ACADEMIC INTERGRITY DECLARATION

Declaration: LJU4801 (Exam Script May/June 2023)

1. I understand what academic dishonesty entails and am aware of UNISA’s policies

in this regard.

2. I declare that this Essay is my own original work. Where I have used someone else’s
work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this Essay from the work or works of other people
has been referenced according to this style.

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

4. I did not make use of another student’s work and submitted it as my own.

NAME: Nthangeni Foster

STUDENT NUMBER: 57698023

MODULE CODE: LJU4801

SIGNATURE:

DATE: 27 May 2023

Question 1

1.1

The relationship between morality and law is one of the ongoing topics in legal
philosophy. For us to unpack this phenomenon, we would have to look at the two
different legal philosophies and how they each relate to issues that have to do with
homosexuality. According to natural law, any system of law is supposed to be founded
on the notion that there is a fundamental morality or rightness to the world.1 Legal
positivism argues that only laws written by humans have true authority and that we are
free to follow or resist any laws we choose.2

Natural Law

Natural-law philosophers, believe that law and morality cannot be separated.3 They
argue that legal rules that oppose natural law are not only invalid, but also unfair.4
Natural law has to do with what constitutes and is not morally correct. Laws that
contradict natural law are considered immoral because they contradict the
fundamental principles of fairness that apply to all humans. Natural law philosophers
believe that rules that contradict moral principles are not binding and do not have the
same level of validity as those that do.5

Legal Positivism

Legal positivists, on the other hand, feel that there is a distinction between law and
morality and that the law should be based only on social norms that are approved by
the state and its agencies. For legal positivists, the law is the result of human
creation and is not subject to any natural source or supernatural intervention. As a
result, a legislation can be considered lawful even though it contradicts moral values.6
Legal positivists argue that the existence or validity of a ethical statement

1
Le Roux WB “Natural law theories” in Roederer C and Moellendorf D (eds) Jurisprudence (Juta Lansdowne 2004) 25 – 61.
2
Hart Concept of law 96 – 97.
3
Le Roux WB “Natural law theories” in Roederer C and Moellendorf D (eds) Jurisprudence (Juta Lansdowne 2004) 25 – 61.
4
Kroeze, Legal Philosophy 151.
5
Le Roux WB “Natural law theories” in Roederer C and Moellendorf D (eds) Jurisprudence (Juta Lansdowne 2004) 25 – 61.
6
Kroeze, Legal Philosophy 151.
including legal regulations must be based on actual circumstances rather than moral
content.7

Homosexuality (LGBTQI+)

Legal positivists would argue that the Constitution8 of the Republic of South Africa,
1996 and legislative provisions this include regulations passed through legislature and
also all case law that has been through courts offer the LGBTQI+ community legal
standing and protections, regardless of social views that are against the LGBTQI+
rights in South Africa.9 On the other hand, natural-law theorists might argue that the
rights of the LGBTQI+ group transcend mere legal recognition and involve issues of
social and moral justice. They would argue that these fundamental moral ideals, which
are predicated on respect for human dignity and equality, should be reflected in law.10
In layperson language, morality should be interlinked to law.

In conclusion, the relationship between law and morality is complex, with different
schools of philosophy giving opposing viewpoints. The application of these various
viewpoints has a considerable impact on the interpretation and implementation of
South African laws concerning the rights of LGBTQI+ people.

1.2

Section 9 of the Constitution of the Republic of South Africa, 1996

Section 9 of the Constitution expressly prohibits discrimination on the basis of sexual

orientation. As per section 9 (1), “Everyone is equal before the law and has the right
to equal protection and benefit of the law.” Section 9 (2) states that “Equality includes
the full and equal enjoyment of all rights and freedoms. To promote the achievement
of equality, legislative and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may be taken”.11

7
Kroeze, Legal Philosophy 151.
8
Constitution of the Republic of South Africa, 1996.
9
The Constitution.
10
The Constitution.
11
Section 9(1) of the Constitution.
These provisions are rooted in the principle of human dignity, which is the cornerstone
of the Constitution. The Constitutional Court of South Africa has reaffirmed this
principle in various cases, including National Coalition for Gay and Lesbian Equality v
Minister of Justice12, where the court held that discrimination on the grounds of sexual
orientation is a constitutional violation of the fundamental right to equality.

Positivist theory

As discussed in 1.1 above, Legal positivists believe that there is a separation between
law and morality, and that the law should be formulated solely based on social customs
that are backed by state agencies. The South African government's position on
homosexuality is therefore based on legal and constitutional principles rather than
moral considerations and one can argue that it is not based on religion too. While
some individuals and groups may hold moral or religious views that are opposed to
and we see these amongst Christians and Muslim religions, the law recognises the
rights of all individuals, regardless of their sexual orientation. This approach reflects
the positivist theory of adjudication, which emphasises the importance and
prioritisation of legal rules and principles over personal values or beliefs.

I have argued that the South African position on homosexuality is based on law rather
than morality in its widest sense, as we see it also enshrined in one of the most
controversial acts which is the Civil Union Act13. This Act solemnizes all civil unions by
either a marriage or civil partnership, the legal consequences of civil unions and to
provide for matters incidental to it.14 The Civil Union Act recognises same-gender
marriages and provides for legal recognition and consequences of such unions. Act
was enacted in response to a Constitutional Court judgment in Minister of Home Affairs
v Fourie15 , which declared that the common law definition of marriage as a union
between a man and a woman was unconstitutional. The court held that denying same-
gender couples the right to marry violates their right to equality and human dignity.16

12
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15;
1999 (1) SA 6
13
Civil Union Act 17 of 2006.
14
Ibid at the long title of the Act.
15
Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1)
SA 524 (CC).
16
Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1)
SA 524 (CC)
According to the positivist theory of adjudication, the law is a product of legislative and
judicial decisions, which are based on legal rules and principles rather than subjective
moral values or beliefs. The law is therefore an objective and impersonal system that
is separate from personal opinions or preferences, and we see this being applied in
numerus Bill of Rights case law.

In conclusion, the South African position on homosexuality is founded on legal norms

and principles rather than moral considerations. The Constitution and the Civil Union
Act recognise the rights of all individuals, including those who identify as LGBTQI+, to
equality and human dignity.17 These legal frameworks reflect the positivist theory of
adjudication, which views the law as an objective and impersonal system that is
separate from personal values or beliefs.

Question 2

2.1

Feminist legal theory (critical gender theory),

Feminism begins with the notion that, while men and women appear physically or
different, they are fundamentally the same.18 Men and women may look different in
the appearance of their earthly bodies, but their thoughts, behaviours, and ambitions
are the same. At a time when females were battling for the right to vote, equal pay for
equal work, and equal opportunity, this type of feminism was required.19 This is due to
critical gender theory, which maintains that gender is a socially created notion that has
historically been used to explain inequities between men and women.20

In the feminist theory, treating men and women differently on the basis of gender is
generally regarded wrong, as any attempt to treat men and women differently on the
basis of gender is generally seen as reinforcing and perpetuating these historical
inequities. these is fundamentally found on the principle of patriarchal norms.21

17
Grant, E. (2007, March 27). Dignity and Equality. Human Rights Law Review, 7(2), 299.
18
Grant, E. (2007, March 27). Dignity and Equality. Human Rights Law Review, 7(2), 230. https://doi.org/10.1093/hrlr/ngm002
19
Tong R Feminist thought: A comprehensive introduction (Westview Press Boulder 1989)
11 – 38.
20
Wing AK Global critical race feminism: An international reader (New York University Press
New York 2000) and Morgan R Sisterhood is global: The international women’s movement
anthology (The Feminist Press New York 1984).
21
See section 9(3) of the Constitution.
Critical gender theory, on the other hand, advocates for an approach that works for
gender equality while also acknowledging the ways in which gender intersects with
other types of constructs such as race, class, and sexuality.22 Promoting policies and
practises that level the playing field between men and women, such as affirmative
action programmes and anti gender discrimination laws, as well as participating in
social and political engagement that tackle discrimination based on gender and
prejudices, are examples of how this might be accomplished.23

Ultimately, feminist legal theory believes that discrimination or differentiation on the

basis of gender is wrong in whatever form. It makes the claim that the patriarchal
structure of our society, which feeds into gender discrimination and stereotypes,
erodes the fundamental rights of women and other marginalised gender identities. Due
to the intersection of gender and other types of oppression, it is essential to eradicate
patriarchal systems and legal frameworks in order to achieve gender equality.

2.2

Mary Joe Frug

Frug argues that the law “encodes” the female body with meaning, which she defines
as promoting specific views of how women's bodies should be viewed in the context
of law.24 The maternalisation of the female body is mandated by legal regulations,
according to Mary Joe Frug.25 She argues that some laws give the female body a
social meaning, frequently in ways that are oppressive and discriminatory.

In this case, the president's choice to allow mothers who are imprisoned an early
release is based on the patriarchal notion that women's main responsibilities are to
care for and nurture children and this is seen as problematic in definition as it only
focusses on those women who can procreate excluding those that cannot. It also
poses a problem as seen in the arguments raised by Hugo26 as men can also be seen

22
Frug MJ “A postmodern feminist legal manifesto” 1992 Harvard Law Review 1045 – 1075.
23
MacKinnon C “Difference and dominance: on sex discrimination” in Feinberg J and Coleman
J (eds) Philosophy of Law (Belmont 2008) 180 – 191.
24
Frug MJ “A postmodern feminist legal manifesto” 1992 Harvard Law Review 1045 – 1075.
25
Frug MJ “A postmodern feminist legal manifesto” 1992 Harvard Law Review 1045 – 1075.
26
Marini, Margaret Mooney. 1990. “Sex and Gender: What Do We Know?” Sociological Forum 5(1): 95–120.
as caregivers of children and not necessarily because of them giving birth to the said
children but because any gender can parent a child.

By prioritizing motherhood in this way, the president's decision reinforces the idea that
women who choose not to have children are less valuable or less deserving of support
than those who do. This is a form of discrimination against women based on
parenthood or procreation abilities, and it reflects the way that the law “encodes” social
meanings onto the female body that are based on gendered stereotypes and
expectations as argued by Frug.

2.3

Cultural and societal factors influence gender roles

Gender refers to cultural and social factors that shape who we are and what we do as
human beings and this is not in anyway referring to sex (biology).27 Gender roles are
influenced by cultural and socio-economic factors, which refer to the social roles
assigned to men and women.28 This is often seen in relating the colour blue with boys
and pink with girls. Culture shapes our perceptions of what roles men and women
should play, which is why the Constitution prohibits discrimination based on sex and
gender.29 The behaviour patterns, responsibilities, duties, and expectations that
society gives to men and women are referred to as gender roles.30 Individuals'
responsibilities in particular situations, such as family, work, and society, are shaped
by societal and cultural variables.

In the case in President of the Republic of South Africa v Hugo31, it is said

that president relied on the social and cultural concept that mothers are the primary
care givers of young children. This notion is founded on cultural assumptions that
women are nurturing and loving, and thus responsible for their children's physical and
mental health. This takes us to the discussion that I explained above of gender role
assumption. In the past, social, and cultural standards have reinforced gender
stereotypes, perpetuating the view that women belong in the house while males take

27
Marini, Margaret Mooney. 1990. “Sex and Gender: What Do We Know?” Sociological Forum 5(1): 95–120.
28
Ibid.
29
See section 9(3) of the Constitution
30
West R “Jurisprudence and gender” in Bartlett KT and Kennedy R (eds) Feminist legal
theory: Readings in law and gender (Westview Press Boulder 1991) 201 – 234
31
President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4
up positions of authority outside the home. Gender expectations have resulted in men
dominating positions of power, while women have been confined to less powerful,
domestic duties.

All these norms in society and culture influence how people view gender roles and
expectations. Therefore, based on how people think of gender roles in society, these
ideas may affect actions made at the societal level, such as laws and legislation
passed at legislature level. For example, these cultural and societal elements that
affect gender roles and expectations may be reflected in the President's dependence
on the idea that women are the primary carers of young children.

Many facets of gender roles, such as schooling, profession choice, family obligations,
and social interactions have been impacted by these cultural and social-economic
factors.32 For instance, males are frequently expected to work outside the home while
women are supposed to raise children at home. This social custom restricts the
options for women outside of the home and reinforces the gender pay gap which is
todays biggest challenge in the corporate spaces.33

In summary, cultural, and societal influences are very important when it comes to
gender roles. The norms for what define appropriate behaviour, duties, and positions
for men and women are determined by societal attitudes and views about gender.
These cultural norms, particularly for women, can reinforce prejudices and restrict
opportunity. To build a fairer society, it is essential to challenge and change these
attitudes and beliefs.

Question 3

3.1

Face-to-face compensation.

The argument that African Legal Philosophies are more in line with natural law thinking
is based on the characteristics of customary law and the historical operation of
traditional courts.34 The African legal tradition has an intricate relationship between

32
Moses, Ikupa, Wilfried F. Admiraal, and Amanda K. Berry. 2016, May 13. “Gender and Gender Role Differences in Student–
Teachers’ Commitment to Teaching - Social Psychology of Education”SpringerLink.
https://link.springer.com/article/10.1007/s11218-016-9340-3.
33
Ibid.
34
Idowu W “ ‘To each a crumb of right, to neither the whole loaf’: The metaphor of the bread and
the jurinomics of justice in African thought” 2012 Journal for Juridical Science 56 – 83 61:
law, culture, and religion, unlike many Western systems. Its traditional history,
socialism, reconciliation, and absence of separation of law, religion, and morality are
characteristics of its legal system.35 In African communities, adjudication serves a
reconciliatory and social cohesion-promoting objective rather than a punitive one.36

There has been a growing interest in alternative methods to justice that incorporate a
more restorative process for both victims and criminals in recent years.37 Rather than
simply penalising offenders, restorative justice programmes seek to rectify the
suffering caused by crime and promote healing.38 A good example is the face-to-face
compensation system, which has been endorsed by courts in some circumstances
and bears striking resemblance to the traditional African legal approach to law and
dispute.39

In the option of the face-to-face compensation procedure, the perpetrator of the

offence has a duty to meet with the victim of the crime and directly acknowledge their
wrongdoing. They may be asked to provide some type of compensation or restitution,
such as giving money they stole, community service, or even apologies.40 The
emphasis is on healing the harm caused by the offence, which is generally
accomplished through direct contact between the persons involved.41

This method is very similar to the traditional African approach to justice, which
promotes community values and rehabilitative strategies over individual retribution.42
Justice is viewed as a community obligation in this system, rather than the sole realm
of the state or the legal system.43 Conflicts are resolved by open communication and

35
Ibid.
36
Ibid
37
Mqeke RB Customary law and the new millennium (Lovedale Press Alice 2003) 16 – 27.
38
Agbakoba and Nwauche 2006 Cambrian Law Review 73 80
39
Idowu W “ ‘To each a crumb of right, to neither the whole loaf’: The metaphor of the bread and
the jurinomics of justice in African thought” 2012 Journal for Juridical Science 56 – 83 61.
40
Kroeze, Legal Philosophy 155.
41
Christa Rautenbach, ‘Legal Reform of Traditional Courts in South Africa: Exploring the Links between
Ubuntu, Restorative Justice, and Therapeutic Jurisprudence’ (2015) 2(2) Journal of International and
Comparative Law 275, 291.
42
Christa Rautenbach, ‘Legal Reform of Traditional Courts in South Africa: Exploring the Links between
Ubuntu, Restorative Justice, and Therapeutic Jurisprudence’ (2015) 2(2) Journal of International and
Comparative Law 275, 291.
43
Adenike Aiyedun and Ada Ordor, ‘Integrating the Traditional with the Contemporary in Dispute
Resolution in Africa’ (2016) 20 Law, Democracy & Development 154, 157-158.
negotiation, which frequently involves elders or wise leaders who are respected by
both parties.44

The notion of ubuntu, which reflects the shared humanity of all people and the
importance of maintaining harmony in society, is an important component of the
African legal system.45 According to the ubuntu ideology, crime is more than just a
breach of the law; it is also a disruption of the community's communal well-being.46
Because the offender's actions hurt not only the victim but also the larger community,
restoring balance demands the participation of everyone concerned.47

This restorative approach in ubuntu is also present in the face-to-face compensation

approach, which seeks to repair the issue between the victim and the responsible
party.48 It tries to restore trust and encourage healing by requiring the offender to admit
the offence in person and take action to make amends.49 This method can be
especially useful when the harm brought on by the crime is more psychological or
emotional than physical.

Finally, the face-to-face compensation system advocated by some courts is

comparable to the traditional African legal approach in that it emphasises restorative
justice and the restoration of relationships between victims and offenders.

3.2

Restoration of relationships

As already mentioned, the African Legal Philosophy's concept of law and adjudication
differs greatly from its Western counterpart.50 The main distinction is the adversarial

44
Adenike Aiyedun and Ada Ordor, ‘Integrating the Traditional with the Contemporary in Dispute
Resolution in Africa’ (2016) 20 Law, Democracy & Development 154, 157-158.
45
Kroeze, Legal Philosophy 149.
46
Kroeze, Legal Philosophy 149.
47
Kroeze, Legal Philosophy 159.
48
Kroeze, Legal Philosophy 159.
49
Ramathate T H Dolamo, ‘Botho/Ubuntu: Perspective of Black Consciousness and Black Theology’ (2014) 40 Studia Historiae
Ecclesiaticae 215, 216; Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa, 2017) 153.
50
Idowu W “ ‘To each a crumb of right, to neither the whole loaf’: The metaphor of the bread and
the jurinomics of justice in African thought” 2012 Journal for Juridical Science 56 – 83 61.
nature of legal processes in the West, as opposed to the reconciliatory idea of law that
is followed and valued in the African philosophical structure.51 The latter's goal is to
restore balance, which is accomplished by conciliation, compromise, and
reconciliation.52

This reconciliatory approach to law includes an element of humanity component.53

Idowu seems to be saying by this that since people created law, it is thus about people
and their position in the universe.54 This relates to the idea that people belong to social
groups and explains why unity among individuals becomes so important.55

Given the context, it is evident that African legal theory places a strong emphasis on
reconciling broken relationships because relationships are valued highly in African
culture and society.56 Relationships extend beyond people in many African cultures to
include families, communities, and even ancestors.57 These relationships are seen as
being impacted by conflict, and maintaining social peace and balance depends on
doing so.

Furthermore, fixing relationships through methods of solving conflicts promotes

peace, and respect for human dignity. It promotes a climate of remorse and
reconciliation and aids in the prevention of future disputes. With all these factors
considered, it is clear from an African legal perspective how important it is
to reconcile connections.

3.3

Legal positivism and natural law thinking are two distinct schools of legal philosophy
that have affected legal systems all around the world.58 These two schools of legal
philosophy also have some resonance with African legal traditions, although to
different extents.59

51
Idowu W “ ‘To each a crumb of right, to neither the whole loaf’: The metaphor of the bread and
the jurinomics of justice in African thought” 2012 Journal for Juridical Science 56 – 83 61.
52
Ibid.
53
Idowu 2006 Cambrian Law Review 4: “(The) interest (in legal philosophy) stems from the uniqueness of law not only as a
social institution but also in its uniqueness as a weapon ofsocial control.”
54
Ibid.
55
Ibid.
56
Idowu 2006 Cambrian Law Review 1 10; Idowu 2012 Journal for Juridical Science 56 68;
Idowu 2008 Journal for Juridical Science 163 174.
57
Ibid.
58
Le Roux WB “Natural law theories” in Roederer C and Moellendorf D (eds) Jurisprudence (Juta Lansdowne 2004) 25 – 61.
59
Ibid.
Natural law philosophy emphasises its importance of ethical principles inherent in
nature and applicable to all humans.60 It maintains that legal systems should represent
these ethical ideals, and that laws that do not do so are invalid. African legal systems
put an emphasis on ethical principles and values such as respect for elders,
community cohesion, and empathy. These principles are frequently represented in
traditional laws and practises passed down from generation to generation. For
example, the Ubuntu principle, which emphasises the connection of individuals within
a society, has been important to many African legal systems.61

However, due to legal positivism in many African legal systems, the application of
natural law theory has been limited.62 Legal positivism asserts that laws are only valid
if they are made and enforced by recognised judicial bodies, giving laws and legal
institutions precedence above ethical values.63 Many African nations have chosen
legal systems that place a high value on laws and judicial systems, frequently at the
expense of moral values. As a result, laws and practises that go against established
ethical standards and values have been adopted.

Despite the acceptance of legal positivism, many aspects of African legal traditions
continue to reflect natural law philosophy. Many African judicial systems, for example,
recognise the need of restorative justice and reconciliation rather than depending only
on punitive measures as discussed above. Rather than focusing mainly on retribution,
restorative justice emphasises the importance of fixing and restoring relationships
between individuals and communities. This approach is consistent with the emphasis
on ethical concepts such as empathy and unity in society in natural law theory.

Finally, African legal systems, relate with both natural law theory and legal positivism.
While African legal systems frequently prioritise legal positivism, natural law thinking
is nevertheless present in customary practises and legislation. These factors
demonstrate the significance of ethical ideals and values passed down through time.

60
Le Roux WB “Natural law theories” in RoedererC and Moellendorf D (eds) Jurisprudence (Juta Lansdowne 2004) 25 – 61.
61
English R “Ubuntu: The quest for an indigenous jurisprudence” 1996 South African Journal
on Human Rights 641 – 648.
62
Dugard J “The judicial process, positivism and civil liberty” 1971 South Afrcan Law Journal
181.
63
Dugard J “The judicial process, positivism and civil liberty” 1971 South Afrcan Law Journal
181.