Altum Somatur: Healing Law

ALTUM SONATUR

ALTUM SONATUR

Healing Law Volume 8, Edition 3

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CONTENTS 4

Thoughts from the Editor..................

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Silicosis: Gold Mining’s Biggest Shame..........................................................

26 Crossword............................................28 Contributors........................................

8 The Damages Dilemma.................10 Buddy Box ...........................................12 Can Kramer Be Healed?.................14 Sex Work and The Law..................16 Heal the World...................................18 Humans of Kramer.........................20 Esidimeni and the State Scapegoat .............................

Difference across the Distance between Black and White...............................

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Cover Art: Ashley Seymour Design: Ashley Seymour Cover images taken in Hout Bay, a few kilometres apart

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THOUGHTS FROM THE EDITOR

Emma Reinecke

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enturies of colonialism, racial segregation and racial inequality left South Africa a fractured and wounded nation. Recognising this, the Constitution in its preamble states, firstly, that its purpose is to ‘[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’.

More than twenty years later, the constitutional dream is yet to be realised. The starkness between the affluent and the indigent is so palpable that even within mere kilometres there could be people living in shacks and people living in mansions. And whilst on paper everyone has equal rights, opportunities are far from equal. Divisions in wealth are still largely based along racial lines, as they were under Apartheid. The Truth and Reconciliation Commission, established to begin the healing process, has been widely critiqued for failing to bring about justice and heal the wounds of the past.

In recent years, protests and movements such as Rhodes Must Fall and Fees Must Fall have highlighted structural, economic, racial and gender inequality and the need for decolonisation. Many ‘born-frees’ raised under a constitutional, democratic South Africa have begun to critique the social order, rejecting the idea of a rainbow nation as a fallacy and insisting that change must happen for inequality to be healed.

Therefore, this edition of Altum focuses on the theme of healing. Through articles on healthcare, the environment, and legal education, among others, it looks at what areas of our society are in need of healing and how this can be achieved. As you read through it, we hope you’ll consider what different forms of healing look like, who drives the healing process and what it means to be ‘healed’.

Can some injustices ever truly be ‘healed’, or is the idea of healing in and of itself one that needs to be reconstructed? What is the role of the law in ‘healing’? And is healing a process that ends, or one that is continuous?

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by Joseph Mayson

Silicosis: Gold mining’s Biggest Shame

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outh Africa’s economy was built on the backs of black, working class, migrant labourers in the expansive mines that scar the country.

Mining has brought obscene riches to a few, but the mineworkers, upon whom operations are dependant, have suffered greatly without adequate recompense. The true extent of their suffering has been illuminated by the exposure that hundreds of thousands of mineworkers have contracted silicosis, a debilitating, chronic and incurable respiratory disease.

Silicosis is caused by breathing in silica dust over long periods of time. The dust causes scarring and a saturation of fluid in the lungs, which can cause severe breathing problems. People who have silicosis are unfit for physical labour. Even walking short distances becomes difficult. The worst consequence is that afflicted persons become extremely susceptible to contracting a certain type of TB (silico-tuberculosis). In the Eastern Cape, up to half of the men admitted to hospital for TB are former goldminers.

Mining companies have known about the disease, and its prevalence, for more than 100 years. By 1925, the government had enacted nine pieces of legislation which dealt with silicosis. It was the subject of various commissions and reports. Between 1930 and 1969, a series of conferences discussed the scientific and regulatory agendas for the disease.

Mineworkers who have contracted silicosis are not allowed to recover damages under the general workers compensation legislation, the Compensation for Occupational Injuries and Diseases Act (COIDA), but can only claim under the Occupational Diseases in Mines and Works Act (ODIMWA). ODIMWA compensation is far less than the compensation provided for by COIDA – a pittance, really. However, unlike the COIDA provisions, ODIMWA does not expressly preclude mineworkers from damages under the common law. This was the ratio of Mankayi v Anglogold Ashanti 2011 (3) SA 237 (CC), where Mr Mankayi was able to claim for R2 600 000 after contracting silico-tuberculosis from working at Anglogold’s goldmines, over and above the pathetic R16 320 that he received under ODIMWA Mankayi has opened the door for a maverick case – the largest class action in South Africa’s history – pioneered

by a small legal firm, Richard Spoor Inc. (the same firm that litigated the Mankayi case). The firm is representing all former mineworkers and their dependants against all of the country’s goldmining companies.

Last year, in Nkala and Others v Harmony Gold Mining Company Limited and Others 2016 (5) SA 240 (GJ), the High Court certified the class – a procedural hurdle in all class actions. The goldmining companies have appealed to the Supreme Court of Appeal. The merits of the case will only be heard after the appeal is concluded. The inquiry is basically one of negligence: did the goldmining companies know of silicosis and its causes; would it have been reasonable to try to prevent the incidence of the disease in their goldmines; and did they do so? Two of the twenty-nine companies have already declared anticipatory liabilities of over a billion rand, set aside for compensation if they lose the case. Settlement talks are running concurrently to the litigation, but all negotiations are incredibly secretive and any numbers bandied about by the media are likely to be inaccurate. With an estimated 288 000 cases of compensable silicosis in South Africa and the precedent of Mankayi, the damages (if the case goes to court) or settlement agreements are going to be astronomic.

Richard Spoor Inc. are methodically compiling a list of all those goldminers and dependants affected by silicosis. For many of the affected families, the slow lever of the law may provide adequate compensation too late. Too late to avoid permanent disability. Too late to avoid death.

The current legislative framework reproduces the stance of government and industry regarding black unskilled workers’ lives: they are cheap and replaceable. Once they are gone, they are invisible. Litigation may shine a light on the dark, depraved depths of the health of miners, but it should not be necessary at all. Industry and the development of the country should not come with the externality of an epidemic of gargantuan proportions, felt by the black working class. Litigation may help to heal the symptoms our diseased mining system, of which silicosis is one. But we need policy, legislation and enforcement for meaningful treatment.

“Mining companies have known about the disease, and its prevalence, for more than 100 years. By 1925, the government had enacted nine pieces of legislation which dealt with silicosis. ”

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Esidimeni and the State Scapegoat

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reventing an ‘Esidimeni tragedy’ from happening again depends only in part on adequate leadership, expertise and government commitment. Even if adequate resources were allocated and flawless plans had been made, the problem would remain unsolved. There is a profound flaw in the system: the misdirected application of the conventional mental health diagnostics model which is currently in place.

During the course of 2016, the Department of Health began moving patients from Life Esidimeni to various Non-governmental Organizations (NGOs) around Gauteng. A report released by the Health Ombudsman, Professor Malegapuru Makgoba, reveals that between the 23rd of March and the 19th of December 2016, over 94 mental health patients died in the province. Then-MEC for Health, Qedani Mahlangu, who has since resigned, claimed that the reasons for moving the patients included financial instabilities and the attempt to meet the provisions of the policy to deinstitutionalise.

This claim seems flawed, since the report itself admits that “[d]einstitutionalisation has progressed at a rapid rate in South Africa, without the necessary concurrent development of community–based services. This has led to a high number of homeless mentally ill people, people living with mental illness in prisons, and revolving-door patterns of care”. Furthermore, the South African Society of Psychiatrists (SASOP) predicted that the move was ‘premature’ and would cause significant harm to the patients.

It was reported that all 27 of the NGOs that received the patients from the Life Esidimeni Hospital were neither equipped nor licensed to deal with the complexities which care for mental health patients presents. The patients’ families were not informed of the moves, nor notified timeously regarding the deaths of the patients. Over and above the infringement of the right to access adequate healthcare, this scenario reflects an infringement of the rights to equality, dignity and life.

The failure on the part of the South African government to prevent this tragedy was condemned on an

by Rosie Buckland

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ALTUM SONATUR international level. The United Nations Health Systems Report exposed the event as a failure in terms of the country’s international law obligations. UN reporters say that while deinstitutionalisation is important, the method needs to be executed properly.

The Esidimeni tragedy presents a crucial point in our social and political climate as it highlights the urgency for reform in South Africa’s mental health system. It should not only result in another condemnation of poor departmental initiative and lack of resources. This is no revelation. We must seek also to solve another, unseen problem which the Esidimeni tragedy begs us to address. This relates to the actual mental health model in place. Instead of perpetuating the use of the same mental health diagnostics framework to categorise patients, we should focus on systemic issues which produce certain outcomes of mental distress.

So, then, who is actually accountable?

The Diagnostic and Statistical Manual of Mental Disorders (the DSM) is referred to globally for diagnosing mental disorders and it is implemented in South Africa. It has been argued that the DSM is flawed because the external factors that influence an individual are under-determined when treating the patient. For example, when a person is subjected to subordination and a lack of resources, and is left without ambition for a better life, their mental health is likely to be affected. The DSM also conflates distress and disorder. For instance, an under-

“The Esidimeni tragedy presents a crucial point in our social and political climate as it highlights the urgency for reform in South Africa’s mental health system.” standable response to a distressing event could be seen as a disorder because a number of symptoms that are in line with the DSM’s diagnosis are present. This is where the danger lies. Because there is such a focus on mental disorder, there is no proper investigation into the social external issues which cause these distressing responses. In such situations, the symptom is being treated, while the root of the cause continues to exist, without being attended to.

Not only are patients being misdiagnosed, but the entire psychotherapeutic model in South Africa is underutilised. Reasons for this include preferences for traditional and faith healers, the failure of the imposed mental health framework in recognising the role of culture in health outcomes, and general mismanagement. Put simply, it is not appropriate to transpose a predominantly alien mental healthcare system to a South African context. There is no doubt that certain mental disorders are genetic or arise from outcomes unrelated to external impact. However, there have also been exhaustive studies showing the link between poverty and mental health. So, why is this not incorporated into the approach to mental health diagnostics?

There is clearly a need to restructure poor leadership, skills and implementation within governmental departments. That will never go away. However, this approach on its own will never solve the problem we face of ensuring the right of access to healthcare is directed appropriately to mental health patients. The current framework that is being half-heartedly implemented in South Africa needs to undergo as much scrutiny as the people responsible for the Esidimeni deaths. The approach to mental health in South Africa must become more context-driven. It must be committed to tackling the perennial systemic issues we are confronted with in other sectors. Then we can talk about the right of access to healthcare.

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Graphic by Carla Phillips

The Damages Dilemma

Is Compensation for Non-patrimonial Loss Appropriate? by Eshed Cohen 10 copy.indd 10

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on-patrimonial loss refers to non-economic or non-pecuniary loss.

Sentimental loss, dissatisfaction, mental suffering, loss of amenities of life, disfigurement, and deterioration in general health are all examples of such loss. Non-patrimonial loss is generally not quantified or priced. However, in various contexts, the law allows a party to claim monetary damages for non-patrimonial loss. A famous example is Jarvis v Swans Tours Ltd [1972] EWCA 8. Mr Jarvis, the plaintiff, was awarded £125 for the disappointment he experienced when his holiday package to Switzerland turned out to be a sham.

The issue briefly explored here, as part of a broader discussion on the law and healing, is whether the law should allow a party to claim monetary compensation for non-patrimonial loss.

If the purpose of damages (either contractual or delictual) is to compensate an aggrieved party for some legitimate loss, then damages for non-patrimonial loss seem justified. The aggrieved party has experienced some sort of ‘loss’. It is unclear, at least on the face of it, why the patrimonial nature of the loss should affect the availability of compensation. To provide compensation for patrimonial loss only would imply that we value patrimonial loss over non-patrimonial loss. But it is unclear on what grounds we could do so. Non-patrimonial loss is equally important, and could be equally devastating, as patrimonial loss.

But while non-patrimonial and patrimonial loss may be of equal moral concern, there are other considerations that could undermine the value of legalising damages for non-patrimonial loss. For starters, money may not be able to compensate for non-patrimonial loss.

Instead, the litigants should be encouraged, where ap-

“If the purpose of damages (either contractual or delictual) is to compensate an aggrieved party for some legitimate loss, then damages for non-patrimonial loss seem justified.”

propriate, to seek other, more meaningful remedies like mediation, apologies, or reconciliation. Further, if the law allows damages for non-patrimonial loss, it might communicate that our emotions and psychological well-being can be commodified. This runs counter to the value we place on, or at least the distinction between, material things and our psychological well-being.

However, it is difficult to say that money will never compensate (even partially) non-patrimonial loss. Money can be a symbol of reconciliation, or provide access to further goods (like a proper trip to Switzerland) which could compensate for the non-patrimonial loss. Often, access

ALTUM SONATUR to material goods can improve our psychological state. It would all depend on the facts of the case.

Nevertheless, there could be a separate concern regarding the arbitrariness of quantifying non-patrimonial loss. By definition, non-patrimonial loss has no monetary value. To quantify the compensation owed is thus an arbitrary exercise. In this sense, liability for non-patrimonial loss is ‘limitless’. There is nothing to guide or justify pricing non-patrimonial loss. This is undesirable because we should not demand people to do arbitrary things (especially at some expense to them). It is also arguably unconstitutional. Section 25(1) prohibits any law from arbitrarily depriving someone of their property.

Would we say that quantifying non-patrimonial loss is arbitrary? On what grounds could we say that Mr Jarvis’s disappointment merited £125? We often quantify our emotional states in other contexts. We also regularly distinguish between serious and less serious instances of pain and suffering. For instance, doctors may ask patients to place their pain on a scale of one to ten. We then act in accordance with this quantification of happiness or suffering. Certain amounts or types of medicine are prescribed.

Or certain conduct is engaged in depending on the ‘level’ of pain. For example, we recognise that intensive assistance may be necessary to deal with trauma borne by war. But far less is required to remedy the disappointment caused by one’s favourite sports team losing a match.

It seems relatively clear that we generally can rank various instances of pain. Could we not then argue that quantifying non-patrimonial loss is in accordance with these established guidelines? If this is the case, then quantification would not be arbitrary, but a reflection of how society ‘values’ instances of pain. The higher the quantification, the more intensive we think the non-patrimonial loss is.

But this answer assumes that the system we use to quantify or rank all pain is itself a legitimate system that should dictate scopes of liability. We certainly should not assume this, for it could quite easily be an illegitimate system. For example, throughout history, certain kinds of pain (like psychological pain) were seen as necessarily lesser to physical pain.

The issue of quantifying non-patrimonial loss thus becomes one of how we justify ranking instances of pain and suffering. The most obvious hurdle to doing so is that on many occasions, distinct instances of pain should not be compared. There is a difference between distinguishing pain for the purposes of medical or therapeutic remedies, on the one hand, and quantifying pain on the other. Trauma and a fan’s disappointment are distinct because they need different remedies to restore the status quo. But to argue that they are of the same kind, but different in degree, may be inappropriate. We could argue that the soldier and the fan’s respective experiences are totally different. They thus should not be quantified on the same scale.

Ultimately, the question of non-patrimonial loss raises interesting questions for private law. These questions cannot be fully answered here. But if we are to deal with the law’s ability to heal, they must be considered.

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The Buddy Box

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he ‘Buddy Box’ is a self-care companion initiated by the Blurt Foundation. The Foundation aims to increase awareness and understanding of mental illnesses such as depression, while also offering support. Law school can be tough, and while you may think that you’re tougher, we all need to take a self-care day every now and again. Here’s a list of things to do on your day off as well as instructions on how to compile your own “Buddy-Box”: 1) Write, Write, Write!

- Just because you are in university doesn’t mean that all your ink and paper should be used for doodling notes during 8am lectures! Journaling has proved to be one of the most effective tools for understanding and expressing emotions.

2) Comedies: - Netflix doesn’t always have to be reserved for chilling. Laughing is definitely a good way to improve your mood – even if it is only temporarily! Here are my picks for the best light-hearted comedies to watch: Brooklyn Nine Nine, Rick and Morty, Master of None, Devious Maids, Bob’s Burgers, and Archer.

3) Plan your life: - When everything feels like it’s crashing down

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Because sometimes it’s okay, not to be okay.

By Priyanka Naidoo around you and there’s a pile of work on your desk, breaking it down into smaller tasks can be super helpful! Make a checklist so that you can tick off tasks you’ve completed, which will motivate you as well as help decrease your stress!

4) Positive affirmations: - Law school is always giving out freebies, so if you have a pack of sticky notes lying around, write yourself positive affirmations and stick them on your mirror or bedroom door so that you can read them whenever you’re in your room. We all need a pick-me-up every now and again!

Make your own Buddy Box!

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You will need: 1x empty shoe box/ any box with a lid 1x decorative paper/ gift wrap of your choice 1x sellotape 1x permanent markers

Instructions: -

Cover the shoe box in gift wrap or plain paper (if you want to use the box as a canvas for doodles).

- It’s important that the box has a lid so that it can be easily stored away!

- Get creative! Personalise your box with whatever makes you happy! Spray your favourite perfume into the lid or keep a special memento in your box such as a figurine from your childhood.

- Lastly, write yourself a note of positive affirmation on the lid of the box. This can be a quote from someone or just something you need to hear when you’re having a rough day

Things to include in your Buddy Box: • Tea/Hot chocolate/Coffee sachets: because warm beverages are basically hugs in mugs • Non-perishable sweets: think jelly tots, chocolate bars, marshmallows etc • Your favourite book: there’s never a better time to get lost in a novel than when everything feels like it’s too much • Colouring book: whoever said this was only for kids aged 5-11 was very wrong. Art therapy has proven itself to be one of the best coping mechanisms for anxiety. So print out a template and get colouring!

• Bath bomb/Favourite shower gel: taking a bath or shower helps to relax your muscles and ease tension, and there’s nothing better than smelling like your favourite bath bomb all day!

• Warm socks: nothing says Do Not Disturb like wearing socks as shoes for the entire day!

• A notepad to write down all your thoughts and feelings.

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CAN KRAMER BE HEALED?

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Analisa Ndebele

n the 10th of March 2015, when Chumani Maxwele threw faeces on the Rhodes statue, UCT changed forever.

It was then that I fully realised that institutions were political spaces constantly experiencing power-struggles.

Until then, the University was simply an extremely difficult space I had to navigate to secure a better future for myself. An enjoyable university space was unimaginable for me, it was simply a case of enduring until the finish line. In fact, this is what most black students are told to do when we go home: to persevere. Having just transferred from the science faculty to law school, I had no idea that the act of persevering was about to get much harder.

Kramer holds in its glass-and-brick edifice, all the resources needed to excel in one’s studies and career, but it seems to make success attainable only for a select few.

As a black female student, my experiences in the faculty have been met with insurmountable challenges which have shaped my academic career. My experiences are certainty not isolated. Since 2015, there have been several faculty assemblies and confrontations which have highlighted the profound racial fissures within the faculty and between students and lecturers. From these discussions it became clear that the overwhelming feeling of the black

student body was that the faculty was highly exclusionary.

This is due to, among other things, a largely white faculty, which for the most part, could not or would not under-

“From these discussions it became clear that the overwhelming feeling of the black student body was that the faculty was highly exclusionary.” stand the nuanced experience of black students. For this reason students feel isolated from faculty members and cannot access them with the same ease as white students.

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ALTUM SONATUR This affects academic performance.

My love for the law was quickly replaced with the fear of not passing course(s) when, despite hard work, I realised how easily one could just scrape through or perform poorly altogether – be it because of the language barrier, or the debilitating fear of asking or answering a question, because it will lead to your embarrassment (most black students tend to not participate in lectures). The curriculum remains largely untransformed, with many courses re-enforcing a colonialist and racist ideology, emphasising a restrictive jurisprudence focused mainly on the coherence of positive law. Additionally, relations between black and white students in 2015 and 2016 in the faculty where racially charged and reactions to the MustFall protests often polarised the student body, exposing an underlying tension. Is it possible for the faculty to heal itself of these deep-rooted issues, and create a space where we can begin to re-imagine and re-create the faculty?

The ability for Kramer to heal is intricately linked with my ability, as a black female student, to own and use this space and pave the future which I – and my family – so desperately aspire towards. When I imagine a healed Kramer, I see an institution that recognises everyone’s potential growth as the main priority. Unfortunately, this naïve thinking is often crushed by the daunting feeling of graduation being an untenable goal for some students, with certain aspects of our identities as the main deterrent(s): being black, female, disabled, queer, lower class – the list is endless. However, we must ensure that we keep trying to heal the space, if not for ourselves, for those who will come after us.

The project of healing requires that several institutional changes be made, identified in part by Rhodes Must Fall and the decolonial agenda. The faculty needs more lectures of colour and the change of the curriculum continues to be an urgent and necessary requirement in the healing process. Content needs to move towards an African Jurisprudence, and must re-evaluate the key legal concepts of theories imported from European law. The faculty can no longer continue to overlook the ways in which racial identities and hierarchies have woven themselves into social systems like the law, particularly in South Africa. The faculty and student body must work to address this oversight by developing a post-apartheid critical race theory, as leading scholar Joel Modiri suggests, as a starting point for re-imagining the curriculum. This critical legal education is an alternative to traditional approaches which emphasise individual autotomy, colour-blind constitutionalism, and race neutrality, currently preferred by

Graphic by Wandile Dlamini the faculty. This is tough but necessary work if we are to begin to heal the faculty.

Lecturers must expressly and with intention make lectures more accessible by showing care for students, and begin the work of critiquing dominant ideologies in the law and promoting an interdisciplinary approach to the law. The experiences and needs of students should inform policy decisions which seem to apply neutrally, but which adversely affect a specific group of people. To heal, the faculty needs to be willing to hear the needs of students and change resistant structures. This requires effective dialogue and compassion. Faculty members must recognise that the burden lies largely with them to work to heal this faculty and make it a place for academic and personal growth for every student. Kramer will never heal if these steps are not taken, and this will be to the detriment of all who work and study here. Students can, at most, work to do their own individual healing after a difficult two years at UCT and must continue, as I do, to persevere.

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Sex work and the law

by Linda Mkhize

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Images by Robert Hamblin Images captured in collaboration with Sistaaz’ Hood support group for transgender women at the organisation Sex Worker’s Education and Advocacy Task force (SWEAT) 2017/08/21 10:58 AM

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he South African Law Reform Commission (SALRC) recently released their recommendations on sex work, or ‘prostitution’, as they repeatedly referred to it in their report. The legal models that were considered in relation to sex work were: 1. Full criminalisation – whereby anyone who provides sex, buys sex and/or profits in any way from the sale of sex is in breach of the law.

2. Partial criminalisation – which criminalises the buyer or other role-players and not the sex worker.

3. Full decriminalisation – whereby anyone who provides sex, buys sex and/or profits in any way from the sale of sex is free to do so.

4. Full legalisation – which involves regulating the legal buying and selling of sex.

Unfortunately, in a missed opportunity to make a positive change, the SALRC endorsed either full criminalisation or partial criminalisation. In doing so, the Commission failed to give necessary regard to the fact that decriminalisation would allow sex work to be rightfully recognised as work. This would then allow sex workers to access their employment and occupational rights and therefore aid the formation of safer and more supportive working spaces through the provision of benefits such as maternity leave and access to healthcare. Moreover, since sex workers are often construed as helpless, decriminalisation provides an important platform for them to exercise greater agency through which they can realise the right to self-determination with regards to the manner and conditions under which they work.

Access to healthcare is a particularly important component in the fight for the rights of sex workers. Many people who oppose the decriminalisation of sex work, thereby refusing to recognise the rights of sex workers, often base their views on the argument that legalising sex

work will contribute to the HIV/AIDS epidemic in South Africa. However, a number of studies, such as the study conducted by Lancet researchers in 2014, have illustrated that legalisation or decriminalisation of sex work could drop HIV infections among sex workers by almost 50%. Currently, and as a result of the criminalisation of sex work, access to healthcare for HIV/AIDS and STI testing is poor. This is further aggravated by the fact that occasionally sex workers will have their condoms and other forms of protection confiscated by the police. Thus, the decriminalisation or legalisation of sex work would create opportunities to improve the quality of healthcare which sex workers can access.

Equally important to physical well-being, is mental well-being. In a study by Swiss researcher Rossler and colleagues in 2009, it was noted that mental illness (such as depression, anxiety and post-traumatic stress disorder) can be a consequence of sex work. The study expands on the fact that sex workers who work in illegal brothels experience more mental health issues than those who work in legally-recognised studios and as professional escorts. The mental health issues faced by sex workers are in part due to the violent, pressured and non-supportive working conditions that they often endure. Hence, while decriminalising or legalising sex work cannot entirely eradicate these issues, it would certainly alleviate them by providing sex workers with better working conditions which are more likely to ensure mental well-being.

A further opportunity to heal the relationship between the law and sex workers which was not taken up by the SALRC was that of the police’s often brutal treatment of sex workers. Police officers are one of the biggest threats to sex workers, with many reported cases of police officers physically and sexually abusing sex workers.

Decriminalisation would involve reformist sensitisation of the police and other authorities on the treatment and protection of sex workers. The Asijiki Coalition to Decriminalise Sex Work in South Africa is attempting to facilitate the repair of this relationship. It has produced suggestions and policies on how the police force could better serve and protect sex workers. These suggestions include increasing CCTV cameras, and ensuring good lighting and police presence in the areas in which sex workers operate. The Coalition goes on to mention that this would only work if a sense of trust is established between the two parties. Moreover, it emphasised the importance of sex workers being able to press charges against the police should they be subjected to unfair treatment or abuse.

While the decriminalisation of sex work does provide opportunities to improve the lives of sex workers, it must also be recognised that it is not a perfect solution.

Even with legal reform, there is still stigma towards sex workers which needs to be deconstructed. However, the decriminalisation of sex work will at least begin the implementation of existing solutions from the perspectives of sex workers and activists. Working from a position in which sex workers’ voices are prioritised when conceptualising the legal approach to sex work, we can begin to provide a safe and supportive environment for sex workers in South Africa.

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HEAL THE WORLD

The Climate Change and World Trade Nexus by Kelsey Pailman

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he Paris Agreement, concluded in 2016, is the Eiffel Tower of international agreements in the global effort to combat climate change. The agreement stands as a glistening beacon of hope which sees the convergence of states from across the globe making a commitment to reduce their carbon footprints. The main objective of the treaty is to work towards the common goal of mitigating climate change by keeping the global temperature rise in this century below 2 degrees Celsius. It furthermore aims to increase the resilience of

countries and equip them with the tools to adapt to the imminent threats of climate change. Like the architecture of the Eiffel Tower, the agreement follows a bottom-up approach: instead of dictating to state parties how to address climate change, the treaty creates goals that state parties must strive towards. Since the US has regrettably decided that ‘Paris is not always a good idea’, and has pulled out of the treaty; the other 155 state parties to the agreement are now at a crossroads in deciding how exactly consensus on paper will turn into practice. As states have a duty to fulfil their international law obligations, the relationship

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The past decade has been characterised by a global wave of international trade. The inception of the World Trade Organisation (WTO) has further facilitated efficient trade relations between countries, by reducing trade barriers and creating a competitive international market place in which goods and services are exchanged. Trade has often been viewed as perpetuating global warming, because increased economic activity through trade liberalisation could lead to higher levels of greenhouse gas emissions.

Carbon emissions resulting from the transportation of goods traded has also given rise to concerns regarding the role of trade in climate change. Notwithstanding these concerns, trade does indeed have an important role in modern society by promoting economic efficiency and enhancing competition. Because trade is inevitable in a globalised society such as ours, it is important to ascertain whether it is possible for trade to be a friend, rather than foe, in the fight against climate change.

One of the key ways in which trade can mitigate the effects of global warming is by promoting the exchange of environmentally friendly goods and services amongst countries. A report published by the Convention on the Organisation for Economic Co-operation and Development (OCED), indicates that the past 10 years has seen a greater demand for products and services being produced by the ‘green economy’ than those originating from the traditional ‘brown economy’. Green products include solar panels, wind turbines, and hydropower turbines, as well as tanks for biogas production. Green services also include nature and landscape protection services which seek to preserve ecological systems during the global climate crisis. Presently, many countries impose high tariffs on low carbon goods and services. Organisations such as the WTO will therefore need to play a key role in the liberalisation of these markets by ensuring that green goods and services are less expensive and therefore more accessible. Furthermore, many OCED countries, such as Australia, Canada and China, are currently in the process of negotiating a multilateral Environmental Goods Agreement (EGA). Once in effect, the treaty is anticipated to impose a zero import tariff on certain green goods and services. Agreements such as these will be vital to ensuring that trade serves as an effective tool in combatting climate change.

For the objectives of the Paris Agreement to be realised through trade, it is not sufficient that trade barriers

on the exchange of green products and services be eliminated. It is also important that trade restrictions, such as tariffs, are imposed in respect of carbon-intensive goods and practices. This, however, could lead to potential violations of the General Agreement on Tariffs and Trade (GATT). Articles I:I and III:4 of the GATT provides for a prohibition on the discrimination of ‘like’ products in terms of trade. This means, for example, that carbon-intensive products may not necessarily be treated less favourably than products of a similar nature which are not carbon-intensive. An exception to this prohibition on discrimination is, however, accounted for in article XX of the GATT. Article XX (b) provides that certain trade restrictions may be placed on products to promote human, animal and plant life. Article XX (g) furthermore provides that the discrimination against ‘like’ products is permitted where the conservation of an exhaustible natural resource is at stake. Professor Bradly Condon from the Instituto Technologico Autonomo de Mexico (ITAM) claims that global climate change mitigation fits well within the ambit of these sections and is therefore in compliance with the GATT. The push for increased global trade of low carbon products and services will not come without opposition, as the development paths of many nations across the globe are inherently carbon-intensive. This push will likely result in a tug of war between advancing the objectives of the Paris Agreement, while protecting established carbon-intensive industries, and the trade of carbon-intensive goods, particularly fossil fuels. The exit of the US from the Paris Agreement is an apt indication of fossil fuel protectionism.

This is worrisome given that the US is the second largest emitter of carbon dioxide emissions in the world. In other parts of the world, however, there appears to be a ray of solar light at the end of the tunnel. The German Energiewende, for example, which provides for the transition from a carbon-intensive to a green energy pathway, could create fertile conditions for green energy trade.

While trade cannot be viewed as a panacea for healing the world, it nevertheless has potential to assist in remedying the ills of the global climate change crisis.

“For the objectives of the Paris Agreement to be realised through trade, it is not sufficient that trade barriers on the exchange of green products and services be eliminated”

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Humans of Kramer Question: How do you heal in Kramer?

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“I don’t think anyone can ever heal. It’s traumatising and scars you for life! ” Moses Mathini Masters: Intellectual Property

“I remind myself of the reasons I am here, and use them as my anchor. I just take it one day at a time. ” Luyanda Ntsingila Prelim B

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“I don’t know how to heal! ” Azola Futshane Masters: Intellectual Property

“Interacting with students every day enables me to let go of the “I have it all figured out” façade that many law students have.”

Clive Mukubvu Prelim B, combined stream

“I do not need to heal; I just have to focus on getting my degree! ” Nsengimana Jovenac Masters: Human Rights Law 21 copy.indd 21

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Differen the Dis betwee and Wh Aparth New Co Dispen

Zinhle Novazi 22

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fference across e Distance tween Black d White: Spatial artheid in the ew Constitutional spensation

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n order to begin the process of healing, we need to acknowledge that the lived experience of black South Africans is one of social and economic exclusion, and racial discrimination.

According to Abahlali, the quintessential locality of the ‘other side’ of the line means that you are often forgotten and left behind on the journey across the proverbial bridge to the new South Africa. In line with Abahlali’s argument, years after the political transition, race remains the sharpest distinguishing factor between the haves and the have-nots. It is clear that the legacy of this oppression continues to persist in post-apartheid South Africa with wealth, education, and power being largely divided along the lines of race and class. More-

over, there is a pronounced correlation between race and access to resources, and between access to resources and prosperity, good health, quality education, living standards and safety. South Africa needs a more drastic and effective use of section 9(3) to address structural racial inequality. By holding the state accountable for its failure to undo spatial apartheid, we could potentially transform section 9 into a far more powerful tool to address the effects of racial discrimination and provide the healing this nation needs.

Spatial Apartheid Residential segregation is a social injustice, because disadvantaged black inhabitants of poor neighbourhoods are condemned to unemployment by the very spatial isolation they find themselves experiencing. The existing inequalities in employment, education and social services are further exacerbated by the territorial stigmatisation of disadvantaged black inhabitants of segregated neighbourhoods. This means that the injustice does not only appear in the form of a lack of material possessions and low income, but rather that the injustice also lies in confining disadvantaged black communities to poorer neighbourhoods. This deprives disadvantaged black people of an opportunity to build their own self-representation and collective identity. This form of deprivation touches on the intrinsic value of human dignity.

The result of spatial apartheid is the lingering racialised discrepancy in access to social and economic opportunities. Spatial segregation brings about other forms of inequality, such as lack of access to mobility. Geographic inequalities in settlement and migration patterns mean that access to economic and other opportunities in the cities is dependent on mobility within the city. Spatial inequality in the new constitutional dispensation adds to the group disadvantage of black people by deepening existing structural inequality.

Racial Discrimination In Walker, the Constitutional Court found that there were discrepancies in service delivery between formerly white and black neighbourhoods in Pretoria.

Moreover, the court held that in this context, spatial inequality may amount to indirect, unfair discrimination on the basis of race. On this basis it can be argued that the state’s failure to undo spatial apartheid when it has an indirect discriminatory effect, amounts to indirect, unfair discrimination on the basis of race. Spatial inequality is incompatible with the value of substantive equality, and therefore implicates the right to equality and its prohibition of unfair discrimination.

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Page 23 Continued Section 9(3) states that, “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race…”. Section 9 does not pro-

towns and between white and black communities. The second determination asks whether the differentiation bears a rational connection to a legitimate government purpose. If there is no rational connection to a legitimate government purpose, then the conduct is in violation of section 9(1). Section 9(1) of the Constitution makes provision for equality before the law and equal protection and benefit of the law, for everyone. There is no rational connection between maintaining spatial apartheid and a legitimate government purpose. The failure to undo spa-

vide a definition of discrimination. According to section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) ‘discrimination means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly- (a) imposes burdens, obligations or disadvantage on; or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.’

According to the Harksen test, the first determination to make is to establish whether the challenged law or conduct differentiates between people or categories of people. The failure of the state to undo spatial apartheid results in a differentiation between black, disadvantaged communities and white, affluent communities. This is because there is an unequal distribution of resources, infrastructure, and amenities between urban and rural

tial apartheid differentiates between black communities and white communities, which is differentiation on the listed ground of race. Thus discrimination has been established. According to stage two of this part of the test, one must establish if the discrimination amounts to unfair discrimination. According to section 9(5), if the discrimination is based on a listed ground in section 9(3), there is a rebuttable presumption that the discrimination is unfair.

Discrimination on the ground of race is a listed ground in section 9(3), therefore the discrimination amounts to unfair discrimination.

Application to Spatial Apartheid a) Access to housing There is an alarming disparity, characterised by racial inequality, between the houses located in urban peripheral and rural areas, and those in urban areas in

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ALTUM SONATUR South Africa. Cape Town’s most affluent suburbs and disadvantaged townships illustrate this dichotomy very well. Clifton is characterised by an overwhelmingly white, affluent population. The houses in this area are enormous, and its residents have the luxury of being in close proximity to the beach, and enjoy a scenic view of Cape Town. The lavish lifestyle and wealth in this and other similar areas plays into the idea that being white, and the attainment of whiteness, are the highest ideals of emancipation and human progress in South Africa.

Khayelitsha, on the other hand, is characterised by a black, disadvantaged community.

The majority of the houses are either shacks or RDP houses, which resemble the old apartheid matchbox style. The residents of Khayelitsha face issues of service delivery when it comes to accessing sanitation services, refuge services and social services, to name a few. Thus, there is an urgent need for the state to undo spatial apartheid, by building state-funded houses near city centres or by subsidising inner-city accommodation for disadvantaged black communities. b) Education The spatial segregation policies of apartheid have had a lasting impact on the inequality of opportunity to high-quality education. Former Model C schools are situated in affluent neighbourhoods, which makes them geographically inaccessible to black students living in rural areas; moreover, they are also financially inaccessible. Former Model C schools or good public schools in urban areas only accept students who fall within their feeder area; this means that black students who do not fall in the feeder area are confined to schools in rural areas or urban peripheral areas. The link between affluence and educational quality in South Africa results in the poor receiving a far more inferior quality of education when compared to their wealthier white counterparts. Low quality education is a poverty trap. Offering inferior quality education to poor black learners disadvantages them in the labour market and entrenches their poverty. c) Health care In terms of access to health care, there is a tremendous difference in the quality of services that one receives in public hospitals in rural and urban peripheral areas, compared to public hospitals in affluent areas. According to the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), the right to have access to health care services includes the physical accessibility of health care facilities and services. This means that transportation to health facilities needs to be provided.

However, the provision of transportation fails to address the root problem, which is that public health care facilities in rural and urban peripheral areas are understaffed and have a lack of resources, and as a result, at times may have to turn patients away. d) Mobility Black, disadvantaged communities that live in rural or urban peripheral areas and work in urban areas often

The failure of the state to undo spatial apartheid results in a differentiation between black, disadvantaged communities and white, affluent communities. This is because there is an unequal distribution of resources, infrastructure, and amenities between urban and rural towns and between white and black communities.

have to spend a lot of money on transport. According to the Quality of Life Survey, 70% or more of people with household incomes below R6 400 per month use public transport. This figure drops to 58% for monthly household incomes in the R12 800 bracket, to 34% for monthly household incomes in the R25 600 bracket, and to 21% for monthly household incomes in the R51 200 bracket. This means that the socio-economic capital of black people is negatively affected by the barriers that they face in accessing the city centre. The data shows us that black people with the lowest incomes continue to be the bear the brunt of high transport costs because of spatial apartheid.

In conclusion, the most effective way to address racial structural inequality and discrimination is to hold the state accountable for its failure to undo spatial apartheid, rather than focusing on individual acts of discrimination. This can be done by arguing that the failure to undo spatial apartheid by the state amounts to indirect, unfair discrimination on the grounds of race. Moreover, this will create the benefit of transforming section 9 of the Constitution into a far more effective mechanism for addressing the effects of past oppression and racial discrimination.

Spatial apartheid in the new Constitutional dispensation deepens the group disadvantage of black people, by creating inequality in education, health and access to resources between white and black, as well as between urban and rural residents. The solution is to eradicate spatial apartheid so that disadvantaged black communities can live in close proximity to city centres, so that they too can make use of the amenities, social services and resources that have been limited to white, affluent communities.

The state would have to ensure that state-provided lowcost housing is available in urban areas in close proximity to city centres, or alternatively the state could subsidise inner city accommodation for disadvantaged black communities. This means that more black people would be living near city centres and they would be able to access better schools and health care centres, and receive better quality education and health care. Can you begin to imagine a more equal South Africa, a South Africa that is no longer divided along racial lines?

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COntrib

Eshed Cohen Senior Editor

Analisa Ndebele Secretary General

Zinhle Novazi

Joseph Mayson

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ibutors

Kelsey Pailman Senior Editor

Asiphe Mdutywa Photographer

Linda Mkhize

Rosie Buckland

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Crossword

Read the magazine and then answer the crossword! Send a photo of your answer to altumsonatur@gmail.com. The first correct answer will receive a R150 gift voucher to the Creamery! Once a winner is chosen, the correct answer will be posted on our Facebook and Instagram pages.

Across

Down

2. What does the letter ‘P’ stand for in the acronym ‘SASOP’?

4. What does Germany call their transition from non-renewable to renewable energy sources?

6. Where were the photo(s) on the cover taken?

7. What is the name of the Swiss researcher whose research shows that mental illness can sometimes be a consequence of sex work?

9. Which leading scholar in African Jurisprudence suggests developing a postapartheid critical race theory?

10. Which self-care method has been proven to be one of the most effective tools for understanding and expressing emotions?

1. In which case did the Constitutional Court find that discrepancies between service delivery in different areas amounted to unfair discrimination?

3. Which disease are people affected by silicosis likely to contract?

5. Which test is applied to determine unfair discrimination?

8. In which famous case did a man receive patrimonial damages for his disappointment over missing a holiday?

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