Altum Sonatur: Progress

ALTUM SONATUR

ALTUM SONATUR

Volume 8, Edition 4

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CONTENTS The White Boys Club

Is The Future Really Yours?

8 In Conversation With The Women’s Legal Centre

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10 Final Year Dance Comm Report

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Global Poverty From A Human Rights Perspective

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Mandatory Disclosures of Sources o Political Pa Funding

Decriminalis Marijuana

Crossword

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Editors’ Corner

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datory osures urces of cal Party ing

Data As The New Currency

minalising uana

Papali Ea Bolo

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16 LSC Report Back

Contributors

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Humans of Kramer

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Altum Sonatur 2018 Committee

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Layout Design by Ashley Jane Seymour

Your Honour vs Mr Robot

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Editors’ CORNER

by Emma Reinecke

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ne (of the many, many things) I’ve learned this year as Editor-in-Chief of Altum Sonatur is the importance of having a good – no, an excellent – team. Putting together a magazine requires a lot of dedication, hard work and vision. I’m so glad to have had so many intelligent and innovative people around me helping to drive the magazine forward. It’s been an honour to work with all of you.

First of all, thank you to Lauren, Altum’s deputy and copy editor, for all her hard work. I’ve seldom come across anyone as organised, conscientious and dedicated as she is, and I certainly wouldn’t have been able to manage without her. The rest of the team have been invaluable. Our treasurer, Siphokazi, who’s made sure each edition has actually seen the light of day. Our editors, Nigel, Kelsey, Eshed and Natasha, who’ve worked tirelessly to help guide both burgeoning and experienced writers. Priyanka, our social media co-ordinator, for keeping Altum on the digital map. Analisa, our secretary-general, for her breezy announcements and especially for all her hard work on our launch events. Asiphe, our photographer, for her stunning photography and positive spirit. Thank you to our designers, Micha and Ashley, for giving Altum its visually pleasing, professional look. And of course, thank you to our contributors – the writers, poets, artists, photographers, and graphic designers who are too many to name individually and who’ve

all worked hard on their respective pieces. Thank you also to our readers, without whom there would be no magazine at all.

To Kelsey and Lauren, the incoming Co-Editors, I wish you the best of luck - although I know you won’t need it! I couldn’t be happier leaving the magazine in your more than capable hands. I know you’ll continue to uphold Altum’s legacy of producing high-quality, thoughtful and aesthetically creative magazines. I can’t wait to see what you do with Altum!

“Putting together a magazine requires a lot of dedication, hard work and vision.”

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hat does progress look like? Our journey through university can often feel as though we are climbing one perpetual staircase. As students in Kramer, we have all had to embark on the long and arduous journey from Middle to Upper Campus. Panting for our breaths, sleep-deprived and bewildered by fresh faces, we face daily the giant that is Jammie Stairs. When we finally reach the top, with a sigh of relief, we are then able to marvel at the mountain, the views of the city, and enjoy the small victory of a successful summit. But the feeling always seems to be short-lived – no sooner have we reached the top, than we begin to brace ourselves for the climb that is getting to the 6th floor of Leslie Social.

The analogy of Jammie Stairs is a useful one to explore when seeking to capture the nature of progress. Is progress simply moving from one place to another? Is it the struggle – or the lessons learned – along the way? Or is progress that peaceful and passive moment of reflection at the top? How can doing the same thing over and over again be called progress?

Again, what does progress look like?

And is our society, our legal system, our faculty, achieving it? This was the driving question which motivated this final edition for the year, and the first edition for the 2018 committee. Progress is often a hard concept to articulate or visualise. To confine the complexities and dynamic nature of progress to a strict linear conceptualisation would not be desirable. It is, however, important to constantly evaluate our socio-economic, legal and political landscape and observe the direction in which we are heading. This edition of Altum Sonatur serves to do just that. What will life after law school be like - will the Cape Bar ever undergo real transformation, and will robot judges ever be a reality? What is the law currently doing to give full recognition to Muslim marriages? Should data be considered a human right? How far does the law go in recognising global poverty as a fundamental violation of human rights? These are just some of the issues which we interrogate in the pages that follow.

Over the years Altum Sonatur has itself has evolved and transformed into the magazine that it is today. We are especially thankful to the incredible 2017 committee for the hard work and vision that culminated in thought-provoking editions throughout this year. The amazing captain of our ship,

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by Kelsey Pailman and Lauren Gildenhuys outgoing editor-in-chief Emma Reinecke, has left the sails in our hands and we hope to make her proud. This year Altum Sonatur seeks to be as dynamic and diverse as the landscape surrounding us. As the incoming committee, we are determined to continue to provide critical, informative, insightful content for our readers. We hope you enjoy this first edition, and we look forward to serving you in the year ahead.

Kelsey Pailman and Lauren Gildenhuys Co-Editors-in-Chief

“ Is progress simply moving from one place to another?

Is it the struggle – or the lessons learned – along the way? Or is progress that peaceful and passive moment of reflection at the top?”

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Your Honour vs Mr robot Examining the advent of artificial technologies in judgments

by Mohini Karappian

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hen thinking of who sits on the bench in a court, the visual that usually springs to mind is one of elderly people clad in robes, perhaps even wearing wigs, generally sporting pensive faces.

One would not immediately think of a smiling, three foot tall electronic robot passing a sentence. This visual, however, is now becoming a reality. Robot judges do exist.

There are both pros and cons to the concept of having robots as judges instead of humans.

The idea of artificial intelligence robot-judges originated in China. These robots were designed to alleviate the congestion of the courts by passing sentences in place of the usual human judges. The purpose of these robots is to provide advice on the sentence that is to be passed, review documents, and pinpoint problems in cases. The robots assess information and decide cases based on algorithms.

They also have the capacity and duty to administer arrest warrants. About 15000 cases were reviewed by robots in 2016. Artificial intelligence robot judges were also used in the European Court of Human Rights. The robots lived up to the ‘intelligence’ aspect of ‘artificial intelligence’, making decisions that were extremely similar to the decisions made by senior judges in Europe, and even pondering legal

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“We toil daily in Kramer, yet there is the possibility that in a few years our skills may be worthless.” evidence and contemplating ethical questions in their judgments. Leading researcher on the robot-judges, Dr Nikolaos Aletras from University College London, notes that the robots are not intended to replace judges or lawyers, but would rather be used to recognise that there are certain end-results for specific cases. Although the European courts are tentative to allow robots to act as judges, China has taken the approach of using robot judges to make full decisions on cases. There are some potential reasons why the trend to adopt robot judges might be somewhat stagnant. These relate to the pros and cons of having robots as judges and how the judiciaries of various countries weigh these factors.

One of the pros of robot-judges is that they can act without bias. They could bring South Africa closer to achieving a constitutional democracy that is stripped of bias. Judges, in the ordinary sense of the word, are humans.

All humans have some form of inherent prejudice. Legal scholar John Dugard noted that when judges decide cases or even interpret legislation, their judgment is clouded by the ‘inarticulate premise’. This ‘inarticulate premise’ refers to the inherent prejudices and personal baggage of judges that influence the way they decide cases. Robots purely process the facts, they lack this ‘inarticulate premise’ and they are able to decide cases without any prejudice (that is, assuming no prejudice has unwittingly been built into their algorithms). This would be beneficial in cases where a human-judge might have severe racial prejudices against certain race groups. This could potentially result in skewed judgments, and persons falling into that race group would be further marginalised and discriminated against in the decision of the case. Another good outcome from having robot-judges would be that congestion with the multitude of cases before the court would be resolved. With robot-judges handling some of the cases, human-judges will be able to handle other (dare I say) more “important” and complex cases.

Furthermore, the backlog of cases and delayed hearings could also potentially be alleviated. The latter ‘pro’ of robot-judges has already

ALTUM SONATUR been accepted in China – evidenced by the successful initiation of robot-judges in that country.

There are, however, also ‘cons’ to the concept of robot-judges. One of the obvious causes for concern would be the question of whether human-judges and lawyers are still needed, given that they are already being replaced by robot-judges. We toil daily in Kramer, yet there is the possibility that in a few years our skills may be worthless.

This would result in many legal practitioners without jobs. In China, a factory specialising in electronics has retrenched 60,000 of their employees and replaced them with robots. This compromised the financial stability of those thousands of people. Imagine making the effort to come to university, struggling to pay the fees, experiencing all the stress, only to graduate and realise that you are superfluous and that your academic efforts were all in vain.

A further issue regarding robot-judges is in allowing an electronic device to decide someone’s fate and coming to terms with that. Should there be a technical glitch, the robot-judge could potentially pass a sentence that has dire consequences. Condoning robot-judges would ultimately result in humans being ruled, to a degree, by robots. Finally, we must consider the capacity of robot-judges to have empathy for the human cases they hear. Empathy is arguably an important trait for any judge to have, given the complexity and difficulty of the human experience. Could an algorithm reproduce empathy? This also touches on the issue of legitimacy. Litigants may feel uneasy about having their cases decided by a robot to which they cannot relate, and may be unwilling to accept outcomes.

It is a reality that robot-judges exist. They have not landed on South African shores yet, but there is a possibility that artificial intelligence might replace legal professionals. There are pros and cons regarding the admission of robot-judges to the bench. For now, we will just have to ponder whether in court, over the next ten years or so, we would have to address the judge as Your Honour or Mr Robot.

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The WHite boys Club

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t must be noted from the beginning that, in my analysis of life at the Cape Bar, I have – for reasons relating to a lack of space – focused on only two aspects in a complex intertwining web of factors and influencers which punctuate the life of an advocate. These two central factors are namely unequal briefing patterns and the costs of keeping chambers. These aspects are by no means an exhaustive list of factors affecting and influencing the lives of advocates at the bar. This article should merely serve as an introduction to a wider conversation.

The Cape Bar Council (CBC) is in desperate need of a transformative overhaul. As recently as 2015 it was reported that of the 452 members of the CBC, 77% of those were white and a significant majority of those white members were white males. In the same year, the Bar Council appointed 18 Senior Counsels (SCs) of which 4 were “coloured” (1 coloured, 3 Indians), none were black African and 4 were women. These 18 new appointments raised the number of Senior Counsels at the CBC to 95 members, of which there is 1 black African, 7 coloureds and 3 Indians. Furthermore, of these 95 SCs at the CBC, 78 are white men. It is clear that white males are overrepresented at the bar while women of colour are significantly underrepresented at the bar. This lack of diversity within the upper echelon of litigators in the Western Cape is a direct result of the lack of diversity of advocates sitting in

chambers and LLB graduates graduating from the three major universities in the Western Cape.

The s tatistics speak for themselves: the CBC is one of the most untransformed provincial bars in the country and within a legal system that is pushing a narrative of transformative justice and substantive equality for the ‘previously disadvantaged’.

The CBC is indicative of the society that we live in and the legal system that the majority of us wish to be a part of and which is being endlessly perpetuated. This microcosm of society gives one the ability to understand the status quo of the legal world that we will be stepping into.

If we are serious and sincere in our aspirations of trying to change our society on a ‘macro’- scale, it is these microcosms of society – which underpin the skewed society we live in – that need to be transformed and rendered more accessible. The former CBC chair John Butler admitted that the council was slow in achieving their transformative targets, stating that the bar “continue[s] to favour white male counsel”. Several attempts have been made to encourage and effect change within the council – this much is evident on the ‘Cape Bar – Society of Advocates’ website where the council’s transformation policy is outlined. Yet these policies have not had a significant effect on the demographics of the council. While it is important for these sorts of policies to be in place, they are clearly not

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proving to be effective.

There are deeper, more systemic issues preventing marginalised groups from becoming part of the CBC and remaining part of the council for any significant period of time. Briefing by attorneys and access to work is the bedrock of a solid and successful practice at the bar and is the primary challenge to new or aspiring members of the bar. People of colour, especially women, receive a disproportionately small share of the work in terms of volume, type and quality of the briefs.

The majority of briefings are skewed towards white males, which does not allow others to build networks and subsequently grow their practices. If one takes Hercules SC, a hypothetical white man; history, pigmentation, and social advantages have equipped him with the best odds to deal with and survive the strains of life at the bar. Cognitively our society has been systematically and socially brainwashed into believing that white men are somehow more capable of handling our problems (the ‘white is right’ notion) which influences one’s decision when selecting an advocate. This is fundamentally flawed logic and our state is a chief culprit in this regard. As one of the largest users of the legal services, government has continued to select white male counsels to represent them. This is evident when looking at the fact that President Jacob Zuma in most of if not all of his previous litigation has used a white man as his legal counsel.

As recently as September 2017, the Black Lawyers Association (BLA) called for a judicial commission of inquiry into why government departments, government-owned enterprises and municipalities have continued to appoint white male legal practitioners. This is a practice which continues despite the various legal frameworks in place requiring government entities to preferably brief black and women legal practitioners. There is little or no accommodation of structural disadvantages when attorneys brief advocates. In August 2017, Deputy Chief Justice Raymond Zondo signed a ‘procurement protocol’ to help transform the legal profession, specifically with regard to briefing patterns. Zondo noted in his keynote speech at the signing of the protocol that black lawyers, particularly women lawyers, remain largely excluded. He pointed out that black lawyers and women are excluded from fields that historically yield the most financial gain. These fields include commercial law, mining, and competition law.

This highlights the inequalities in briefing patterns across the legal field in South Africa. Without some effective and enforceable form of equitable briefing patterns, these systemic issues will continue to be perpetuated and marginalised members of the bar will continue to go without

“The majority of briefings are skewed towards white males, which does not allow others to build networks and subsequently grow their practices” work. These equitable approaches need to go beyond the mere suggestion of a transformative policy on briefing of the council so that all reasonable endeavours should be made to brief black females.

It is also incredibly difficult to brief marginalised persons at the bar when such persons are not members.

When one joins the bar it is mandatory to set up chambers, with the estimated rental of chambers at the CBC costing anywhere between R 3000 and R 9000 a month.

Beyond this, advocates are tasked with furnishing their own chambers. This is a significant financial burden for marginalised advocates to shoulder, especially when considering the unequal and skewed briefing patterns of the CBC. Again, this payment system does not account for the historical disadvantages of marginalised persons entering the profession. As a simple example, a large majority of these marginalised individuals looking to start up a practice will be carrying significant student debts, owing to systemic and societal issues. You end up with a situation where the junior advocate is in a mountain of debt or barely breaking even from the outset. This system sets up marginalised persons for failure; they do not get work and consequently are unable to pay for the high upkeep of chambers and are forced to abandon their practices. This is completely divorced from their ability to be a lawyer. Not too long ago there was a high-profile story of senior counsel Adv Vincent Maleka SC (whose title is an indication of the length of time he spent at the bar) who was struggling with the financial burdens of having a practice. If Adv Maleka SC is struggling financially what chance do young people of colour have of surviving? Most recently, in June 2017, Adv Fairuz Seria and three other members of the CBC calling themselves ‘Group 10’ have taken issue with the ever-increasing rental costs of cham-

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sk anyone on campus why they chose to pursue their field of study and only a handful may tell you that they study a particular subject because it is their true passion; many others will tell you they seek financial security or increased job opportunities. A few may even admit that they have stumbled naively into their studies, perhaps at the urging of their parents and family.

In a perfect world, regardless of our motivations for attending university, every person would be able to put in the requisite effort for three or four years and be rewarded with a glowing transcript, perfect skin and good mental health, eventually finding the ideal work opportunity that fulfils their financial, social and professional needs. But as the old adage goes, ‘nobody is perfect’ - apparently neither is

this law school life. The brutal reality is that for many people who register for an LLB, or even an LLM, law school is a bumpy-enough endeavour without the added struggles of navigating the path towards a post-university future.

Education is supposedly the key to a better future; your qualifications should theoretically open doors for you in the real world. But what if because of your nationality, your financial position or your “alternative” ambitions, these doors remain firmly shut?

Consider international students, for example. From the day you apply for a spot in the faculty, you’re aware of the stark reality that there is a strict cap on the amount of non-South African students the Law Faculty will admit to LLB studies. For the 2015 admission, this cap stood at 10 non-citizen and non-permanent resident students. Even if you do get in, once you get here it becomes clearer with

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ALTUM SONATUR hard to prove to Home Affairs that a foreign graduate possesses any skills or abilities that justify employing them over a South African graduate with the same degree.

Even with foreign graduates out of the equation, local students may find that because their grades aren’t up to par, or because they have “alternative” careers in mind, becoming a corporate attorney or pursuing the legal profession isn’t an option. In other countries, students often, and freely, choose to study Law without having a future in the legal profession in mind. Conversely, Kramer seeks to mould its students into legal professionals - excluding those among us who seek to utilise their degrees to be something other than a lawyer or an academic. It cannot be a coincidence that when the faculty has organised legal career expos, the non-profit organisations are often relegated to setting up booths for the relatively stagnant crowds on Level Two. Large corporate firms, however, are afforded the chance to set up shop on Level Three, overwhelmed by keen students ready to work for them.

Many law graduates are without the option of working immediately after graduation, turning instead to post-graduate studies. On the face of it, a Masters or other post-graduate qualification is a beneficial way to gain some additional specialised education - perhaps delaying entry into the working world. Masters studies at UCT cost at least R60 000. The financial implications of choosing to spend more money to study for an extra year rather than enter the workforce can be severe. The same reason keeps graduands and graduates from considering the route of pupillage, which involves a year of unpaid work to prepare for a future of costly dues and chambers expenses.

So, where does this leave a student who is excluded (financially or otherwise) from the legal workforce? For now, many third-year and final-year students choose to seek as many academic and professional opportunities as possible, taking the ‘throw mud at the wall and hope it sticks’ approach. The hope is that the faculty and various representative bodies will do more to counsel students who don’t fit the mould of a “typical” law student and ensure that those who work hard to earn their degrees are not left out in the proverbial cold once they graduate.

every career expo or law firm visit that there is no space for you in the local legal profession. Even if there is, you and countless other local and foreign students are competing for that space. Once you mention you’re foreign, it’s amazing how quickly a law firm promoter will switch from pushing you to apply for vacation work at their firm to telling you that they ‘unfortunately do not accept international students’. Graduating with an LLB does not entitle non-citizens and non-permanent residents to be admitted to practise as attorneys or advocates in South Africa, so often they must choose to study further or return to their countries - which sometimes are hostile environments to live and work in. Many law firms prefer to avoid the administrative hurdle of obtaining work permits for foreign applicants, and understandably so. The job market is already saturated with South African legal graduates, and it’s

Does a Law degree ensure success in today’s socioeconomic climate?

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Mandatory Disclosures?

Geoffrey Allsop discusses whether the sources of political party funding should be disclosed

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hether the law should periodically mandate political parties to disclose the sources of their private funding has long been a highly contested and controversial issue. Disclosure proponents argue that not only is such disclosure necessary for citizens to exercise their constitutional right to vote effectively, but that permitting private donors to remain secret facilitates corruption. In the words of former United States Supreme Court Justice Louis Brandeis, ‘sunlight is often the best disinfectant’ to mitigate such practices. Disclosure opponents (usually political parties themselves) argue that the necessity in keeping private funding secret is threefold: 1) it protects the privacy of donors and political parties; 2) it prevents donor withdrawal due to potential reprisals or harassment by the ruling party; and 3) it ensures smaller political parties can secure funding to contest elections.

Our Constitution establishes democracy, universal adult suffrage and accountable, transparent elections as founding constitutional values. The right to vote, enshrined

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in section 19 of the Constitution, occupies a central place in our democracy. In South Africa, this is all the more so, given our Apartheid past where the majority of citizens were denied the fundamental right to participate in our political process. In August v Electoral Commission, the Constitutional Court furthermore acknowledged the right to vote is indispensable; not only to our constitutional democracy, but also as ‘a badge of dignity and personhood, which quite literally says everybody counts.’

The right to vote, however, does not exist in a vacuum as the effective and informed exercise of the franchise. Rather, it is contingent on the proper enjoyment of other rights such as freedom of expression, freedom of association and access to information. Access to information is particularly important to facilitate informed political choices – especially when voting. Access to information is enshrined as a constitutional right in section 32 but is given statutory expression in the Promotion of Access to Information Act 3 of 2000 (‘PAIA’).

Former Constitutional Court Justice Kate O’Regan notes that although political parties publicly communicate information relevant to voting through election manifestos, public rallies and party lists; discerning voters may require the disclosure of private funding. This, O’Regan asserts, is to ascertain potential conflicts of interest between expressed policy commitments and the likelihood of parties, if elected, to properly give effect to those promises. For example: if a political party were to run on a renewable energy platform, it would then clearly constitute a relevant consideration for voters whether that party were privately funded by multi-national companies involved in the processing of fossil fuels.

The question of whether periodical disclosure of the private funding of political parties is reasonably required for the effective exercise of the vote was recently confronted by the Cape High Court in My Vote Counts v President RSA. Meer J ruled that to the extent that the PAIA did not mandate periodic disclosure, the Act was unconstitutional for failing to give effect to the right to vote. Parliament was thereafter ordered to amend the PAIA within 18 months to require such disclosure. Advocates of mandatory disclosure would welcome the judgment for numerous reasons. Primarily, because it expressly links the right to vote to having access to the sources of private funding, and further because it places an obligation upon political parties to actively disclose that information. Whilst opponents of such disclosure would argue that the judgment inadequately protects the rights to privacy and freedom of association (both of private donors and political parties), such a position unduly places those rights above the right to vote. Furthermore, this argument fails to acknowledge that public representatives and political parties are already (albeit to a lesser degree) required to disclose certain private financial information. In terms of the Parliamentary Code of Ethics, MPs are already required to disclose their personal financial business in the interests of transparency, public confidence and good governance.

Requirements also place obligations on MPs to resolve potential conflicts in the public interest. In terms of the Public Funding of Represented Parties Act 103 of 1997, parties represented in the National Assembly or Provincial Legislatures are entitled to a proportion of funding from the state coffers, but are placed under onerous obligations in section 6 to account for such expenditure. Additionally, a strong case can be made that South Africa is obligated (in terms of our international law obligations) to require political parties to disclose

“Access to information is particularly important to facilitate informed political choices – especially when voting.” the sources of private funding. In terms of the African Union Convention on the Prevention and Combating of Corruption and the UN Convention Against Corruption (both of which have been ratified by Parliament) member states are obligated to introduce mechanisms to strengthen transparency in political party funding.

Whilst there appears to be a strong case for requiring the mandatory disclosure of private funding, a few competing considerations can be raised against requiring such disclosure. One argument is that many donors may contribute simultaneously to multiple political parties – inclusive of the ruling party. To require disclosure in such circumstances (especially if confidentiality is made a condition of the contribution) would expose donors to potential harassment, ill treatment or exclusion from government business.

A second argument is that because political parties are private associations, they should not be subject to the same duties of disclosure which pertain to expenditure of public money in terms of the Public Funding of Representatives Act or as MPs who act as public representatives. Although there may be a degree of merit in both arguments, it is my view that such concerns are not sufficiently compelling to resist imposing duties of mandatory public disclosure. First, whilst the constitutional right to privacy and freedom of association of donors and political parties must be respected, such rights are not absolute and can be limited – provided the limitation is within constitutional bounds. Second, the fundamental importance of effectively exercising the right to vote, combating corruption and making informed political decisions, outweighs any potential harm donors may suffer if their financial contributions are publicly disclosed. While it may be that smaller political parties would suffer the most from mandatory disclosure, this does not necessarily mean it should not be required. A better approach would be to expand the provision for public funding and potentially impose a cap on campaign spending for all parties, as opposed to permitting all parties to receive private money in secret.

Plausible arguments, both for and against the mandatory periodic disclosure of the sources of private funding for political parties, can be raised. While some political parties may argue that keeping private contributions secret is a necessary evil, that proposition is more apparent than real.

Considering the unacceptably prominent levels of corruption in South Africa, it is not only desirable but arguably necessary to mandate such disclosure. This would mitigate the corruption-enabling environment to which secret private donations give rise. Failure to do so would not only enable further capture of the state by criminal elements, but leave democracy all the poorer for it.

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The “New” Currency

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ata has become an integral part of today’s fast-paced technologically-driven society. To ordinary citizens, it is a means to access the Internet and connect with a global community. To businesses, its use provides highly valuable consumer information. This article concerns data’s rise in importance in recent years and why it is highly sought after and regarded by businesses as the new currency. The United Nations considers data so fundamental that it is argued that it is a human right. India and Finland have implemented this by granting citizens a right to internet access. While this premise is highly idealistic and would have many favourable outcomes, the obstacles that it presents should not be overlooked; particularly in light of the current state of South Africa.

Data as a new, highly valuable currency Almost a decade ago, Clive Humby made headlines when he declared that ‘data was the new oil.’ He explained that information – just like oil – is a precious resource that can be transformed into something far more valuable if used correctly. The amount of untapped wealth in today’s technological society has enormous potential. Data is more than simply a tool for operational execution of strategy – it is instrumental in product and service design, efficient in supply line management and

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Should data be considered a (fundamental) human right?

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effective in marketing. For example, customers increasingly demand personalised, reliable and durable products at their convenience. Furthermore, they expect easy, automated processes when interacting with products, to keep a record of their information and requests. With the large quantities of data being made available by the billions of connected devices out there, it’s easier than ever before for businesses to meet these expectations. In surveys of how businesses were benefiting from the new digital word, business revenue averages were shown to increase up to 30%. All respondents put this as mainly down to their ability to better understand their customers, collecting data on how customers were using their products, and services allowing them to tailor their offerings.

A second argument in favour of considering data as a currency equates data to funds within a business and argues that the former should be handled just as carefully.

Business executives budget carefully by allocating funds to various departments, monitoring the money so that it can be used efficiently and without exploitation. It is argued that data should be handled carefully and strategically, like a currency, and requires the focused attention of business executives. Smarter use of a key resource such as data would allow businesses to thrive. Businesses must also be aware of the privacy risks associated with their collecting of consumer data and must act ethically in this regard. The responsibility rests on business leaders, policy-makers and individuals to identify how to turn this raw commodity into something of real value.

Data as a right Data is so essential that it is argued by some that it ought to be a human right. This novel claim is implemented in Finland, where every citizen has ‘a legal right to fixed-line internet.’ Similarly, India considers Wi-Fi access a right. The Danish Institute for Human Rights has also produced a publication on human rights and data in the context of the 2030 Agenda for Sustainable Development.

Over the past three decades, the global use of the Internet has risen exponentially. Despite the billions of people accessing the Internet, there remain significant pockets of the world that do not have access – including many people in the developing world. There are several countries that attempt to restrict or control the content that users have access to – such as in China. Digital Trends estimate that approximately 60% of the world’s population (7.2 billion people) do not have access to the Internet. In the “less developed countries” only one in every 10 individuals has regular access to the Internet. Internet access is also skewed towards men and wealthy individuals.

Restricting access to internet often marginalises and restricts freedom of expression and opportunities to acquire knowledge. This negatively impacts the weaker members of society such as women and children. Similarly, leaving all information and power in the hands of only a few deprives society of transformation and opportunity for growth. Due to the lack of access and suppressive tactics by certain governments, the United Nations (UN) declared that “online freedom” is a “human right” by passing resolution A/HRC/32/L.20. The United Nations believes that since the Internet is so embedded in the lives of so many people and acts as the main chan-

nel for information exchange, to deny access to a person in the world is a breach of human rights. The UN declared a resolution in July 2016 cementing this view. But unfortunately, this resolution failed to receive universal backing. Several countries including Russia, China and South Africa rejected this resolution.

The position in SA on this matter differs substantially. Including data as a human right in South Africa would present many issues. Firstly, data is not a basic good. Under our Constitution, positive rights make the state responsible, subject to its available resources, for providing basic services which strike at the heart of a person’s basic needs. Our Bill of Rights lists housing, health care, food, water, social security and education as examples of such rights. But positive rights require spending money from a limited budget and trade-offs would be the result of the state allocating the scarce resources at its disposal.

Although the concept of data as a right may sound wonderful, it implicitly imposes a burden on all citizens to pay for such a luxury through taxation. Secondly, the state does not currently provide data. Although it could enter the market and provide low-cost data, this would be enormously expensive and would be too much to expect from a state that already struggles to provide the infrastructure for necessities like water and electricity. Forcing data to be sold at low prices could result in negative consequences.

Mark Oppenheimer, a practising advocate and member of the Johannesburg Bar, notes that this problem could be solved by imposing the burden on private companies and compelling them to lower their prices or not charging customers for using certain websites. However, he argues that ‘to make up for the loss of profits, data providers could retrench employees or cut their salaries and lost jobs’ and this would have a negative effect on the economy.

Conclusion It is clear that data is paving the way for growth.

It should be valued and protected almost as a currency due to the potential it holds. Foreign countries recognise its potential, and even the UN has gone as far as calling access to internet a fundamental human right. On the contrary, South Africa has been hesitant to concur with these views. Although data enables people to participate in a global community and fosters economic and social development, these benefits cannot be achieved without force. We can accept that data is not a right, while acknowledging that it is a goal worth striving for.

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HUMANS of Kra Question: Is Kramer a conservative or progressive space?

Compiled by Nyiko Mathebula and Asiphe Mdutywa ‘Kramer promotes an open and participatory space that fuels debates about decolonisation and transformation of the law. Therefore, students’ different opinions are respected’ - Durrah Cachalia.

‘The culture remains conservative.

Institutionally, the faculty remains rooted in the past in terms of how we are taught and who teaches us. Kramer needs to change!’ - Khanyiso Sangqu.

‘UCT Law Faculty’s definition of progressive may not be compatible with the universal definition. They claim to be, but their policies are superficially transformative, an indication of a grand culture’ - Jesse Van Vught.

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ramer

or ce?

‘If you look at it from the staff’s perspective, I would say that Kramer is conservative, because they are opposed to change especially if it has to do with matters affecting students. They tend to do what they want to do and rarely consult the people that matter’ - Thembelihle Tshabalala.

and ywa

‘‘Kramer is committed to the constitutional principle of equality. The people who abide by this principle embrace a liberal and progressive outcome’ - Alexander Gloor.

‘I think Kramer is progressive to a large extent, the faculty allows for open and transparent communication’ - Denise Mulenga.

‘Some students and staff members encapsulate both principles. However, I do think that there are some lecturers who have progressive academic models.

They take into context the backgrounds of some students’ - Lewis Malepe.

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In Conversation with the Women’s Legal Centre

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he Women’s Legal Centre is an African feminist legal organisation that advances women’s rights and equality through strategic litigation, advocacy and partnerships.

The Centre is applying to the Western Cape High Court to request that it instruct government to recognise Muslim marriages and ensure that Muslim women are afforded protection on the dissolution of their marriages – be it by death or divorce. I sat down with the director of the Women’s Legal Centre, Seehaam Samaai, who is no stranger to the world of public interest litigation, having a key interest in gender issues. She previously worked at the UWC Law Clinic, the Department of Justice and the Foundation for Human Rights. Seeham was also accompanied by senior attorney Charlene May, to speak about the implications of the Muslim Private Law case and the importance of protecting women’s rights in a patriarchal society.

The case was initially launched in December 2014. It

was brought on a semi-urgent basis, partly due to the preceding cases of Faro v Bingham and the Essop matter; which dealt with the broader issues of having Muslim women’s marriages recognised and subsequently, their ability to inherit from their husbands. The case is essentially about addressing how these women have been coming to court for over ten years seeking individual relief. Although this has influenced the development of jurisprudence, it ‘has not moved the development of law anywhere’, says Charlene, as no orders have been made with regards to the introduction of legislation.

Layla: Why is the recognition of Muslim marriages so important?

Charlene: An easy answer would be to say that we have thousands (if not millions) of people who subscribe to a particular faith and who have entered into a marriage.

At the dissolution of that marriage, whether by death or divorce, you have a woman who has no rights because those rights are not recognised through any statute. She has en-

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ALTUM SONATUR Director of the Women’s Legal Centre Seehaam Samaai and senior advocate Charlene May discuss Muslim women’s marriage rights with Layla Kimmie tered into a marriage that has put her in a position where she has to negotiate at the dissolution in order to get anything out of it. In essence, we are saying that women are going there with a begging bowl to achieve something from the relationship. Women in civil marriages do not have to do this. They have the law that regulates what happens at dissolution.

Layla: And they have access to courts?

Charlene: Even before they come to court, there is a law that states what they are entitled to and what they are not. A law that recognises the relationship and everything in the middle may be brought to court under a dispute.

Seehaam: Even if we want to say that we have the Marriages Act, it does not recognise (at this point in time) polygamous marriage. Even on a more basic level, there are no registration processes for Muslim marriages because they are processed through Islamic institutions – there is no real record around Muslim marriages.

Layla: Why have Muslim marriages not been recognised in the past?

Charlene: I think it links to the discrimination of our past. There are very good statements in some of the judgments such as Daniels , where the Constitutional Court has spoken about our past and our history, and about how much moral and religious judgment there has been about the perceived ‘other’. They weren’t recognised because they were people of a religion we disregarded.

Seeham: Historically, Muslim women were not only disadvantaged because of their religion, but also because of other issues around race, class and gender. The negotiation powers are already skewed at the beginning. The process in itself requires people to have assets and, more times than not, these women are sitting in disadvantaged areas.

The current civil structure does not cater for the realities of Muslim women in South Africa. I will be bold and say that even in South Africa, the Muslim community is also patriarchal in nature and not because of the religion, but because of South Africa’s history. South Africa’s society is patriarchal.

Charlene: Patriarchy has set such particular roles for men and women in society and in any framework, we see these roles being enforced. It is because society has prescribed these roles to us, and in many ways has made us adopt customs and traditions which keep this idea of patriarchy going.

Seehaam: When we speak about an intersectional approach, and consider what impact society has on us as women within the South African context, Muslim women are disadvantaged within the marriage setting.

Even when we speak about out-of-community of property marriages, they are not the same in civil law as they

are in the Islamic context; they are two different contexts and we cannot merge the two.

Layla: What have been the most challenging aspects of this case?

Charlene: To be able (and this is still challenging) to get people to understand that it is not a challenge that seeks to criticise or that seeks to challenge or change people’s religion or the content thereof.

Layla: Rather, we are looking to give legal recognition to what the religion confers.

Seehaam: And the issue is about the women primarily in those marriages. It is a human rights issue that does not impact on the doctrinal issues. It is not to challenge Qur’anic law or Shari’a law, but it is about the protection of women within those marriages in the context of their own Islamic law – whatever that might be. We are not trying to change these things, we are saying that there needs to be legal protection for women at the dissolution of the marriage. We need to level the playing fields, and be able to push the idea that this matter is not just about Muslim women. It is about a specific Muslim woman who comes with a particular history in South Africa, a history which comes with other intersectional issues. We cannot see this through one lens.

Charlene: A major challenge is to say: why is this relevant? Why is this relevant to a law student who is not Muslim? But human rights are always relevant. We live in a divided society where people think that if they are not Muslim and not a woman, then this issue does not concern or impact them, so part of the challenge has been to say that this is about you. It will impact you in some shape or form. We are asking you to recognise and protect the rights of a vulnerable group in society, so this should impact all of us. It should be relevant to all of us.

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The Final Year Dance Committee Report

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he experience of the dance committee for 2017 was one characterised by extreme hard work on the part of everyone involved. The aim of the committee was to create a night that as many final year students as possible could participate in.

Despite beginning with no funding and very little guidance, the committee went on to produce an amazingly magical evening for all the students and staff involved. Their hard work ensured that the night itself was successful in all aspects; from having great Masters of Ceremonies (MCs) and prizes, to beautiful décor and photography. We are pleased with what we accomplished and are proud of every single committee member.

The team secured funds by calling for donations and putting together an auction booklet, the proceeds from which were used to secure a venue. The students in the committee went on to hold many beloved cake and coffee sales throughout the year, in order to meet the goal of lowering the ticket prices as far as possible. The committee also hosted a ‘Final Year Pub Quiz’ at the UCT pub and a ‘Law School End of Term Party’ at the Great Wizoo. Aside from creating some fun for the class, these events raised funds and contributed to the expenses of the dance.

We selected the theme ‘Dreams’ for the dance because we thought this captured the lively spirit of our class.

The theme captures the persevering character of the class, further reflecting our wish for the class to achieve their dreams in the future. The process of fundraising, planning and organising made us feel close to our classmates and gave them a chance to bond as final years. Months of meetings and many late nights culminated in a magnificent evening at the Suikerbossie restaurant, where each member of the class could appreciate the gravity of their achievement of reaching that final stretch of final year and where we could all celebrate together. MCs Ayanda Nkabinde, Jocelyn Lawrence and Professor Tjakie Naude captured the spirit of our class in their speeches and left us with inspiring messages for our futures. The night was enjoyed by all, and our class embraced the opportunity to show our contract lecturers our understanding of the swings and roundabouts principle…

One of many highlights of the night, would be the awarding of the prizes for various achievements. The following prizes were voted for by the final year class: Friendzone - Reeza and Sapna

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MCM - Jonathan Yankelowitz Class Debater - Ben Prinsloo Most likely to be a blesser - Awande Ngcobo Best Couple - Tameryn and Michael First Judicial Appointment - Eshed Cohen Ghost of Kramer - Nick Bodenstein WCW - Catherine Paulse Class Clown - Ayanda Nkabinde Most likely to be a lecturer - Jaymie Phore Always Late - Jane Borman Most sighted in the library - Anna Parry Most likely to get arrested - Josh Friedman Sister Sister - Natasha Dusabe and Gabby Steiner Bromance - Richard and Piers First millionaire - Mohammed Patel We would like to take this opportunity to once again thank the dance committee of 2017. Despite many challenges and setbacks, the dance was one to remember and would not have been possible without each valued member - Aniqah Isaacs, Caitlin Harvey, Carmelita Dos Ramos, Juliana Heunis, Justin Minnaar, Lauren Kate Wrigley, Layla Adams, Lee Shacksnovis, Marzia Gertse, Nadia Abrahams, Nicola Fish, Riezqah Rawoot and Tasneem Jacobs. To the Final Year Class of 2017, we hope you enjoyed your night and we wish you well on your future endeavours! #UCTLAWDANCE2017

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Decriminalising marijuana?

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he recent 2017 Western Cape High Court judgment in Prince v Minister of Justice and Constitutional Development and Others has once again refocused our attention on a pressing question: should marijuana be decriminalised, and be recognised as a legal substance to use? Considering recent developments, it is important to reflect on the progress made towards legalising marijuana, but also to evaluate critically the path forward. In modern South Africa, the views on the legalisation and decriminalisation of marijuana are diverse. Some people adopt a hostile approach, while others actively advocate for marijuana to enjoy a legalised status. The path forward for the legalisation of this “taboo drug” remains uncertain. Are we on our way to fully legalising weed? Are some ways of use more acceptable than others? Should medicinal and religious use be prioritised over purely recreational home use? Some of these concerns have been addressed through legislation, case law, and policy changes but are yet to be conclusively resolved.

Legislatively speaking, marijuana is currently prohibited in its entirety. The Drugs and Drug Trafficking Act prohibits the use, possession, sale, and dealing of any ‘dependence-producing substance’, including cannabis. In addition, section 22A (9)(a)(i) of the Medicines and Related Substances Act essentially prohibits the ‘use, possession, manufacture, or supply of cannabis’ within a medical setting, while subsection 10 prohibits ‘the sale or administration’ thereof for any non-medical reason. The Medical Innovation Bill of 2014 (not yet in force) seeks to address the hotly debated topic of the medicinal use of marijuana, by allowing medical professionals to prescribe the prohibited substance for therapeutic purposes.

Partly in response to the open-minded attitude of the legislature in the Medical Innovation Bill, the Central Drug Authority (CDA) issued a statement in 2016

calling for the decriminalisation, not the legalisation, of marijuana. In accordance with the Single Convention on Narcotic Drugs of 1961, a treaty to which South Africa is a party, the CDA proposes that users of marijuana should not be criminally prosecuted, but should be subjected to dependence-reducing treatments. The CDA, howev-

er, also contended that those individuals who deal in or commercialise marijuana should face the full might of the criminal justice system. Essentially, their argument was that individual use of marijuana should be decriminalised, but in accordance with the above treaty. The CDA argued that the state should not allow the commercialisation of marijuana; rather it should be preventing it by imposing sanctions on those participating in commercialisation activities such as mass manufacturing, dealing, and mass distribution.

It is no surprise that the legalisation of marijuana is a hotly debated issue in South Africa, given that it is the host

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na? – the path forward to popular marijuana marches, a political party called “the Dagga Party”, and home to a large Rastafarian population. In addition, the South African Police Service’s report highlighted the fact that almost 70% of our country’s drug-related offenses revolve around the prohibited use, possession, and sale of marijuana. Evi-

dently, many South Africans continue to use marijuana, despite its illegal status.

In addition, the Central Drug Authority argued that other non-punitive measures must be taken to deal with those who contravene the legislative provisions regulating the use of marijuana. UCT’s Professor Dan Stein (the departmental head of Psychiatry and Mental Health) agrees with the stance of the CDA, noting the ‘glaring absence’ of evidence that supports the stance that criminalising the use of marijuana decreases its prevalence. Should the legislature choose to follow the recommendations of the Central Drug Authority in this regard, the burden on the courts to prosecute these cases will be lessened and fewer people will be convicted, thereby reducing the number of people with criminal records.

“The Court attempted to accommodate the concerns of the Rastafarian community by exploring possible statutory ways in which Rastafarians can enjoy their religious rite of using marijuana” In addition to the legislative and policy changes, it is also important to note the landmark judgments that have sought to address these issues. In 2002, in Prince v President of the Law Society of the Cape of Good Hope and Others, a Rastafarian law graduate appealed to the Constitutional Court, claiming that the prohibition of marijuana infringed upon his right to freedom of religion. Mr Prince’s previous marijuana-related convictions prevented him from registering as a candidate attorney. Prince argued that the scope of the prohibition of marijuana was too broad, and should be narrowed to exclude the use of marijuana for religious purposes, as is common for people of the Rastafarian faith. The Court attempted to accommodate the concerns of the Rastafarian community by exploring possible statutory ways in which Rastafarians can enjoy their religious rite of using marijuana, while not undermining the objectives of the overall prohibition of marijuana. The Court acknowledged the fact that the general prohibition of marijuana infringed a person’s right to freedom of religion, and particularly made Rastafarians, a vulnerable minority group in South Africa, more susceptible to discrimination. However, the Court found the prohibited use of marijuana to be a justifiable limitation on a constitutional right in terms of section 36 of the Constitution, and the Court upheld the illegality of marijuana. Interestingly, this appeal was dismissed by a five-against-four majority vote, resulting in the impression that even the Constitutional Court was divided on this issue.

Earlier this year, the same applicant, Prince, brought another application to the Western Cape High Court in Prince v Minister of Justice and Constitutional Development and Others, in which he again called for the

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“The 2017 Prince case judgment notes that the court does not have the power to prescribe the exact way in which the legislature should decriminalise marijuana” decriminalisation of marijuana. In this application, however, Prince claimed that the prohibition of marijuana infringed upon his constitutional right to privacy.

The non-binding force of the 2002 Prince-judgment by the Constitutional Court was swiftly dealt with by the Cape High Court. It was simply stated that the two Prince cases dealt with different constitutional rights, and the court, therefore, noted its judicial independence to hear the matter.

Notwithstanding differentiating between the Prince cases, the High Court nevertheless relied on the 2002 Prince judgment’s acknowledgment that the prohibition of marijuana infringes on a person’s right to freedom of religion, and extended this interpretation to the constitutional right to privacy. One of the points raised in the more recent Prince case concerns the legal status of marijuana, questioning why marijuana is not given the same status as other potentially harmful, addictive, or dangerous products like alcohol and tobacco. Essentially, the court held that small quantities of marijuana intended for personal consumption in the private dwellings of individuals should be legalised, and no longer recognised as a criminal offence. This was ordered on the basis that the exclusive personal use of a substance in one’s own privacy does not necessitate intervention by the government. Davis J, writing for the majority, suspended the court’s order of invalidity of the impugned legislative provisions for a period of two years, to allow the legislature to take the prescribed measures.

Another issue to consider is whether the 2017 Prince case breached the Separation of Powers doctrine by interfering with, and essentially redeciding, issues already dealt with by the legislature. The legislature prohibited marijuana in the Drugs and Drug Trafficking Act and the Medicines and Related Substances Act, as discussed above. The 2017 Prince case judgment notes that the court does not have the power to prescribe the exact way in which the legislature should decriminalise marijuana, nor to propose alternatives thereto, but that the court can declare that an enacted law fails to pass constitutional scrutiny. The courts are the first place in which disputes are heard and responses made

to legislative decisions expressed in the relatively old legislation regulating the prohibition of marijuana.

Thus, the judiciary is in a good position to call for legislative reform, provided that such a call is based in constitutional justifications.

If Davis J’s judgment is confirmed by the Constitutional Court, the legislature will have to amend the law to lift the prohibition of marijuana to the extent where it is permissible for personal use in small quantities, and within the private dwellings of adults. Essentially, the use, possession, sale, and manufacture of marijuana is still prohibited in its entirety, but it is clear that the judiciary and other statutory bodies (such as the Central Drug Authority) are taking a more progressive stance towards the decriminalisation of marijuana. Despite these recent developments, the struggle to decriminalise marijuana is far from over. Further developments in the legalisation of marijuana in the fields of medicine, trade, and manufacture are sure to stem from the saga of the Prince cases, but the full decriminalisation of marijuana will still require much legal debate, litigation, and a progressively-minded judiciary.

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Papali ea bolo a short story by KNeo Mokgopa

I

am the goalkeeper. A position reserved for reserved boys. A confident boy, not as confident as Katleho (​my katleho), runs at me with the dried up and squishable tumble of soccer ball. So, I run at him too, grind my teeth, and collapse in front of him in the foetal position as a thing of glass​​opens​​ the​​flesh​​over​​my​s​ upple​​nubuck​​knees.

I can’t remember but I think Bessen (whose name may be the location’s inadvertent way of decolonising “Blessing”. Like how the location inadvertently decolonised - as decolonised as the word for township can get - “location” into ​lokshen, ​which means a whole mine dump obscuring the view of the city, or goliath concrete tanks of water protruding out from the horizon - more than just “location”) picks up a bit of toilet paper caught onto a shrub, turned brown either from use or from time, and tries to close the wound with it so the game can continue.

Katleho rips the bit of brown​​toilet​​paper​​from​​Bessen’s​ ​hand​ ​and​ ​throws​ ​it​ ​away,​ ​telling​ ​him​ ​what​ ​a​ ​crazy​​ idea​ ​it​ ​is. The other boys turn their focus on each other, shaking and nodding their heads in resolution that I am being treated special. I know this. Above that, I am ashamed of this - how Katleho and I are only two years apart from one another and I am too old to have women

Image by: Sam Bears

dote over my grazes, quickly sucking their teeth three times at the incisors and once long at the premolars, shaking their heads and clicking their tongues while dabbing my grazes with balls of cotton bought with nail-polish-remover-from-Clicks. And it is this shame that makes me cry, not the pain of the graze; I am ashamed that I opened so easily, ashamed that it hurts and stings the way​​grazes​​ hurt​​and​​sting.

But that was before I wore Mama’s shoes for the first time, before I was told to become a man, before I learnt how men piss petrol and speak in sparks, how men follow women into ragdolls, forcibly undress women with their eyes, whistle women to smithereens, ask women to smile themselves into ashes​​-​​stare​​women​​colonised.

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A NOTE FROM THE LSC

O

ur aim for 2017 was to rebuild the spirit of our fellow students and ensure a smooth personal and academic year for all. The many talks which we have been able to hold have had a great impact on the Kramer community, mainly due to the fact that these talks were given by impartial outsiders whose aims were to facilitate conversations between students and staff. We also wanted to ensure that attention was paid to the day-to-day struggles, feelings and experiences of law students. The Mentorship Programme for 2017 was initiated specifically to ensure incoming students were paired with individuals who would not only help them to secure academic success, but also emotional wellbeing. We went to great efforts to ensure mentors stayed motivated and were always able to help the students they were partnered with. As a Council, we also facilitated many academic workshops, including CV building and mental health workshops, and hosted a number of fun, interactive events with food and music which allowed us to come together as a faculty to provide suggestions for future success.

The aim of the Law Students’ Council was to ensure that it was all-inclusive. We were very aware of the fact that, despite being voted into office, we did not necessarily represent the views of every single student in our faculty. It was because of this that the Law Students’ Council worked hard to get involved with all of the other Committees within our faculty. We also aimed to maintain a strong social media presence, and advertised the events and activities of all societies within middle campus, to show students that we are all a unit, working together.

The LSC team of 2017 is unique and has been characterised by an unrelenting drive to work hard and persevere no matter what. We, like any faculty council, have faced very grave challenges this year and have had to learn the hard way that often the goals you set for yourself in the beginning of the year may take longer than expected to achieve, or may not be achieved at all. What is most important is that from day one we have never given up.

We started out as a group of students who knew nothing about each other, with differing opinions and backgrounds, but we are proud to say that we have ended our term as a family. It is for this reason that we find it important to acknowledge the hard work of two former members Naledi Ramoabi (transformation officer) and Zethu Albanie (student life representative) who have since resigned from our LSC. Their hard work throughout the year cannot go without recognition and their commitment to their portfolios, their team and fellow students is a testament to the dedication of every single member of the Law Students’ Council.

In the end, the greatest reward we have received has been to work with each other to ensure the greatest possible success within our faculty. It is with humility and conviction that we thank you for allowing us to serve you.

Jocelyn Lawrence President of the LAW STUDENTS’ COUNCIL 2016/17

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Nelisi Intern

“This y lenges as an L absolu highlig I felt n family.

Cindy

“I am s given t dents a in us in team t you an

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Nelisiwe Nhlapho: Vice President Internal “This year presented a number of challenges to me as a final year student and as an LSC member. But I can say with absolute conviction that LSC has been my highlight of this year. It is a place where I felt not only part of a team but part of a family.”

James Badenhorst: Treasurer

Robin Van Wyk: Vice-President External “My journey with the Law Students’ Council has certainly been an unforgettable experience that has taught me a lot of valuable lessons, lessons that will carry me through the rest of my journey here. I thank you, the students for giving us the opportunity to serve you.”

“I have learnt so much on this incredible journey and I’ve learnt so much about Kramer, law students and the inner workings of UCT. I can only say thank you to those who chose us as your LSC, it has been one hell of a ride, I hope everyone else enjoyed it as much as I did.”

Cindy Shabalala: Communications

Jayson George: Academic Chair

“I am so appreciative of the support that was given to us along the way, from both students and staff. Thank you for having faith in us individually, and for having trusted our team to carry out the duty of representing you and your interests.”

“There have been many ups and downs but I do not have a single regret. I have grown as a person and as a leader in my service to the students as the academic chair. It was an honour for me to serve you.”

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Sarah Donde: Secretary General “It has been a great pleasure to have been able to serve all of you as a member of the Law Students’ Council. Looking back, this past year has been one of learning, in a professional, personal and academic sense, and we have to thank you, the students, for this enriching experience.”

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Global Poverty From a Human Rights Perspective

In this map, the territory size of countries has been determined by reflecting the proportion of people living on less than or equal to US$2 in purchasing power parity a day Credit: www.worldmapper.org

Duties and Responsibilities of the Global North by Aurélien Pradier

P

overty is a devastating phenomenon directly affecting roughly half of the world’s population. Eighteen million people die of poverty-related causes each year, and every fifteen years, global poverty claims as many deaths as all the inter-state wars, civil wars, genocides and violent government repressions of the 20th century combined. Poverty kills more; and it kills more systematically than armies and

militias, missiles, guns and machetes.

Historically, poverty resulted from natural contingencies; today, poverty is fundamentally different in context and causation, and its persistence is not due to a lack of resources, but to their unequal distribution. One percent of the income of the world’s richest fifteen percent would be sufficient to eradicate poverty. In this context, the persistence of global poverty is clearly morally problematic and, given the extent and

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severity of the suffering caused by poverty around the world, alleviating poverty is of paramount importance.

When poverty in the current global context is examined from a human rights perspective, it becomes clear that its persistence is not only a transgression of moral standards, but also of legal norms.

Moral right to freedom from poverty It is worth emphasising that human rights are moral principles that exist independently of, and prior to, legal and social institutions. It is undeniable that black South Africans had a moral right to participate fully in the political system of their country, though this right was not legally recognised. The apartheid system was illegitimate, precisely because it actively denied many fundamental moral rights. While the existence of the right to freedom from poverty is less clear-cut, there are good reasons to consider it a moral human right.

Conceptually, human rights may be understood as those conditions that protect human dignity and ensure a minimally good life. Poverty, however, is, by definition, contrary to fundamental human interests and denies the ‘dignity and worth of the human person’ proclaimed in the preamble of the Universal Declaration of Human Rights. The poor often lack education, live in unsanitary conditions, are afflicted with ill health, suffer hunger or malnutrition and are socially excluded. As former UN Independent Expert on Human Rights and Extreme Poverty, Sengupta, writes, the poor ‘lack the freedom to lead a life with dignity’. Poverty clearly contradicts both the deontological and utilitarian foundations of human rights and freedom from poverty must be a moral human right.

While it is uncontroversial to say that a moral right exists irrespective of its legal status, it is undeniable that the realisation of moral rights is greatly facilitated if they are enshrined in law. The ethical rhetoric of human rights, while valuable, is secondary to the legally-binding obligations of states in human rights practice. In other words, their legal recognition gives moral rights greater persuasive power. Fortunately, there is some evidence that the international community is moving towards the legal recognition of the right to freedom from poverty. The 1993 Vienna Declaration and Programme of Action, for example, though not regarding extreme poverty as a violation of human rights

“It is worth emphasising that human rights are moral principles that exist independently of, and prior to, legal and social institutions.”

ALTUM SONATUR “Despite the absence of an explicitly recognised legal right to freedom from poverty, one can draw on related legally-binding international norms to give the moral right to freedom from poverty a legal dimension.” per se, characterises it as ‘a violation of human dignity’ and emphasises the need to ‘promote the human rights of the poorest’. More explicitly, the 2003 UNPD argues that ‘the elimination of poverty should be addressed as a basic entitlement and a human right – not merely as an act of charity’. Despite these encouraging signs, however, the right to freedom from poverty remains far from being legally recognised. Indeed, the word ‘poverty’ remains absent from all major international human rights treaties.

Legal dimension of the right to freedom from poverty Despite the absence of an explicitly-recognised legal right to freedom from poverty, one can draw on related legally-binding international norms to give the moral right to freedom from poverty a legal dimension. a.) Right to an adequate standard of living The right to an adequate standard of living comes closest to the right to freedom from poverty. Article 25 of the UDHR declares that every human has a ‘right to a standard of living adequate for the health and well-being […], including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’. While the UDHR was not intended to be a legally-binding document, but merely a ‘common standard of achievement for all peoples of all nations’, many if not all of the rights elaborated in the UDHR have progressively gained the status of customary international law through state practice and opinio juris.

Humphrey, one of the drafters of the UDHR, argued that ‘the Declaration has been invoked so many times both within and without the United Nations that lawyers now are saying that, whatever the intention of its authors may have been, the Declaration is now part of customary law […] and therefore is binding on all states’. Thus, the right to an adequate standard of living confers a legal dimension to the moral right to freedom from poverty. The right to an adequate standard of living, however, remains largely theoretical and is commonly ignored.

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ALTUM SONATUR b.) Causal connections between human rights violations and poverty Another way of linking legally-recognised human rights to poverty is by establishing causal connections between poverty and human rights violations.

Poverty is a state of affairs that causes human rights violations: it necessarily violates socio-economic rights, often violates cultural rights and sometimes civil or political rights. The eradication of poverty is, therefore, a pre-condition for the full realisation of human rights generally. Indeed, the preamble of the UDHR states that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Since poverty is characterised by the denial of dignity and equality, it inevitably undermines freedom, justice and peace. Those that care about these values, must recognise the importance of poverty-eradication, even if they do not recognise poverty as an urgent human rights issue in itself.

Positive and negative duties Despite the fact that there is a clear legal dimension to the moral right to freedom from poverty, the persistence of poverty is only rarely presented as a severe human rights violation and, consequently, persists despite the fact that its eradication is not impossible. Two factors explain this inertia: Firstly, it is unclear whom the right to freedom from poverty imposes correlative duties on, thus it is difficult to identify particular agents as violators of that right. Secondly and relatedly, it is widely assumed that socio-economic rights only entail positive obligations and are therefore not, strictly speaking, rights at all. On this view, failure to alleviate poverty is merely a failure to benefit the poor. While this may be morally reprehensi-

“The persistence of poverty is only rarely presented as a severe human rights violation and, consequently, persists despite the fact that its eradication is not impossible”

ble, it does not amount to a violation of human rights.

Alston argues that poverty is a violation of human rights if ‘a government or any relevant actor [has the capacity to] avoid or mitigate the plight in which an individual living in poverty finds him or herself’. This is controversial because the right to freedom from poverty may conflict with negative freedoms, such as the right to freely dispose of one’s private property. It is for this reason that economic, social and cultural rights, which are commonly assumed to entail only positive obligations, are often described as vague and non-justiciable aspirational goals.

The assumption that economic, social and cultural rights merely entail positive duties, however, is erroneous.

All rights necessarily imply negative duties not to actively deprive people of these rights. Thus, the right to food may entail a positive obligation to provide food to populations affected by severe droughts, but it also entails the negative duty not to actively deprive people of food. While failure to assist people who lack access to food may be

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morally reprehensible, it arguably does not constitute a violation of the right to food. However, if a tyrant were to actively deprive a group of people of their source of food by, for example, destroying livestock and crops, we would consider this a human rights violation. It is on similar grounds that the Sudanese president al-Bashir is charged by the ICC with ‘deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction’. Logically then, the right to freedom from poverty and related rights also entail the negative duty not to actively preclude people from enjoying them. Therefore, poverty constitutes a violation of these rights insofar as it is actively caused or perpetuated. If an actor was to violate this negative obligation, that actor would become liable for reparations. This concurs with Article 28 of the UDHR, which states that ‘everyone is entitled to a social and international order in which the rights and freedoms set forth in [the UDHR] can be fully realized’.

Historically, the Global North has exploited and impoverished the Global South. Indeed, the wealth of the developed Nations of the Global North and the relative poverty of the Global South are both intrinsically linked to the colonial past. The harm caused by this historical process has never been compensated for and much of the inequality that characterises the global economy today is directly linked to the colonial past.

In fact, the Global North continues to extract resources from the Global South even after the formal end of colonialism, through debt service and unequal exchange. On average, the Global South pays thirteen dollars in debt service to the Global North for every dollar it receives in aid. More generally, the rules of the global economy are asymmetrical and systematically favour the Global North, thereby furthering the divide between Global North and Global South.

Development assistance offered to poor countries by international organisations has typically been conditional on trade liberalisation, reduction of tax-duties and privatisation of their economies. The reduction of tax duties has been compensated by further dismantling already inadequate social welfare systems, thereby worsening the vulnerability of poor populations. Private health-care and education are often inaccessible to poor people, thus trapping them in conditions of poverty. Furthermore, liberalisation and privatisation have resulted in an influx of multinational corporations from the Global North that have often destroyed local industries and generated poverty rather than development.

Finally, international regulations regarding agricultural production and trade significantly harm many countries in the Global South. While tariffs, subsidies and other forms of economic protectionism have largely been removed in virtually all economic sectors, thereby often exposing industries in the Global South to the predatory competition of more industrialised competitors in the Global North, developed nations continue to heavily subsidise their agricultural sector. Producers in the Global South cannot compete with the prices of subsidised agricultural products of the Global North

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“Indeed, the wealth of the developed nations of the Global North and the relative poverty of the Global South are both intrinsically linked to the colonial past.” and are pushed out of markets. Consequently, countries which relied on exporting agricultural products have lost their primary source of revenue. Although the WTO has officially recognised the negative effects of this asymmetry, negotiators from countries of the Global North refuse to address agricultural subsidies and protections. Pogge argues that the global institutional order imposed by the Global North ‘ruthlessly advances their own interests and those of their corporations and citizens, […] continually and foreseeably, produces vast excesses of severe poverty and premature poverty deaths’.

Conclusion Considering the Global North-South interactions described above, it is clear that the Global North is responsible for at least a significant proportion of the poverty that persists in the Global South. While this article focused on poverty in the Global South, where extreme poverty tends to be most concentrated, many of the arguments I make apply equally to poor people dwelling in the Global North. Considering how relatively easily the Global North could eradicate global poverty, it arguably has a moral duty of beneficence to do so. Given the extent and severity of suffering caused by poverty around the world, the imposition of the global institutional order described above is arguably the largest violation of human rights ever perpetrated, though, as Pogge notes, not necessarily the evilest.

Since the Global North continues to unduly harm others by imposing on them a coercive global order that makes their access to the objects of their human right to subsistence insecure, the Global North also has a legal obligation to significantly alleviate global poverty. The judicial enforcement of human rights generally, and of socio-economic rights in particular, however, is notoriously difficult. Indeed, the enforcement of human rights largely relies on public and political pressure.

Presenting poverty as a human rights issue and forcefully condemning the global institutional order as one that systematically violates human rights by causing and perpetuating poverty, may shift political priorities and create the political will necessary to eradicate global poverty. This article aims to make a modest contribution to this challenge.

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Crossword

c

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.

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Across

Down

2. South African professor of international law?

4. Asian country granting citizens a right to internet access 8. Law of Islam cast from Muhammed’s words 9. Someone who is about to receive an academic degree but has not graduated yet 10. Inherent prejudices and personal baggage of judges that influence the way people decide cases 11. Right to vote in political elections 12. To make something permissable by law

1. Former UN Independent Expert on Human Rights and Extreme POverty 3. The theory and development of computer systems able to perform human tasks 5. President of Sudan 6. A short statement or proverb expressing the truth.

7. Apprenticeship to become a member of the bar *Note: Answers 8 across and 10 across include a a space between the two words

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contributors

Nick Roelf Layla Kimmie

Lauren Niekerk

AurĂŠlien Pradier

Geoffery Allsop

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introducing the 2018 Altum committee

Clockwise from top: Kelsey Pailman - Co-Editor in Chief Lauren Gildenhuys - Co-Editor in Chief Lisa Mustapha - Secretary General Sandiso Ludidi - Social Media Coordinator Asiphe Mdutywa - Photographer

Lisa.jpg

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Clockwise from left: Rozelle Wentzel - Tresurer Nyiko Mathebula - Photographer Mohini Karappian - Deputy Editor Danielle Champ - Senior Editor Muriel Kasanga - Senior Editor Megan Dyamond - Copy Editor

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2017/12/12 18:10