Lecture 1
Introduction to Critical Post-Apartheid Jurisprudence
● Origin: Evolved from Critical Legal Studies.
● Focus: Examines the "post-apartheid" period through a
critical lens, questioning the current status quo
● Critical Perspective: Challenges and critiques the existing
legal status quo after apartheid.
● Key Question: What is the status quo after apartheid in
relation to law and in what ways does it remain
unchanged?
● Core Idea: Law is inherently political. This module explores
how political power shapes the legal order in the
post-apartheid era
Dimensions of Critical Post-Apartheid Jurisprudence
➔two primary dimensions to critical post-apartheid
jurisprudence: Temporal [formal] & spatial [substantive]
Temporal Dimension (Formal)
● Focuses on the time period after apartheid, especially the
transition phase (1990-1997).
● transition phase : the state abandoned its racism policies &
replaced them a democratic Constitution that protects
the rule of law
● Involves the formal dismantling of apartheid structures,
- eg. abolishing minority rule and establishing
constitutional supremacy.
● Key event : 2 February 1990 speech by President FW de
Klerk, announcing the unbanning of political parties (e.g.,
ANC, PAC,SCP) and release of Nelson Mandela.
● Before the 2nd of Feb the talks about talks took place : they
were meeting to negotiation the negotiations
, ● Critiques the notion that the transition ended with the 1996
Constitution, arguing that the transition is an ongoing
process without a clear historical end.
Spatial Dimension (Substantive)
● Analyses the content and legal culture of post-apartheid
law.
● Evaluates whether the law truly reflects the values of a
post-apartheid society.
● Uses transformative constitutionalism as a framework to
assess if the legal order has effectively shifted from
apartheid-era norms.
● Transformative constitutionalism provides criteria to
determine if the law is achieving substantial social and
legal transformation.
Critical Jurisprudence vs. Positivism
● Positivism: Law’s validity comes from its source, not its
morality.
● Critical Jurisprudence:
○ Sees law as political in creation, interpretation, and
limitations.
○ Emphasises that interpreting law involves political
choices.
○ Focuses on what interpretations exclude and how
they shape justice.
○ Advocates for emancipation, freedom, and
challenging unjust interpretations.
Transformative Constitutionalism
● Framework to assess if South African law is truly
transforming post-apartheid.
● Seeks democratic, egalitarian change through legal
reforms, rather than revolution.
, ● Embraces the idea of an ongoing "legal revolution" that
extends beyond the initial transition.
● Believes the post-apartheid era is a continuous process,
not a completed state.
Revolution vs. Legal Change
● Debate on whether South Africa’s transition was a full
revolution or a legal transformation.
● Klare: Transition as a long-term, transformative process.
● Ackermann: Describes it as a "legal revolution" but
acknowledges that true change was negotiated, not
forcefully taken.
● Transformative Constitutionalism helps understand the
ongoing nature of the transition.
Lecture 2-3
Timeline of South African Transition (2 Feb 1990 – 4 Feb 1997)
Key Events:
1. 2 Feb 1990: FW de Klerk’s Speech
○ Announced unbanning of political parties, release of
political prisoners.
○ Significance: Marked the beginning of negotiations
for a new South Africa.
2. 11 Feb 1990: Nelson Mandela’s Release
○ Mandela's release symbolises hope and a turning
point in South Africa's history.
3. 4 May 1990: Groote Schuur Minute
○ Agreement between ANC and the government to
commit to a peaceful transition.
○ Significance: Established principles for negotiation.
4. 6 Aug 1990: Pretoria Minute
○ Further agreements to reduce violence during the
transition.
Introduction to Critical Post-Apartheid Jurisprudence
● Origin: Evolved from Critical Legal Studies.
● Focus: Examines the "post-apartheid" period through a
critical lens, questioning the current status quo
● Critical Perspective: Challenges and critiques the existing
legal status quo after apartheid.
● Key Question: What is the status quo after apartheid in
relation to law and in what ways does it remain
unchanged?
● Core Idea: Law is inherently political. This module explores
how political power shapes the legal order in the
post-apartheid era
Dimensions of Critical Post-Apartheid Jurisprudence
➔two primary dimensions to critical post-apartheid
jurisprudence: Temporal [formal] & spatial [substantive]
Temporal Dimension (Formal)
● Focuses on the time period after apartheid, especially the
transition phase (1990-1997).
● transition phase : the state abandoned its racism policies &
replaced them a democratic Constitution that protects
the rule of law
● Involves the formal dismantling of apartheid structures,
- eg. abolishing minority rule and establishing
constitutional supremacy.
● Key event : 2 February 1990 speech by President FW de
Klerk, announcing the unbanning of political parties (e.g.,
ANC, PAC,SCP) and release of Nelson Mandela.
● Before the 2nd of Feb the talks about talks took place : they
were meeting to negotiation the negotiations
, ● Critiques the notion that the transition ended with the 1996
Constitution, arguing that the transition is an ongoing
process without a clear historical end.
Spatial Dimension (Substantive)
● Analyses the content and legal culture of post-apartheid
law.
● Evaluates whether the law truly reflects the values of a
post-apartheid society.
● Uses transformative constitutionalism as a framework to
assess if the legal order has effectively shifted from
apartheid-era norms.
● Transformative constitutionalism provides criteria to
determine if the law is achieving substantial social and
legal transformation.
Critical Jurisprudence vs. Positivism
● Positivism: Law’s validity comes from its source, not its
morality.
● Critical Jurisprudence:
○ Sees law as political in creation, interpretation, and
limitations.
○ Emphasises that interpreting law involves political
choices.
○ Focuses on what interpretations exclude and how
they shape justice.
○ Advocates for emancipation, freedom, and
challenging unjust interpretations.
Transformative Constitutionalism
● Framework to assess if South African law is truly
transforming post-apartheid.
● Seeks democratic, egalitarian change through legal
reforms, rather than revolution.
, ● Embraces the idea of an ongoing "legal revolution" that
extends beyond the initial transition.
● Believes the post-apartheid era is a continuous process,
not a completed state.
Revolution vs. Legal Change
● Debate on whether South Africa’s transition was a full
revolution or a legal transformation.
● Klare: Transition as a long-term, transformative process.
● Ackermann: Describes it as a "legal revolution" but
acknowledges that true change was negotiated, not
forcefully taken.
● Transformative Constitutionalism helps understand the
ongoing nature of the transition.
Lecture 2-3
Timeline of South African Transition (2 Feb 1990 – 4 Feb 1997)
Key Events:
1. 2 Feb 1990: FW de Klerk’s Speech
○ Announced unbanning of political parties, release of
political prisoners.
○ Significance: Marked the beginning of negotiations
for a new South Africa.
2. 11 Feb 1990: Nelson Mandela’s Release
○ Mandela's release symbolises hope and a turning
point in South Africa's history.
3. 4 May 1990: Groote Schuur Minute
○ Agreement between ANC and the government to
commit to a peaceful transition.
○ Significance: Established principles for negotiation.
4. 6 Aug 1990: Pretoria Minute
○ Further agreements to reduce violence during the
transition.
