Ethics and the law

TOPIC 2: ONE SHARED WORLD

Reading 1: Donald Davidson: On the very idea of a conceptual scheme

“In giving up dependence on the concept of an uninterpreted reality, something outside all schemes
and science, we do not relinquish the notion of objective truth -quite the contrary. Given the dogma of
a dualism of scheme and reality, we get conceptual relativity, and truth relative to a scheme. Without
the dogma, this kind of relativity goes by the board. Of course truth ot sentences remains relative to
language, but that is as objective as can be. In giving up the dualism of scheme and world, we do not
give up the world, but re-establish unmediated touch with the familiar objects whose antics make our
sentences and opinions true or false.”

Davidson focuses on the idea of one world and conceptual schemes. Conceptual schemes as
Davidson puts it are ways of organising experience and that they are systems of categories that give
form to the data of sensation, and they are points of view from which individuals, cultures, or periods
survey the passing scene. There may be no translating from one scheme to another, in which case
the belief, desires, hopes and bits of knowledge that characterise one person have no true
counterparts for the subscriber to another scheme. Reality itself is relative to a scheme: what counts
as real in one system may not in another.

Conceptual relativism is a heady and exotic doctrine or would be if we could make good sense of it.
The trouble is, as so often in philosophy, it is hard to improve intelligibility while retaining the
excitement. At any rate that is what I shall argue. We are encouraged to imagine we understand
massive conceptual change or profound contrasts by legitimate examples of a familiar sort.
Sometimes an idea, like that of simultaneity as defined in relatively theory, is so important that with its
addition a whole department of science take a new look. Constructs may also differ from society to
society. This is due to language being evolved in distant times. What must also be taken into
consideration is that different places (literally) had different amounts of resources to deal with a range
of phenomena. Think about it like this, do you expect a rural village in India to have the same
resources to solve a phenomena (maybe dynamics between men and women) in the same way that a
modern society like Germany would. Most likely, in the village, the way they view the relationship is
more traditional while in Germany, it would be more modernist. Hence, what comes easy in one
language may come harder in another, and this may echo significant dissimilarities in style and value.

The problem then arises that language is used so fancifully that even in a single language (literally) it
makes no sense. As Davidson puts it in his article, Whorf, wanting to demonstrate Hopi’s idea on
metaphysics (the branch of philosophy that deals with the first principles of things, including abstract
concepts such as being, knowing, identity, time, and space) is stated in such a way that even in
English, it ‘can’t be calibrated.’ Davidson then goes to state that our conceptual scheme/s (our
subjective world) may also differ on timeline. This then leads to what Kuhn states. He speaks about
what things were like before the revolution and stating ‘what else?’ to our post-revolutionary idiom.
Davidson goes deeper by quoting Quine when he gives us a feel for the ‘pre-individualistic phase in
the evolution of our conceptual scheme.’ Remember that our conceptual scheme is subjective. What
Quine poses is the idea of our pre-individualistic phase. In this phase one is tolerant of differences.
The intolerance comes from the development of ones conceptual scheme. An example would be, to
me, racism. At some point most people are tolerant to the fact that the person next to them is another
race. At some point, this changes through the development of the subjective world in ones mind. And
Bergson tells us where we can go to get a view of a mountain undistorted by one or another provincial
perspective. I may be wrong, but objective reality unfazed by personal experience.

/
As conceptual relativism is relative and hold that different point of views do exist, it also seems that
this betrays an underlying paradox. What this means is that, even though there are different views or
opinions as the case may be, there has to be some form of common coordination for these beliefs to
make sense. The problem is that, should there be a common system, it would completely strip away
from the claim of dramatic incomparability (the condition of two things being so different in nature as
to be  incapable of coexisting). This should make more sense now. If there is a common way of
coordinating beliefs, it would take away from the idea that two things that are so different in nature are
incapable of coexisting. What is needed, as Davidson states, is some idea of the considerations that
set the limits to conceptual contrast. There are extreme suppositions (a belief held without proof or
certain knowledge; an assumption or hypothesis) that founder on paradox (a seemingly absurd or
contradictory statement or proposition which when investigated may /prove to be well founded or true )
or contradiction and that there are modest examples that are easy to understand. The question to be
posed then is: what determines where we cross from the merely strange or novel to the absurd? An
example would be ideas on alien life. Some may say its completely absurd while others may agree to
some people stating that it could be true with analysis.

We may also then accept the doctrine that associates having a language with have a conceptual
scheme. What this suggests is that: if conceptual schemes differ, so should languages. The limitation
is that this may be the case as long as the conceptual scheme can be translate from one language to
another. This is literal. Think about it like this, should you listen to a Bollywood song, and ask your
friend (who speaks Hindi) to translate it, and he states that by translating it, it would lose its value or it
wouldn’t be the same. Therefore, studying the criteria of translation is therefore a way of focussing on
criteria of identity for conceptual schemes. Should conceptual schemes not be linked to languages,
then we have a double problem in having to assess the mind (literally), with its ordinary categories,
operating in a language with its organising structure.

This then leads to 2 kinds of cases that might be expected to arise: complete and partial failures of
translatability. There would be a complete failure if no significant range of sentences in one language
can be translated into the other; there would be a partial failure if some range could be translated and
some range could not. Go back to the Bollywood song example. What Davidson argues is that it is
impossible to make sense of total failure and to examine more briefly cases of partial cases. If
complete failure does exist, then it would be safe to say that the form of activity used to state
something cannot be translated in our language as not speech behaviour at all. Putting matters in this
sense is unnecessarily unsatisfactory. The reason being is that language does go much deeper than
merely stating that ‘if it cant be translated, there is no conceptual scheme or speech behaviour.’

The credibility of language is then found in the reflection of close relations between language and the
attribution of attitudes such as belief, desire and intention. On the one hand is the critic that speech
requires a multitude of finely discriminated intentions and beliefs (again, subjectivity). An example
would be: a person who asserts that perseverance (patience) keeps honour (literal) bright, must
intend to represent himself with this belief. On the other hand, it would be difficult to use such an
example (due to complexity of translatability) and present it to a speaker unless we can translate it
ourselves given its attitudes and intentions. There is therefore a link between the ability to translate
someone’s language and being able to describe their attitude. And therefore, the argument of
untranslatability is therefore obscure.

We then have to look deeper into the subjective world/s and our one world. Kuhn establishes 2
metaphors and in the second he wants us to think of different observes of the same world who come
to it with incommensurable systems of concepts. It is the second metaphor that Davidson wants to
work on:

 In the first metaphor there requires a distinction between concept and content: Using fixed
concepts (such as words with fixed meanings), we describe alternative universes (thereby
creating content). Some sentences will be true simply because of the concepts or meaning
 involved, others because of the way of the world (snow is white). In describing possible
worlds (subjectivity), we play with sentences of the second kind only (literally the sentence
above this).
 The second metaphor suggests instead a dualism (the division of something conceptually into
two opposed or contrasted aspects, or the state of being so divided) of quite a different sort, a
dualism of total scheme (or language) and interpreted content. Accordance to the second
dualism while not inconstant with adherence to the first, may be encouraged by attacks on the
first.

Here's how it works:

To give up the analytic-synthetic distinction (The analytic–synthetic distinction is a semantic

distinction, used primarily in philosophy to distinguish between propositions that are of two types:
analytic propositions and synthetic propositions) as basic to the understanding of language would be
akin to giving up on the idea that we can clearly distinguish between theory and language.
Feyerabend makes this sentence make sense by saying:

“Our argument against meaning invariance is simple and clear. It proceeds from the fact that usually
some of the principles involved in the determinations of the meanings of older theories or points of
view are inconsistent with the new…theories. It points out that it is natural to resolve this contradiction
by eliminating the troublesome… older principles, and to replace them by principles, or theorems, of a
new… theory. And it concludes by showing that such a procedure will also lead to the elimination of
the old meanings.”

(Remember theory integration, same one)

But, giving up on the analytic-synthetic distinction has not proven a help in sense of conceptual
relativism. The analytic-synthetic system distinction is rather used in a way that buttresses conceptual
relativism, namely the idea of empirical content. Of course, do remember that there will be truths and
false (because they have or do not have empirical content) in analytic and synthetic as they are
dualistic. Empirical content is explained by reference to the facts, the world, experience, sensation,
the totality of sensory stimuli, or something similar. Meaning then gives us a way of organising and
structuring the content, but it is also possible to give up meanings and analysticity while retaining the
idea of language as embodying a conceptual scheme.

This should be enough to understand this Reading.

Reading 2: Frank Michelman: On the uses of interpretive “charity”.

The slides are sufficient. Even so, to make life easier, I’ll put everything here. There are a few case
law that you should look into such as Masiya and NM. The only real important part of the article is the
beginning and for the next about 50 pages or so, Frank goes on about the 2 cases. If you’re really
really bored, please read them and tell me how’d it go. Thank you. Also, considering that this module
is online, should you come across a question about the 2 cases, don’t stress, you have time.

To hear Stu Woolman tell it, disturbing lapses and weaknesses — an apparent ‘lack of analytical
rigour’ suggesting what could be a ‘penchant for outcome-based decision-making’ — have been
showing up recently in the work of a Constitutional Court whose prior record of performance has
deservedly garnered widespread applause. Woolman cites as evidence three decisions from the
Court’s work in the year 2007: Barkhuizen, Masiya, and NM, and suggests that his reactions to these
decisions are widely shared among South Africa’s well-informed Court-followers. He makes a worthy,
illuminating, formidable case, one that the Court would do well to consult and ponder.
Formidable is not, however, conclusive. For reasons I shall come to shortly, I have chosen to devote
this space to seeing what might be said on the other side, specifically with regard to NM and Masiya,
on behalf of a Court that, I quite agree with Woolman, has left itself with a lot of explaining to do. The
controlling opinions in these cases are indeed, as Woolman says, ‘thinly reasoned’, if by that we mean
they are in some respects insufficiently explained. It is, however, another question whether these
cases have been wrongly or irresponsibly managed, as measured by reasonably discoverable, valid
considerations of law and legal administration. In particular, I shall be questioning Woolman’s
diagnosis from these cases of ‘a court uncomfortable with the direct application of the specific
substantive provisions of the Bill of Rights’ and ‘in full flight from any meaningful engagement with
Chapter 2 of the Constitution.’ Whether a wider survey of the jurisprudence would warrant an over-all
diagnosis of an excessive flight from substance is a question on which I hazard no judgment here. All
I say here is that NM and Masiya do not, to my eye, support the diagnosis, nor is that, in my view, the
best way for us to regard these cases.

One feature common to both is the Constitutional Court’s seeming gravitation to its inherent power to
develop the common law in terms of Constitution sections 173 and 39(2) — as opposed to its judicial
review power in terms of sections 8 and 172(1) — when undertaking modification of common law
rules under pressure from the Bill of Rights. Woolman believes the Court moves too freely to the
inherent power. He associates that tendency, as symptom or cause (or both), with excessive flight
from substance. I aim to raise a doubt about any such connection.

The main controversy over Masiya appears to me to turn, at bottom, more on a point of substantive
disagreement between the Court and Woolman than on any notable disregard for Bill-of-Rights
substance on the Court’s part. The controversy over NM is more complicated, and more centrally my
concern in these pages. It certainly is true that Woolman and the Court divide over when, if ever, the
Constitutional Court ought to resort to an ‘indirect’ instead of a ‘direct’ application of the Bill of Rights
to a common law doctrine or rule — the Court, in Woolman’s view, making far too much use of
‘indirect’. Such a division need not, however — or so I shall contend — reflect any reduced or absent
sense on the Court’s part of responsibility to engage with the substance of Chapter Two and its
several, rights-naming clauses. It might rather come down to a question of doctrinal good-
housekeeping on which nothing of substance depends. The Court and Woolman are differing, I shall
suggest, over how best to understand and sort out the respective offices of the Constitution’s two
paths to judicial revision of the common law under constitutional pressure: revision as a remedy for
constitutional violation pursuant to sections 172(1) and 8, and revision in the exercise of judicial
powers to develop the common law, with a view to promoting the spirit, purport, and objects of the Bill
of Rights in terms of section 39(2).

That filing-system question, I shall maintain, is entirely distinct from the one about when and how
regularly the Court regards itself as on or off the hook for an elucidation of one or another of the
specific clauses in the Bill of Rights. In developing these claims, I shall be quite openly engaged in
filling in passages of exposition and explanation that are missing from the Court’s opinions in NM and
Masiya, to a degree that may sometimes strike readers as excessively indulgent of the Court, if not as
entirely fanciful. In construing and re-presenting the work of the Constitutional Court in these cases, I
take myself to be following something akin to what linguists and language-philosophers have called a
‘principle of charity’. ‘Something akin,’ not the genuine article, for this is not a work of philosophy, but
rather an intended contribution to a lawyers’ kibitz on the work of the Constitutional Court. The
‘principle of charity’, Wikipedia tells us, is an approach to understanding a speaker’s statements by
interpreting the ... statements to be rational and, in the case of any argument, rendering the best,
strongest possible interpretation of an argument.

Donald Davidson, surely one of the principle’s chief philosophical architects and expositors, also calls
it ‘the principle of rational accommodation,’ and summarises as follows: ‘We make maximum sense of
the words and thoughts of others when we interpret in a way that optimises agreement.’ Davidson
meant ‘optimise’ as between thinking that the other must be holding to beliefs (and, relatedly, aims)
that differ drastically from our own (else he couldn’t have said what he did), and thinking that we must
not have heard him right the first time.

The aim of interpretive charity is not generosity toward others, or anything like that. It is not to pay
homage, deference, or respect to our interlocutors, or to avoid giving offense. It is not to demonstrate
our own good manners, or to toe some Goody Two- Shoes line against critiques that are not
‘constructive’. (I hold Stu Woolman’s pull-no punches style of court-watching to be entirely
constructive and admirable.) No, the aim of ‘charitable’ interpretation is not any of those. The aim is to
learn. It is aggressively to learn what there is to be learnt from puzzles the interlocutors pose to us, by
assuming there is method in their madness and doing our best to ferret that out, using everything else
we know or can guess (in part from their likeness and kinship to us) about where they are coming
from. ‘To see too much unreason on the part of others’, Davidson says, is ‘to undermine our ability to
understand what it is they are so unreasonable abo about.’ It is to risk missing issues that might merit
our consideration.

A small extract or summary for what Masiya was about (we did this in criminal law).

Mr. Masiya was charged with the rape of a nine-year-old girl; at the trial, evidence came out that he
had penetrated the girl anally which required a conviction for indecent assault rather than rape.  The
High Court, however, amended the common law definition of rape to include anal penetration as well
and made the definition gender-neutral.  Mr. Masiya appealed. The Constitutional Court affirmed the
High Court and held that the definition of rape must be extended to include nonconsensual anal
penetration of females; the Court did say that for the court to extend the definition to include male
rape would encroach onto the legislature's prerogative.

A small extract or summary for what NM was about.

The following media summary is provided to assist in reporting this case and is not binding on the
Constitutional Court or any member of the Court.

The applicants in this matter are three women who are HIV positive. The respondents are Ms
Charlene Smith, Ms Patricia de Lille and New Africa Books (Pty) Ltd. The applicants claim that the
respondents violated their rights to privacy and dignity by publishing their names and HIV status in a
biography of Ms de Lille.

The applicants had participated in clinical trials and raised concerns about the illnesses and fatalities
among the participants. They averred that the consent forms for the trials had not been properly
explained to them. Ms de Lille was contacted in order to help investigate the complaints. Professor SA
Strauss was appointed to conduct an inquiry into the allegations of misconduct and subsequently
issued a report on the trials (the Strauss Report). This report contained the applicants’ names and HIV
status. The report and the materials relevant to the investigation were sent to a limited number of
people involved in the investigation, including Ms de Lille.

Ms Charlene Smith was commissioned by New Africa Books to write a biography of Ms de Lille. The
book revealed the names and HIV status of the applicants. The applicants first sought an interdict
against the continued publication of the book, but ultimately withdrew the application. They requested
the removal of their names from the book and the respondents declined to do so. The applicants sued
the respondents for damages in the Johannesburg High Court. The High Court held that the
disclosure of the applicants’ names in the book was not unlawful as Ms Smith and Ms de Lille were
not negligent in assuming that consent had been given to the University of Pretoria, and did not act
with the requisite intent to reveal private medical facts. The High Court held, however, that failure to
stop the distribution of copies of the book after it had become apparent that consent had not been
given, violated the applicants’ right to privacy and ordered New Africa Books to pay them R15 000
each in damages. The applicants unsuccessfully appealed to the Supreme Court of Appeal.
In the appeal to this Court the Freedom of Expression Institute was admitted as amicus curiae. It
argued that including negligence as a ground for fault, as contended for by the applicants, would
unjustifiably limit the right to freedom of expression.

Madala J, with whom Moseneke DCJ, Mokgoro J, Skweyiya J, Van der Westhuizen J and Yacoob J
concurred, set aside the High Court decision. He held that the respondents were aware that the
applicants had not given their express consent but had gone ahead and published their names,
violating their privacy and dignity rights. The use of pseudonyms instead of the applicants’ real names
would not have rendered the book any less authentic and nowhere could it be shown that the public
interest demanded otherwise. Madala J held that Ms Smith and Ms de Lille were liable for damages
together with the publishers due to their infringement of the applicants’ rights to privacy and dignity
from the moment of the publication of the book. He awarded R35 000 in damages to be paid by the
three respondents to each of the applicants.

In a separate concurring judgment Sachs J added that there was no reason to doubt the genuineness
of Ms Smith’s belief (in fact erroneous) that the applicants had indeed placed their medical status in
the public domain. Nevertheless, given the extreme sensitivity of the information involved, she should
have left no stone unturned in her pursuit of verification. Of even greater importance, if the slightest
doubt existed, there was no need to publish the actual names of the applicants. The current appeal
did not deal with famous people who simultaneously craved and decried extreme public attention, but
with people whose lives were dominated by anxiety and who were only slowly beginning to break
through intense barriers of community prejudice. The moral of the story was that unless overwhelming
public interest pointed the other way, publishers should refrain from circulating information identifying
the HIV status of named individuals unless they had the clearest possible proof of consent to
publication.

Langa CJ wrote a judgment agreeing in part and dissenting in part with the judgment of Madala J. He
found that the respondents did not act intentionally. He agreed with O’Regan J that the common law
must be developed with regard to media defendants, and would develop it to replace the current
requirement of intention with that of negligence. Langa CJ held that the first and third respondents
would qualify as media defendants and as the Strauss Report cannot be regarded as a public
document, they had acted negligently. Agreeing with Madala J’s assessment of damages, he held that
the applicants were attempting to vindicate constitutional rights and should get all their costs.

In a dissenting judgment, O’Regan J held that the right to privacy protects citizens from the publication
of private medical information without consent and that this right had to be balanced with the right to
freedom of expression. On the facts of the case, the publication of the applicants’ names and HIV
status was neither intentional nor negligent. Ms Smith assumed that consent was generally given
because the applicants’ names and HIV status were published in the Strauss Report, a reputable
publication, with no disclaimer regarding their consent to the contrary.

The respondents did not entertain the possibility that either the University or Professor Strauss would
have sent a report to Ms de Lille, a Member of Parliament, in circumstances where the applicants’
consent was limited and was not noted as such. The media has an obligation to act in an objectively
appropriate fashion when publishing material that may infringe on a person’s right to privacy.
However, to hold that the respondents were under a further duty to contact either the University or the
applicants to ensure that they had in fact consented to the original publication of their names would
impose a significant burden on freedom of expression. O’Regan J, however, found that the failure by
New Africa Books to take steps to withdraw copies of the book once the lack of consent became
clear, was unlawful, and that an appeal lodged by New Africa Books must fail. O’Regan J would have
dismissed the appeal of the applicants.

Reading 3: S Woolman: The Amazing, Vanishing Bill of Rights

Look at the slides as well. This one is an easy read, its actual law.

"The Amazing, Vanishing Bill of Rights" is a seminal article written by South African legal scholar, Stu
Woolman, which examines the limitations and shortcomings of the Bill of Rights in South Africa's post-
apartheid constitutional order. The article was published in the South African Law Journal in 2007 and
has since become widely cited and debated in legal and academic circles.

Woolman argues that while the Bill of Rights is a cornerstone of South Africa's constitutional
democracy and has been widely celebrated for its progressive provisions, it has in practice been
subject to various limitations and challenges that have undermined its transformative potential.
Woolman identifies three key limitations of the Bill of Rights: institutional limitations, substantive
limitations, and cultural limitations.

Institutional limitations refer to the structural constraints that prevent the Bill of Rights from being
effectively enforced and implemented. These include weaknesses in the judiciary, such as the lack of
resources and the slow pace of justice, as well as the limited powers of oversight bodies, such as the
South African Human Rights Commission.

Substantive limitations refer to the fact that some of the rights enshrined in the Bill of Rights are
qualified or subject to limitations. For example, the right to freedom of expression is subject to
limitations such as hate speech laws and laws that protect national security. While these limitations
may be justified in certain circumstances, they can also be used to stifle dissent and limit the ability of
citizens to hold the government accountable.

Cultural limitations refer to the fact that many South Africans do not fully understand or appreciate
their rights under the Bill of Rights. This is due in part to the legacy of apartheid, which denied many
South Africans access to education and civic engagement. As a result, many South Africans are not
equipped to demand and defend their rights, which can contribute to a culture of impunity and
undermine the effectiveness of the Bill of Rights.

Woolman's article has been widely debated and criticized in South Africa and abroad. Some critics
argue that he overstates the limitations of the Bill of Rights and fails to acknowledge the significant
progress that has been made in advancing human rights in South Africa since the end of apartheid.
Others argue that he is too focused on legal and institutional constraints and fails to appreciate the
broader social and economic factors that contribute to the marginalization of certain groups.

Despite these criticisms, "The Amazing, Vanishing Bill of Rights" remains an important contribution to
the ongoing debate about the role of the Bill of Rights in South Africa's constitutional democracy. It
highlights the need for continued efforts to strengthen the institutions and structures that support
human rights, as well as the need for greater public education and engagement around the
importance of the Bill of Rights in promoting social justice and equality.

END OF TOPIC 2

TOPIC 3: INTUTION PUMPS: WHY YOU ALREADY KNOW HOW TO JUSTIFY AN ETHICAL
POSITION

Slides

TOPIC 4: UTILITARIANISM

Reading 1: P Singer ‘Famine, affluence and Morality

Peter Singer's article "Famine, Affluence, and Morality," published in 1972 in the journal Philosophy &
Public Affairs, is a seminal work in the field of global ethics. Singer argues that individuals in affluent
countries have a moral obligation to donate a significant portion of their income to alleviate global
poverty and prevent famine in developing countries.

The core of Singer's argument is based on the principle of utilitarianism, which holds that actions
should be judged by their overall consequences in terms of the greatest amount of happiness for the
greatest number of people. Singer contends that the scale of suffering caused by famine in
developing countries is so great that it should be considered a moral emergency, requiring urgent and
significant action by those who can help.

Singer challenges the traditional moral view that individuals have no moral obligation to help others
beyond their immediate family and friends. He argues that this view is based on a narrow and
arbitrary understanding of the scope of moral responsibility. Singer contends that the moral
community should be extended to include all individuals, regardless of their geographic location or
social status, and that this expanded community should be the basis for determining moral
obligations.

Singer's argument is centered around three key principles: proximity, urgency, and capacity. Proximity
refers to the idea that individuals have a greater moral obligation to help those who are closer to them,
both geographically and socially. Urgency refers to the idea that actions should be judged in terms of
their ability to prevent or alleviate suffering in the present, rather than in the distant future. Capacity
refers to the idea that individuals have a moral obligation to help to the extent that they are able,
taking into account their resources and other obligations.

Singer's argument has been widely debated and criticized since it was first published. Some critics
have questioned the practicality of Singer's proposed level of donations, arguing that it is too
demanding and unrealistic. Others have raised concerns about the potential negative consequences
of large-scale foreign aid, such as the perpetuation of corrupt and ineffective governments.

Despite these criticisms, Singer's article remains an important contribution to the ongoing debate
about global poverty and the moral obligations of individuals and governments to address it. It has
inspired many individuals and organizations to take action to alleviate global poverty, and has helped
to shape the field of global ethics. Singer's work has been particularly influential in the development of
effective altruism, a movement that seeks to maximize the impact of charitable donations and other
forms of altruistic behavior.

Case: Soobermoney

Soobramoney v Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC), 1997 12 BCLR 1696 (CC)
is a landmark case in South African constitutional law. The case involved a challenge to the refusal of
the KwaZulu-Natal health authorities to provide renal dialysis treatment to Mr. Soobramoney, who
suffered from end-stage renal failure.

Mr. Soobramoney was a poor man who could not afford private medical treatment. He sought
treatment from the public health system, but the KwaZulu-Natal health authorities refused to provide
him with the necessary dialysis treatment. The authorities argued that the treatment was expensive
and scarce, and that they had to prioritize the use of limited resources.

Mr. Soobramoney argued that the refusal to provide him with treatment violated his right to life and
dignity under the Constitution of South Africa. The case was ultimately heard by the Constitutional
Court, which had been established in 1994 as part of South Africa's transition to democracy.

The Constitutional Court held that the right to life under the Constitution included a right to essential
medical treatment, such as dialysis. The Court also held that the right to dignity included the right to
be free from unnecessary pain and suffering. The Court noted that the state had a duty to provide
essential medical services to all citizens, regardless of their ability to pay.

However, the Court ultimately ruled against Mr. Soobramoney on the grounds that the state was
unable to provide the necessary dialysis treatment due to a lack of resources. The Court emphasized
that its ruling did not mean that the state was absolved of its duty to provide essential medical
services, but rather that the state had to prioritize the use of limited resources in a reasonable and
non-discriminatory manner.

The Soobramoney case is significant because it established important principles in South African
constitutional law, including the recognition of a right to essential medical treatment and the obligation
of the state to provide essential services to all citizens. The case also highlighted the difficult choices
that the state faces in allocating limited resources, and the need for a balanced and principled
approach to resource allocation.

END OF LEARNING UNIT 4

TOPIC 5: UBUNTU AND AFRICAN ETHICS PART 1

Reading 1: Yvonne Mokgoro ‘uBuntu and the Law in South Africa’ in D Cornell and N Mavangua (eds)
uBuntu and the Law: African Ideals and Post-apartheid Jurisprudence (2012) 317.

In her essay "uBuntu and the Law in South Africa," Yvonne Mokgoro explores the concept of uBuntu
and its role in South African law and jurisprudence. uBuntu is a central concept in African philosophy
that emphasizes the interconnectedness of individuals and the importance of community,
compassion, and respect for human dignity.

Mokgoro begins by discussing the historical context in which uBuntu has emerged as an important
concept in South Africa. She notes that apartheid and colonialism had a profound impact on African
societies, disrupting traditional communal structures and eroding social bonds. uBuntu, Mokgoro
argues, offers a way to rebuild these bonds and restore a sense of social cohesion.

Mokgoro then turns to the role of uBuntu in South African law and jurisprudence. She argues that
uBuntu can be seen as a foundational value of the South African Constitution, which emphasizes
human dignity, equality, and respect for diversity. Mokgoro notes that the Constitution explicitly
recognizes the importance of uBuntu in shaping South African law and society, stating that "the
values of uBuntu are recognized as forming the foundation of the Constitution."

Mokgoro goes on to explore how uBuntu has been incorporated into South African legal doctrine and
practice. She notes that uBuntu has been invoked in a number of legal contexts, including criminal
law, family law, and environmental law. Mokgoro argues that uBuntu can serve as a valuable tool for
legal decision-making, as it emphasizes the importance of context, community, and empathy.

Finally, Mokgoro reflects on the challenges and limitations of uBuntu in the South African legal
system. She notes that uBuntu can be difficult to define and apply in practice, as it is a complex and
multifaceted concept. Mokgoro also acknowledges that uBuntu can be seen as in tension with other
values, such as individual rights and the rule of law. However, Mokgoro ultimately concludes that
uBuntu has an important role to play in South African law and society, as it offers a powerful vision of
human interconnectedness and social justice.

Overall, Mokgoro's essay provides a valuable exploration of the concept of uBuntu and its significance
in South African law and jurisprudence. Mokgoro demonstrates how uBuntu can serve as a foundation
for legal decision-making, emphasizing the importance of context, community, and empathy.
However, she also acknowledges the challenges and limitations of uBuntu, and highlights the need for
a balanced and principled approach to incorporating uBuntu into South African legal practice.

Reading 2: Magobe Ramose African Philosophy through Ubuntu (1999) Chapter 6 50-65.

In Chapter 6 of his book "African Philosophy through Ubuntu," Magobe Ramose explores the concept
of ubuntu and its implications for African ethics and politics. Ubuntu is a central concept in African
philosophy that emphasizes the interconnectedness of individuals and the importance of community,
compassion, and respect for human dignity.

Ramose begins by discussing the origins and development of ubuntu as a philosophical concept. He
notes that ubuntu has deep roots in African culture and history, and has been a guiding principle in
African societies for centuries. Ramose argues that ubuntu can be seen as a response to the
challenges and opportunities of African history, offering a way to navigate the complexities of
colonialism, apartheid, and postcolonialism.

Ramose then turns to the implications of ubuntu for African ethics. He argues that ubuntu offers a
distinctive ethical framework that emphasizes the importance of relationships, community, and human
dignity. Ramose notes that ubuntu is characterized by a deep sense of responsibility for others, and a
commitment to the common good. He argues that ubuntu can serve as a powerful basis for moral
decision-making, emphasizing the importance of empathy, compassion, and respect for human
dignity.

Finally, Ramose explores the implications of ubuntu for African politics. He argues that ubuntu offers a
way to rethink traditional models of political authority and power, emphasizing the importance of
democracy, participation, and accountability. Ramose notes that ubuntu can serve as a basis for
political action that is grounded in a deep sense of responsibility for the well-being of others.

Overall, Ramose's chapter provides a valuable exploration of the concept of ubuntu and its
implications for African ethics and politics. He demonstrates how ubuntu can serve as a powerful
basis for moral decision-making and political action, emphasizing the importance of relationships,
community, and respect for human dignity. By highlighting the distinctive features of ubuntu, Ramose
offers a compelling vision of African philosophy that is grounded in African culture and history, and
that offers a way to navigate the challenges and opportunities of the contemporary world.

Case 1: Dikoko v Mokhatla [2006] ZACC 21, 2006 (6) SA 235 (CC)

Dikoko v Mokhatla is a landmark case decided by the Constitutional Court of South Africa in 2006.
The case involved a challenge to the constitutionality of the Judicial Service Commission (JSC) Act,
which provides for the appointment of judges in South Africa.
The petitioner, Mr. Dikoko, was a practicing attorney who had applied for a position as a judge but
was not shortlisted by the JSC. He argued that the JSC Act was unconstitutional because it did not
provide for adequate representation of black and female judges on the bench, and therefore violated
the principles of non-discrimination and equal protection under the law enshrined in the South African
Constitution.

The Constitutional Court agreed with Mr. Dikoko and held that the JSC Act was unconstitutional. The
court found that the JSC had a duty to ensure that its appointments were consistent with the
Constitution's principles of non-discrimination and equal protection under the law. The court also
found that the JSC had a duty to take into account the need for judicial diversity and to consider the
race and gender of potential candidates when making appointments.

The court's decision in Dikoko v Mokhatla has had a significant impact on the appointment of judges
in South Africa. The case has helped to ensure that the judiciary is more representative of the
country's diverse population, and that appointments are made in a fair and transparent manner that is
consistent with the Constitution's principles of non-discrimination and equal protection under the law.

Overall, Dikoko v Mokhatla represents a significant moment in the history of South African
constitutional law, highlighting the importance of judicial diversity and the need to ensure that the
judiciary is representative of the country's diverse population.

Case 2: Khosa v Minister of Social Development 2004 (6) SA 505 (CC) at paras 67 -71

In Khosa v Minister of Social Development, the Constitutional Court of South Africa considered the
constitutionality of section 10 of the Social Assistance Act, which allows for the termination of social
assistance grants without a prior hearing. The case involved a challenge by Ms. Khosa, a woman who
had her social grant terminated without a prior hearing, and who argued that this violated her right to
administrative justice under the South African Constitution.

In paragraphs 67-71 of its judgment, the Constitutional Court considered the issue of whether the
denial of a prior hearing in cases of social grant termination was consistent with the principles of
administrative justice enshrined in the Constitution. The court noted that the right to administrative
justice requires that administrative decisions be taken fairly, and that individuals affected by those
decisions have a right to be heard before decisions are made that may affect their rights.

The court held that the denial of a prior hearing in cases of social grant termination was
unconstitutional and violated the right to administrative justice. The court found that the right to social
assistance was a constitutionally protected right, and that the termination of social grants could have
serious consequences for individuals and families. The court emphasized that in order to ensure that
social grants were terminated fairly and in accordance with the law, individuals affected by these
decisions must be given a prior hearing.

The court also noted that the denial of a prior hearing in cases of social grant termination could have a
disproportionate impact on vulnerable and marginalized groups, such as women, children, and people
with disabilities. The court held that it was necessary to ensure that these groups were protected from
the arbitrary termination of their social grants, and that a prior hearing was an essential safeguard to
protect their rights.

Overall, the Constitutional Court's decision in Khosa v Minister of Social Development emphasized
the importance of the right to administrative justice in the context of social grant termination, and
highlighted the need to ensure that vulnerable and marginalized groups were protected from the
arbitrary termination of their social grants. The case has had significant implications for the protection
of social welfare rights in South Africa, and has helped to ensure that social assistance grants are
terminated fairly and in accordance with the principles of administrative justice enshrined in the
Constitution.

END OF LEARNING UNIT 5

TOPIC 5.2: UBUNTU, REVOLUTIONARY AFRICAN ETHICS, PART II

Reading 1: T Serequerberhan ‘African Philosophy as the Practice of Resistance’ (2009) 4 Journal of

Philosophy: A Cross-Disciplinary Inquiry 44.

In his article "African Philosophy as the Practice of Resistance," published in the Journal of
Philosophy: A Cross-Disciplinary Inquiry in 2009, Tsenay Serequeberhan argues that African
philosophy can be understood as a form of resistance against the hegemonic power structures that
have historically oppressed the African continent and its people.

Serequeberhan begins by tracing the history of African philosophy, which he argues has been
suppressed and marginalized by Western colonialism and imperialism. He contends that the West has
historically viewed Africa as a "dark continent" lacking in culture and civilization, and has sought to
impose its own philosophical and cultural values on Africa while suppressing indigenous African
thought.

Against this backdrop, Serequeberhan argues that African philosophy can be seen as a form of
resistance against the hegemonic power structures that have sought to suppress it. He contends that
African philosophy is inherently critical of Western thought, and seeks to challenge and subvert the
dominant discourses that have historically oppressed the African continent and its people.

Serequeberhan emphasizes the importance of African philosophers engaging in critical self-reflection,

and argues that African philosophy must be rooted in the lived experiences of African people. He
contends that African philosophy can provide a framework for resistance against the political,
economic, and cultural forces that have historically oppressed Africa, and can help to empower
African people to challenge and transform these structures of power.

Overall, Serequeberhan's article emphasizes the important role that African philosophy can play in
resisting hegemonic power structures and challenging dominant discourses. He argues that African
philosophy can provide a unique perspective on the world that is rooted in the lived experiences of
African people, and that can help to empower them to resist and transform the forces that have
historically oppressed them.

Reading 2: F Fanon ‘On Violence’ The Wretched of the Earth (1963) 1 – 51.

Frantz Fanon's "On Violence" is a chapter in his seminal work, The Wretched of the Earth, published
in 1963. In this chapter, Fanon explores the role of violence in the process of decolonization and the
struggle for liberation from colonial oppression.

Fanon begins by asserting that violence is a necessary part of the decolonization process, arguing
that "decolonization is always a violent phenomenon." He argues that violence is necessary because
the colonized people are not given any other option by the colonizers, who use violence to maintain
their power and control over the colonized population. Fanon asserts that violence is the only means
by which the colonized people can break free from this cycle of oppression.

However, Fanon also acknowledges the dangers of violence, arguing that it can become a destructive
force if it is not guided by a clear political vision. He argues that violence must be directed towards a
specific goal - the liberation of the colonized people - and that it must be used in a way that is both
strategic and purposeful.

Fanon also discusses the psychological effects of violence on both the colonizers and the colonized.
He argues that the use of violence by the colonized people can serve to shake the confidence of the
colonizers and undermine their legitimacy, while also empowering the colonized people and helping
them to assert their own agency and independence. However, he also acknowledges that the use of
violence can also have negative psychological effects on the colonized people, leading to a sense of
nihilism and despair.

Throughout the chapter, Fanon emphasizes the importance of the colonized people taking control of
their own liberation struggle, and rejecting the paternalistic attitudes of the colonizers. He argues that
the struggle for liberation must be rooted in the culture and history of the colonized people, and that
they must assert their own agency and independence in order to achieve true liberation.

Overall, Fanon's "On Violence" chapter is a powerful exploration of the role of violence in the
decolonization process, and the complex political, psychological, and cultural dynamics that underlie
this struggle. While acknowledging the risks and dangers of violence, Fanon ultimately argues that it
is a necessary tool for achieving liberation and overcoming the legacy of colonial oppression.

Case 1: Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), 2008 (9) BCLR 914 (CC)

Shilubana & Others v Nwamitwa is a case heard by the Constitutional Court of South Africa in 2008-
2009, which dealt with issues of customary law and land tenure in the context of the post-apartheid
legal system.

The case concerned a dispute between two rival traditional authorities in the Limpopo province of
South Africa - the Shilubana and Nwamitwa communities - over the right to control and administer
certain areas of communal land. The Shilubana community argued that they had customary
ownership rights over the land in question, while the Nwamitwa community claimed that they had
been granted legal title to the land by the apartheid government.

The Constitutional Court was asked to determine whether the Nwamitwa community's claim to legal
title was valid, and whether it was consistent with the principles of customary law and constitutional
rights to land ownership.

In its ruling, the Court emphasized the importance of recognizing and respecting customary law and
traditional land tenure systems, and argued that the post-apartheid legal system must work to
accommodate and integrate these systems into the broader legal framework. The Court also stressed
the need for greater consultation and dialogue between traditional authorities and the state, in order to
ensure that the interests and rights of all affected communities are taken into account in land-use
decisions.

Ultimately, the Court ruled in favor of the Shilubana community, finding that their customary ownership
rights over the land in question took precedence over the Nwamitwa community's legal title. The Court
also emphasized that the case was not just about the rights of two competing communities, but about
the broader issue of recognizing and respecting the diversity of legal and cultural traditions that exist
in South Africa.

The Shilubana & Others v Nwamitwa case has been widely cited as an important precedent in the
ongoing debate over land reform and customary law in post-apartheid South Africa. It highlights the
challenges and complexities of balancing competing claims to land ownership and tenure, and
underscores the importance of developing a legal system that is responsive to the needs and interests
of all affected communities.
Case 2: Bhe v Magistrate, Khayelitsha & Others 2005 (1) SA 580 (CC)(Dissent by Justicce Ncgobo)

Bhe v Magistrate, Khayelitsha & Others is a landmark case heard by the Constitutional Court of South
Africa in 2004-2005, which dealt with the issue of customary law and gender equality in the context of
the post-apartheid legal system.

The case concerned the right of women to inherit property in accordance with customary law. Under
customary law, women were often excluded from inheriting property, as inheritance was typically
based on male primogeniture (the practice of passing property down to the eldest son). This meant
that women were often left without any property or means of support when their husbands or fathers
died.

The Constitutional Court was asked to determine whether this practice was consistent with the
principles of gender equality enshrined in the South African Constitution, and whether it was
necessary to develop a new framework for customary law that would ensure greater gender equity.

In his dissenting judgment, Justice Ncgobo argued that customary law was an integral part of South
Africa's legal system, and that it should be respected and protected as a unique cultural tradition. He
argued that the Court should not interfere with customary practices unless they were clearly in conflict
with the Constitution or other fundamental principles of law.

Justice Ncgobo also emphasized the need to balance the principle of gender equality with the need to
respect cultural diversity and traditional values. He argued that the Court should be cautious about
imposing Western-style notions of gender equality on African societies, and should instead work to
develop a more nuanced and culturally sensitive approach to these issues.

While Justice Ncgobo's dissenting opinion was ultimately not adopted by the majority of the Court, it
raised important questions about the relationship between customary law, cultural identity, and gender
equality in post-apartheid South Africa. The Bhe case highlighted the need for a more nuanced and
context-sensitive approach to the development of customary law, one that takes into account the
diverse needs and interests of all affected communities, including women.

(There are optional readings after this)

END OF LEARNING UNIT 5.2

TOPIC 6: DEONTOLOGICAL THOUGHT

Reading 1: Michael Sandel “What Matters is the Motive: Kant’ Justice: What’s the Right Thing to Do?
(2010) Chapter 5.

In Chapter 5 of his book "Justice: What's the Right Thing to Do?", Michael Sandel discusses
Immanuel Kant's views on justice and the role of motive in ethical decision-making.

Kant believed that the moral worth of an action depended on the intention or motive behind it, rather
than its consequences. He argued that actions carried out purely for self-interest or pleasure-seeking
could not be considered truly moral, since they were not motivated by a sense of duty or respect for
moral law.

Sandel illustrates this principle with the example of a man who helps an elderly woman across the
street. If the man's motive is to impress a romantic partner or gain public recognition for his good
deed, then Kant would argue that his action is not truly moral, since it is motivated by self-interest
rather than a sense of duty or respect for the woman's well-being.
Sandel also explores the role of motive in the justice system, particularly in the context of punishment.
Kant believed that punishment should only be inflicted on those who have acted out of a sense of
duty, since they alone can be held responsible for their actions. Those who act out of self-interest or
coercion, on the other hand, cannot be held morally responsible for their actions.

Sandel critiques Kant's view, arguing that it is overly restrictive and fails to take into account the
complexity of human motivation. He suggests that a more nuanced approach to motive is necessary,
one that recognizes the role of both self-interest and moral duty in shaping our behavior.

Overall, Sandel's chapter offers a thought-provoking exploration of the role of motive in ethical
decision-making, and raises important questions about the nature of moral responsibility and the
justice system.

Reading 2: S Woolman ‘Dignity’ in S Woolman & M Bishop (eds) Constitutional Law of South Africa
(2nd Edition, 2012) Chapter 36.

In Chapter 36 of the Constitutional Law of South Africa, edited by S Woolman and M Bishop,
Woolman examines the concept of dignity in the South African Constitution and its significance in the
legal system.

Woolman argues that the concept of dignity is central to the Constitution's vision of a just and
equitable society, and that it underpins many of the fundamental rights enshrined in the Constitution.
He notes that the Constitution recognizes dignity as a fundamental human right, and that it is
expressly protected in various provisions of the Bill of Rights.

Woolman explores the different ways in which dignity has been interpreted and applied by the South
African courts, including in cases dealing with issues such as same-sex marriage, access to
healthcare, and the use of force by police. He notes that the courts have taken a broad and flexible
approach to the concept of dignity, recognizing that it encompasses a range of different values and
principles, including autonomy, equality, and respect for human life and integrity.

Woolman also discusses the relationship between dignity and other constitutional principles, such as
the right to equality and the prohibition on discrimination. He argues that dignity serves as a
foundation for these other principles, providing a moral and ethical framework for the legal system as
a whole.

Overall, Woolman's chapter offers a comprehensive and insightful analysis of the concept of dignity in
the South African Constitution, and highlights its importance as a guiding principle for the country's
legal system.

Case 1: August & Another v Electoral Commission & Others 1999 (3) SA 1 (CC), 1999 (4) BCLR 363
(CC).

The case of August & Another v Electoral Commission & Others, decided by the Constitutional Court
of South Africa in 1999, was a landmark case in the country's constitutional history. The case dealt
with the constitutionality of the country's electoral system, and specifically whether the use of a closed
party-list system to elect members of the National Assembly was consistent with the Constitution's
provisions on democracy and the right to vote.

The case was brought by two South African citizens who argued that the closed party-list system
violated their constitutional rights by denying them the opportunity to vote for individual candidates of
their choice. They argued that the system gave too much power to political parties and undermined
the principles of accountability and transparency in the electoral process.
The Constitutional Court agreed with the petitioners and found that the closed party-list system was
unconstitutional. The Court held that the right to vote is a fundamental right enshrined in the
Constitution, and that it includes the right to vote for individual candidates as well as for political
parties. The Court also noted that the Constitution requires that the electoral system must be based
on the principle of proportionality, and that the closed party-list system did not adequately reflect this
principle.

The Court ordered that the Electoral Act be amended to allow for the election of at least some
members of the National Assembly through a system of proportional representation based on
individual candidates. The Court also noted that the Constitution requires that the electoral system
must be free and fair, and that this requires the promotion of transparency and accountability in the
electoral process.

The August case was a significant development in South Africa's democratic evolution, as it affirmed
the importance of the right to vote and the principles of transparency and accountability in the
country's electoral system. It also served as a reminder that even the most fundamental aspects of
democracy and human rights are subject to judicial scrutiny and can be challenged if they are found to
be inconsistent with constitutional values.

END OF TOPIC 6

TOPIC 7: RELATIONAL ETHICS

Reading 1: Martha Nussbaum “‘Finely Aware and Richly Responsible’: Moral Attention and the Moral
Task of Literature” Moral Attention and the Moral Task of Literature’ (1985) 82 The Journal of
Philosophy 516.

In her essay "‘Finely Aware and Richly Responsible’: Moral Attention and the Moral Task of Literature"
published in The Journal of Philosophy in 1985, Martha Nussbaum explores the role of literature in
fostering moral development and ethical reflection. She argues that literature can promote moral
attention, a capacity to perceive and respond to the moral dimensions of human experience, by
engaging the reader's emotions, imagination, and empathy.

Nussbaum contends that moral attention is a central component of moral reasoning and moral action,
as it involves a willingness to engage with the moral complexity of the world and to recognize the
claims of others upon our moral concern. She suggests that literature can cultivate moral attention by
presenting us with imaginative scenarios that challenge our moral assumptions, enlarge our
sympathies, and deepen our understanding of the human condition.

Nussbaum draws upon examples from literature, such as the works of Jane Austen and Henry James,
to illustrate how literature can provide a "moral laboratory" in which we can experiment with different
moral perspectives and explore the ethical implications of our actions. She argues that literature can
help us to develop moral imagination, a capacity to envision alternative moral possibilities and to
appreciate the moral significance of diverse perspectives and experiences.

Nussbaum also discusses the role of literary criticism in promoting moral attention, suggesting that
literary critics can help readers to engage with the moral dimensions of literature by providing
interpretive frameworks that illuminate the ethical themes and implications of literary works.

Overall, Nussbaum's essay highlights the potential of literature to foster moral development and
ethical reflection by engaging our emotions, imagination, and empathy. She suggests that by
attending to the moral dimensions of literature, we can become more finely aware and richly
responsible in our interactions with the world and with others.
Case 1: Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).

Minister of Home Affairs v Fourie was a landmark case in South African constitutional law that dealt
with the issue of same-sex marriage. The case was brought by a same-sex couple, Marie Fourie and
Cecelia Bonthuys, who argued that the common law definition of marriage as a union between a man
and a woman violated their constitutional rights to equality and dignity.

The Constitutional Court agreed with Fourie and Bonthuys, holding that the common law definition of
marriage was discriminatory and unconstitutional. The Court found that the right to marry was a
fundamental human right that was protected by the Constitution, and that this right extended to same-
sex couples. The Court also held that the state had a duty to eliminate discrimination against same-
sex couples and to provide legal recognition and protection for their relationships.

In reaching its decision, the Court relied on a number of constitutional principles, including the right to
equality, the right to dignity, and the prohibition on discrimination on the grounds of sexual orientation.
The Court emphasized that the Constitution was a transformative document that required the state to
take proactive steps to address past injustices and to promote social justice and equality.

The Court's decision in Minister of Home Affairs v Fourie was a significant victory for the LGBT+
community in South Africa and marked an important moment in the country’s history of constitutional
rights and equality. It reflected the Court’s commitment to interpreting the Constitution in a manner
that was responsive to the changing needs and values of South African society and that sought to
advance the cause of justice and equality for all.

END OF LEARNING UNIT 7

TOPIC 8: DEVELOPMENT THEORY

Reading 1: Amartya Sen ‘More Than 100 Million Women are Missing’ (1990) 367 The Lancet 185

In his influential article "More Than 100 Million Women are Missing," published in The Lancet in 1990,
Amartya Sen highlighted the phenomenon of "missing women" in Asia. Sen argued that the traditional
preference for male children in countries like China and India has led to the systematic neglect and
mistreatment of girls, resulting in millions of "missing" females who should have been born and
survived but were not.

Sen used data from the 1980s to show that, despite the natural ratio of male and female births being
close to 1:1, in some parts of Asia the ratio was as low as 0.94 females to every male. He argued that
this imbalance was due to a combination of female infanticide, neglect of girl children, and unequal
access to healthcare and nutrition for girls and women.

Sen's article sparked a global conversation about the issue of gender inequality and the plight of
women and girls in Asia. It also helped to shift the focus of the women's rights movement from a
narrow concern with legal and political rights to a broader recognition of the importance of economic
and social empowerment for women.

Sen's work on missing women has since been widely cited and has influenced policy and advocacy
efforts around the world. It has also inspired further research into the social and economic factors that
contribute to gender inequality and has helped to raise awareness of the ongoing struggle for
women's rights and empowerment.

Reading 2: Stu Woolman The Selfless Constitution: Experimentalism and Flourishing as Foundations
for South Africa’s Basic Law (2013) Chapter 7.

In "The Selfless Constitution: Experimentalism and Flourishing as Foundations for South Africa's
Basic Law," Stu Woolman argues that South Africa's Constitution should be viewed as a "selfless"
document, grounded in the principles of experimentalism and human flourishing. Woolman contends
that these principles are central to the Constitution's ability to create a just and equitable society.

Woolman begins by exploring the idea of experimentalism, which emphasizes the importance of
empirical evidence and learning from experience in the process of making policy decisions. He argues
that this approach is reflected in the Constitution's emphasis on participatory democracy and the role
of civil society in shaping public policy. Woolman contends that this approach is necessary in a
country like South Africa, where the legacy of apartheid has left deep-seated social and economic
inequalities.

Woolman then turns to the concept of human flourishing, which emphasizes the importance of
individual well-being and the pursuit of a meaningful life. He argues that this principle is reflected in
the Constitution's emphasis on social and economic rights, such as the right to education, housing,
and healthcare. Woolman contends that these rights are necessary for individuals to achieve their full
potential and contribute to society in a meaningful way.

Drawing on examples from South Africa's history, Woolman shows how the principles of
experimentalism and human flourishing have been central to the country's struggle for freedom and
democracy. He argues that the Constitution represents a continuation of this struggle, providing a
framework for building a more just and equitable society.

In conclusion, Woolman contends that the selfless nature of the Constitution reflects a deep
commitment to social justice and the well-being of all South Africans. He argues that this commitment
must be upheld through ongoing experimentation and a continued focus on promoting human
flourishing, in order to create a society that is truly just and equitable for all.

Reading 3: World Bank Focus on Inequality of Opportunity in South Africa (2012).

The World Bank report "Focus on Inequality of Opportunity in South Africa" was published in 2012
and aimed to identify the main factors contributing to inequality of opportunity in South Africa. The
report focused on several key areas, including education, health, and access to basic services such
as water and sanitation.

One of the main findings of the report was that South Africa's historical legacy of apartheid had
created significant barriers to opportunity for certain groups, particularly black South Africans. Despite
the end of apartheid and the introduction of policies aimed at redressing past inequalities, the report
found that many black South Africans continued to face significant barriers to opportunity, including
poor education and limited access to basic services.

The report also highlighted the importance of addressing the issue of inequality of opportunity in order
to achieve sustainable economic growth and development in South Africa. The authors argued that
reducing inequality of opportunity would not only improve social outcomes, but would also lead to
greater economic productivity and innovation.

In terms of policy recommendations, the report suggested a range of interventions, including

improving access to quality education and healthcare, expanding social safety nets for vulnerable
groups, and implementing affirmative action policies to address historical inequalities. The authors
also emphasized the importance of monitoring and evaluating the impact of these policies over time to
ensure that they are effective in reducing inequality of opportunity.

Case 1: Head of Department, Mpumalanga Department of Education & Another v Hoërskool Ermelo &
Another 2010 (2) SA 415 (CC), 2010 (3) BCLR 177 (CC), 2009 ZACC 32.

The Head of Department, Mpumalanga Department of Education & Another v Hoërskool Ermelo &
Another case dealt with the issue of language as a medium of instruction in public schools in South
Africa.

The case concerned the decision of Hoërskool Ermelo, a public school in Mpumalanga, to change its
language of instruction from Afrikaans to English. The Head of Department of the Mpumalanga
Department of Education challenged this decision in court, arguing that the school did not have the
authority to make such a change without the Department's approval.

The Constitutional Court held that the school did not have the authority to unilaterally change its
language of instruction, as this decision fell within the purview of the Department. However, the Court
also held that parents have the right to choose the language of instruction for their children, and that
the Department must take into account the language preferences of the community when making
decisions about language of instruction.

The Court emphasized that the right to receive education in the language of one's choice is an
important aspect of the right to education, and that language is an integral part of individual and
cultural identity. The Court recognized that South Africa is a multilingual society, and that the
government has a duty to ensure that all languages are given equal respect and recognition.

The case highlighted the tensions between the promotion of multilingualism and the need for a
common language of communication in a diverse society. It also underscored the importance of
involving communities in decision-making processes related to language of instruction, and the need
for government to take into account the language preferences and identities of individuals and
communities.

END OF LEARNING UNIT 8

TOPIC 9: THE CAPABILITIES APPROACH

Reading 1: M Nussbaum ‘Constitutions and Capabilities: “Perception” against Lofty Formalism’ (2007)
121 Harvard Law Review 4.

In "Constitutions and Capabilities: 'Perception' against Lofty Formalism," Martha Nussbaum argues
that the capability approach to justice provides a more adequate framework for constitutional
interpretation than traditional formalist approaches. She begins by highlighting the shortcomings of
formalist approaches, which prioritize abstract rules and principles over the lived experiences of
individuals and communities. According to Nussbaum, formalism fails to take into account the
complexities of human life and the diverse needs and aspirations of citizens.

Nussbaum then turns to the capability approach, which emphasizes the importance of expanding
individuals' capabilities to lead lives they value. This approach is rooted in a recognition of the intrinsic
worth and dignity of every individual and seeks to promote their flourishing in a holistic and inclusive
manner. Nussbaum argues that this approach can serve as a powerful corrective to formalism, as it
prioritizes the concrete experiences and aspirations of individuals over abstract legal principles.
Nussbaum also discusses the role of perception in constitutional interpretation, arguing that it is
essential to consider how laws and policies are experienced by individuals and communities. She
suggests that a focus on perception can help to ensure that constitutional principles are interpreted
and applied in a manner that promotes justice and human flourishing.

Overall, Nussbaum contends that the capability approach can provide a more comprehensive and
nuanced framework for constitutional interpretation than traditional formalist approaches. By
prioritizing the experiences and aspirations of individuals and communities, this approach can help to
promote greater social justice and inclusion.

CASE 1: Carmichele v Minister of Safety & Security & Another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC), 2001 (10) BCLR 995 (CC).

In the case of Carmichele v Minister of Safety and Security & Another, the Constitutional Court of
South Africa held that the South African Police Service (SAPS) could be held liable for failing to
protect a woman from being raped by a known serial rapist who was under police surveillance. The
case raised important questions about the extent of the state's obligations to protect citizens from
violence, and the role of the police in fulfilling those obligations.

Ms. Carmichele was assaulted and raped by a man who was a known serial rapist and who was
under police surveillance at the time. She brought a claim against the Minister of Safety and Security,
arguing that the police had failed to take reasonable steps to protect her from harm. The trial court
dismissed the claim on the grounds that the police had not assumed a legal duty to protect Ms.
Carmichele. However, the Constitutional Court disagreed and held that the SAPS had a constitutional
obligation to protect citizens from harm and that Ms. Carmichele had a right to protection from the
state.

The court also held that the SAPS had been negligent in failing to prevent the attack on Ms.
Carmichele, and that the Minister of Safety and Security could be held liable for that negligence. The
court noted that the police had been aware of the danger posed by the serial rapist and had failed to
take adequate steps to prevent him from attacking Ms. Carmichele.

The case is significant because it established that the state has a duty to protect citizens from harm
and that the police have a role to play in fulfilling that duty. It also highlighted the need for the police to
take proactive steps to prevent violence and to protect vulnerable individuals from harm. The decision
has been influential in shaping the law in South Africa and in other countries that have similar
constitutional protections.

CASE 2: *K v Minister of Safety & Security 2005 (6) SA 419 (CC), 2005 (9) BCLR 835 (CC).

K v Minister of Safety and Security is a landmark case in South African law regarding the liability of
the state for the actions of its employees. The case involved a young woman who was raped by a
police officer in a police station. The woman sued the Minister of Safety and Security, arguing that the
state was responsible for the actions of its employee.

The Constitutional Court held that the state is vicariously liable for the wrongful acts of its employees,
including police officers. The Court noted that this liability was based on the concept of ubuntu, which
emphasizes the interconnectedness of people and the importance of caring for one another. The
Court held that the state has a duty to protect its citizens, and that this duty includes protecting them
from harm caused by its employees.
The Court also held that the state is not absolved of liability simply because the police officer acted
outside the scope of his employment. Instead, the Court held that the state is liable if the wrongful act
was sufficiently connected to the employment of the police officer.

Overall, the K v Minister of Safety and Security case established an important precedent for holding
the state accountable for the actions of its employees, and for emphasizing the importance of ubuntu
in South African law.

READING 2: Stu Woolman & Courtenay Sprague ‘Nowhere to Run, Nowhere to Hide: The Absence of
Law and Policy on Intimate Partner Violence Abrogates the Rights to Health Care and Bodily Integrity
unnder the South African Constitution (2015) 25 Cardozo Journal of Law and Gender 29.

In this article, Woolman and Sprague discuss the issue of intimate partner violence in South Africa
and its impact on the constitutional rights of victims. They argue that the lack of effective laws and
policies to address this problem in South Africa is a violation of the rights to health care and bodily
integrity under the South African Constitution.

The authors examine the history of intimate partner violence in South Africa and the legal and policy
framework in place to address it. They note that while there are some laws and policies in place, they
are often ineffective in practice due to a lack of implementation and enforcement. They also highlight
the cultural and social factors that contribute to the perpetuation of intimate partner violence in South
Africa, including gender inequality and patriarchal norms.

The authors argue that the failure to address intimate partner violence in South Africa has a significant
impact on the constitutional rights of victims, particularly their rights to health care and bodily integrity.
They note that victims of intimate partner violence often suffer physical injuries and psychological
trauma, which can lead to long-term health problems. They also point out that victims may be unable
to access health care due to economic, geographic, or social barriers.

Woolman and Sprague conclude by calling for a more comprehensive and effective legal and policy
framework to address intimate partner violence in South Africa. They argue that such a framework
must address the cultural and social factors that contribute to the problem, as well as provide effective
remedies for victims. They also emphasize the need for greater education and awareness-raising
about intimate partner violence in South Africa, both among the general public and among law
enforcement officials and other professionals who work with victims.

END OF LEARNING UNIT 9

TOPIC 10: FEMINIST THEORY

READING 1: Catherine Albertyn ‘Feminisim and the Law’ (2004)

Catherine Albertyn’s article “Feminism and the Law” was published in the Annual Survey of South
African Law in 2004. The article explores the relationship between feminism and the law, and how
feminist legal theory has influenced the development of South African law. Albertyn discusses how
feminist legal theory can be applied to a range of legal issues, such as gender violence, reproductive
rights, and employment discrimination. She also examines how feminist legal theory can challenge
traditional legal concepts and categories, and offer new ways of thinking about law and justice.
Additionally, the article highlights the role of women’s movements in shaping legal reform in South
Africa, particularly in the context of the post-apartheid era.
READING 2: bell hooks ‘Feminism is for everybody’(2000)

bell hooks' book "Feminism is for everybody" is a powerful and accessible introduction to feminist
theory, politics, and activism. The book is a call to action for individuals of all genders and
backgrounds to engage with feminism as a necessary and transformative movement for social justice.

In the book, hooks explores the ways in which feminism intersects with other struggles for liberation,
including race, class, sexuality, and ableism. She argues that feminism must address not only the
oppression of women but also the ways in which systems of power and privilege intersect to create
multiple forms of oppression and inequality.

Hooks also addresses the ways in which feminist theory and activism can be co-opted and watered
down to appeal to a mainstream audience, losing sight of its radical roots and failing to challenge the
status quo. She urges feminists to reclaim the radical and transformative potential of the movement
and to resist attempts to depoliticize and domesticate it.

Overall, hooks' book is an important reminder that feminism is not just for women or for those who
identify as feminists, but is a movement for everyone who seeks a more just and equitable world. By
demystifying feminist theory and making it accessible to a wider audience, hooks invites all individuals
to engage with the movement and work towards a more just and equitable future.

READING 3: Drucilla Cornell & Karin Van Marle ‘Ubuntu Feminism: Tentative Reflections’ (2015) 36
Verbum et Ecclesia. 1444.

In their article ‘Ubuntu Feminism: Tentative Reflections’ published in the journal Verbum et Ecclesia,
Drucilla Cornell and Karin Van Marle explore the intersections of the African philosophy of Ubuntu and
feminist thought. They argue that while Ubuntu has been criticized for its patriarchal aspects, it also
holds the potential for a feminist philosophy.

According to Cornell and Van Marle, Ubuntu is a relational philosophy that emphasizes the
interconnectedness of all beings and the importance of communal values such as empathy,
compassion, and respect for others. They note that some critics have argued that Ubuntu is inherently
patriarchal, as it places a strong emphasis on traditional gender roles and hierarchy within
communities. However, the authors suggest that Ubuntu can be reinterpreted in a way that
emphasizes the importance of gender equality and challenges patriarchal norms.

Cornell and Van Marle propose an “Ubuntu feminism” that draws on both Ubuntu and feminist thought
to create a more inclusive and just society. They argue that Ubuntu can be reinterpreted to prioritize
gender equality, bodily autonomy, and the protection of marginalized communities. This would involve
challenging patriarchal norms and traditional gender roles within communities, as well as addressing
issues such as gender-based violence and discrimination.

The authors also highlight the potential for Ubuntu to contribute to a more just and equitable legal
system. They suggest that Ubuntu’s emphasis on empathy and compassion can be used to create a
more restorative justice system, where the focus is on healing and reconciliation rather than
punishment. This would involve empowering victims of violence and involving them in the healing
process, as well as holding perpetrators accountable for their actions.

Overall, Cornell and Van Marle’s article provides a thought-provoking exploration of the potential for
Ubuntu to contribute to feminist thought and practice. They argue that while Ubuntu has its limitations,
it also has the potential to be a powerful tool for creating a more just and equitable society that
prioritizes empathy, compassion, and respect for all beings.

VIDEO: ROXANE GRAY

Roxane Gay's TED Talk, "Confessions of a Bad Feminist," explores her personal journey as a feminist
and the complexities of being a feminist in today's world. She begins by acknowledging her flaws and
imperfections, stating that while she strives to be a good feminist, she often falls short.

She discusses the pressure that comes with being a feminist, and how it can feel like an impossible
standard to live up to. Gay emphasizes the importance of recognizing that feminism is not a one-size-
fits-all label, and that there is room for different experiences and perspectives.

Gay also discusses the issue of intersectionality in feminism, emphasizing the importance of
recognizing the ways in which race, class, and sexuality intersect with gender to create unique
experiences. She argues that true feminism must be inclusive and intersectional, and that it must
strive to uplift and empower all women, not just those who fit a certain mold.

Overall, Gay's talk emphasizes the importance of recognizing and embracing our imperfections as
feminists, and of working towards a more inclusive and intersectional movement that can truly uplift
and empower all women.

END OF LEARNING UNIT 10