Philosophiae Doctor - PhD / It is widely acknowledged that there are problems with the way in which heterosexual relationships are negotiated. A critical focus on heterosexuality has been particularly stimulated by feminist discourse on gender power relations and the global imperative to challenge HIV infection. In the South African context there has been a growing emphasis on researching and educating about (hetero)sexuality, particularly in the wake of the continued increase in HIV prevalence rates which are highest among young, black South Africans. A handful of South African studies point to the widespread nature of coercive sexuality characterised by male dominance and female submission and a lack of negotiation in respect of safe sex and sexual pleasure. This study addresses the realm of the negotiation of heterosexuality among black South African students at the University of the Western Cape (UWC), Cape Town. In the study, negotiation refers to two interrelated aspects: the negotiation of heterosexual subjectivity; and the negotiation of heterosexual sexuality (heterosex). The study is underpinned by a feminist poststructuralist conceptual framework and discourse analytic methodology which draws on qualitative methodologies, feminist approaches to research and discourse analysis. Three different methods were utilised to gather data: focus groups, a free-association questionnaire and written autobiographical essays. Participants of the study included psychology second and third year students at the UWC who were predominantly young (mean age of 23.3 years), black, of Christianity-related religious affiliation and non-English first language speakers. A discourse analysis together with an ethnographic analysis was carried out on the data which yielded a wide range of discursive themes on gender and heterosex. In looking at the negotiation of heterosexual subjectivities, there are vast differences in the experiences of'becoming' women and men: notably, puberty and menstruation are central in the construction of femininity and female sexuality, which are interwoven with each other in the construction of women as vulnerable, passive and restrained; on the other hand, boy's/men's subjectivities are centred about sexual agency and activity, competition and physical and mental 'hardness'. Nonetheless these rigidly divergent experiences of gendered heterosexualisation are also punctuated by resistance, ambivalence and contradiction, particularly in women's accounts. It is suggested that the difficulties involved in 'achieving' femininity for women may be implicated in their continued investment in these subjectivities in their contemporary contexts. In talk on negotiating heterosex, two central clusters of discourse emerge: discourses of difference, in which inevitable, essential (either biological or cultural) and incommensurable differences are assumed, Jr rationalised and reproduced by participants; discourses of power, resistance and change which draw on alternative discourses such as the feminist critique of male power, and also speak of and call for change. Central within all of these discourses is the virtual invisibility of a positive language to speak of women's sexuality and desires, which has as its underside a lack of alternative discourses on masculinity and male sexuality, in particular the absence of a positive discourse on men's vulnerability, non-sexual intimate desires, lack of sexual desire and resisting of power. The thesis suggests, on the basis of poststructuralist theories of change, that given the presence of challenging and contradictory discourses, subversive subjectivities and silences, there is potential for change. It is argued that educational and political interventions need to acknowledge and work with these spaces for change within the broader framework of challenging the underlying hierarchical binarism of sexual difference, upon which the problematic and unequal negotiation of heterosex is founded.

In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles. As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised. The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy. / Jurisprudence / LL. M.