Browsing by Author "Diala, Anthony"

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    Chained Communities: A Critique of South Africa’s Approach to Land Restitution
    (2021) Diala, Anthony; Sonya R, Cotton
    In its quest to restore land to millions of its citizens dispossessed under colonial and apartheid regimes, South Africa adopted a Restitution of Land Rights Act and set up a Land Claims Court in 1994 and 1996, respectively. This article uses select judgments of the Land Claims Court to critique the interpretative mindset of judges and the ideological neutrality of certain definitions in the Restitution Act. It argues that the colonial legacy of legal positivism and 20th century anthropological imagery inhibits the access to justice of dispossessed Africans living on the periphery of land rights. It uses the word ‘chained’ to describe communities whose restitution of land rights depends on their ability to (re)imagine themselves through a judicial prism of fossilized colonial ideas of traditional structures, lineage, and unbroken practices. The article recommends measures for promoting a South African legal culture that is sensitive to legal pluralism, mindful of indigenous law’s flexibility, and distrustful of undue standardization that stifles people’s access to justice.
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    Inadequate representation of female attorneys in the legal profession in South Africa
    (University of the Western Cape, 2023) Mbantsa, Phelokazi; Diala, Anthony
    Female law graduates have significantly increased in South Africa over the past few decades. Yet, female attorneys are still underrepresented in the legal profession. Historically, men have dominated the legal profession and female attorneys frequently experience bias and discrimination that impede their ability to develop in their careers. Using a desktop research method, this study examined the underrepresentation of female attorneys in the legal profession in South Africa. The study reviewed current literature on the topic, as well as case law, constitutions, legislation, journal articles, and other pertinent materials. It sought to discover the extent to which female attorneys in South Africa are represented in a primarily male-dominated legal profession. It indicated that the scarcity of female attorneys is due to a combination of systemic hurdles, gender discrimination, and societal customs. These factors have significant impact on female attorneys’ professional experiences, career trajectories, and overall job satisfaction. Based on the review of the literature, the study recommends several potential solutions to address the issue, including implementing policies that address gender bias, providing mentorship and support for female attorneys, and increasing opportunities for female attorneys to advance into leadership positions. This study provides valuable insights for legal practitioners, policymakers, and other stakeholders interested in promoting gender equity and diversity within the legal profession in South Africa.
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    Judicial balancing of cultural relativism and universalism of human rights in post-Apartheid South Africa
    (University of the Western Cape, 2022) Ngamnteni, Sinegugu; Diala, Anthony
    Globalisation did not only bring about major political, social and economic changes; it also strengthened the global reach of universalism of human rights. The concept of universal human rights is presently reconstructing the world order and reshaping national constitutions worldwide. Universalism is based on the ideology that human rights should be recognised universally and applied to all cultures. In opposition, cultural relativism posits that the notion of universal human rights is a Western idea that should not apply to all cultures of the world, as every culture has its own moral standards that are perceived as acceptable or unacceptable in the specific contexts of the people identifying it. The concept of universal human rights has been embodied in constitutions of almost all countries. In particular, the Constitution of the Republic of South Africa has been influenced by a universalist approach to human rights.
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    Post-1996 service delivery in South Africa: Constitutional and social contract perspectives
    (University of the Western Cape, 2022) Ebi, Ebi Achigbe Okeng; Diala, Anthony
    The human rights movement, which emerged after the end of the Second World War, has created consensus in the international community that basic social amenities are indispensable for human development. These amenities are increasingly accepted as fundamental human rights in national constitutions, with varying degrees of judicial enforceability. However, the efficient provision of basic amenities by states remains a problematic issue in the global South. It is particularly challenging in South Africa, where the introduction of democratic governance after many decades of repressive rule aimed to heal the discriminatory divisions of the apartheid past and establish a society based on equity, dignity, and social justice. Unsurprisingly, the 1996 Constitution makes service delivery a shared obligation among the three spheres of government.
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    Risks and benefits of the eradication of African customs by modernity
    (University of the Western Cape, 2023) Zhakata, Petula Pepukai; Diala, Anthony
    African customs define the African people. Despite their varying cultures, Africans possess similar features which make it easy for them to identify each other. Before colonisation, African tribes sometimes fought amongst themselves. However, they still preserved their customs. The colonial era affected Africans by bringing them under the influence of foreigners who were unaware of the significance of indigenous customs. The colonial experience initiated the eradication of African customs, which is continued by modernity/globalisation. This mini thesis examines the risks and the benefits that modernity/globalization poses to the survival or eradication of indigenous African laws. It argues that there is a link between colonialism, globalisation, and modernity, and their effects on the African continent, specifically on African customs. Modern Western ideals have both positive and negative effects on social and emotional wellness, with some advancing economic progress while others slow it down. The thesis finds that most natives who mindlessly adopted Western ideas are currently experiencing a cultural identity crisis. It suggests that because culture is unique and profitable for communities to progress from a particular stage of advancement to the next, positive aspects of culture such as communal welfare should be protected by African governments.