LAWS2017-Real Property

Question: 1

On 18 September 2018, the Constitutional Court handed down judgment in the matter of Minister of Justice and Constitutional Development and Others v Prince [2018] ZACC 30 (Prince). The Constitutional Court confirmed an order of constitutional invalidity made by the Cape Town High Court, which declared legislation criminalising the personal use, possession and cultivation of cannabis unconstitutional.

The applications brought by Gareth Prince and others argued that the criminalisation of cannabis use and possession was a violation of the right to equality, dignity and freedom of religion (in as much as the criminalisation of cannabis use and possession limited the rights of Rastafari to practice their religion).

In a unanimous judgment written by Zondo ACJ, as he then was, the Constitutional Court in Prince declared that

(a)section 4(b) of the Drugs Act was unconstitutional and, therefore, invalid to the extent that it prohibits the use or possession of cannabis by an adult in private for that adult’s personal consumption in private;

(b)section 5(b) of the Drugs Act was constitutionally invalid to the extent that it prohibits the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private; and 

(c)section 22A(9)(a)(i) of the Medicines Act was constitutionally invalid to the extent that it renders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private a criminal offence.

Zondo ACJ emphasised the right to privacy thus narrowing the scope of the judgment to an adult’s right to privacy in relation to the use and consumption of cannabis.  Whilst the judgment has created conditions under which Rastafari can practice their religion within the confines of the law, it may be criticised for only vindicating the right to privacy. In particular from a critical race theory perspective, there is ‘the absence and silence of race’ in the court’s approach that focused almost exclusively on privacy. 

After carefully studying the judgement, you are required to analyse critically the Constitutional Court judgment in the Prince case. Do you agree or disagree with the contention that the Court’s narrowing of its reasoning to privacy perpetuates racial exclusion? Motivate your answer ensuring that you include, at least, a brief summary of the judgment, an overview of critical race theory and lastly a detailed critical discussion of the judgment in light of critical race theory.

Question 2

“When the #MeToo moment began in earnest …, many women felt optimistic, galvanised; others felt uncomfortable. As stories of abuse and harassment accumulated in the media, men began to experience consequences for their treatment of women. Some lost jobs, others were demoted, many faced public embarrassment. The careers of men such as Hollywood producer and alleged rapist Harvey Weinstein, masturbating comedian Louis CK, and predatory actor Kevin Spacey were declared dead. Others, like the groping chef Mario Batali, took a temporary “step back” from their public lives. A reckoning seemed to be underway, and many women felt that it was long overdue.

In the media and in private life, conversations about consent, hostile environments and power began, and there was a growing acknowledgment that a man’s unwanted sexual overtures were a symptom of broader social and political forces. Soon, these discussions were interrupted by hand-wringing and anger from male commentators – everyone from conservative columnist Andrew Sullivan to Donald Trump – who claimed the movement had gone too far before it really began. But unexpected divides emerged between feminists as well.

Some feminists urged caution; others wanted the reckoning to go further. But the most common complaint about #MeToo came from those who felt that the whole movement had very quickly become silly. Self-described feminists such as Daphne Merkin and Bari Weiss in the New York Times, Katie Roiphe in Harper’s, Germaine Greer in the Sydney Morning Herald and 100 French women in Le Monde complained that many of the incidents of harassment were too minor to warrant opprobrium. They argued that by grouping together such a wide spectrum of sexual misbehaviour, #MeToo had lost a sense of nuance. They called on women to toughen up. Whatever happened to no-nonsense rejections, they asked. Those who complained about harassment and assault, Merkin wrote, “perceive themselves to be as frail as Victorian housewives”. By this logic, women could solve the problem of sexual harassment and assault with good humour, patience and a high tolerance for pain.

The #MeToo moment and its backlash made it clear that there really was a divide among feminists, but analysis of that divide cast it as a mere catfight, or a screaming match between weary mothers and teenage daughters. The implication was that the feminist debate unfolding around #MeToo is a kind of routine domestic drama, something we’ve seen before.

This is a mistake. A closer look at the arguments being made by these two camps reveals a deeper, more serious intellectual rift. What’s really at play is that feminism has come to contain two distinct understandings of sexism, and two wildly different, often incompatible ideas of how that problem should be solved. One approach is individualist, hard-headed, grounded in ideals of pragmatism, realism and self-sufficiency. The other is expansive, communal, idealistic and premised on the ideals of mutual interest and solidarity. The clash between these two kinds of feminism has been starkly exposed by #MeToo, but the crisis is the result of shifts in feminist thought that have been decades in the making.” 

Moira Donega How #MeToo revealed the central rift within feminism today, The Guardian 11 May 2018

In light of the above extract, you are required to discuss critically the manner in which the concepts of liberal feminism, gender essentialism and intersectionality find application in the context of the #MeToo movement. In your discussion provide a brief characterisation of the movement and provide an outline of these concepts. Do you agree with Donegan’s assessment that ‘[w]hat’s really at play is that feminism has come to contain two distinct understandings of sexism, and two wildly different, often incompatible ideas of how that problem should be solved’? In answering the question, refer to material from the Feminist Theory and/or Sexuality and Legal Theory topic/s in your Jurisprudence (LAWS 2017) Second Semester 2019 course outline.