Developing a new jurisprudence of gender equality in South Africa

Abstract

The underlying premise explored is whether the right to gender equality as interpreted and imposed within the confines of dominant western ideologies of liberal legalism could create the space for meeting the particular needs of (South) African women and men who wish to live out their dreams and desires differently. Modernist discourses mask the political, social and economic power of law and are crucial for the maintenance of the status quo. This adherence to formal rules, extant legal texts and a legalistic culture is violently exclusionary and thus it is necessary to enter into critical discourses that lead to transformative jurisprudence and thought. Different voices have been silenced by these ideologies and it is essential that the stories of women and other outsiders are listened to in order to (re)introduce new futures and new possibilities to South Africans struggling to find a home for themselves in the post apartheid context. The recognition of more ethical approaches to law creates the space to move beyond liberal legalism to post liberal interpretations of the law, the Constitution and the right to gender equality. I therefore focus on exploring the inter relationships between the ethic of care, ethical feminism, ubuntu, and storytelling, which may render judg(e)ments less rigid and exclusionary, and make it more possible to ensure that we can ‘do things a different, a better, way’. Since 1994 the Constitutional Court has formulated a substantive test for equality infringements. This approach, although widely supported, continues to ignore the contextuality of situations and narratives. For this reason I submit that ethical feminist discourses and the insistence on attention to minor, marginal and subversive narratives can teach us much about ourselves and those that we deem to be 'different' from ourselves. Adopting a 'minor' jurisprudence such as the jurisprudence of care formulated in this thesis allows us to reconsider what is and to dream of what is yet to be. In such a way, sites of (legal) resistance are created and maintained, where the 'feminine' (as the beyond, and not 'lack') operates as a locus of change. The equality courts created by the Promotion of Equality and Prevention of Unfair Discrimination Act could be utilised as spaces of non violent and ethical judgment where the other before the law is seen as unique, considered with care, and thus freed from oppression. The aim of this research is not to conceptualise and categorise a new metanarrative or meta jurisprudence, but to introduce to the reader other ways of listening, seeing and being ways which are less violent, less exclusionary, and more accommodating of difference and diverse experiences of oppression and subordination. Furthermore, the aim is to challenge current legal traditions and to develop new thinking around an indigenous and ethical interpretation of gender equality. Copyright 2005, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. Please cite as follows: Bohler-Muller, N 2005, Developing a new jurisprudence of gender equality in South Africa, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-06152006-123856 / >