The Faculty of Law (UP Law) at the University of Pretoria (UP) is proud to announce that Professor Joel Modiri, Head of the Department of Jurisprudence, was cited by the Constitutional Court in the recent landmark Constitutional Court judgement King NO v De Jager.  The Court’s cited his 2018 article, published in the SAJHR in 2018, is titled “Conquest and Constitutionalism: First Thoughts on an Alternative Jurisprudence” (Volume 34, Issue, pages 300-325).

The case deals with the constitutional validity of a disinheritance clause in a private will that excluded female lineal descendants from inheriting certain fideicommissary property (mainly, farms).  The majority judgement (penned by Justice Chris Jafta) found the impugned clause to be unenforceable due to its contravention of public policy. The impugned clause discriminates on one of the listed grounds in section 9(3) of the Constitution of the Republic of South Africa, 1996 and accordingly amounts to unfair discrimination.  In his concurring judgement (at para 209), Acting Justice Margaret Victor referred to Modiri’s article (and quoted at length in the accompanying footnote) in making the following statement:

[209]     An analysis of freedom of testation that fails to take seriously its distributive consequences and iniquitous legacy may also result in a form of “colonial unknowing”.[248]  Decolonial scholars use the latter term to describe situations in which the “afterlife” of colonialism and apartheid and their effects on contemporary society are erased or overlooked when the law provides its unequivocal stamp of approval of the status quo.

The concept of “colonial unknowing” and the notion of the “afterlife of colonialism and apartheid” derive from settler-colonial studies and Black Studies and is central to Modiri’s critical reading of post-1994 constitutional democracy developed in his doctoral dissertation and in later theorisation of "constituional abolitionism".

According to Modiri, ‘This citation of critical theoretical scholarship can only be a positive sign for the discipline of jurisprudence and for the value of critical scholarship and teaching in law which emphasises the enduring imprint of colonialism and apartheid on public and private life in South Africa.  The cited article itself is part of a special issue of the SAJHR entitled “Conquest, Constitutionalism and Democratic Contestations” (edited by Modiri) which features a debate over the value, meaning and legacy of post-1994 constitutional democracy.’

In her congratulatory message to Modiri, Dean Professor Elsabe Schoeman wrote: ‘Congratulations, Joel! This is excellent news! You are making a valuable contribution to the discipline of jurisprudence and ensuring its future at UP!’