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According to the conventional standards of men's time as well as women's time, Penelope's time is 'empty' and 'futile' and therefore 'negative', a pure denial'. However, when judged against its own standards, this space and time becomes a 'feminine space' where women belong to themselves.

It displaces the patriarchal order, setting up an impenetrable distance between that order and itself. The notion of refusal is utilised by Van Marle to reflect on the possibility of a politics of refusal and ultimately a way of refusing traditional ways of thinking and doing law. The possibility that may arise from this engagement is the beckoning of another law and another politics.

She also engages with the notion of generosity which illustrates the unexpectedness that breaks with the formality and predictability of law. It is this unexpectedness that discloses possibilities for refusal and therefore for new directions in law. She explains that Karl Klare's notion of transformative constitutionalism connects with a "jurisprudence of generosity" as used by Patricia Williams:. Jurisprudential conservatism Caution in this context refers to a legal actor's relationship to legal materials and to interpretive work, not her moral courage My fear is that 'caution' of this kind might in some cases discourage a judge or advocate from investing intellectual resources Constitutional transformation might suffer accordingly.

Van Marle laments the fact that in South Africa it would seem as if transformation, socio-economic reparation and other social problems like violence are addressed mostly through the law and human rights. Kristeva refers to "revolt in the psychic sense" which is a "permanent sate of questioning, transformation, change and endless probing of appearances".

The notion of refusal may also be perceived as disruption. Patrick Hanafin mentions Herman Mellville's character Bartleby in relation to refusal. He refuses to submit to any requests. Van Marle notes Hanafin's words with regard to Bartleby: "his not saying, his passivity, his persistent just being there is enough to disrupt". The Algerian War of Independence lasted form and was marked by repeated massacres and torture.

The signatories of the Declaration asserted an absolute right of insubordination and it was because of the inability of, inter alia, legal institutions to bring the military to account that Blanchot's and the others felt themselves compelled to take a public stance. Hanafin discusses Blanchot's reply to the criticism that the right to refusal embodied an ineffective gesture. It was not just a mere negation, but rather demanded a response. When the state provokes or allows an oppressive force to threaten essential liberties, then every citizen has the right to refuse and denounce it.

Nothing more. Is this ineffective? Perhaps, even if all the political developments stemming from this simple word demonstrate the contrary Certainly the ruling order can always But the word as such is beyond grasp.


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It has been said, and that which is said will remain said We must all protect this right, protect it because, reaffirmed and maintained, it remains that which it is Botha has highlighted the fact that the struggles of ordinary people in South Africa so often remain hidden and absent from public consciousness. For Botha refusal could open up a political conception that offers complexity and multiple perspectives and it could challenge traditional conceptions of democracy. If the refusal of traditional ways of approaching law can take us to other kinds of approaches to law and even a different law, what will these approaches look like?

She tentatively suggests that it might be a risking law. Generally, it merely refers to the possibility of taking the risk in using law in order to address one or the other aim. Central to risk is the refusal of a certain "Razzian logic of exclusionary reasoning". Van Marle explains that refusal should be seen as a counter-hegemonic action, challenging the law in its mode of business as usual. Refusal is an action imbued with reflection and thought and thinking is central to it.

When women kill; questions of agency and subjectivity by Morrissey, Belinda

Refusal therefore does not close off or end. This is one of the reasons why refusal is not nihilist or passive. It is a contemplative gesture, risking thought. Refusal in the post-apartheid jurisprudential context involves the rethinking of prevalent ideas on law, transformation and democracy. It highlights not only the complexity of law, politics and life, but also the everyday, marginalised and material contexts of suffering and exploitation of South African people. The technisation of law and human rights discourse are challenged and resisted as well as neo-liberalism and modern technology.

Refusal therefore takes the risk of thought without the burdens of having to prove immediate success or relevance. In reflecting on women's subjectivity and selfhood, the notion of refusal may disclose some meaningful possibilities. In the era of human rights and constitutionalism, this alternative approach to law puts forth what remains to be thought in addressing the needs of South African women. It is an approach that beckons alternatives.

The refusal to forgive, immediately renders another possibility, namely, to not forgive, or at least not today. This notion may be able to illuminate the sexual violence perpetrated against women daily as well as the economic hardship and suffering of the majority of South African women. The context of reconciliation and forgiveness serve to illustrate some of the symbolic spaces that women are still forced to occupy. The feminine descriptions and narratives represent the possibility of refusing occupation. Du Toit's analysis offers a possible starting point in dealing with the marginalisation of women.

Her analysis demonstrates the need for reconciliation on the level of sexual difference, but more importantly, the necessity to address the larger masculine symbolic order.

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She has contended that women's association with home, care and forgiveness contributed to the framing of the TRC in feminine terms. She asks: "If reconciliation is so closely connected to the feminine, where do women go to reconcile? One particular issue that was raised involved the question of how to deal with the comrades that perpetrated human rights violations during the struggle.

One participant stood up and asked: "What would my mother say? Mrs Konile might have preferred to say no. An earlier version of this paper was also presented at the Law Teacher's Conference held in Stellenbosch during February of I would like to thank Karin van Marle for her guidance, friendship and valuable advice. I would also like to thank my former colleagues at the Department of Jurisprudence, University of Pretoria for their support.

When Women Kill

Du Toit reminds that rape figures have remained fairly constant from the political transition to the present, meaning thatdemocratisation and a bill of rights that ensures gender equality has had little or no impact on the rape of women and children in South Africa. These engagements have attempted to rethink established ideas around and related to law.

The engagements around the notion of refusal may be seen as part of the search for a post-apartheid jurisprudence. Krog et al asserts that this underlined the perception that the tide against the apartheid system could no longer be stemmed. The Gugulethu Seven killings demonstrated like few others the fatal mix in the townships of poverty, anger, unemployment, the desire to take up arms, change and liberation which were manipulated and fuelled by the operations of the apartheid police and security forces.

Krog et al 5.

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See for a detailed account of Mrs Konile's testimony. Krog et al mentions that the mothers of the Gugulethu Seven were supposed to become the "custodians of the collective memory of the fallen hero". The character is modelled on the real Joyce Mtimkhulu who testified before the TRC about the disappearance of her son Siphiwo Mtimkhulu.

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In Lacanian psychoanalysis the moment when the infant recognises itself as having an identity separate from the mother, it experiences loss and pain. The pain and loss results in a repression that buries the memory of the relationship with the mother in the unconscious and simultaneously the infant enters the Symbolic realm so as to fulfil its desire for the Other.

Once the infant is projected into language, the primary identification with the mother is projected only as lack. The phallic mother and what she represents cannot be expressed in language. Lacan appropriates signification in general with the masculine. Woman as a result, in Lacanian psychoanalysis, is identified only by her lack of phallus and can therefore not be represented in the symbolic order.

See also Jooste Here we find reason and narrative brought together in a gendered unity. The combination of a logocentric system of exclusion and inclusion and a phallic symbolic order results in the exclusion of woman from the narrative of Western thought and it also results in feminine invisibility. Clark explains this in simple terms: To be a meaningful member of the societal order is to be phallogocentric. The reason why it had lost these rights was that it had not been in a financial position to apply for them to be converted into actual mining and prospecting rights within the timeframe provided for in the legislation.

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The court also said something else. Sebenza had indeed been deprived of its rights, which were now in the custodianship of the state on behalf of the people of South Africa. Whatever "custodianship" might mean, it did not mean that the state had acquired and thus become the owner of the rights in question. Since the state had not acquired these rights for its own use, it was not obliged to pay compensation. It said that Section 25 had to be interpreted "with due regard to the gross inequality in relation to wealth and land distribution in this country".

Private property rights should not be "overemphasised". An "overly liberal interpretation of the concept of acquisition could "undermine the constitutional imperative to transform our economy with a view to opening up access to land and natural resources to previously disadvantaged people". In addition, "a fine balance must be struck between the interest of those deprived by the MPDRA and the need to create jobs, grow the economy through the expanded development of the mining industry, and open up opportunities for those sought to be made fellow partakers in the equitable access to mineral resources".

At the same time Justice Mogoeng said that it would be inappropriate to decide "definitively" that expropriation could never take place under the MPDRA. The avenue had to be left open for other cases to be argued to show that it had. This point was underlined in a concurring judgment by Edwin Cameron.

With Johann van der Westhuizen concurring, Justice Froneman said that Sebenza had been entitled to compensation, which the company would have received when its unused old-order mining rights had been converted to new rights. Justice Froneman also suggested that this was the substantive reasoning behind the main judgment, even though that judgment said it had reached its conclusions on the grounds that expropriation had not taken place.

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Justice Froneman said that the distinction between deprivation and expropriation was merely a "conceptualisation in legal terms" which actually failed to answer the question of when compensation was payable. He added, "If private ownership of minerals can be abolished without just and equitable compensation — by the construction that when the state allocates the substance of old rights to others it does not do so as the holder of these rights — what prevents the abolition of private ownership of any, or all, property in the same way?