Altum Sonatur: Edition 2, 2015

ALTUM SONATUR The Constitutional Edition

Volume 6, Issue 2

CONTENTS

LETTER from the EDITOR

2 // To Boldly Go Where Everyone Has Gone Before New Voice of Racism 4 // #RhodesHasFallen Prisons 6 // Freedom From Religion: Atheism and the Law 7 // Unravelling Guantanamo Bay 8 // Rights Awareness 9 // #ConstitutionalismMustRise 10 // We Can No Longer Breathe

13 // Features - Electing Constitutional Values 14// Humans of Kramer 15 // Life At All Costs: Euthanasia as a Human Right 16 // “Who Are We?” : Voices of Islam in Western Language 17 // Being International in South Africa 18 // Colour-blind Transformation 19 // Disparities in Kramer Law School 20 // About the BLSF 21 // About the SLSJ 22 // Contributions & Meet the Team

Steffi Busch

B

eing originally from Namibia, I have in the recent weeks experienced feelings I have never felt before – Pride, hope and trust in our government. These feelings have been spurred on by our newly-elected President, Hage Geingob. Social media and the Namibian media simply cannot get enough of our ‘golden boy’. Within the first month of Geingob’s term, he has made headlines by cancelling overseas business trips for all Ministers (who are to rather focus on national issues) and disapproving of government officials’ ‘Thank God it is Friday’ attitude. Furthermore, in his first State of the Nation Address he called on public servants to declare their economic interests in order to avoid conflict of interests.

He went on to volunteer to publicly declare his own assets and business interests in May. Whilst such headlines flood my homeland’s newspapers, others of a more negative nature are tainting its South African counterpart’s: Economic disparities. The ‘Burning Man’. Vandalised and dismembered statues.

Ignored demands to ‘Pay back the money’.

Poverty. State corruption. The Spy tapes.

And in the midst of it all - a chuckling President at the State of the Nation Address.

Recently, South Africa is seemingly faced with insurmountable and irresolvable problems. Day by day, the hope of an equal and just society is becoming a mere glimmer in the eyes of the naïve.The romantic metaphor that was the ‘bridge’ seems almost unreachable and tainted by corruption, poor service delivery and, now, xenophobic violence.

The events that have transpired over the past five years since I have been in this country have reminded me of when my brother used to play the PC-game Sims. Instead of playing it in the ordinary way of controlling what his Sims were to do, he created a household of eight vastly opposing characters and would

just let the game play on auto-pilot to see how they would interact with each other. Basically, he would admire how “shit would hit the fan”.

Thinking back on this, it proves ultimately this very point – auto-pilot creates chaos.

Akin to this, a country run on autopilot will end in demise. Where a flagrant and unashamed disregard for the rule of law and the desperate calls of society exists, chaos is inevitable. It has resulted in lack of leadership, as well as the lack of corresponding accountability of that leadership’s actions. For if your President and the government in general, need to follow the rules, why should you?

Too many a time have South African officials not been held accountable for their actions.

Consider this – in 2012 the German President Christian Wulff, was forced to resign because he allegedly received a low interest 500 000 Euro loan (roughly R6.5 million). Compare this to the R246million of taxpayers’ money that was allegedly used to upgrade our President’s home in Nkandla. Surely, the degree of accountability our public officials are held to is the vital difference between a democracy that is functioning and one that is falling apart.

I yearn for the day where South African citizens & residents, the media and Parliament itself, can feel a sense of pride when calling a specific man or woman their honourable President (and aren’t forced to say so due to mere protocol). For only a President who lives by and respects the Constitution, and all the values it contains, is worthy of such a title. Without such high regard for the Constitution, the bedrock of our democracy, the country will truly be lead on autopilot, heading towards destruction and chaos.

TO BOLDLY GO WHERE EVERYONE HAS GONE BEFORE

I

was born with clubfeet. My legs were twisted completely back to front. To top it off, my legs were permanently bent resulting in my feet sitting on my shoulders. The doctors told my parents that to see their daughter walk would be nothing short of a miracle. However, after nineteen reconstructive hip, knee, ankle and foot surgeries, I stroll through Kramer just like you, only with added difficulty. Why, you may ask? Well, because this world is designed for the able bodied.

Having a disability that many hardly consider to be a profound or ‘noticeable’ one, has made me acutely aware of my surroundings and environment. It has conditioned me to see what very few see. For example, the flight of steps at the entrance of the High Court has no banister. The lifts at UCT often prove unreliable. The pavement at a busy traffic intersection usually has no wheelchair ramp and a public transport system hardly caters for the disabled. Most restaurants and clubs can only be entered into through a narrow flight of stairs. In 1999, I was turned away from six primary schools before being accepted by the seventh simply because they never had the ‘facilities’ to accommodate ‘a child like me’. These issues should be facing Constitutional scrutiny. That is why, in 2015, I am fighting for a South Africa accessible for all.

I believe this fight should be three-pronged.

First, environmental and social barriers must be eliminated within the boundaries of reasonable accommodation. Secondly, cases of discrimination should be opposed on the grounds of disability, thus, using law as a vehicle for transformation. Thirdly is empowerment: government strategies must be implemented that reach further than the disability grant. The inferior status of disabled persons must also come to an abrupt end. The real barrier is not the inability to walk, but the inability of a society not to cater adequately for those who cannot walk or see or hear. The problem lies not with the wheelchair, but with the flight of stairs and this is the mind shift that needs to occur.

The struggle for equality is not without legal cause. Section 9(3) and (4) of the Constitution provides that neither the State, nor any person may unfairly discriminate directly or indirectly against anyone on the grounds of disability. In light of these Constitutional demands, the Promotion of Equality and Prevention of Unfair Discrimination Act was enacted.

Section 9 of the Act prohibits discrimination on the grounds of disability. Section 9(c) pro-

Erin Goliath aged 1

“cases of discrimination should be opposed on the grounds of disability, thus, using law as a vehicle for transformation” vides that discrimination includes a failure to eliminate obstacles that limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate disabled persons. This is clearly a call for not only formal, but also substantive equality.Furthermore it is questionable whether we are fulfilling our international obligations. South Africa ratified the UN Convention on the Rights of Persons with Disabilities in 2007. Since ratification, no legislation has been enacted. Thus, no legal framework exists. Although government policy focuses strongly on improving accessibility in public places, it is evidently in the implementation of these noble goals that we fall short.

An estimated 15% of the world’s population is disabled – roughly 1 billion people. We are the largest minority in the world and also the most marginalized. In our Constitutional democracy, true transformation can only oc-

cur once disability rights are elevated and prioritised. The idea that our struggle is not as prevalent as the gender, race or religious struggle is not only offensive, but also wrong.

I am black and I am female, but the challenges that I have overcome as a result of my disability far outweigh other aspects of my identity.

ERIN GOLIATH 2015 ALTUM SONATUR 2

SYMBOLISM: THE NEW VOICE OF

RACISM I

t has been a very interesting time to be a student in South Africa. The RhodesMustFall movement has galvanised a renewed global awareness for transformation. While some have understood and respected it from the onset and respect why the removal of a statue would be of great importance to the individuals who started and support the movement, others have been unable to understand how removing a statue could possibly serve the nation. After all, it was “just a statue”. I believe this is because many do not yet understand the form of oppression that informs our generation’s struggle.

In Apartheid South Africa oppression was undeniably overt. Laws criminalised and oppressed people of colour. The foe was easily recognised, and the goal was readily identified: freedom for all. Basic liberties afforded

form visible only to those who experience it personally, or who have the consciousness to recognise it when they see it. Oppression has morphed from an overt, codified machine into a subtle, insidious monster. Different, but just as brutal.Only because laws that historically demonised certain groups are abolished, does not mean that the set of beliefs from which they came are gone from the minds of the people and the society they formed.

Post-1994, the laws that promote substantive equality also seem to give privileged groups a sense of absolution from responsibility.

Oppression today is subtle, it is in the mind.

It is in every quiet daily interaction that leaves

“Oppression today is subtle, it is in the mind. It is in every quiet daily interaction that leaves you feeling marginalised. This, is the struggle of our generation.” to every white citizen in this country were refused to people of colour. The enemy, white domination, took a well-defined form in the Apartheid government and their racist laws.

Today, however, in democratic South Africa there are universal rights for all. The government has been freely elected by the people and everyone is, technically, equal. Section (1) (b) of the Constitution promotes non-racialism. Does this mean that white domination and privilege is at an end? Does this mean the revolution is over? I don’t think so. Now that the law and the government proclaim equality, oppression has survived in a quieter

3 ALTUM SONATUR 2015

you feeling marginalised. This, is the struggle of our generation. This is why, I think, many cannot seem to understand that the removal of a statue can be very important, because society is structured in a way that does not engage with the subtle, but violent oppression, a racist symbol can have on their identity.

The RhodesMustFall movement has inspired the formation of many, much-needed, Black Consciousness spaces and the subsequent fall of the statue left clear the force of resilient, student action. I have noticed, that many white individuals find it extremely difficult to accept the exclusion of their voice from a conversa-

tion, because of their whiteness. Within this group, I have noticed this is particularly difficult for white heterosexual men. Even many of these men who have accepted the merit of the movement and support it strongly seem to have difficulty with accepting that their voices need to be silent in certain conversations. As a result of never having experienced oppression in these subtle forms because of an aspect of their identity, many heterosexual white men seem unable to conceive of a space where their voice is not valued, as from birth, they are taught by society that their voice is the most valued of all. Therefore, before we label such transformation movements as arbitrary, before we claim unfairness at being excluded from certain spaces, we need to examine the aspects of our identity and we must ask: just because we cannot see it, does that mean it is not there?

VIVIAN SPIES

RHODESHASFALL EN PHOTOS BY DENVER TITUS

The Constitution,

Humanity and Prisons article and illustration SIMONE ADLER

Y

ou’re stuck. You cannot move. You’re trapped. Confined within a small space, and surrounded by unspoken words and symbols which constantly reinforce the creation of your particular identity: ‘Other’. ‘Evil’. ‘Inhuman’.

It’s possible for all of us at a certain stage in our lives to feel separated from the society in which we live; to reject elements of technology, materialism and superficiality. Yet, our physical world and freedom to occupy it, creates a sense of togetherness with those that surround us. What happens when you are physically separated from the rest of society, within the small confines of a prison cell? Do you retain your sense of humanity? To what extent does the Constitution facilitate the preservation of this sense of humanity?

Under the common law, there is a basic residuum of rights which a prisoner cannot be deprived of. In principle, a prisoner is entitled to all the personal rights that are not as of necessity taken away by the law. There are certain layers of rights which are justifiably stripped from a person as they enter the prison confines: freedom of association, freedom of movement and freedom of trade and occupation gather on the ground as the prisoner begins his path towards rehabilitation and correction. What remains of the rights of the prisoner is reinforced by both Constitutional Court decisions, as well as, the objectives of the Correctional Services Act; most notably being rights to dignity, adequate healthcare, nutrition and accommodation.

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Internationally, many countries have adopted a policy of non-intervention with regards to prison administration. Justifications for this include: the societal demand for retribution, the belief that the judiciary lacks the expertise to “run” a prison and the issue as to whether judicial intervention interferes with the prized “separation of powers” principle. In contrast, South African jurisprudence is committed to viewing prisoners as right-holders. Strides taken by the court, such as in the case of Van

“With the average cell measuring 2.41 square meters of floor space, it is difficult to imagine how prisoners are capable of exercising their right to personality” Biljoen, where the court granted a prisoner suffering from HIV access to ARVS, emphasize the enforcement of basic Constitutional rights, such as the right to adequate healthcare within a prison setting. In Strydom, the court upheld the right of a prisoner not to be treated in a cruel, inhumane and degrading way. ‘Degrading’ in this case refers to the infringement of the right to dignity and the right to adequate medical treatment, accommodation and nutrition. The court in this case went so far as to order the supply of electricity to prisoners in

solitary confinement, reasoning that the few hours of electricity signified the difference between mental stability and derangement.

Despite these strides, there remain significant areas in which prisoners are still being deprived of their fundamental human rights.

With the average cell measuring 2.41 square meters of floor space, it is difficult to imagine how prisoners are capable of exercising their right to personality (stressed in S v Makwanyane) or even their basic right to dignity. Furthermore, in cases concerning the right to education, while s19 of the Correctional Services Act requires every inmate with a child, be subject to compulsory education programmes, only some prisons have implemented a schooling system to ensure the enforcement of this right.

Imagine once again that prisoner: the prisoner shedding layers and layers of rights, as he enters the confines of the prison structure, whilst the judiciary slowly sifts through those layers to ensure that none of what is integral to the prisoner’s humanity is shed on the grounds outside the gates. To re-contextualize the well-known metaphor, the Constitution is the bridge between the past of prisoners viewed as “other” and “evil” and a future founded on the recognition of the very rights that make them human and which necessitate a path towards rehabilitation.

FREEDOM FROM RELIGION: ATHEISM AND THE LAW

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enerally, atheism is the rejection of a belief in a deity. Historically, atheists were subject to legal discrimination, but today liberal jurisprudence assumes a separation of Church and State. Thus, laws that directly oppress atheists in Constitutional democracies are rare given, common place freedoms of religion. Nonetheless, there are some counter examples worth exploring, such as the rife legalised oppression of atheists in religious states, especially Islamic monarchies. Showcasing such laws is fascinating, and prompts reflection on South Africa’s accommodation of atheists.

There are two categories of law in relation to atheism. First, there are those that directly target atheists. For instance, in the US, there are seven states barring atheists from the right to hold public office.

Mississippi’s Article 14, Section 265 reads: “No person who denies the existence of a Supreme Being shall hold any office in this state.” Atheists can still be executed in thirteen countries and Saudi Arabia recently passed Royal Decree 44, which defines terrorism as “calling for atheist thought in any form, or calling into question the fundamentals of the Islamic religion on which this country is based”. However, section 15(1) of South Africa’s Constitution prevents such direct targeting of atheists. By placing freedom of “conscience” alongside “religion”, the Constitution indicates that a lack of belief is as significant as the presence of one.

Secondly, certain laws indirectly target atheists by promoting religion. For instance, several Western democracies (such as Sweden, Canada and the US) still include

religious prayers or customs in government proceedings. In Ireland, teachers must be trained in Christianity, while Algeria mandates the study of Islam in schools irrespective of the student’s religion.

Indeed, our national anthem is partially a hymn, calling on God to protect Africa. In many places, regulations prevent alcohol sales on Sundays based on Christian traditions (see S v Lawrence). Major Christian holidays are public holidays. Magistrates have to be called “Your Worship”, a kind of religious intonation.

In the Constitution, the word “God” appears nine times: three times in the Preamble, where God is called upon to protect our people, and six times in Schedule 2, where it must end with the words “so help me God”. planted onto the public sphere.

Sachs J acknowledged, ‘Any endorsement by the State today of Christianity as a privileged religion, thus not only disturbs the general principle of impartiality in relation to matters of belief and opinion, but also serves to activate memories of painful past discrimination and disadvantage based on religion’ (S v Lawrence [138]).

Yet, section 15(2) prevents such laws from discriminating against atheists and other faiths. It reads: “Religious observances may be conducted at State or Stateaided institutions, provided that they are conducted on an equitable basis

and attendance at them is free and voluntary.” It is worth questioning the ambit of this law (does the calendar qualify as a State institution, wherein government can declare religious holidays as public holidays?), and the equality of certain religiously-oriented law. Does the legal favouring of religion not discriminate against those who reject God’s existence?

And perhaps more generally, does the Christian flavour of some of these laws not marginalise other South African faiths?

Essentially, our Constitution does mandate a freedom of religion, but this may not be enough. For atheists, the public domain needs to be free from religion, or wholly inclusive of all religious permutations. Otherwise, dignity and freedom of conscience become jeopardised.

ESHED COHEN

2015 ALTUM SONATUR 6

UNRAVELLING GUANTANAMO BAY

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ince the first prisoners were transferred to the facility following the 9/11 “war on terror” and placed inside wire mesh cages in “Camp X”, Guantanamo Bay has constantly remained symbolic of arbitrary and indefinite detention, torture, unfair trials and the death penalty. In 2011, Bush signed a memorandum to the effect that Taliban and Al-Qaida detainees did not qualify as prisoners of war.

What is the consequence of this? It rendered inapplicable Article 3 of the 1949 Geneva Convention which prohibits unfair trials, torture, cruelty and outrages upon personal dignity.

In 2002, the first two detainees died from torture/ill treatment. In 2006, three men committed suicide. In 2007, Bush authorised secret detentions. David Hicks was the first detainee to be convicted by a military commission in 2007 (and other prisoners were released). Through the years, the deaths within the walls of Guantanamo have continued.

For instance, in 2012 when Yemeni national Adnan Farhan Abdul Latif was found dead in his cell, he was the ninth detainee to die.

In response to the wide outcry in the international community, Bush promulgated the Detainee Treatment Act in 2005. It banned the use of cruel, inhumane or degrading treatment as defined by US law (a narrower conception that the international law definition), while still curtailing the right to judicial review. Despite President Obama stating his commitment to closing the facility down to

7 ALTUM SONATUR 2015

KELSEY GIBBS review all detentions in 2009, he nevertheless endorsed indefinite detentions without criminal trials. The facility still remains open, with roughly 122 prisoners incarcerated, some of whom have already been cleared for release.

While the stories are harrowing, there have been occasional glimmers of hope. In 2004, the US Supreme Court held that detainees have the right of access to federal courts in Rasul v Bush. The US Supreme Court, in 2006, in Haman v Rumsfeld found that the military commissions in charge of trials at the facility had violated both US and international law, holding that Article 3 of the Geneva Conventions applies as the minimum standard. The court also held, in Boumediene v Bush, in 2008, that detainees have the right to challenge the lawfulness of their detention.

However, the events have been labelled as a “decade of damage to human rights” by Amnesty International. Other organisations have declared that the substandard procedures and the lack of basic criminal procedure rights of the military commissions in charge of trials results in illegitimate judgments. Standards of due procedure and Constitutional values, foundational to any democracy, have constantly been undermined and mocked.

It is believed that the facility was opened in order for the US to detain and try its detainees outside of the jurisdiction of the US courts, in an attempt to circumvent the most basic procedural rights afforded to those who are arrested and detained, irrespective of the crimes for which they are suspected. Since

Guantanamo Bay’s opening, prisoners have been held indefinitely without trial, subjected to torture, detained under inhumane conditions and tried unfairly by military commissions set up by the US executive.

These commissions are not independent or impartial and are a blatant attempt to limit access to US or international courts. Detainees are held on mere suspicion of activities and without proof or criminal trial. This is an unfinished story, as the struggle to close the facility down continues.

In a haunting letter to President Obama in 2012, Mr Talal Al-Zahrini, father of deceased detained Yasser Talal AL-Zahrani, challenged the declaration that his son committed suicide, stating the evidence (including testimonials given by guards) proved otherwise. The evidence suggested that his son was killed by guards. He wrote: “Mr President, the killing of my son at the hands of his guards and under… supervision… is a… gruesome crime.

It is against all human values and ideals, and whoever covers up this… or obstructs the criminal and judicial investigations is a coconspirator with those who have committed the crime itself… it is a catastrophe when a democratic society that raises the banner of human rights stays silent…”

For those who know the history of South Africa’s Apartheid, this has a chilling similarity to the human rights and procedural rights violations that occurred in South Africa’s past.

Power To The People: The Potential of Rights Education ALICIA HARIPERSHAD

“I

am often asked what the most serious form of human rights violations in the world today are; and my reply is consistent: “extreme poverty.”

-Mary Robinson, Former UN High Commissioner for Human Rights (1997-2002).

The South African Constitution has made a name for itself, even on a global scale. With promises of progressive rights, it seems that it is just a matter of time before these powerful rights are realised. In contrast, South Africa is also a country with one of the greatest disparities in wealth between the affluent and poor. This is relevant in understanding that the majority of the population not only live in poverty, but are also grossly oblivious to their rights. It has been argued that any Constitution’s legitimacy stems from the majority of the population acknowledging it as supreme law. However, this is not a possibility because people are not even aware of the rights contained therein. It should be worrying where only a portion of society abides by and gives effect to the rights outlined in our Constitution.

In a community based study done by CASE (Community Agency for Social Enquiry) it was found that 36% of the people surveyed

had never heard of the Bill of Rights, while 20% had heard of it but did not know what its purpose was. A further survey conducted

by Associate Professor JC Mubangizi, which focused on rural/urban distinction, indicated that a total of 33,2% of respondents said they had never heard of the Bill of Rights, while 66,2% said they had. Awareness of the Bill of Rights was more prevalent in urban areas (42,9%) than in rural areas (23,9%). The shortcoming of the survey should be noted as it was not performed on a nationwide scale.

However, it is useful is shedding some light on the current situation in certain communities.

Even where people are aware of their rights, the mechanisms for enforcement are not widely known. It was found that about half of the respondents (49,7%) had never heard of the Human Rights Commission, and more than half (54,9%) had never heard of the Constitutional Court.

The role of rights awareness in rural communities can therefore be understood as a critical means in which to legitimize the Constitution. The rights therein not only provide protection, but can serve as an important tool in terms of service delivery and accountabil-

ity of government. Increasing awareness of rights, even on a basic level, could play a role in empowering rural communities. Empirical data has evidenced the direct correlation between poverty and education – where more education is associated with decreased levels of poverty. Poverty, as noted by Mary Robinson above, is a gross human rights violation, which is precisely why human rights-specific education is vital.

The purpose of the Constitution can be seen as a set of supreme principles that govern society, progressive in that society is striving for these ideals. The Constitution is only as powerful as those utilising it as a means of bettering or protecting their positions in society. Emphasis should be placed on rightsfocused education schemes because this can have a short term benefit, whereas focusing on changes to the formal curriculum only sees results in the long term.

Faculty based initiatives by LAWCO, SLSJ and BLSF should be commended for realising the importance of rights education, as well as, the power of a law degree - the role students can play, by merely contributing a few hours a week, has the potential to empower communities through the law.

The #RhodesMustFall campaign at UCT has re-awakened the urgent need for a national consciousness addressing the nature of transformation.

DANIEL SIVE

#ConstitutionalismMustRise O ur Constitution is a living document. It is entangled with the grotesque legacy of our colonial and Apartheid past. Yet, it constantly demands that we strive for a liberating future, grounded on a commitment to reconciling almost fatally scarred relationships, genuine nation building and the achievement and maintenance of social cohesion.

The new Constitutional order inherited a deeply divided nation, plagued by gross violations, pervasive racism and gross economic inequities. The Constitution progressively responds to these daunting realities by mandating emphatic transformation. Far from being a neo-liberal compromise, the Constitution adopts a substantive notion of equality, demanding a society that strives for the human rights of all. However, despite entrenching this binding vision, the Constitutional dream remains disturbingly elusive for too many in our country – and indeed at this university.

The #RhodesMustFall campaign at UCT has re-awakened the urgent need for a national consciousness addressing the nature of transformation. In a university context, the opportunity for a renewed critical and participatory focus on the various intersectional forms of racial, cultural, social and economic dominance must be grasped. This is essential to ensure that the full spectrum of the complexities inherent in the concepts of non-racialism and nonsexism, are better understood and advanced.

Students have a fundamental responsibility in the Constitutional development of our society. It should be a major embarrassment to all members of the broader UCT community that the statue of Cecil Rhodes, and all that it symbolizes, endured for so long in its particular position on campus. Staff and students have passed the statue for decades. Yet, the evidence shows we can organize when we want to.Take for example the highly publicised education weeks around the Middle East. What about the human rights abuses across the continent? Do we owe our fellow

Africans more than we are prepared to give? If so, it is troubling that events on our own continent elicit so little compared to elsewhere, perhaps another symptom of our colonial past that negated the value of black African life.

We are currently embarrassed as a university by the nonchalant disregard that has been expressed at the pain and feelings of indignity experienced by victims of institutionalized racism, sexism and xenophobia. These painful realities of the ‘democratic’ South Africa are far too often met with the projection of hegemonic ‘rationalization’. It is essential that the Constitutionally endorsed principle of meaningful engagement is afforded proper respect, and that all members of UCT are constantly mindful of such transformative Constitutionalism as we identify what needs to be transformed and how we implement such transformation.

We will need to ask these questions in an environment of academic debate, respecting fact above bluster. And we need to return to our Constitution as an instrument to guide us.

DCJ Moseneke has so eloquently enlightened us as to our Constitution being premised on the will of the people, expressed in representative and participatory processes.

It does not only establish its supremacy, rule of law and fundamental rights, but also captures our collective democratic convictions.

Coercion provides a fast route to achieving social change. The academic discourse and due process required to persuade minds and hearts requires a longer term personal commitment to our Constitutional values. Perhaps Cecil John Rhodes’ real contribution to South Africa will indeed be that his faeces covered statue has, after 20 years of ‘democracy’, re-focused our minds on the values of that democracy and will re-awaken us to the fundamental centrality of our Constitution in plotting a way forward that has a material impact on the achievement of human rights for all in South Africa.

WE CAN NO LONGER BREATH W H E N P E O P L E R E V O L T , I T ‘ S S I M P L Y B E C A U S E T H E Y A R E N O L O N G E R A B L E T O B R E A T H E.

NOMBUSA MATHIBELA

‘‘the deafening call for the employment of black academics that is consistently met with a baseless and weak response that “we do not have a broad pool of black lecturers in the country.”

‘T

he Wretched of the Earth’ is arguably the most elusive of Franz Fanon’s writing.

In it, he details the psychological violence of colonialism and in doing so he draws, amongst other compelling conclusions, the following: when people revolt it is not because they all belong to a particular culture, it simply because they are no longer able to breathe.

In the past few weeks, the University of Cape Town (UCT) has witnessed an episode of what Fanon talks about: a revolt against suffocating whiteness. Black students are suffocated by the subliminal institutional racism that continues to maintain a hegemonic state for the purposes of upholding white supremacy. This led to an emotionally charged revolt at the University Assembly, which, brought to form the true state of affairs - that transformation is not only a distant dream, but also a myth at UCT. Black students are no longer prepared to negotiate black pain within white spaces created by management in the name of, what Associate Professor Xolela Mangcu coins as, ‘rational deliberation,’ when all that management is seeking to do is frustrate the outcry of black students in bureaucratic processes and indirectly stall transformation at UCT. At the heart of transformation is an ideological and intellectual war. It is a violent process in itself because it means one group of people must relinquish certain privileges and a racial system that preserves their intellectual capital.

An example of this is the deafening call for the employment of black academics that is consistently met with a baseless and weak response that “we do not have a broad pool of black lecturers in the country.” This proving Associate Professor Xolela Mangcu observations that the issue of standards always seemingly finds its way to stunt the academic conversation.

What I find both puzzling and appalling is that an institution at the forefront of academia in Africa remains complacent about African Studies. This attitude leaves local students in a position where they have to apply to Cornell, Yale and Harvard amongst others, to learn about Africa. This is not only an intellectual travesty, it is also dehumanising and it is a violent attack against the dignity of black students. It insinuates that Africans have not produced knowledge in all spectrums of education and that is problematic.

It is only right to note that I am not the first student to write about the lack of black academics in this institution, a colleague and friend of mine Kevin Minofu shared the same sentiments last year. One can only wonder for how long will our voices be silenced? What will it take for the institution to fully comprehend that it matters who teaches us? In the words of Chinua Achebe, ‘We are no longer at ease,’ nor are we able to accept indefensible statistics that the institution uses to uphold the status quo.

Many of my white peers have asked me, mostly out of a genuine need to understand, why the Rhodes Must Fall Movement has been so vocal. Others asked out of sheer ignorance. To this, I refer to Bantu Biko, who said that “black people speak with a greater sense of urgency than white people because their struggle is not merely to solve a peripheral problem, but theirs is a struggle to get out of the situation.” That situation is structural racism that continues to stifle any tangible change in this institution.

As a black female and as a law student, the outbursts of frustration that have led to the occupation of Bremner Building, now also known as Azania House, have interrogated my personal politics. If we truly believe in a democratic and Constitutional jurisprudence, we ought to take into account the plights of the vulnerable minority in this institution, who also happen to represent the broad demographics of this country. It is unacceptable that in 2015 this University still subliminally participates in the maintenance of structural racism. The time has come for us to stop participating in neo-liberal engagements of transformation and start talking about decolonizing this institution.

2015 ALTUM SONATUR 10

CURRENT AFFAIRS

‘Xenophobia’

by Another Name would

Hurt as Deep

South Africa is considered to be the gateway to Africa. Economics aside, if the gateway adage is true, the recent attacks on foreign nationals in Kwa-Zula Natal and Gauteng appear to suggest that the gateway is a one-way street. On the 19th of April, Emmanuel Sithole, a Mozambican national, became a symbol for the recent attacks after being brutally murdered in Alexandra.

Sithole was not the first to die from these attacks characterised as xenophobic in nature. In 2008, South Africa suffered an outburst of similar attacks. According to the Violence Prevention through Urban Upgrading, the violence has continued since, with varying frequency.

Little has changed since the recent surge of attacks. Statistics show that the number of refugees and asylum seekers in South Africa has increased in the past years, putting the total number of cross-border migrants just below 150 000. The Constitution affords protection of basic human rights to all of people within South Africa’s borders, citizens or non-citizens alike. The Refugee Act further ensures this protection.

Earlier this year President Jacob Zuma said we must ‘treat those who are in our country legally with respect and Ubuntu.’ He continued with: “We also emphasise that no amount of economic hardship and discontent will ever justify attacking foreign nationals.”

The State’s condemnation of the attacks is somewhat disingenuous. South Africa has a duty to allow for the realisation of Constitutional rights and protectall in the South African jurisdiction - citizens and non-citizens. The Dawood, Khosa and Lawyers for Human Rights v Minister of Home Affairs cases make this point clear.

Why are these attacks really happening?

The attacks are more complicated than what the media has portrayed. Naming the attacks as ‘xenophobic’ or even ‘afrophobic’ does not satisfy articulating the true contextual nature of the situation. The media has attempted to understand the attacks within an unhelpful contextual-vacuum. We cannot address the violence with purely legal rhetoric which helps distance the violence

11 ALTUM SONATUR 2015

and clinically confines it to certain spaces.

If the courts are best suited to respond to the violence, attention needs to be paid to who commits these crimes, as well as, the victims themselves. The audi alteram partem maxim of our law thus demands that the other side be heard. Let me be clear: The resort to violence by the perpetrators of these attacks is unacceptable, and it seems nonsensical to try and justify their actions. However, it seems equally unjust to ignore the position of those perpetrating the violence. It must always be borne in mind the extreme economic environment and the competition for survival present in the daily lives of the attackers who see African foreigners as competitors for survival. To ignore this, is to ignore a substantial part of the puzzle.

The violence occurs in places like Alexandra, where just kilometres away Sandton’s aggressive opulence stands firm and proud.

Simply, in order to understand these attacks, issues of class, resource shortages and environmental factors must be taken into account.

This is not just an attack on African foreign nationals, but rather a scramble for scarce resources; the remnants of the scramble for Africa. It is easy to call their actions ‘criminal’, to distance ourselves and absolve the state of responsibility. However, this appears to merely place a gauze dressing on a gaping wound – like they did at the first clinic Mr. Sithole went to.

RELEBOHILE PHOOFOLO

CURRENT AFFAIRS

ISRAEL’S ELECTIONS: THE CONSEQUENCES

This article is the first in a series of what will be a “law watch” of the Israel-Palestine conflict. In editions to come, this article will focus on specific legal developments in the conflict and scrutinize them. For this first installment, a short synopsis of what has been happening in the Middle East for the past 100 years is presented

P

roponents of Israel’s systematic oppression of Palestinians often talk of ‘moral complexity’ to vindicate such abuses. However, complexity need not be manufactured when discussing Israel’s electoral system. The recent elections have been widely covered by the international media, prompting much head-scratching and enough analysis to feed the families of political commentators for the foreseeable future.

Israel currently adopts a closed list proportional representation system. Citizens vote for one party list representing the whole State. The 120 seats in the Israeli Parliament, or Knesset, are then divided up in proportion to the votes tallied. A minimum threshold of 3.25% (four seats) is required for representation. This was recently increased from 2% by far-right Minister of Foreign Affairs, Avigdor Lieberman. This move to cull Israeli-Palestinian parties from the 2015 election, backfired with Balad, Hadash, Ta’al and the United Arab List aligning under The Joint List.

While anyone can form a political party they, individually or their entire party, can be disqualified by Israel’s Central Elections Committee (CEC). Grounds for disqualification include: the denial of Israel as a Jewish state, incitement to racism or the support of a terrorist organisation. Israeli-Palestinians have, unsurprisingly, enjoyed a consistent audience with the CEC. The current election saw Haneen Zoabi from Balad being disqualified from the elections, a decision later overturned

by the Supreme Court. This decision does little but sugar-coat what is a racist rigmarole, as Zoabi enjoyed a barrage of insults during the CEC proceedings, culminating in one committee member exclaiming, “I’m scared you are going to shout Allahu akbar and blow yourself up”, after she spoke in Arabic.

Israel’s electoral system grants wide ranging representation, but since Israel’s first election, no one party has enjoyed a simple majority. Incumbent Prime Minister Benyamin Netanyahu’s right-wing Likud, the centre-left coalition Zionist Union and The Joint List won the top three spots, respectively. However, Likud only gained 30 seats (23%). Coalition building is, thus, a natural part of any election. Nominations from each party are sent to Israel’s President, who then orders the winner to form a coalition government. If successful, this individual becomes Prime Minister. Netanyahu has been tasked with this duty and looks set to form a heavily right-leaning coalition controlling 67 seats.

Netanyahu’s victory may appear as a triumph of right over left. Nevertheless, a closer look at what constitutes ‘left’ in Israel will quickly expose this as myth. Though the Zionist Union is the darling of left-leaning Israelis, its co-leader Isaac Herzog stated on the campaign trail that Gaza wasn’t hit hard enough recently, promising stronger action by a Zionist Union government. Tzipi Livni, the other co-leader, instigated both Operation Cast Lead and the Second Lebanon War. During Cast Lead she infamously stated that ‘there

is no humanitarian crisis in Gaza’. The Zionist Union’s position on settlements, likewise, redefines their position as ‘left’. Settlement expansion is not off the table and continued control of the West Bank and the consolidation of East Jerusalem are official policy. If we are to understand the Zionist Union as a viable left-leaning opposition, then from a South African perspective, Steve Hofmeyer is a reformist with a penchant for red balloons.

A Netanyahu government, however, does come with a particular virulence. The proposed Jewish Nation State Bill will likely be enacted. This will codify that: Israel is a Jewish state, Hebrew is the only official language and Israeli law will be guided by Jewish law.

This Bill will reserve the right of self-determination exclusively for Jewish-Israelis. The official support it has received is worrying.

One need only imagine the outpour of fury had #RhodesMustFall demanded that South Africa be designated first and foremost a Black Nation State. Unfortunately for Israel, the ‘right’ has now calcified to the point where such a proposal can flow unabated.

So what can we expect from Israel’s newly elected government? Likely more of the same: continued settlement expansions, sporadic incursions into Gaza and the end to a viable two-state solution.

BY LIAM MINNE 2015 ALTUM SONATUR 12

FEATURES

ELECTING CONSTITUTIONAL

VALUES

IN A SYSTEM THAT HAS A GREATER REPRESENTATION OF PARTIES, IN WHICH NO ONE PARTY HAS A MAJORITY OVER ANOTHER, THERE WOULD BE AN OPPORTUNITY FOR ACCOUNTABILITY TO FLOURISH AND FOR RESPONSIVENESS AND OPENNESS BETWEEN PARTIES AND THE ELECTORATE.

S

outh Africa’s founding values consist of a guarantee of a multi-party system of government ensuring “accountability, responsiveness and openness.” In line with this, South Africans vote every five years via a closed list proportional representation system. This system is intended to be a reflection of the political opinion of society as a whole, but does the current electoral system uphold Constitutional values?

Twenty-one years into our democracy it has become apparent that this system gives rise to several issues. Thesame political party (the ANC) has been elected into a majority for five consecutive terms resulting in a dominant party system.This has led to increased conflation between party and State, the manipulation of primary control over making and implementing policy for society. It is possible to observe that the manipulative control of intelligence agencies, the police and the National Prosecuting Authority allows the law to be applied selectively circumventing the Rule of Law. In November 2013, Jacob Zuma was accused of having used taxpayer funds for “security upgrades” on his home, which are alleged to have cost R246 million. The report by the Public Protector stated the President had violated the Ministerial Handbook, which said that he could spend a maximum of R100 000 in security upgrades. It is tell-

13 ALTUM SONATUR 2015

OLIVIA WAGG ing that, over a year later, such serious allegations have not yet resulted in legal action.

To have a dominant party that circumvents the Rule of Law is in direct opposition to a system that encourages openness and accountability, and so I propose that our election system, as it is currently functioning, is not conducive to our Constitutional values.

The Constitution puts forth that our multi -party democracy is instituted so as to create responsiveness, however, the voices of the minorities are not being heard. Historically, South Africa has experienced the silencing of one political voice in favor of another, and the transformative role of the Constitution is designed so as to ensure a national common voters role; but with so many minority parties, there are still many concerns that remain unanswered.

The employment of the single transferable vote (STV), in conjunction with our current system would be beneficial in South Africa, in ensuring greater representation of voter preferences. STV is an election system in which voters give preferences for their candidates, and if any one candidate fails to achieve a sufficient majority, the second and third (and so on) preferences are reallocated until a candidate receives a sufficient majority.

To simply employ the STV, as is, would not adequately represent the array of diverse in-

terests in the country. Therefore, it would be preferable to extract the “preferential” voting mechanism and apply it the proportional representation used in the current system. This could be done in two ways.

The first of these entails a more direct form of proportional representation. To circumvent a “first past the post” result, preferential voting would be used in order to better reflect the preferences of the voters. This system would ensure greater accountability in that, theoretically, the representative could be held directly accountable to their coalition.

The second of these is to employ preferential voting in the current election system.A voter would choose the party listing their preferences, which would then be taken directly into account. This would result in a wider representation of voter opinions, and make it (theoretically) harder for a majority to form. In a system that has a greater representation of parties, in which no one party has a majority over another, there would be an opportunity for accountability to flourish and for responsiveness and openness between parties and the electorate.

Humans of Kramer As South Africa’s political climate heatens, it has become increasingly important to identify the issues we face. Finding solutions, however, proves more difficult than identifying issues. Here’s what some of you said when asked: what is the first thing you would change if you were the President of South Africa?

LIFE AT ALL COSTS: EUTHANASIA AS A HUMAN RIGHT “ONE MIGHT WONDER WHAT EXACTLY IS SO UNDIGNIFIED ABOUT HOLDING ONTO DEAR LIFE UNTIL THE BITTER END, PARTICULARLY GIVEN THE VALUE THAT IS PLACED ON THE RIGHT TO LIFE BY BOTH OUR SOCIETY AND OUR COURTS.”

D

eath is inevitable. How we die is therefore a matter that affects every mortal and warrants discussion. So why don’t we want to talk about it? This reluctance seems to be even more pronounced in the matter of euthanasia. Euthanasia can be defined as the painless killing of someone suffering from an incurable and painful disease or in an irreversible coma. The question of euthanasia is linked to the right to life and the right to dignity, founding rights in South Africa.

With particular focus on the right to dignity, euthanasia has repeatedly been referred to as a ‘death with dignity’; on one’s own terms.

The passing of South Africa’s great leader Nelson Mandela reignited debate about the right to die and its legal position in South Africa.

When Mandela was in office, he engaged the South African Law Commission to carry out a project addressing end-of-life decisions. The result was the proposed End of Life Decisions Act — a Bill that was tabled in Parliament in 2000. The Bill was neither been enacted nor was it clearly rejected. It was also never debated in Parliament. Sadly, Mandela’s own passing has been seen by some as an undignified way to go. In a letter to the Guardian, Archbishop Emeritus Desmond Tutu writes, “What was done to Madiba (Nelson Mandela) was disgraceful... You could see Madiba was not fully there. He did not speak. He was not connecting. My friend was no longer himself. It was an affront to Madiba’s dignity.” In the letter, the Archbishop stated that he be-

15 ALTUM SONATUR 2015

lieves in the sanctity of life, but not at all costs.

A potential benefit of having the choice to be euthanized, is that considering South Africa’s limited resources, an argument can be made that money used for the care of the terminally ill who want to die, would be better spent on those with a chance of survival.

However, the problem with that argument is that it raises concerns about the slippery slope between the right to die, and the duty to die to free up costly medical resources. And while a choice to die peacefully could be seen as a justifiable limitation on the right to life, to take away one’s right to be kept alive by medical intervention in order to reallocate limited resources reasons is unlikely to be. Keeping such hazards in mind, it is important to recognize that the choice of a competent, terminally ill person to avoid excruciating pain and embrace a timely death is arguably the exercise of autonomy and the protection of human dignity.

We also need to ask ourselves: when are we, through our own indecision and fears of mortality, allowing medical methods to perversely prolong the dying rather than the living?

On the other hand, one might wonder what exactly is so undignified about holding onto dear life until the bitter end, particularly given the value that is placed on the right to life by both our society and our courts. The question becomes what constitutes dignity when one is nearing the end of life. The fact is that dignity may mean different things to different people in a diverse multicultural South

Africa. The South African legal ambiguity on euthanasia is very much within the international norm. According to a survey by CNN in 2013, no African countries had comprehensive legalization or regulatory schemes surrounding assisted suicide. However, given the recent discourse on the issue and activity by organizations such as DignitySA, some legal certainty may soon come our way.

In the landmark decision of the North-Gauteng High Court late last month Fabricius J ruled in favor of allowing euthanasia. In a bitter sweet twist, the applicant passed away hours before the judgment was handed down.

MARY JIYANI

“WHO ARE WE?” VOICES OF ISLAM IN IN WESTERN LANGUAGE: #MUSLIMLIVESMATTER “Westernized heroes such as Malala have set a high bar. But we should not forget that ordinary people fit somewhere in between, and should not automatically fall into the category of extremism”

“W

And

then

–

ho

bang.

is

Malala?”

Bang.

Bang.

The Taliban hunted, targeted and shot 15-year-old Malala Yousafzai at point-blank range on her bus ride home from school on Tuesday 9 October 2012. Why? Because she was a Pakistani girl, who stood up to fight for her and others’ right to be educated. Because she defied her valley’s ‘Radio Mullah’ Maulana Fazlullah’s calls for women to stop attending school and instead fulfill their rightful duties at home. Because after the Taliban set an edict that banned girls from attending school after 15 January 2009, she still did. She encouraged other girls to do the same. In so doing, she ignited a dangerous flame that the Taliban sought to quell. The Taliban failed.

Malala is now the youngest-ever Nobel Prize laureate. After seeking political asylum in the UK, Malala continues to advocate for women’s rights and education on a global stage.

Malala is not the only Pakistani activist who has been brave. Her story (and rightfully so, in many respects) was plucked by the West as a beautiful tragedy designed to shed light on the many horrors ordinary Muslims face in their home States. However, no matter the US’s attempts to “Westernize” the image of Malala in order to ingratiate her into the hearts of millions of sympathizing Americans (and in so doing, fuelling the persistent and never-ending “War on Terror”), she is and always will be a proud Pakistani. She loves her country

with its rich and turbulent history, its vibrancy and its faults, its beauty and its harsh realities.

She loves her religion. She is a proud Muslim.

And so we have a vision of two utterly opposing sides to Islam in the same city of Mingora in Swat Valley, Khyber-Pakhtunkhwa, Pakistan: Malala and the Taliban. The one is the epitome of peace, strength and passive defiance. The other conjures terrifying and violent images, whenever uttered.

How can the two be compatible under one religion? They cannot be. Just as extremists exist in fundamentalist Christianity, so they exist in Islam. The West’s resistance to fully comprehend that simple similarity has culminated in the wave of Islamophobia currently spilling across the world. It led to the Chapel Hill shooting of three young Muslim students in North Carolina on 11 February. It has seen the rightwing anti-Islam, anti-immigration movement PEGIDA organize weekly marches in every major Germany city since October 2014. It resulted in confused and dangerous misinterpretations of the Charlie Hebdo Paris attack on 7 January. It is forcing ordinary Muslims to buy Western sympathy through “Hug a Muslim” campaigns in an effort to prove their non-extremism. Why are ordinary Christians not being forced to do the same? Why is extremism perpetuated by white Christians blamed on individual mental illness and not on the white supremacist groups fuelling their actions?

This disparity poses a legal conundrum.

How do Western countries legally balance the competing interests of handling bursts

of fundamentalist activities while preserving immigration and employment opportunities for non-extremist Muslims? How does a country proclaim war on ISIS (ahem, Obama) without erupting into an anti-Islamic State that restricts certain people’s freedom of religion and freedom of movement (“random” airport security checks et al.)

For one, it boils down to one very simple, non-legal matter: treating all Muslims the same. Start treating Muslims as individuals.

Westernized heroes such as Malala have set a high bar. But we should not forget that ordinary people fit somewhere in between, and should not automatically fall into the category of extremism based on the colour of their skin or their choosing to wear a head scarf.

ALEX SWANEPOEL 2015 ALTUM SONATUR 16

BEING INTERNATIONAL IN SOUTH AFRICA RUVA SAMKANGE

The inability to live without fear of violent attacks to person or property or from strict laws, make it tough for many to consider South Africa home.

I

f you listened to President Zuma’s SONA address in February, you may have noticed policy changes regarding the treatment of foreign nationals in South Africa. Immigration laws regarding foreign nationals have undergone heavy construction over the last few years. Government’s attitude towards foreign nationals has become less diplomatic and more aggressive with the implementation of stricter immigration laws. Where do foreign nationals stand in South Africa in terms of law? If you have been watching the news, you know that the legal standpoint has been reflected and magnified tenfold through the resurrection of xenophobic attacks. The remarks made by King Zwelithini that “foreigners must go”, at a time when xenophobic chaos and bloodshed in Durban, further increase the socio-economic hardships of immigrants.

The South African Immigration Act 2002 governs migration within South Africa. Recently, work permit applications have faced controversial changes. In order to apply for a work permit, one has to pay an application fee and have the company apply to Labour Offices to show that a South African citizen was not qualified for the job and Re advertise the job in local papers at the applicant’s cost. An applicant for a work permit must also obtain medical records, police clearance, be subject to an inspection from the labour office and wait months for a report on said inspection.

Foreigners in South Africa have struggled with these laws, which could be referred to as institutionalised xenophobia. Along with the difficulties and attacks many foreigners have faced at the hands of xenophobic violence, foreigners are at odds with the laws being enforced

17 ALTUM SONATUR 2015

which make staying in South Africa extremely difficult. The resurgence of the xenophobic attacks against foreigners in Durban and Pretoria in recent weeks, although obviously illegal, only intensifies an already tenuous living situation that foreigners face daily. The inability to live without fear of violent attacks to person or property or from strict laws, make it tough for many to consider South Africa home.

Another reality faced by foreigners is one faced by our own classmates. Ask any international student about their experience with the South African Embassy in their respective country or Home Affairs and your question will be met with harrowing tales. Easy would not be a word anyone would use. Many students have found themselves stuck in their home countries missing registration dates and facing the late registration fee charges. They are at the mercy of SA embassy officials who fuss over the smallest details and are inconsistent in their requirements placing many students in extremely vulnerable positions.

Law students are also faced with one great problem: the inability to be admitted as an attorney. According to the Attorneys Act 1979 a person must be a South African citizen or have permanent residence to be admitted. Awareness to this is not even raised until the student is enrolled or halfway into their first year. Students are left unprepared or confused as to what options are available especially when other career alternatives are rarely highlighted at Career days in Kramer.

The simple answer is that if they want to be admitted as an attorney their easiest option is to marry a South African. It may be said as a joke but the seriousness of the situation has

The legal standpoint has been reflected and magnified tenfold through the resurrection of xenophobic attacks. Immigration laws regarding foreign nationals have undergone heavy construction over the last few years. led to many considering it as a viable option.

But now even that route proves is contentious as spousal and life partnership visas are not easily obtainable. This type of visa must be applied for abroad and not in South Africa, an issue that sparked a serious debate when cases regarding families being separated because a spouse was denied entry into South Africa after being unable to obtain a spousal visa (anyone remember Dawood case?).

The harsher laws regarding foreigners will have a huge impact on both the tourist and foreign investment in South Africa. The processes regarding immigration laws have been labelled as confusing and lacking transparency and it will be interesting what the long term impact of the new policies will be in South Africa’s economy and international relations.

T

he storm is rising against the privileged minority of the earth, from which there is not shelter in isolation or armament. The storm will not abate until a just distribution of the fruits of the earth enables man everywhere to live in dignity and human decency.”

This famous dictum of the late Martin Luther King Jr has become a beacon of hope to the marginalised black population in South Africa. The question, therefore, arises as to whether transformation should be colour-blind. We argue that transformation cannot not be colour-blind in South Africa because such a point departure presumes a parity between the black and white South Africans, which obviously is not the case.

The objective of transformation is the establishment of a society characterised by the equality of the national groups, by a proper ra-

WASHINGTON ZINDOGA

COLOURBLIND TRANSFORMATION

GILBERT HWANI

cial balance or representativity throughout all its sectors, classes and status orders.

Societies that are characterised by racially defined wealth disparities are not likely to be socially and politically stable. It was no surprise when the South African government pushed for the inclusion of affirmative action in the South African Constitution. This process seeks to achieve a more plausible outcome which is to accelerate the deracialisation of the South African economy and fast-track the re-entry of historically marginalised communities into the main stream of the economy. Given our history, and what life in South Africa was like under Apartheid, this is a clear commitment to transform our society.

Transformation cannot be colour-blind until we reach such a point where people have equal status in society. In order to undo the damage of past and continuing inequalities we need to pay attention to the foundations of our society and the ways in which this continues to shape our present. We cannot change a phenomenon if we deny its existence. But we have not reached the point where race is irrelevant or where being colour blind is a virtue. At this moment being very aware of one’s co-

lour is an important element in building the society enshrined in the Constitution.

Non-racialism is one of the values of South Africa’s democratic Constitution.

But it is not something that will be realised overnight, and what it means to build non-racialism may change under different conditions. It requires recognition and awareness that race remains both a social construction and part of the fundamental structural design of our society.

It demands an awareness and sensitivity to the experiences of different sections of the population, particularly those who have suffered and continue to experience racism and resultant inequalities.

We need to develop ways to unpack differences and become more cognisant of what may be required of us to build a society in which all people feel valued, respected, and safe. However, in achieving this society we cannot give a blind eye to the fact that colour blindness is a not a viable solution at this very moment in South Africa - where people of colour are suffering as a result of the past. Nevertheless, one must keep in mind that the end goal is reconciliation, the end is redemption, the end is the creation of the beloved and united community, the end is colour blindness.

2015 ALTUM SONATUR 18

DISPARITIES IN KRAMER LAW SCHOOL Professor Schwikkard, the Dean of the Law Faculty, was spot-on in envisioning the goal of the Faculty as contributing to redressing the inequality and disparity that continues to exist within South African society. However, it is worrying that in 2015, Kramer Law School remains largely untransformed and does not truly reflect the demographics of our country.

Since arriving in the Faculty in 2013, I have been through six courses and out of these, only one course was taught by a coloured woman, the rest being taught by white men and women. As a black student, I have not had the privilege of being tutored nor lectured by a person of my race. This is troublesome in a country where 80% of the population is made up of black people.

Twenty one years into our democracy, it is valid to question the lack of transformation in legal academia. Our Constitution seeks to ‘heal the divisions of the past’, with the importance of such goals and values so clearly understood within Kramer, one would imagine that it would be progressive in the realisation of this aspiration. Yet, it is of outmost disappointment that I sit in class with very few black students, whom just like me, are vulnerable to failure, exclusion and a lack of motivation.

It is difficult to be understood by someone who comprehends your circumstances, or can relate to the manner in which you navigate the academic environment. As black students, we sometimes find ourselves unable to articulate succinctly in English, yet we are expected to read, write and speak like our white peers, most of who went to the most expensive private schools and grew up in sophisticated suburbs throughout the country. This is somewhat unfair.

19 ALTUM SONATUR 2015

The Faculty has made little effort in addressing these disparities. Yes, we do acknowledge the extra classes offered, the writing centre and the constant referral to the Wellness Centres. However, the main issue is that all these centres do not fully grasp our realities as black students coming from various communities across South Africa. We would expect a Law School to be equipped with staff members that are sensitive and aware of these realities – to independently identify that a student is not coping and needs a conversation.

We are tired of our voices being silenced by the lack of representation in the Faculty and are sickened by the wait for more black researchers and lectures.

The Faculty cannot be proud of their inability to change its demographics to the extent in which they are capable of doing.

It is for such reasons, that even today, a black student will graduate with an LLB degree and immediately leave the Faculty, because of the subtle disinterest in true transformation. Undoubtedly, some students have a desire to stay and climb up the ladder of academia, but it is understandable that most do not.

How are we to be attracted to staying in an untransformed Faculty, which has insufficient plans put in place to change this current situation?

The legal profession itself is largely untransformed. It is especially in light of this that Law Schools are meant to accelerate their efforts in training legal professionals who are sensitive to the realities of South Africa. It is shameful that so few students that graduate from this Faculty are fascinated by Public Interest Law Firms or to become advocates of Social Justice. Rather, a huge number of gradu-

ates occupy private law firms, with a drive for corporate law practice.

And on Monday mornings, we file into LT1 and sit and wait, for the day that Kramer practically redresses the inequality and disparity that we see every day in South African society; in LT1 reflected.

“Our Constitution seeks to ‘heal the divisions of the past’, with the importance of such goals and values so clearly understood within Kramer, one would imagine that it would be progressive in the realisation of this aspiration.”

SANDILE TSHABALA

ABOUT THE BLSF BLSF MISSION

AIMS OF THE BLSF

The BLSF endeavours to act as an intermediary between law students and the law faculty at large.

More specifically the society stands to use its inflential position to provide a voice for those who feel marginalised because of such issues as race or gender to name a few.

•

The society seeks to manifest this aim through engagement with both the sudent body and staffalike through means of forum discussions, debates and social events.

The intention behind this is to provoke consciousness about issues often overlooked for feqar of alienation and negative retaliation.

• •

• •

To re-establish the BLSF and its position in the law faculty through having various forum events to serve the need and desires of our members.

To unite all members of the Student’s Union interested in fighting for racial and gender equality.

To hold events that provide a space for meaningful engagement between the BLSF members, respective guest speakers, the executive body and staff.

To disseminate knowledge and views relating to transformation and substantive equality.

To provide a space for students to engage with issues affecting our community at large through discusion and service.

In these ways the society wishes to cement its imporant role in promoting positive and sustainable social change within the UCT law faculty.

EVENTS ON CAMPUS Decolonisation Talks in Kramer

2015 ALTUM SONATUR 20

STUDENTS FOR LAW & SOCIAL JUSTICE (SLSJ UCT Research and Education Coordinator 2015) As law students, we learn to appreciate the power of our Constitution. It is an incredible, progressive and inclusive document. It aims to move South Africa from an oppressive past to an empowered future. The Constitution describes this future as ‘a society based on democratic values, social justice and fundamental human rights… in which every citizen is equally protected by law’. The document envisions the improved quality of life of all South African citizens and the potential of each person is liberated.

Unfortunately, a majority of South Africans are unaware of the many rights afforded to them in the Constitution and, despite the many changes that have taken place in South Africa, little has changed in the lives of many South Africans. Although some may argue that the achievement of the society envisaged by the Constitution is the responsibility of government, this is neither a practical nor a realistic expectation. South African civil society is powerful. We need only reflect on the past fifty years to see the achievements of civil society to realise this power - and these were accomplished despite the denial of basic rights and liberties for the majority of citizens!

Faced with this reality, we as Students for Law and Social Justice (SLSJ), seek to create a community of law students interested and involved in protecting human rights, preventing discrimination and promoting social justice and the rule of law. Essentially, SLSJ wants the rights bestowed by the Constitution and the society that it envisages to become a reality for everyone living in South Africa. SLSJ seeks to achieve its objectives through community service initiatives and educational events and seminars.

The SLSJ Student Advice Programmes in

Khayelitsha, Athlone and Mitchells Plain are not a consequence of the mandatory 60 hours of community service required to obtain an LLB at UCT, but rather an attempt to use the knowledge and expertise of law students to provide free paralegal-like, referral advice to communities with little access thereto. The programmes serve to expose students to the vast inequalities in our society, whilst providing practical experience and an opportunity to be involved in making positive change in our society. Programmes such as these, as well as, the ‘Know Your Constitution Campaign’, which will be launched next semester (watch this space!), aim to bestow Constitutional and legal empowerment unto everyone, regardless of their socio-economic backgrounds.

SLSJ was founded by students with the aim of improving access to justice, by lobbying for a year of compulsory community service for law graduates (like Medical graduates) and a transformation of the legal education so that law graduates can competently complete community service. The call for compulsory community service had already been made in 1998 by the late Chief Justice Chaskalson. The Legal Practice Bill was enacted last year, after more than a decade since drafting began. Section 29 of the Legal Practice Act requires the Minister of Justice and Constitutional Development to determine compulsory community service requirements for candidate attorneys or practising lawyers. There is much work to be done in designing and establishing a feasible strategy which can improve access to justice, and provide for graduates’ needs and financial circumstances. SLSJ encourages students to become involved in this process and make their suggestions heard.

In calling for an involved, concerned student voice, we end with the reminder by the late Chief Justice Chaskalson that: “In a democracy, Parliament and civil society

are also defenders of the rule of law and it is essential that they should pay their part in its protection; that the centre should hold, that the best should not lack all conviction, and that things should not fall apart.”

“The SLSJ Student Advice Programmes in Khayelitsha, Athlone and Mitchells Plain are not a consequence of the mandatory 60 hours of community service required to obtain an LLB at UCT”

Meet The Team!

Thank you to our contributers: Erin Goliath Vivian Spies Denver Titus Simone Adler Eshed Cohen Kelsey Gibbs Alicia Haripershad Daniel Sive Nombusa Mathibela Relebohile Phoofolo Liam Minne Olivia Wagg Mary Jiyani Alex Swanepoel Ruva Samkange Washington Zindoga Gilbert Hwani Sandile Tshabalala Faye Bozalek Romi Martin

Want to keep the conversation going?

Email: altumsonatur@gmail.com Twitter: @AltumSonaturUCT Facebook: Altum Sonatur Instagram: altumsonatur Interested in becoming a staff writer, designer or photographer?

Please email altumsonatur@gmail.com

2015 ALTUM SONATUR 22

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