n South African Law Journal - Race, realism and critique : the politics of race and Afriforum v Malema in the (in)Equality Court : note
|Article Title||Race, realism and critique : the politics of race and Afriforum v Malema in the (in)Equality Court : note|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 University of Pretoria|
|Publication Date||Jan 2013|
|Pages||274 - 293|
In this note, I will employ the jurisprudential approaches of legal realism, critical legal studies ('CLS') and critical race theory ('CRT') in order to examine the ruling of Lamont J in Afriforum v Malema 2011 (6) SA 240 (EqC) (hereinafter Afriforum v Malema. All subsequent references to paragraphs in this note refer to this case). Although my real concern is with the manner in which this judgment reflects an impoverished ideological approach to race and law, I also hope to illustrate the importance of considering divergent philosophical perspectives in legal analysis of equality jurisprudence and rights discourse as a way of offering counter-'seeings' and counter-readings of the law. This critique will not be based on any niceties of technical legal analysis but rather on the way in which the court engaged with (or rather disengaged from dealing with) the ideological nature of law and the politics of race in post-1994 South Africa. My purpose is not to show why and how the judgment was wrong but rather to show why, because of how deeply formalism and racism remains embedded in the law and legal culture, law and legal reasoning continues to favour the socially and economically dominant members of society.
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