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Reflections on the ‘becoming’ of a post-apartheid

jurisprudence, transformative constitutionalism and

post-apartheid spatialities

Quraysha Ismail Sooliman

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Contents

1 Introduction ...................................................................................................................... 2

2 The law, separateness and space .................................................................................... 4

2.1 Reflections on the paradigms contained in the meanings of words ............................ 5

3 Jurisprudence.................................................................................................................... 6

3.1 Post-apartheid jurisprudence, the ‘becoming’ of post-apartheid jurisprudence and

transformative constitutionalism ............................................................................................ 7

4 Legal culture, legal tradition and transformation in a constitutional democracy .... 10

5 Conclusion ....................................................................................................................... 13

6 Bibliography .................................................................................................................... 13

6.1 Books ......................................................................................................................... 13

6.2 Journal Articles ......................................................................................................... 14

6.3 Internet & speeches ................................................................................................... 15

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1 Introduction The law is often linked to a path, a bridge, and a route that leads one to a particular

destination or allows one to traverse new pathways. These metaphors describe spatial images

which are finite, concrete and defined in terms of mapping, boundaries and territory.1 The

metaphors employed are essentially categorised or visualised into separate spaces, denying

the possibility of a unity of images and the potential for “a re-imagining of the law, the spaces

in which law functions, that law creates, and that create law”.2 Thus, although the journey

that the law is supposed to foster, should and can be innovative and transforming to the

ordinary lives of people, very little effort has been made to theorise on the meanings of the

transformative possibilities of law and space, law and constitutional transformation in a

political and philosophical sense and the essence of a post-apartheid jurisprudence.

The danger that has become evident in the choice of constitutional supremacy is that the

constitution has become a “monument, a spectacle” that continues to embody the modernist

project of ‘Enlightenment’ thus protracting the legacies of apartheid and colonialism3 as will

be explained in the discussion that follows. Of concern also is the continuing process of

‘apartness or separateness’ that the modernist project entails, because the cultural landscape

of modernity is defined by a fragmentation of value-spheres.4 These value-spheres develop

separately from each other through a process of legal reasoning based on science and the

principles of technocratic rationality5 hampering the critical project of transformative

constitutionalism. Constitutional interpretation should not be limited to logic or science,

rather it should incorporate the ability to imagine and consider multiple perspectives and

readings because the constitutional text is open to more than one plausible, rational and

reasonable explanation.6 Transformative constitutionalism is a critical project that involves a

“continuous weaving within a liminal space”.7 By invoking the “memorial” approach to

constitutionalism, legal thinkers can rediscover the ordinary, allow for the spaces of memory,

history and lived experience to interact, ultimately instituting an ethics of responsibility.8 This

makes social reconciliation durable. The memorial approach is about focusing on the

1 W le Roux “Bridges, clearings and labyrinths: the architectural framing of post-apartheid constitutionalism” (2004) 19

SAPL/PR 629 2 K van Marle, I de Villiers & E Beukes “Memory, space and gender: Re-imagining the law” (2012) 27 SAPL 575

3 K van Marle “The spectacle of post-apartheid constitutionalism” Griffith Law Review (2007) 16(2) 412-413

4 W le Roux “The aesthetic turn in the post-apartheid constitutional rights discourse”(2006) 1 TSAR 108

5 le Roux (note 4 above) 108

6 le Roux (note 4 above) 110

7 K van Marle “Transformative constitutionalism as/and critique” (2009) 2 STELL LR 289

8 van Marle (note 7 above) 427

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ordinary, about exposing the pain and violence of the past, about reconciliation and healing

through redress and reparation. It is about exposing apartheid as a system of white privilege

and about opening up fears and not allowing for the spectacle of group survival to be more

important than social justice, hope, empathy and social reconciliation.9 In invoking the

memorial constitution there is a re-discovering of the ordinary, because “[t]he ordinary is

sobering rationality… Paying attention to the ordinary and its methods will result in a

significant growth of consciousness”.10

In order for transformative constitutionalism to be given effect there must be new ideas, new

ways of interpretation and a re-envisioning of the law so that the law can actually encompass

social justice. In analysing social justice, it is necessary to consider individual advantage

through the capabilities that a person has.11

This refers to the substantive freedoms that

people are able to access.12

To achieve this, legal academics need to move out of the realm of

purely deductive or inductive reasoning and be willing to consider multi-disciplinary and

radically alternative approaches to the interpretation of legal texts and the developing of legal

theory.

By employing analytic eclecticism for example, the diversity of the multi-disciplinary

conversations that often are related, but developed in different paradigms can be connected.

Analytic eclecticism aims to bridge the gap between theoretical debates and the demands for

policy relevance and practicality by including various social phenomena in the framework of

analysis rather than to be bound to scholarly conventions which are informed by paradigmatic

assumptions. This approach allows for examining the impact of the external environment

which influences action or behaviour whilst considering the “way in which environments are

reproduced or transformed because of varying preferences and capacities”.13

Ultimately, it is

jurisprudence that creates law, and law shapes societies; hence those responsible for the

creation of jurisprudence need to envision new beginnings and a paradigm change where

necessary. This demands creativity, wisdom and commitment.

9 van Marle (note 7 above) 422

10van Marle (note 7 above) 422

11 A Sen Development is freedom (1999) 87

12 Sen (note 11 above) 87

13R Sil & PJ Katzenstein Beyond paradigms: Analytic eclecticism in the study of world politics (2010) 2-6; 36-37

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2 The law, separateness and space The law, like human interaction seems to be trapped in a mechanical world view where the

idea of separation between people and the spaces they inhabit, between humans and nature,

and between law and the social sphere is still practised reinforcing the notion of apartheid -or

separateness, in all aspects of our lives. This concept of separateness acts as a constraint in

achieving real transformation as will be elucidated when I refer to the South African legal

culture and the mentality of separateness that still prevails therein. The embodiment of

separateness is also visible in the space-economy of South Africa where metropolitan cities

remain divided and segregated twenty years after the democratic transition, deepening intra-

urban inequalities.14

Key to this division is the constitutional provision that protected private

property,15

entrenching privilege and deepening inequality. Landowners who fear an

infringement on property rights because of the potential of property devaluation if poorer

communities are integrated into elite areas readily seek litigation to uphold their individual

property rights. Space is thus envisioned through segregation. Lefebvre describes this by

referring to the ghettos and homelands that have been deliberately constructed for

marginalised groups and by referring to market-driven processes that contribute to “social

divisions and spatial polarisation within cities”.16

Secondly, threats to property values affect tax revenue from the collections of rates and taxes

and because the municipalities are dependent on this income, powerful lobby groups use the

law to protect property investments that usually disenfranchise the poor even further.17 In this

regard, the law and human rights which should vigorously promote social change and address

apartheid initiated injustices actually have very little capacity to effect real change. The law

in apartheid South Africa was complicit in the violent perpetuation of the social, political and

economic order.18

This conflict is most transparent in the material divide that still exists

between white privilege and disadvantage that was created by apartheid. White South

Africans who have enjoyed centuries of privilege, although willing to concede political

power continue to manifest fear regarding this concession in respect of their property and

accumulated wealth. This fear is evidence of the spatial divide that still exists between

material privilege and disadvantage. Individuals who benefitted from privilege, although

14

http://www.africancentreforcities.net/wp-content/uploads/2013/10/post-partheid_geographies_pieterse_15dec09.pdf (accessed 22 June 2014) 15

Note 14 above 16

C Butler Henri Lefebvre: Spatial politics, everyday life and the right to the city (2012) 144 17

Note 14 above 18

C Douzinas & A Gearey Critical Jurisprudence: The Political Philosophy of Justice (2005) 259

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encouraged by political change sought to limit the “transactional cost” of political and social

transformation to levels that would demand very little “sacrifice”, seeking stability and

continuity.19

It is thus a far cry from a post-apartheid becoming which is related to the search

for justice. Post-apartheid becoming is about becoming minor in the face of one’s

transgressions. It involves an incalculable future. It is “in this critical intersection, the liminal

space between an enduring past and a delayed future, a space of discomfort” that the

possibilities exist for a post-apartheid becoming, but most whites have not been willing to

contemplate this reality.20

In contrast, black South Africans who had to contend with forced

removals, restrictions of movement and constrained economic activity that reduced most to

homelessness and poverty are concerned with “discontinuity and change”.21

With the ushering in of the new democracy in 1994, social and political transformation had to

include a shift in the patterns of wealth distribution in order to reverse the injustice in

property distribution that occurred during apartheid. This would mean that those who

benefitted from apartheid would potentially be harmed materially.22

In order to reduce the

extent of sacrifice that would be expected of the privileged whites and maintain economic

stability whilst seeking to eradicate the oppressive measures of the apartheid system, South

Africans settled on a fragile compromise- that of a constitutional democracy.23

Although the

rhythmic sound of the words clanged with positivity and change echoing the language of

‘rainbow nation’, ordinary South Africans were unaware that there was an apparent

contradiction in associating a constitution that further entrenched and protected existing

privilege and power, with transformation.24

2.1 Reflections on the paradigms contained in the meanings of words “Post-apartheid jurisprudence’ would suggest a legal understanding that is different to that of

the apartheid era. It demands of the law a holistic approach to social justice beyond the

regurgitation of new words with old interpretations. South Africa’s transition to a ‘post-

apartheid jurisprudence’ generated new words to define a ‘new era’ in the law, whilst

reinventing new meanings for old words in order to contextualise the arrival of the next phase

in the South African democratic transition. This phase (post-1994) officially included all

19

AJ Van der Walt “Legal history, legal culture and transformation in a constitutional democracy” (2006) 12(1) Fundamina 4 20

K van Marle “ Reflections on post-apartheid being and becoming in the aftermath of amnesty: DuToit vs The Minister of Safety and Security (2010) 3 Constitutional Court Review 362 21

Van der Walt (note 19 above) 4 22

Van der Walt (note 19 above) 2 23

Van der Walt (note 19 above) 4 24

Van der Walt (note 19 above)4

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races in the right to vote completing the transition to a universal suffrage. Of the new words

resurrected, “transformative constitutionalism” in relation to a post -apartheid jurisprudence

gained significant credence.25

What has been overlooked is the nuanced coining of the term

linguistically. Transformative implies the ability and potential to change, but also indicates

non-change. Change is thus considered a gradual and continual process and not simply a

single moment.26

Thus language and the use of specific words functions to construct identity, perception and

modes of behaviour. Language is also a contested and composite site of becoming.27

The

repetitive use of peculiar words produces explicit understandings that are applied in legal

interpretation and the development of legal theory. Such interpretations and language usage

also denote to space that which does not sufficiently correspond with the “body and lived

experience… [Where] the bodily inhabitance of space has been reduced to the status of a

textual reading”.28

If words are used without substance, without adequate resemblance to the

action they are supposed to invoke, can those words have meaning?

Additionally, one must consider how the sources of law and the tools that are used to

interpret and analyse the law are used. To this extent it can be asked if African customary law

or indigenous law has been redefined29

and if the western legal tradition of the apartheid era

is still the dominant tradition in this epoch that is defined as ‘post-apartheid’? It is necessary

and relevant to engage with these questions in order to interrogate the reality of the

‘becoming’ of a post-apartheid jurisprudence because often legal academics and judges still

utilise ‘compromised’ tools.

3 Jurisprudence The term jurisprudence is essentially associated with many meanings. It can refer to “a body

of substantive legal rules, doctrines, interpretations and explanations” that constitute the

country’s law and it can also refer to how the law is interpreted by a particular court.30

Other

accounts of jurisprudence consider the social aspect of law and justice through scientific and

philosophical investigations. These studies produce probing questions such as the nature of

law, what is the law, can the law be defined and how does law shape society. These are

25

http://upetd.up.ac.za/thesis/available/etd-09272009-155336/unrestricted/01dissertation.pdf (accessed 20 June 2014) 26

Note 25 above 27

S Motha “‘Begging to be black: Liminality and critique in post-apartheid south Africa” (2010) Theory, Culture & Society 28

Butler (note 16 above) 69-70 29

Douzinas & Gearey (note 18 above) 284 30

S Ratnapala Jurisprudence (2009) 3

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legitimate questions essential to a critical understanding of the law and its relation to justice.

Defining ‘law’ is also a contested concept. Law can be defined lexically and thus indicates

how the concept is understood within a particular community; or ‘law’ can have a stipulative

definition. Stipulative definitions are common in legislation and allot a meaning to a term

which is neither right nor wrong. Thirdly, the concept of law can have a theoretical definition

which provides a specific meaning to a term and justifies this meaning through scientific

theory.31

Definitions are important in law because law is an inseparable part of complex,

dynamic and evolving societies. Essentially, because individuals observe certain codes of

conduct in a social order, the rules and law which govern them gives structure to society. The

law, like society is complex and emergent.32

This particular feature of the law must be borne

in mind when considering the discourse on post-apartheid becoming and post-apartheid

jurisprudence. When any matter or subject is complex and emergent, decision making cannot

be static or linear. Creative and transductive reasoning can produce optimal solutions that

contribute to social justice in real terms.33

Two strands of jurisprudence have been identified.

Analytical jurisprudence is associated with legal theory, the questions regarding the general

meaning of the law and concepts of the law. Normative jurisprudence is linked with questions

on the moral dimensions of the law.34

The discourse on a post-apartheid jurisprudence

engages with both the analytical and normative aspects of jurisprudence.

3.1 Post-apartheid jurisprudence, the ‘becoming’ of post-apartheid

jurisprudence and transformative constitutionalism By labelling objects or concepts we give them meaning and identity; by referring to a post-

apartheid jurisprudence, we are implying new beginnings. ‘Post-apartheid’ is associated with

a particular period of South African history, suggesting a liminal space between the

“transitional and the apparently enduring”.35

Post-apartheid thus connotes a particular space

and time and how a particular period in history is represented. It further alludes to how a

historical period comes to have a “presence in thought”.36

The use of the word ‘post’ would

invoke the “theorisation of a time of transition”.37

This invocation is necessary because of the

law’s complicity in maintaining the violent social, political and economic order during the

apartheid era in South Africa. The use of new words for old ideas with the same meaning or

31

Ratnapala (note 30 above) 8-9 32

Ratnapala (note 30 above) 8-9 33

H Lefebvre “The right to the city” in Writings on cities (1996) 34

S Ratnapala (note 30 above) 4 35

van Marle (note 20 above) 350 36

Douzinas & Gearey (note 18 above) 285 37

Douzinas & Gearey (note 18 above)285

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even the use of old words with new implied meanings point to the mastery of language to

shape perceptions and maintain the status quo. It is therefore necessary to engage in “action,

thinking and revolt” which is not related to violence or militancy but refers to the ability to

continuously question and contest38

repeated phrases and ideas which try to impose a

particular ‘creation of reality’. Action, thinking and revolt contribute to the unsettling and

disrupting of accepted certainties where endless questioning is necessary for a post-apartheid

becoming.

Post-apartheid jurisprudence should be different to that of the apartheid era which assimilated

the colonial subject into institutions that guaranteed their subordinate statuses.39

Apartheid is

the human version of classical physics which is based on the principles of Newtonian billiard

ball physics. According to this mechanical theory, “objects are separate from each other and

reality is based on cause and effect”.40

But other realities exist beyond time and space and

these realities need creative and wise strands of thinking, interpretation and interaction in

order to counter the apartheid we have established against nature, space, the environment and

against ordinary people who are being told that their lives do not count.

The new era should signify an era of substantive equality, dignity and freedom for all.

Likewise, post-apartheid jurisprudence should be open to extending space as mere

jurisdiction, to seeing space as the world. When the law refuses to see space as the world, it

exhibits “fear of the resistance generated in the world and fear of itself, the law” to the extent

that there is dissonance between what the law is and what it claims to be.41

This dichotomy in

the law can also be understood in terms of the limits and the violence of the law. The limits of

the law relate to its inability to comprise politics, ethics and justice and the violence of the

law is related to its reductive nature.42

In other words, because of its “rule bound nature” the

law has a tendency to reduce the particular to the general.43

What are needed are aesthetic

judgements undertaken through principles of universal dialogue where the judge can reflect

on the “universal significance of the particular”. It is about achieving “togetherness in

difference”.44

According to Lefebvre, law’s violence is also constituted by its collaboration in

38

K van Marle “Lives of action, thinking and revolt – A feminist call for politics and becoming in post-apartheid South Africa” (2004) 19 SAPR/PL 607 39

Douzinas & Gearey(note 18 above) 284 40

http://spiritualdreamweaving.com/quantum-physics-spirituality/ (accessed 19 June 2014) 41

P Mihalopoulous “Law’s spatial turn”(2010) Law, Culture and Humanities 7(2) 191 42

K van Marle “Law’s time, particularity and slowness” in Law, memory and the legacy of apartheid W le Roux & K van Marle (eds)(2007) PULP 14 43

van Marle (note 42 above) 14 44

Mihalopoulous (note 41 above) 199

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the process of abstraction.45

And because the law is committed to generalities in legal rules

and endorsing the notion of equality of legal subjects it reinforces spatial hierarchies and acts

as an impetus for change in socio-spatial relations. By focusing on that which can be

visualised only, the law categorises people and space in order to manage or control them.46

But of greater significance is the role of legal judgement in processes of fragmentation that

defines abstract space. In this instance, the law again endorses the concept of divisions or

separateness where “the body is cut into pieces” or “space is carved up”. This is described by

Costas Douzinas when he refers to how the violent limitations of abstract space result in the

fragmentation and detaching of body parts where “the law breaks down the body into

functions and parts and replaces its unity with rights…Encountering rights nihilates and

dismembers the body”.47

Another aspect of separateness that can be identified is that which is related to Lefebvre’s

position on “the right to the city”. Urban spaces are spaces of interaction and challenge,

encounter, spatial production and the development of capabilities. When specific groups or

individuals are denied from participating in this creative project, this segregation or

separation constitutes an exclusion from civilisation.48

This segregation and separation is

enhanced when “priority is given to the exchange value of space by regimes of urban

governance”. 49

In this way, both the law and the human rights regime protect privilege and

‘legitimately’ guarantee apartheid type spaces. This separation is now ‘qualified’ as the need

to ‘protect’ specific rights. Considering these realities one must reflect as to the extent a post-

apartheid jurisprudence has/ has not challenged these aspects of legal thinking and legal

judgements. If the jurisprudence is ‘post-apartheid’ then surely after two decades it must have

contributed to the transformation of an understanding of space, spatial divides and socio-

spatial relations and the law’s response to these understandings?

Considering the importance of history and historical context in shaping a post-apartheid

jurisprudence, it is prudent to explore how post-apartheid jurisprudence differs from the

classical jurisprudence that existed in the apartheid era. Obviously, both are associated with

“the construction of a theoretical perspective on law” but there are radically different

45

Butler (note 16 above) 72 46

Butler (note 16 above) 73-74 47

Butler (note 16 above) 74 48

Butler (note 16 above) 144 49

Butler (note 16 above) 144

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approaches to the manner in which these perspectives are constituted.50

In a 1954 essay,

Hannah Arendt wrote: “In order to fight totalitarianism, one need understand only one thing:

Totalitarianism is the most radical denial of freedom…”51

According to Barnard-Naude,

South Africa’s political history is inextricably intertwined with totalitarianism and apartheid

and a transformative and post-apartheid jurisprudence must be able to realise the freedom of

South Africa’s citizens practically.52

According to Sen, freedom is development and poverty

should be viewed not only as a result of low income earnings, but as a factor of capability

deprivation.53

The apartheid era entrenched privilege by developing the capabilities of white

people by providing them with access to resources whilst black subjects were denied the

potential to development. Black subjects were intentionally crippled through institutionally

instituted laws and policies aimed at keeping the masses unskilled and subservient,

exacerbating the poverty levels in South Africa’s majority population group. An acute

understanding of history marks post-apartheid jurisprudence; contributes to an understanding

of post-apartheid becoming and is essential to the development of a post-apartheid

jurisprudence, because history is both “lived by individuals and influenced by ‘forces’ that

are general and anonymous”.54

In assessing the feasibility of the claim of the ‘becoming’ of a

post-apartheid jurisprudence, one must ask, Have South Africans been able to realise their

freedoms practically considering the urban-spatial divide and the space-economy of South

African cities that still protect white privilege, accumulated wealth and private property?

4 Legal culture, legal tradition and transformation in a

constitutional democracy In South Africa issues regarding poverty, transformation, equality and redress or reparation

are usually dealt with through the law and human rights. Yet in many instances, the law and

human rights are not capable of effecting real change as explained previously.55

Additionally,

legal culture and how the law is interpreted play a significant role in maintaining stability and

resisting change. As it stands, the law is a mirror unto itself, reproducing within variants that

which it contains and these results manifest as a reluctance or fear to seek a paradigm

50

Douzinas & Gearey (note 18 above)286 51

AJ Barnard-Naude “Beyond the brother: Radical freedom” in Dignity, freedom and the post-apartheid legal order AJ Barnard-Naude et al (eds) 273 52

Barnard (n 51 above) 275 53

Sen (note 11 above) 87 54

Douzinas & Gearey 286 55

K van Marle “Laughter, refusal, friendship: Thoughts on a ‘jurisprudence of generosity’” (2007) 1STELL LR 194-195

11

change.56

This is reflective of the characteristics of a preventing mind-set that is often limited

to short term utilitarian thinking where the ‘fear’ or ‘reluctance’ can be attributed to the notion

that the South African legal culture is still considered to be very conservative and steeped in

legal formalism.57

Legal formalism limits engagement with the ordinary lives of individuals

making the attaining of social justice an obscure goal. The essence of legal formalism rests in

the notion of the self-containment of the law where the law is viewed as a self-determining

system with a reliance on the values of objectivity, impartiality and neutrality. Formalists rely

on deduction as a method of reasoning, hence “rules plus facts yields conclusion”.58

This

aspect of self-containment or separateness echoes the same idea of separateness which

apartheid embodied suggesting therefore that South Africa is possibly still not in an era that

can be considered as ‘post-apartheid’ because “one continues to think with the concepts that

are compromised”.59

This mind-set also reflects the transcendence of western culture which is not about going

beyond but about finding a compromise or staying within that which is known.60

Such

traditions in legal thought and interpretation do not reconcile with the historical and social

context of a country which has been immersed in a conflict that has permeated all levels of

society, space and consciousness. Conflict transformation is about transforming the relation

and not necessarily the parties.61

What was needed was “discontinuity and change” what was

adopted was “stability and continuity”.62

So how can the law that was used during apartheid and used to maintain apartheid, be

refashioned to encapsulate the essence of transformative justice and jurisprudence? Is it

possible that the “political goals of the new nation are [still] supposedly determined by a

regulative logic derived from the old colony, with its interest reversed…”?63

As it stands, the

South African legal culture is still steeped in formalism and “[l]egal culture has a powerful

steering or filtering effect on interpretive practices, therefore on adjudication, and therefore

on substantive legal development”.64

56

Mihalopoulous (note 41 above) 188 57

K van Marle (note 3 above) 417 & http://upetd.up.ac.za/thesis/available/etd-09272009-155336/unrestricted/01dissertation.pdf (accessed 20 June 2014) 121 58

S Veitch, E Christodoulidis &L Farmer Jurisprudence: Themes and concepts (2007) 117-121 59

Douzinas & Gearey (note 18 above) 302 60

J Galtung Keynote speech for GovInn 3 June 2014 SRC Chambers University of Pretoria 61

Galtung (note 60 above) 62

AJ Van der Walt (note 19 above) 4 63

Douzinas & Gearey (note 18 above) 301 64

K Klare “Legal Culture and Transformative Constitutionalism” (1998) 146 SAJHR 168

12

Legal culture is crucial in espousing transformative constitutionalism. A document with

words cannot on its own be transformative- it is those who have the ability, capacity and

power to give meaning to the document and words that are responsible for contributing to a

radical altering of society, the economy, politics and prevailing assumptions of the law that

contribute to transformative constitutionalism.65

The reality is that legal texts and even the

constitution has to be interpreted and ambiguities and obscurities in the wording have to be

given some measure of value and congruence based on sources external to legal materials.66

But the transformative project cannot be limited to the law and legal enquiry. To be truly

transformative, it should engage with different disciplines.67

This approach is relevant and

necessary if one is to seriously consider Karl Klare’s explanation of transformative

constitutionalism. For Klare, transformative constitutionalism is a holistic approach and

entails:

“a long term project of constitutional enactment, interpretation, and enforcement committed … to

transforming a country’s political and social institutions and power relationships in a democratic,

participatory, and egalitarian direction.”68

Klare is at pains to point out that law and politics are not separate and to achieve transparency

in the legal process which contributes to the deepening of the democratic culture, lawyers,

judges and legal scholars must be conscious of their conservative style because:

“jurisprudential conservatism … may induce a kind of intellectual caution that discourages appropriate

constitutional innovation and leads to less generous or innovative interpretations and applications of the

Constitution”.69

Although the tools for a transformative constitutionalism exist to some extent, one cannot

help but reflect on the lack of a radical restructuring of the system and its subjects that still

prevails over these last two decades. This raises the question of a politics of becoming in

South African life. According to Karen Van Marle, the shift from politics to law as a result of

the adoption of constitutional supremacy post-1994 and the embracing of human rights has

resulted in the

“absence of action, thinking and revolt… [where] the translation of struggle into rights, humanity into

legitimacy, and politics, thinking and narrative into an economy of the private, puts a damper on action,

thinking and revolt and a politics of becoming”.70

65

van Marle (note 7 above) 288 66

van Marle (note 7 above) 289 67

van Marle (note 7 above) 288 68

Klare (note 64 above) 146 150 69

Klare (note 64 above) 171 70

van Marle (note 38 above) 606

13

Post-apartheid becoming would necessitate going beyond the scope of history by immersing

oneself into an event “[taking] one’s place in it as in a becoming, to grow both young and old

in it at once”71

whilst being willing to give up traditional standards. Post-apartheid becoming

demands a discarding of past indoctrinations and attitudes and the exhibition of a willingness

to concede one’s inadequacy in the face of new and overwhelming challenges that necessitate

a shift in thinking from hegemonic modes of power, control and identity.

5 Conclusion In light of this understanding one must ask if the challenge has been met of contemplating

differently longstanding ideas and interpretations within the law that allow us to view South

Africa through this transformative lens?72

To what extent is the law and legal theory

contributing to the radical transformation and altering of post-apartheid lives that allows for

the notion of the ‘becoming’ of post-apartheid jurisprudence? In invoking the bridge

metaphor academics should be cognisant of the corresponding challenges associated

therewith. Bridging requires imagination, experience and knowledge. It is about being able to

manage both diversity and symbiosis with synthesis being the most important value in

attaining transformation. Transformation means that which is different from the past- a

paradigm change. To achieve this level of change it is essential to be attentive to the

dialectics at the bottom, to engage with the ordinary. Transformation in South Africa requires

the ability to jump outside the imprisonment of the mind that has been cultivated by the

imperial master. It also requires the willingness to expand the ontological definitions of

space, the nature of space and spatial justice to allow for the diversity in emergent societies

which foster a sense of “together in difference”.73

6 Bibliography

6.1 Books Barnard-Naude, A.J “Beyond the brother: Radical freedom” in Dignity, freedom and the post-

apartheid legal order AJ Barnard-Naude et al (eds) (2008) Juta & Co

Butler, C Henri Lefebvre: Spatial politics, everyday life and the right to the city (2012)

Routledge

Douzinas, C & Gearey, A Critical Jurisprudence: The Political Philosophy of Justice (2005)

71

van Marle (note 20 above) 352 72

Note 57 above 73

Mihalopoulous (note 41 above) 199

14

Lefebvre, H “The right to the city” in Writings on cities (1996) Blackwell Publishers

Ratnapala, S Jurisprudence (2009) Cambridge University Press

Sen, A Development is freedom (1999) Anchor Books

Sil, R & Katzenstein, P.J Beyond paradigms: Analytic eclecticism in the study of world

politics (2010) Palgrave: MacMillan

Veitch, S; Christodoulidis, E & Farmer, L Jurisprudence: Themes and concepts (2007)

Routledge

van Marle, K “Law’s time, particularity and slowness” in Law, memory and the legacy of

apartheid W le Roux & K van Marle (eds) (2007) PULP

6.2 Journal Articles

Klare, K “Legal Culture and Transformative Constitutionalism” (1998) 146

SAJHR 168

le Roux, W “Bridges, clearings and labyrinths: the architectural framing of post-apartheid

constitutionalism” (2004) 19 SAPL/PR 609

le Roux, W “The aesthetic turn in the post-apartheid constitutional rights discourse” (2006)

1TSAR 108

Mihalopoulous, P “Law’s spatial turn” (2010) 7(2) Law, Culture and Humanities 191

Motha, S “Begging to be black: Liminality and critique in post-apartheid South Africa”

(2010) Theory, Culture & Society

van Marle, K “Lives of action, thinking and revolt – A feminist call for politics and becoming

in post-apartheid South Africa” (2004) 19 SAPR/PL 606

van Marle, K “The spectacle of post-apartheid constitutionalism” (2007) 16(2) Griffith Law

Review 412

van Marle, K “Laughter, refusal, friendship: Thoughts on a ‘jurisprudence of generosity’”

(2007) 1 STELL LR 194-195

van Marle, K “Transformative constitutionalism as/and critique” (2009) 2 STELL LR 289

van Marle, K “Reflections on post-apartheid being and becoming in the aftermath of

amnesty: DuToit vs The Minister of Safety and Security (2010) 3 Constitutional Court

Review 362

van Marle, K; de Villiers, I & Beukes, E “Memory, space and gender: Re-imagining the law”

(2012) 27 SAPL 575

Van der Walt, A.J “Legal history, legal culture and transformation in a constitutional

democracy” (2006) 12 (1) Fundamina 4

15

6.3 Internet & speeches Galtung, J Keynote address at the opening of Governance Innovation Week SRC Chambers

University of Pretoria 3 June 2014

http://upetd.up.ac.za/thesis/available/etd-09272009-155336/unrestricted/01dissertation.pdf

(accessed 20 June 2014)

http://www.africancentreforcities.net/wp-content/uploads/2013/10/post-

partheid_geographies_pieterse_15dec09.pdf (accessed 22 June 2014)

http://spiritualdreamweaving.com/quantum-physics-spirituality/ (accessed 19 June 2014)