Role of Law, Courts and Lawyers in the South African Transition 5. Conclusion Chapter 2. Reflections on Post-Apartheid Nation-Building: Identity, Participation, Community Gerhard Mare 1. Introduction: The Struggle for What? 2. The Legacy of Apartheid: Nations, Space, Race and Capitalism 2.1. Nations 2.2. Space 2.3. Race 2.4. Capitalism 3. A Constitution Towards Democracy? 3.1. Democracy: The Necessity of Debate and Protection of the Communicative Space 4. Conclusion: Democracy and Uncertainty Chapter 3. The Truth and Reconciliation Commission Process: A Retrospective John Daniel 1. Introduction 2. 3. The Party Political Critique 4. 3. The Academic Critique: Misperception of the Genre 4. The Case for the Commission 5. The Truth 6. Amnesty 7. The Political Demobilization of the Right-Wing 8. The Grand Narrative of Reconciliation 9. But Can it Last? The Missing Material Dimension 10. Conclusion Chapter 4. Rights at Work: The Transition to Constitutional Democracy and Women in South Africa Catherine Albertyn 1. Introduction 2. Race, Class and Gender under Apartheid 3. Establishing Constitutional Democracy and Women's Rights 4. Culture, Equality and Rights 5. Rights, Choice and What's Good for Women 5.1. Using Rights Strategies against Abortion 5.2. Rights: Sites of Contestation 6. Conclusion Chapter 5. Crime, Policing and Nation-Building Antony Altbeker 1. 'Kill the Bastards' 2. Crime, the Beloved Country 3. Crime, the Law and Institutionalised Cynicism 4. Unequal Protection 5. The Idea of the Law after the 'Democratic Breakthrough' 6. Law Enforcement after Apartheid 7. Shabangu and the Rule of Law Chapter 6. Public Schools for Afrikaners in South Africa Christina Murray 1. Introduction 2. Settling the Language of Education Provision 3. The Law and Policy Framework 3.1. The Broad Context: Resources, the Constitution and Politics 3.2. Law and Policy 4. What is Happening in the Schools 4.1. Statistics and Choices 4.2. Race and Administrative Procedures 5. Assessing the Settlement 5.1. Using Rights 5.2. Multilevel Government 5.3. School Governing Bodies 5.4. National Politicians 5. Conclusion Chapter 7. Behind the Mask of the Rainbow Nation: The Limits of Law in Post-Apartheid South Africa Stephen Pete and Max du Plessis 1. Introduction 2. The Origins of the CLS Movement - Historical Parallels between the United States of America and South Africa 3. Dreams of a Rainbow Nation 4. A Discourse of Rising Discontent 5. Failing to Implement the Law [1]: Fighting for Scraps in the Battle for Pensions and Social Grants 6. Failing to Obey Court Orders [2]: Executive Intransigence and AIDS 7. Conclusion Chapter 8. The Transformation of the Judiciary Murray Wesson and Gilbert Marcus 1. Introduction 2. The Judiciary under Apartheid 3. The Transformation of the Judiciary: What Does it Mean? 3.1. The Process by which Judges are Appointed . 3.2. Diversity 3.3. Judicial Attitudes 3.4. Accountability and Ethics 3.5. Efficiency and Access to Justice 4. Conclusion Chapter 9. Assessing the Social Transformation Performance of the South African Constitutional Court: From Totalitarianism to the Rule of Law Theunis Roux 1. Introduction 2. The Four Adjudicative Strategies 2.1. The Use of Doctrinally Redundant Language to Set the Tone of a Judgment 2.2. A Preference for Formalistic Tests over Substantive Moral Reasoning 2.3. The Conversion of Conceptual Tests into Discretionary Standards 2.4. Manipulating Textual Ambiguity So As to Lower the Political Temperature in Controversial Cases 3. Conclusion Chapter 10. The Transformation of Land Law A.J. van der Walt 1. Introduction 2. Transformation, Legal Culture and Tradition 3. Transforming Land Law Chapter 11. The South African Presidency in Comparative African Context Roger Southall 1. Introduction 2. The Presidency Under Apartheid 3. The Presidency Since 1994 4. The Two Term Limit and the ANC 5. One or Two Centres of Power? Party, Parliament and President in the Wake of Polokwane 6. South Africa and Changing Presidential Trends in Africa 7. Conclusion: The Presidency and Democracy Chapter 12. Aspects of the Treatment of Freedom of Expression in South Africa's Democratic Transition Glenn Penfold 1. Introduction 2. The Vital Role of Freedom of Expression in Promoting Democratic Functioning 3. Defamation 3.1. Out Goes Strict Liability, in Comes Reasonableness 3.2. The Onus of Proof 4. Contempt of Court 5. Hate Speech 5.1. The Treatment of Hate Speech in the Constitution 5.2. Legislative Prohibitions on Hate Speech 5.3. The Treatment of Constitutional Hate Speech in Tribunals and Courts 6. Conclusion Chapter 13. Constitutionalism in Commonwealth Africa: Comparative Perspectives Peter Slinn 1. Introduction 2. The Rule of Law and Constitutionalism 3. Constitutions Do Matter: The Revival of Constitutionalism 4. Political Culture 5. Historical Legacy: Colonial and Post-Colonial 6. The Search for Popular and Durable Constitutions 7. Excessive Concentration of Power in the Executive 8. Lack of Parliamentary Autonomy and Effective Political Accountability 9. Threats to the Independence and Integrity of the Judiciary 10. The Failure to Develop Effective Methods of Devolution of Power to Local Communities 11. Undermining the Constitution by 'Constitutional' and 'Extra-Constitutional' Means 12. Weakness of Civil Society and Lack of Effective Independent Oversight Institutions 13. Conclusion: Some Comparative Pointers for South Africa