LEGAL PHILOSOPHY (LJU4801) – ASSIGNMENT 3

By

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

DEPARTMENT OF JURISPRUDENCE

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR:

(ASSIGNMENT 03/ UNIQUE NO:

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Answer 1.1:

Natural law thinkers accept that laws must conform to moral rules and that any law
that contravenes moral rules must be invalid.1 They also operate on the premise that
real sets of laws existed even before humans created law and that they serve as a
standard by which human law can be measured.2 Furthermore, they state that reality
consists of two parts, namely, an eternal, unchanging and universal part, known as
natural law, and temporary things, such as positive law, that can be measured against
the eternal law.3 The former is variously referred to as an Ideal, and this eternal aspect
of reality is something that is not physical, i.e. cannot be touched, seen or observed,
yet it serves as an example of how things ought to be. In essence, justice cannot be
seen, but just and unjust laws can be recognised. 4

When considering the above, natural law philosophers would argue that the
constitutional and legislative rights that protect the LGBTQIA+ community are
legitimate simply because they uphold the moral principles of equality and human
dignity. On the other hand, any societal practices wherein individuals from the
LGBTQIA+ community are victimised would be considered as being immoral and thus
not true laws, even if such actions may be culturally accepted.

Legal positivists reject the concept of metaphysics adopted by natural law thinkers.
They see law as man-made and based on social agreement or convention.5 For them,
law is part of a system of rules and sanctions, and this means that there is some form
of social control, thus allowing the idea of law as a social construct to criticise the law. 6

Theorists such as Austin and Hart assert that the validity of law is not dependent on
its moral content.7 Legal positivists argue that the law should be examined based on
its current state, not how it should be. They assert that the existence and validity of a
law are determined by its source, such as legislation or custom, rather than by its moral

1 See Irma J Kroeze, Legal Philosophy Study Guide for LJU4801 (UNISA 2017) 61.
2 Kroeze, Legal Philosophy 63.
3 Kroeze, Legal Philosophy 63.
4 Kroeze, Legal Philosophy 63.
5 Kroeze, Legal Philosophy 81.
6 Kroeze, Legal Philosophy 81.
7 Kroeze, Legal Philosophy 81.

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correctness. This perspective allows for the acknowledgement of laws that may
conflict with individual or societal moral beliefs as long as they have been properly
enacted through recognised legal procedures. 8

Legal positivists would most likely argue that the constitutional and legislative rights
for LGBTQIA+ individuals are valid as long as they are exercised through the correct
legal channels and processes, especially when one considers the Bill of Rights
contained in the South African Constitution (the Constitution).9 The protection afforded
to them is law, irrespective of the moral convictions of certain members of a
community.

Answer 1.2:

Legal positivism asserts that law is a set of rules and standards that are created and
enforced. From a positivist perspective, the South African position on homosexuality
is based on law.10 This is evident when considering that in the South African
Constitution (the Constitution),11 which is the supreme law of the land, section 9 clearly
prohibits discrimination on the basis of sexual orientation. This is further amplified by
the Civil Union Act,12 which recognises same-sex marriages. These individuals are
thus afforded protection irrespective of their sexual orientation.
South Africa has, historically, struggled with certain moral and cultural beliefs when it
comes to sexual orientation, and the role of morality cannot be ignored as it may play
a significant role in changing society’s perception of homosexuality.
However, when it comes to the positivist theory of adjudication, the South African
position on homosexuality is primarily based on law, not morality.

8 Kroeze, Legal Philosophy 79.

9 Constitution of the Republic of South Africa, 1996.
10 Kroeze, Legal Philosophy 81.
11 Constitution of the Republic of South Africa, 1996.
12 Civil Union Act 17 of 2006.

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Answer 2.1:

Natural law theories argue that judges are influenced by factors outside the law, while
objectivist theories disagree, as these external factors are too vague to ground judges'
decisions.13 Objectivist theories are more focused on things that are objectively real,
such as things that can be physically observed, to influence judges.14 They assert that
something, either within the text itself or in its context, can yield a definitive meaning
during adjudication. An example would be court decisions, as these would be seen as
producing logical results.15 There are several objectivist theories, which will be
expanded on hereunder.

The first theory, the textualist theory, posits that the meaning of a text is determined
by a universal standard, specifically that the meaning resides within the text itself. The
text is seen as embodying the author’s intent and thus holds an objective status. In the
context of law, this implies that legal documents possess an independent, objective
existence, with judges serving as interpreters of these texts. This theory is often
associated with the golden and mischief rules of interpretation.16

Another theory is the intentionalist theory, which is founded on the premise that judges
discover the law rather than create it. This theory is especially prevalent in cases of
constitutional interpretation, where the goal is to ascertain the intent of the original
authors. Central to the intentionalist theory is the notion that court decisions must
reflect the democratic intent of the legislature in order to be legitimate.17
Communalist theories, the latest among objectivist theories, assert that judges are
members of a community of interpreters, and this community collectively determines
how judges should decide cases.18 There are three communalist theories.

The notion that judges operate within the confines of a community originated with
Hart's differentiation between easy and hard cases. In easy cases, the text remains
the primary reference point, and "the test for constitutionality must be found in the

13 Kroeze, Legal Philosophy 113.

14 Kroeze, Legal Philosophy 113.
15 Kroeze, Legal Philosophy 115.
16 Kroeze, Legal Philosophy 115.
17 Kroeze, Legal Philosophy 117.
18 Kroeze, Legal Philosophy 117.

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Constitution itself".19 However, in hard cases, there arises a necessity for an objective
framework of constraints on adjudication. This framework is provided by the collective
judgment of other judges within the community. 20

The second communalist theory is that of Dworkin, who echoes Hart's differentiation
between easy and hard cases. Dworkin suggests that most cases brought before
courts are straightforward or simple cases, where there is typically only one applicable
rule that the judge can straightforwardly apply. It is in exceptional instances, the
difficult or hard cases, where multiple rules might be applicable, that the judge must
deliberate and determine which rule best suits the circumstances of the case.
Consequently, judges are constrained by the traditions of the legal system in which
they operate.21

The third communalist theory is that of African theories of adjudication. Here, the
community’s beliefs and values significantly constrain the types of decisions judges
can and do make.22

Answer 2.2:

When adjudicating disputes, a judge's duty is to apply the law in a fair and impartial
manner. A judge's personal beliefs ought not to influence their interpretation and
application of the law; however, judges are human and are prone to conscious and
subconscious biases. This may lead to a judge’s personal political views conflicting
with some provisions contained in the South African Constitution (the Constitution),23
even though a judge has a personal right to freedom and religion as expressed in the
Constitution.24

19 Motala 1998 South African Law Journal 143 – 145.

20 Kroeze, Legal Philosophy 119.
21 Kroeze, Legal Philosophy 119.
22 Kroeze, Legal Philosophy 119.
23 Constitution of the Republic of South Africa, 1996.
24 M Tsele, ‘Rights and religion; bias and beliefs: Can a judge speak God?’ (2018) 43 (1) Journal
for Juridical Sciences 1, 2.

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Professor John Dugard argues that subconscious biases and preferences will always
be part of the judicial process as long as humans, not machines, are responsible for
judicial decisions.25 This was evidenced when the Chief Justice, Mogoeng Mogoeng,
made public comments about religion, which he was criticised for. But before
commenting further on this, the concept of reasonable apprehension of bias will be
looked at.

A judge must approach the adjudication process with an open mind. However, the
abovementioned concept is frequently used to assess whether a judge’s past or
present behaviour undermines their ability to discharge their duties fairly and
impartially. The test for a reasonable apprehension of bias is objective and is applied
on a case-by-case basis.26

In the matter of South African Rugby Football Association v President of the Republic
of South Africa,27 the court stated that to prove that a judicial officer may be biased,
one must present compelling evidence demonstrating that a person of ordinary
intelligence would reasonably assume the judge might be biased against a party. The
court further stated that total neutrality is unattainable, and it is acceptable for judges
to hold political views or preferences.28

In another matter, Bernert v ABSA Bank,29 the court addressed the allegations of
judicial bias by stating that ‘the law will not suppose a possibility of bias or favour in a
judge, who [has] already sworn to administer impartial justice, and whose authority
greatly depends upon that presumption and idea’.30

While the courts have outlined their approach to bias, Professor Devenish is of the
view that judges are not allowed to air their personal views publicly on topics such as
politics and religion. Devenish argues that Mogoeng’s public speech was improper, as
it created a reasonable apprehension of bias. It is important to note that at this juncture,

25 M Tsele (2018) 43 (1) Journal for Juridical Sciences 1, 2.

26
M Tsele (2018) 43 (1) Journal for Juridical Sciences 1, 3.
27 South African Rugby Football Association v President of the Republic of South Africa 1999 (4)
SA 147(CC).
28 M Tsele (2018) 43 (1) Journal for Juridical Sciences 1, 4.
29 Bernert v ABSA Bank 2011 (3) SA 92 (CC).
30 Bernert v ABSA Bank 2011 (3) SA 92 (CC) [32].

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Devenish is not criticising Mogoeng for mentioning religion in the context of a judgment
but rather for delivering a speech at a public gathering that suggested his personal
views on the matter at hand.31

The rule of law demands that judges, like everyone else, including those in positions
of authority with high moral standards, be regarded as equal before the law.32
Furthermore, judges, as well as all other citizens, have the right to express their views
as contemplated in the Constitution, namely the freedom of expression clause. 33 This
is a very important right, which must only be limited in compelling circumstances. In
amplification hereof, the court, in the matter of Democratic Alliance v African National
Congress,34 stated:

For freedom of expression is the cornerstone of democracy. [B]eing able to speak

freely recognises and protects ‘the moral agency of individuals in our society’.
We are entitled to speak out not just to be good citizens, but to fulfil our capacity
to be individually human.35

Judges are entitled to openly share their social, political, and religious views in public
settings, regardless of whether these viewpoints are rooted in religious or secular
beliefs.36 However, judges must apply the law ‘impartially and without fear, favour or
prejudice’.37 Therefore, while judges have the freedom to express their opinions, they
are restricted from doing so when handling cases within their judicial responsibilities.

So, while judges’ public comments on political issues ought not to threaten their
objectivity in adjudicating political disputes, articles written, in this case, by a journalist
on this subject matter may raise serious questions about judges’ objectivity.

31 M Tsele (2018) 43 (1) Journal for Juridical Sciences 1, 6.

32
M Tsele (2018) 43 (1) Journal for Juridical Sciences 1, 6.
33 See s 16 of the Constitution of the Republic of South Africa, 1996.
34 Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC).
35 Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) [122] [123].
36 M Tsele (2018) 43 (1) Journal for Juridical Sciences 1, 8.
37 See s 165 (2) of the Constitution of the Republic of South Africa, 1996.

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Answer 3.1:

African legal theory holds that ‘law is seen as a reconciliatory instrument for the
restoration of social equilibrium’,38 which implies a notion of corrective justice.39
Corrective justice refers to the legal and moral principles aimed at rectifying injustices
and restoring balance within society. In the context of African legal theory, the court's
method of having the applicant acknowledge her mistakes and look the victim in the
eye is a form of corrective justice.

Another African legal approach is that of communitarianism, ‘where the community is

always regarded as more important than the individual’.40 Conflicts within a community
are considered destructive and must be settled to restore balance. Furthermore, in line
with this African communal perspective, individuals within a society are expected to
use their talents and skills for the betterment of the community.41 So, to ensure social
cohesion within a community, law is regarded ‘as the safeguard of social existence’. 42
Thus, through the intervention of law, the applicant was found guilty of committing
fraud. Still, instead of imprisonment, the court decided to place her back into society
with certain conditions, which allowed her to play a role within her community for the
betterment of society and her community.

Reconciliation is another African legal approach based on the reconciliatory theory of

law. As mentioned above, social discord is destructive, and thus, the law endeavours
to restore balance through methods such as conciliation, compromise, and
reconciliation.43 It is also present in the theory of punishment,44 which is not aimed at
seeking retribution but for purposes of the ‘restoration or the promotion of fair order’. 45
While the applicant has been punished via the rule of law, the court's approach is
similar to the African legal approach in that, besides the punishment, the court also

38 See Idowu W “African jurisprudence and the reconciliation theory of law” (2006) Cambrian Law
Review 1 10.
39 Kroeze, Legal Philosophy 67.
40 Kroeze, Legal Philosophy 149.
41 Kroeze, Legal Philosophy 149.
42 Kroeze, Legal Philosophy 149.
43 Kroeze, Legal Philosophy 151.
44 Kroeze, Legal Philosophy 151.
45 Agbakoba JCA and Nwauche ES “African conceptions of justice, responsibility and punishment”
2006 Cambrian Law Review 73 80.

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sought restorative justice by having the applicant acknowledge her wrongdoing, look
the victim in the eye, and start the process of restoring the damaged relationship.

Lastly, there is the concept of ubuntu, which means humanity, humaneness, morality
and compassion.46 The concept of ubuntu, from a rule of law perspective, was
introduced in the case of S v Makwanyane,47 which dealt with the death penalty. Judge
Mokgoro described ubuntu as follows:

Generally, ubuntu translates as ‘humaneness’. In its most fundamental sense it

translates as personhood and ‘morality’. Metaphorically, it expresses itself in
umuntu ngumuntu ngabantu, describing the signifi cance of group solidarity on
survival issues so central to the survival of communities. While it envelops the
key values of group solidarity, compassion, respect, human dignity, conformity
to basic norms and collective unity, in its fundamental sense it denotes humanity
and morality. Its spirit emphasises respect for human dignity, marking a shift from
confrontation to conciliation. In South Africa ubuntu has become a notion with
particular resonance in the building of a democracy. It is part of our rainbow
heritage, though it might have operated and still operates differently in diverse
community settings. In the Western cultural heritage, respect and the value for
life, manifested in the all-embracing concepts of ‘humanity’ and
‘menswaardigheid’, are also highly priced. It is values like these that s 35 requires
to be promoted. They give meaning and texture to the principles of a society
based on freedom and equality.48

Ubuntu has several central components, one of which is communitarianism, which

was mentioned and discussed above. Another component is that ubuntu ‘implies that
the emphasis is on the physical reality rather than the metaphysical’.49 Thus, in cases
of crime or wrongdoing, the perpetrator is expected to apologise to both the community
and the victim rather than solely seeking forgiveness from a higher power. Again, there
is a similarity between the concept of ubuntu, as set out above, and the court’s method

46 Onyango P African customary law: An introduction (LawAfrica Publishing Nairobi 2013) 113 -
114.
47 S v Makwanyane and another 1995 3 SA 391 (CC).
48 S v Makwanyane and another 1995 3 SA 391 (CC) [308].
49 Kroeze, Legal Philosophy 159.

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of dealing with the crime. In this case, the applicant would seek forgiveness from her
victims by confronting them face-to-face. This would also allow for the process of
restoring the damaged relationship with her victims and for the applicant to form part
of the community again and to contribute thereto.

Answer 3.2:

The African legal approach advocates for a significantly different theory of law and
adjudication from the Western model. While the Western approach is characterised by
the adversarial nature of legal proceedings, the African perspective is grounded in the
reconciliatory theory of law.50

In African legal systems, the priority lies in the collective welfare of the community.
Disputes are commonly viewed as impacting the entire community, with the aim of
reinstating harmony and upholding social unity.51 On the contrary, the Western
concept of justice places a significant emphasis on individual rights and safeguarding
personal freedoms. Here, the emphasis is on penalising the individual offender and
pursuing retribution for the inflicted harm.

African legal traditions or approaches frequently prioritise restorative or corrective

justice, which aims to mend the harm inflicted by conflicts and mend relationships.52
This approach emphasises healing and rehabilitation rather than punishment. 53
Conversely, the Western concept of justice is often associated with retributive justice,
which aims to punish the perpetrator as a form of societal retribution and deterrence.
The focus is on delivering punishment proportionate to the severity of the offence.

African legal systems frequently prioritise reconciliation to resolve conflicts. The focus
is on uniting the parties to find a mutually acceptable solution and restore harmony. In
contrast, the Western concept of justice heavily relies on adversarial processes, where
opposing parties present their cases to a neutral decision-maker, usually a judge or

50 Kroeze, Legal Philosophy 159.

51 Kroeze, Legal Philosophy 155.
52 Kroeze, Legal Philosophy 67.
53 Kroeze, Legal Philosophy 151.

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jury, who determines guilt and imposes a sentence. The emphasis is on winning the
case rather than finding common ground.

Answer 4.1:

The idea of communitarianism is ‘where the community is always regarded as more

important than the individual’.54 It emphasises the interconnectedness and
interdependence of individuals within a community. In African customary marriage, the
process involves the participation and approval of the entire community. In African
communities, the union of two individuals is considered a communal concern. Elders,
family members, and community leaders play significant roles in negotiating and
approving the marriage, reflecting the communal decision-making inherent in
communitarianism.55

African customary marriage reflects a belief in shared responsibilities among

community members. When a couple marries, it signifies more than just the union of
two people; it symbolises a connection between their families and communities. When
there are challenges with the marriage, the community often intervenes to mediate
and offer help, underscoring the communal essence of customary marriage. 56

Customary marriage promotes unity and togetherness within the community. The
festivities surrounding marriage are typically communal, featuring rituals and
ceremonies that unite the community in celebration. This shared involvement
enhances the connections between community members. 57

54 Kroeze, Legal Philosophy 149.

55 See African Customary Law Study Guide for IND2601 (UNISA 2017).
56 African Customary Law.
57 African Customary Law.

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