Name: Silindile Precious

Surname: Gwala

Student No: 59236132

Module: LJU4801/Assignment 2

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TABLE OF CONTENTS PAGES

QUESTION 1 3-4

QUESTION 2 5-8

REFERENCES 7

DECLARATION 9

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Question 1

As section 9 of the constitution of the republic of South Africa, 1996 prohibits

discrimination on sexual orientation. Since civil union act 17 of 2006 recognises
same-sex marriages. In Hart positivist theory in 1950s and 1960s they were debating
about number of relationships between law and morality. The legal positivists they
were accepting that law sometimes can be bad but that does not make the law
invalid. According to natural thinkers they said law must conform to an idea of what
the law must be. According to the legal positivists stated that this is not realistic they
full believe in if the law is lawfully passed that is the law. They also note that these
does not mean the court can not decide cases merely on the literal meaning of the
law. Court should take into consideration in law. Therefore, there is a problem with
morally evil laws. The problem is that laws should be correctly made, but still be evil.
The natural law thinkers said that such laws are not laws. The legal positivists realise
these laws are still laws, but they must be opposed on other grounds. Devlin
disagrees with that. His views represent his reaction to the release of the so-called
Wolfenden Report on homosexuality in England in 1957. this point is based on
English law where it stated that any homosexual act amounted to criminal conduct.
The writer Oscar Wilde was found guilty and sentenced to two years in prison for
this. This report stated that it is not the task of the law to enforce moral rules.
Therefore a consensual sexual act between two men in private is a question of moral
conviction in these regards there is a problem with morally evil laws. and the law
should not interfere with their private lives. As a result homosexuality should not be
criminalised.

The South African position on homosexuality is primarily based on law rather than
morality. This can be understood by analyses the positivist theory of adjudication,
which emphasizes the importance of legal rules and the separation of law from
morality.

Positivist Theory of Adjudication

Positivism are legal theory that asserts the validity of law which determined by its
source, rather than its content or moral value. According to positivism, laws are
created by a recognized authority and should be followed regardless of personal

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beliefs or moral judgments. This theory extremely relevant to understanding of the
South African position on homosexuality.

Constitutional Protection

Section 9 of the Constitution of the Republic of South Africa, 1996 explicitly prohibits
discrimination on the basis of sexual orientation. This constitutional provision reflects
the legal recognition and protection of the rights of individuals regardless of their
sexual orientation. By enshrining this protection in the constitution, South Africa has
established a legal framework that safeguards the rights of LGBTQ+ individuals.

Civil Union Act

Furthermore, the Civil Union Act 17 of 2006 recognizes same-sex marriages. This
legislation provides legal recognition and protection for same-sex couples, granting
them the same rights and responsibilities as heterosexual couples. The enactment of
this law demonstrates the commitment of the South African legal system to equality
and non-discrimination.

Separation of Law and Morality

The South African position on homosexuality are refers to the principle of the
separation of law and morality. This principle holds that legal decisions should be
based on legal rules and principles, rather than personal moral beliefs. In the context
of homosexuality, this means that the legal recognition and protection of LGBTQ+
rights are not contingent on societal or moral approval.

Legal Evolution and Social Change

The South African position on homosexuality have evolved over time, reflecting
changing societal attitudes and a commitment to human rights. Prior to the
democratic transition in 1994, homosexuality was criminalized under apartheid-era
laws. However, with the adoption of the new constitution, South Africa embraced a
more inclusive and progressive approach to LGBTQ+ rights.

Judicial Activism

The South African judiciary should played a crucial role in shaping the legal
landscape regarding homosexuality. The Constitutional Court, in particular, has been
proactive in interpreting and applying the constitutional provisions to protect

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LGBTQ+ rights. This judicial activism has contributed to the legal recognition and
protection of homosexuality in South Africa.

Conclusion

The South African position on homosexuality is primarily based on law rather than
morality. The constitutional protection of LGBTQ+ rights and the recognition of same-
sex marriages through legislation demonstrate the legal framework that safeguards
the rights of individuals regardless of their sexual orientation. The positivist theory of
adjudication, which emphasizes the separation of law and morality, further supports
the understanding that the South African position on homosexuality is rooted in legal
principles rather than personal moral beliefs.

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QUESTION 2

2.1 Critical Gender Theory (CGT) started that when feminists started to make a
distinction between sex and gender. Sex is the term used to describe biological and
physical differences between men and women. In other words, whether you are male
or female is determined by chromosomes, physical attributes and so on. This is

the basic idea underlying much of liberal feminism. Therefore Gender, on the other
hand, is used to refer to cultural and societal factors that influence who and what you
are. Gender refers to the cultural roles accorded to men and women. Therefore, your
culture determines what you see as the appropriate roles for men and women. This
is why the Constitution prohibits discrimination on the basis of both sex and gender.
Therefore it is wrong to treat Men and women differently, in the case as stated that
president Act discriminates the sex coupled with parenthood of children below the
age of twelve, only women who are parents such children were released: woman
without children were not released.

Like CRT, the CGT scholars were originally part of CLS. They split from CLS for
much

the same reason – that the Crits did not pay enough attention to the position of
women

as a distinctive group. In their approach and methodology they are very similar to

CRT. In fact, to a large extent, we can argue that the two groups have merged.

Our discussion of the critical elements in CGT will therefore be brief. Throughout we

will also give a voice to those feminists and men who do not agree with these ideas.

Feminist legal theory, rooted in critical gender theory, challenges the traditional
understanding of gender and advocates for gender equality. It critiques the existing
legal framework that perpetuates gender-based discrimination and seeks to
dismantle oppressive structures.

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In the scenario presented, the appellant argues that the special remission of
sentences granted by the president discriminates against him based on his gender
and indirectly discriminates against his son. To analyse whether it is wrong to treat
men and women differently on the basis of gender, we need to consider feminist
legal theory.

Feminist legal theory asserts that treating men and women differently based on
gender perpetuates gender inequality and reinforces societal stereotypes. It argues
that gender should not be a determining factor in the allocation of rights, benefits, or
opportunities. Feminists advocate for a gender-neutral approach that recognizes
individuals as unique beings, rather than defining them solely based on their gender.

The majority judgment in the case acknowledges that the special remission of
sentences discriminates on the basis of sex coupled with parenthood. It highlights
that only women who are parents of small children were released, while women
without children and fathers of small children were not. This distinction based on
gender and parenthood perpetuates the stereotype that women are primarily
responsible for child-rearing.

Feminist legal theory would argue that such differential treatment based on gender is
problematic. It challenges the assumption that women are inherently better
caregivers and asserts that both men and women should have equal opportunities to
care for their children. By granting special remission only to mothers, the president's
decision reinforces traditional gender roles and fails to recognize the diverse
caregiving capabilities of both genders.

Furthermore, feminist legal theory emphasizes the importance of evidence-based

decision-making. The judgment notes that no statistical or survey evidence was
produced to establish the claim that mothers bear more responsibilities for child-
rearing. This lack of evidence raises concerns about the validity of the assumption
underlying the decision.

In conclusion, based on feminist legal theory, it is wrong to treat men and women
differently on the basis of gender. Such differential treatment perpetuates gender
inequality, reinforces stereotypes, and fails to recognize the diverse capabilities of
individuals. Feminist legal theory advocates for a gender-neutral approach that
promotes equality and challenges traditional gender roles.

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2.2 Mary Joe Frug's stated that the law "encodes" the female body with meaning
suggests the legal systems and decisions are influenced by societal norms and
expectations regarding gender roles and motherhood. In the given scenario, the
president's decision to grant special remission of sentences only to mothers with
small children under the age of twelve can be seen as an example of how the law
reinforces traditional gender roles and discriminates against women who do not
conform to these roles.

By granting special privileges to mothers, the president's decision rewards women

for their role as mothers and assumes that motherhood is the primary responsibility
of women. This reinforces the societal expectation that women should prioritize their
role as caregivers and penalizes those who choose not to be mothers or who do not
have children. This creates a distinction between women based on their parental
status, treating motherhood as a defining characteristic of womanhood.

Furthermore, the decision indirectly discriminates against female prisoners who are
not mothers. By granting special remission only to mothers, the decision implies that
women without children are less deserving of leniency or consideration. This
reinforces the societal belief that a woman's worth is tied to her ability to bear and
raise children, thereby encoding the female body with meaning and reinforcing
traditional gender roles.

In summary, the president's decision to grant special remission of sentences based

on motherhood constitutes discrimination against women on the basis of parenthood.
It reinforces traditional gender roles, rewards women for conforming to these roles,
and penalizes those who do not. This discrimination is in line with Mary Joe Frug's
argument that the law "encodes" the female body with meaning, as it reinforces
societal expectations regarding women's roles and responsibilities.

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REFERENCES
LJ KROEZE, only only study guides for LJU4801. UNISA(2017-2020)
LJ Kroeze only study guides for LJU4801 university of South Africa, Pretoria. 2017-
2020
Hart HLA "Positivism and the separation of law and morals" 1958 Harvard law
Review 593 598.

Devlin P The enforcement of moral (Oxford University press Oxford 1965)9.

[ Frug MJ "A postmodern femist legal manifesto" 1992 Harvard law Review 1045-
1075

DECLARATION

I hereby declare that:

1. I received a copy of Unisa’s Disciplinary Code of Conduct for Students (2008).

2. I am aware of and familiar with the contents of Unisa’s Disciplinary Code of Conduct for
Students (2008).

3. I am aware of and familiar with Unisa’s official Copyright Infringement and Plagiarism
Policy which was drafted in November 2005.

4. I know and understand what plagiarism is.

5. I understand that plagiarism is wrong.

6. I have used the Harvard referencing and citation style guide to acknowledge the work(s)
of other people which I have included in my assignment.

7. Where I have paraphrased or summarised the ideas, claims and interpretations from
other sources, these have been written in my own words and appropriately referenced.

8. I have not used inappropriate sources to complete this assignment. This includes using
other students’ essays or copying from file-sharing sites.

9. This assignment is my own work.

10. I have not allowed and will not allow anyone to copy my work with the intention of
submitting it as his or her own.

11. I understand that I could receive a mark of 0% and that Unisa may take disciplinary action
against me if there is a belief that this is not my own work, or if I am found guilty of
verbatim copying from another source.

Student Number: ____59236132__________________

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 Date: __31 August 2023____________________________________

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