LEGAL PHILOSOPHY (LJU4801)
ASSIGNMENT 1
1. Mnyongani states that when the 1996 Constitution was enacted it was
‘hailed’ for its transformative agenda. Discuss his motivation for this view as
well as what according to him is the ‘Achilles heel’ of this agenda. (12)
• [357] A transformative constitution seeks to facilitate a fundamental transformation
in the unjust political, economic and social conditions inherited from our colonial and
apartheid past, and to create a new society based on justice, democracy and human
rights.
• [357] SA Constitution is founded upon the values of human dignity, non-racialism
and non-sexism.
• [357] The Constitution mentions race within the context of the right to equality.
• [357] The equality envisaged by the Constitution is both formal and substantive.
Equality is central to the task of transformation.
• [357] Formal equality refers to sameness of treatment.
• [357] Substantive equality refers to the fact that the circumstances of each
individual must be considered so as to ensure equality of outcome.
• [357] Constitutional rights are interdependent and interconnected – the courts are
encouraged to consider how values which underlie one right may be of assistance in
developing the jurisprudence of another right.
• [358] The constitutional transformative agenda to build a society based on
democratic values, social justice and fundamental human rights is far from being
realised.
• [358] SA continues to be beset by challenges of racial discrimination, poverty and
inequality.
• [358] Customary law seems to be the Achilles heel of the constitutional
transformative agenda.
, • [358] Race is still at the centre of the division between customary law and the
dominant legal system.
• [358] In essence customary law still continues to be applicable to the majority of
black people.
2. According to Mnyongani there is very little in common between customary
law and the dominant Western-inspired legal system. Explain how he comes to
this conclusion. (16)
• [360] He argues there is very little in common between customary law and the
dominant Western-inspired legal system – they are philosophically grounded on
completely different jural postulates.
• [360] Access to justice is more than physical access – it includes to be heard
effectively. To be heard effectively will require fluency in the legal language and its
processes.
• [361] Western – the practice of law, its institutions and the language used are far
removed from the people – difficult to follow and understand.
• [361] Western = adversarial system – disputes are settled through adjudication.
• [361] Adversarial – two parties represented by lawyers – the judge acts as an
umpire who gives a ruling at the end.
• [361] The service of a lawyer is indispensable. SA not all can afford this which
makes the system only available to the rich
• [362] The Legal Aid Board helps but given the prominence of the role of a lawyer in
an adversarial system, most of the strategic decisions regarding the direction of the
case will fall on the wit, skill and diligence of the lawyer.
• [362] There are no roles for lawyers in an African traditional process which is done
in a familiar environment plus a familiar language.
• [362] African - Disputes are handled at different levels of societal hierarchy,
depending on the nature of the dispute and the parties involved.
ASSIGNMENT 1
1. Mnyongani states that when the 1996 Constitution was enacted it was
‘hailed’ for its transformative agenda. Discuss his motivation for this view as
well as what according to him is the ‘Achilles heel’ of this agenda. (12)
• [357] A transformative constitution seeks to facilitate a fundamental transformation
in the unjust political, economic and social conditions inherited from our colonial and
apartheid past, and to create a new society based on justice, democracy and human
rights.
• [357] SA Constitution is founded upon the values of human dignity, non-racialism
and non-sexism.
• [357] The Constitution mentions race within the context of the right to equality.
• [357] The equality envisaged by the Constitution is both formal and substantive.
Equality is central to the task of transformation.
• [357] Formal equality refers to sameness of treatment.
• [357] Substantive equality refers to the fact that the circumstances of each
individual must be considered so as to ensure equality of outcome.
• [357] Constitutional rights are interdependent and interconnected – the courts are
encouraged to consider how values which underlie one right may be of assistance in
developing the jurisprudence of another right.
• [358] The constitutional transformative agenda to build a society based on
democratic values, social justice and fundamental human rights is far from being
realised.
• [358] SA continues to be beset by challenges of racial discrimination, poverty and
inequality.
• [358] Customary law seems to be the Achilles heel of the constitutional
transformative agenda.
, • [358] Race is still at the centre of the division between customary law and the
dominant legal system.
• [358] In essence customary law still continues to be applicable to the majority of
black people.
2. According to Mnyongani there is very little in common between customary
law and the dominant Western-inspired legal system. Explain how he comes to
this conclusion. (16)
• [360] He argues there is very little in common between customary law and the
dominant Western-inspired legal system – they are philosophically grounded on
completely different jural postulates.
• [360] Access to justice is more than physical access – it includes to be heard
effectively. To be heard effectively will require fluency in the legal language and its
processes.
• [361] Western – the practice of law, its institutions and the language used are far
removed from the people – difficult to follow and understand.
• [361] Western = adversarial system – disputes are settled through adjudication.
• [361] Adversarial – two parties represented by lawyers – the judge acts as an
umpire who gives a ruling at the end.
• [361] The service of a lawyer is indispensable. SA not all can afford this which
makes the system only available to the rich
• [362] The Legal Aid Board helps but given the prominence of the role of a lawyer in
an adversarial system, most of the strategic decisions regarding the direction of the
case will fall on the wit, skill and diligence of the lawyer.
• [362] There are no roles for lawyers in an African traditional process which is done
in a familiar environment plus a familiar language.
• [362] African - Disputes are handled at different levels of societal hierarchy,
depending on the nature of the dispute and the parties involved.
