Women and/as Space: the Impact of Apartheid Geography on Women and the Construction of Womanhood

by | Sep 6, 2025 | FUND, FUND V31I1

Women and/as Space: the Impact of Apartheid Geography on Women and the Construction of Womanhood

Author Nosipho Goba

ISSN: 2411-7870
Affiliations: LLB LLM (UP) LLD (UFS). Postdoctoral Fellow, School of Law, Wits University
Source: Fundamina, Volume 31 Issue 1, p. 30-67
https://doi.org/10.47348/FUND/v31/i1a2

Abstract

Legal scholars have considered the confluence of law, space and sexuality. What is less visible is a focus on the connections between women and apartheid geography. This contribution explores those connections with particular reference to the Group Areas Act 41 of 1950 and argues that the latter made use of racialisation and the control of their movement to use women as spatial markers. Drawing on feminist geography, this contribution unpacks the role of gender in the production of space and the manner in which space is complicit in the constitution of gender to explore the inscription of space on women’s bodies. It then considers the inscription of space on women’s bodies as the producers of populations, which must be understood as “racialised”, to (re)produce segregation. Furthermore, this study considers the role of gender in the production of race and the role of race in the construction of varying iterations of gender in the context of Afrikaner nationalism. By unpacking the concepts of the volk and the volksmoeder, this contribution illustrates how the usurpation of white womanhood and motherhood, as tools of Afrikaner nationalism, were instrumental in the formation of apartheid and its geography. This, in turn, had a devastating impact on black women. This contribution also looks at the manner in which women were affected by apartheid legislation that made their bodies the site of segregatory and apartheid geography. It is argued that women became a primary means by which the Group Areas Act demarcated race. This, together with the manner in which that Act controlled the movement of women, meant that women became the signifiers of space. It is submitted that women were used to (re)produce urban areas, townships and homelands.

Peregrination Through the Law of Provocation – an Historical Perspective

by | Sep 6, 2025 | FUND, FUND V31I1

Peregrination Through the Law of Provocation – an Historical Perspective

Author Shannon Hoctor

ISSN: 2411-7870
Affiliations: BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (UWTSD). Professor, Department of Public Law, Stellenbosch University
Source: Fundamina, Volume 31 Issue 1, p. 68-102
https://doi.org/10.47348/FUND/v31/i1a3

Abstract

The issue of whether provocation (or emotional stress) should provide a defence in criminal law, and to what extent, has been dealt with in different ways in South African law. Initially, following the commonlaw sources, a provoked offender was not entitled to a defence on the basis of the provocation. At best, there could be mitigation of sentence in these circumstances. This strict position was somewhat ameliorated by the adoption of the English notion of specific (and basic) intent, whereby a provoked offender could be convicted of a lesser offence on the basis of the provocation serving to reduce the specific intent required for a more serious crime (notably murder) to a lesser crime of basic intent (such as culpable homicide). This pragmatic approach was, however, contrary to principle and the progressive adoption of the psychological approach to criminal liability, which foregrounds the subjective capacity and fault of the individual in determining blameworthiness, inevitably resulted in the logical result that provocation (or emotional stress) could found a complete defence to liability. This development took place with the concomitant acceptance of toerekeningsvatbaarheid (or criminal capacity) as an essential element of criminal responsibility. Under the influence of policy considerations, the Supreme Court of Appeal in S v Eadie has sought to resile from this commitment to individual blameworthiness. This contribution traces the development of the defence of nonpathological incapacity based on provocation (or emotional stress) prior to the Eadie decision.

From “Belligerent” to “Organised Armed Group”: Understanding the Legal Justification of the Metamorphosis of the Designation of Non-State Groups in a Common Article 3 Conflict

by | Sep 6, 2025 | FUND, FUND V31I1

From “Belligerent” to “Organised Armed Group”: Understanding the Legal Justification of the Metamorphosis of the Designation of Non-State Groups in a Common Article 3 Conflict

Author Ayodele Ojedokun

ISSN: 2411-7870
Affiliations: LLB (Obafemi Awolowo University) LLM LLD (University of Pretoria). Postdoctoral Research Fellow at the South African Research Chair in International Law, University of Johannesburg
Source: Fundamina, Volume 31 Issue 1, p. 103-122
https://doi.org/10.47348/FUND/v31/i1a4

Abstract

The Geneva Conventions were negotiated at the diplomatic conference held in Geneva in 1949, making 2024 its seventy-fifth anniversary. The intentions of states at that time concerning the identification of a non-state party to an armed conflict not of an international character was for a non-state group to be identified as belligerent; however, in contemporary conflict situations, a non-state party is identified as an organised armed group. This contribution examines the metamorphosis of these terminologies in relation to the identification of a non-state party to a conflict by exploring the travaux préparatoires of the Geneva Conventions. Furthermore, to justify the shift in the interpretation of a non-state party as belligerent to organised armed groups, this study analyses the legal basis of this change from an historical perspective by examining whether an evolving intention was envisaged by the plenipotentiaries during the negotiation of the Conventions. And, finally, this contribution compares the original intention of the drafters of the Conventions with the contemporary interpretation in the application of the Common Article 3 in relation to the identification of non-state groups.

The Relationship Between Legal-Political Context and Natural-Resource Wealth Distribution in South Africa

by | Sep 6, 2025 | FUND, FUND V31I1

The Relationship Between Legal-Political Context and Natural-Resource Wealth Distribution in South Africa

Author Anthea-lee September-Van Huffel

ISSN: 2411-7870
Affiliations: LLB LLM (UWC) LLD (UFS). Department of Private Law, University of Cape Town
Source: Fundamina, Volume 31 Issue 1, p. 123-147
https://doi.org/10.47348/FUND/v31/i1a5

Abstract

This contribution discusses the dynamic relationship between legalpolitical context and the distribution of economic wealth derived from natural resources. By reflecting on South Africa’s critical legal history in natural-wealth distribution, it illustrates that law, seemingly neutral and devoid of politics, is in fact political and capable of unjust outcomes. The aim of this contribution is to highlight the effects of the colonial and apartheid legacies of inequitable distribution of natural-resource wealth and its ongoing ideological influence on the post-apartheid legal-political context and its distributive policies. The historical use of law as a political tool to control the distribution of natural-resource wealth in specifically minerals and water is discussed to illustrate this dynamic relationship. Furthermore, the legal powers attributed to the role of the state in legal-political context produce economic inequalities or equalities depending on the prevailing understanding of the state’s role and its priorities. During the colonial-apartheid eras, law was used to bolster political and capitalist interests. It is argued that South Africa’s untransformed legal-political context remains susceptible to undemocratic outcomes in the form of neo-liberal capitalism. From a constitutional distributive justice perspective, this study problematises the legal-political context and critically discusses the state’s failure to give sufficient attention to its transformative and distributive role as evidenced by the high rate of poverty and unemployment in South Africa. For example, public trusteeship was legislated for the state to ensure beneficial management of South Africa’s water for all its citizens. Similarly, state custodianship of mineral resources was legislated to promote “justifiable social and economic development”. Legal mechanisms like these empower the state to achieve distributive justice with regard to South Africa’s natural-resource wealth. However, only through cultivating a transformative constitutional legal-political context with an accountable state willing to fully harness its distributive role, will equality start to materialise in the livelihoods of citizens.

The Genesis of the Generic Idea of Human Dignity in South African Law

by | Sep 6, 2025 | FUND, FUND V31I1

The Genesis of the Generic Idea of Human Dignity in South African Law

Author Rinie Steinmann

ISSN: 2411-7870
Affiliations: B Iuris LLB LLD (North-West University, Potchefstroom). Attorney at Steinmann Attorneys, Meyerton
Source: Fundamina, Volume 31 Issue 1, p. 148-179
https://doi.org/10.47348/FUND/v31/i1a6

Abstract

The modern idea of human dignity, legalised in 1948, has a rich and profound legal history, also in the South African context. Before 1994, when human dignity was constitutionalised in South African law, the common-law concept of dignitas was intrinsically connected to status and hierarchy in society and it endorsed judicialised inequality and discrimination against certain classes. Yet, as far back as 1934, Gardiner AJA, in a minority judgment in Minister of Post and Telegraphs v Rasool, argued along the lines of critical morality to object to the majority’s ruling that the common-law concept that everyone is equal in the eyes of the law can be abrogated by applying the separate-butequal principle, if such application was not categorically outlawed by legislation. This, according to Gardiner, resulted in the impairment of the dignitas of blacks by relegating them to a lower order in society. But Gardiner AJA’s novel application of the dignitas principle functioned neither as the pre-war paradigm of human dignity as initially formulated by the Stoics, nor as the common-law claim of dignitas. It rather comports with the current paradigm that everyone is equal and inherent human dignity needs to be respected and protected. Rasool was probably the first minority judgment in a Western legal system in which dignitas-ashuman-dignity was applied on a horizontal level, introducing a new line of legal thought that allows all humans to enjoy equal legal capacity to enforce rights outside the moral (vertical) realm. In this contribution, Gardiner AJA’s usage of dignitas-as-human-dignity will be contrasted against the pre-and post-war paradigms of human dignity by using the common-law concept of dignitas as a placeholder to illustrate the differences between the two paradigms and to provide a theoretical justification for the post-war paradigm.