A Critical race feminist perspective on Section 217 of the Constitution

[摘要] Section 217 of the Constitution of South Africa regulates the procurement of goods andor services by any organ of state. Similarly, this section mandates state-ownedinstitutions to adhere to a procurement system that promotes groups that werepreviously disadvantaged by past colonial and apartheid regimes. In this dissertation Iargue that due to South Africa's oppressive culture, the law has been ineffective inpromoting the socio economic interests of black women due to race, gender and classsubjugation.Firstly, central to my argument is the judiciary's traditional role that is still steeped in aninterpretative process of the law that is detrimental to the transformative spirit of theConstitution. In identifying the South African judiciary system as positivistic in nature Iwill critically analyse the Sonke Gender Justice Network v Malema hate speech courtcase. I posit that the Equality Court's decision was mainly result based and as a resultfell short of addressing the core issues affecting black women on the basis of race,gender and class which mirror the substantial part of the South African socio economicstructure. Secondly, in support of my argument, I criticise a legislative framework thatperpetuates socio economic disparities at the expense of a group in society it claims toprotect. Whilst I will rely on American Legal Realism and Critical Legal Studies insupport of my arguments, my main theoretical approach will be based on Critical RaceFeminism. Lastly, intersectionality will be used in contextualising the interrelationshipsof race, gender and class as they impact on black women's material circumstances inthe regulatory legislative public procurement process.When the Constitution came into effect in 1994 South Africa became an egalitarianstate. Nevertheless, the country is struggling with the prevalence of unemployment,poverty, HIV/Aids, skills shortages, male violence including rape, to name just a few.These social ills pose a threat to a Constitution that extolls values like dignity, freedomand equality for all. It so happens also that the majority of the people confronted bythese socio economic challenges are black women. The tender process faces numerous challenges and by identifying the South Africanculture as oppressive supported by a legal process that stifles transformation, this studyexpounds the experiences of black women by engaging in a contextual analysis of thecourts and legislation. This consciousness raising exercise is not meant to portray blackwomen as victims or invoking 'special treatment in the legal realm. It resonates withSteve Biko's theme of black consciousness, being aware of the marginalisation andaddressing it. Black consciousness represents an emancipatory state and optimisticoutlook. Consciousness raising situates the oppression of black women in any form as a site for struggle, a struggle for social and individual change.

[发布机构] University of Pretoria