Altum sonatur: Resources

ALTUM SONATUR

ALTUM SONATUR

Volume 9, Edition 2

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Editors’ Corner

I

t is difficult to think of a contemporary debate or social issue which does not relate to resources – whether it be the management, distribution or conservation thereof. As the social scientist Harold Lasswell once said, “[p]olitics is about who gets what, when, how”. Arguably, the same could be said of law (and this raises questions about the distinction between law and politics, but that is a debate for another day). Law’s role in the distribution of resources is undeniable, and in ever-more-frequent times of resource scarcity, it is extremely contentious. As South Africans, we know that our rights to certain basic resources are guaranteed in the Constitution – but we also know that this promise rings hollow for millions, and is likely continue to do so for years to come unless a radical transformative agenda is pursued. As Africans, we know that the soil beneath our feet is rich with resources which have the potential to change the fortunes of the entire continent – but we also know that the long shadow of extractive and exploitative colonial practices, together with domestic corruption and clientelism, represent significant obstacles. As inhabitants of the city of Cape Town, we continue to be reminded of the extreme precariousness of water security – but we should also know that access to water has been an issue for citizens of informal settlements for decades. As law students based at UCT, we are well aware of the status which our LLBs hold in international ranking systems – but we also know that in certain aspects, we have not been provided with adequate resources needed to survive (and thrive) in law school. There is simply no getting away from it: our ability to access, develop and utilise resources is fundamental to our survival, prosperity and dignity as human beings.

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“In this edition of Altum Sonatur, we try to unpack just a few of the most relevant resource issues of our time”

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Artwork by Megan Dyamond

In this edition of Altum Sonatur, we try to unpack just a few of the most relevant resource issues of our time, while giving the theme a broad interpretation. From the water crisis, to land redistribution, to access to healthcare, we interrogate the most prominent resource debates of recent months. We revisit the classic philosophical problem of the tragedy of the commons; we review Marvel’s Black Panther and consider its lessons, both resource-related and otherwise; we question whether the provision of education should be privatised. Although our theme is clear, you’ll also find the usual suspects: Humans of Kramer keeps up its regular feature, our Life after Law School piece enjoys a series comeback, and a book review column makes a first appearance. We’ve kept up with recent Kramer news, from catching up with the team behind the newly-established UCT chapter of the Chamber of Legal Students, to an interview with visiting professor Angela Davis. As you read through these pages, we hope that you are encouraged to reflect on the impact which your consumption of resources has on those around you, as well as the impact which resource availability has had on your own life. Ultimately, we hope that you are able to consider law’s potential – or lack thereof – to significantly reform the distribution, management and protection of resources in the society in which we live.

Kelsey Pailman and Lauren Gildenhuys

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CONTENTS All for One but None for All

4

Interview with Angela Davis

6

Life from a Tap

9

Privatising Education

12

Humans of Kramer

14

The Resource Curse

16

Petrichor

19

Weapons, Warriors and Wakanda

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Interview with Chamber of Legal Students

23

This Land

24

Energy Escapades

26

50 Shades of Consent

28

The Right to adequate healthcare

30

Life after law school

32

Blackass review

35

contributors

36

Cover Image by deepalimaldephotography Layout Design by Ashley Jane Seymour

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All for One but None for All

by Quentin Du Plessis

S

uppose you are driving to campus one day, running late for an important test, and traffic has come to a crawl. The neighbouring lane starts moving faster so you, thinking quickly, turn on your indicator and change lanes. The decision pays off and you arrive just in time. Inspired by your success, you formulate a rule (as law students are wont to do): Always follow the fastest lane. Hey presto, the rule is successful, and you notice a marked improvement in your punctuality.

Suppose, however, that everyone else decides to adopt the same rule. In this case, everyone is late: drivers have to slow down when a car squeezes in front of them, and so do the drivers behind them, and so on, ad infinitum. Even worse, traffic follows a wave function: each iteration of this process slows it down even more, so the people at the back - faced with the cumulative impact of the actions of drivers ahead of them - are about to experience carmageddon.

Situations of this kind are called a tragedy of the commons, or a multi-person prisoner’s dilemma. They arise when conduct that is beneficial to individuals is detrimental to the group as a whole. Importantly, conduct may

remain beneficial regardless of what everyone else is doing; changing lanes remains your dominant strategy whether everyone else is doing so or not. This results in what is called ‘Nash equilibrium’: everyone changes lanes, and so everyone is late.

Tragedies of the commons are quite prevalent, and the consequences are often far more serious than being late for Property Law. Global warming is one such example. It arises partly because individual agents reap all the benefits of polluting, but the harms of pollution are borne globally.

Driving your car to campus is, after all, far more convenient than taking the Jammie or riding a bicycle. The harm of driving your car to campus is diffuse, you cannot point to it and say, ‘There it is!’ You may even reason that your efforts are neither necessary nor sufficient to stop global warming, so why bother? Apparently, many of us do reason like this, since entire ecosystems face the threat of extinction.

In Cape Town, we have a more immediate experience of this phenomenon. The drought crisis arose partly because water was never priced correctly; as a result, individual users had little incentive to discontinue their water consumption patterns. The City tried to rectify this

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“The drought crisis arose partly because water was never priced correctly; as a result, individual users had little incentive to discontinue their water consumption patterns.” through the introduction of a ‘drought levy’. The very failure of this levy is an interesting case study of a tragedy of the commons. This attempt to price water ‘correctly’, shifting the costs of overuse to the individual, was doomed from the start. The levy was based on property values and not on water consumption, so the incentive structure governing water consumption remained unchanged. Concerted public opposition accordingly saw it scrapped by the City council. It is interesting to note that the public could solve the coordination problem of collectively opposing the levy, but seems unable or unwilling to solve the coordination problem of tackling the drought. Though each individual resident certainly has an interest not to have a tax levied on them, it is unclear whether this is true of the city as a whole.

This points to the paradox that lies at the heart of all tragedies of the commons: sometimes, following your best interests is not in your best interest. More precisely, sometimes if everyone were to follow what is in their best interest, everyone would be worse off than if no one had done so. The existence of this fact - and its existence is a plain, simple fact - is, I would like to suggest, a compelling argument against laissez-faire economics. The very rationale behind laissez-faire economics is that the ‘invisible hand’ of the market will ensure that individuals, acting in their self-interest, will promote the social good. No doubt there are contexts wherein this will be broadly true, but it is precisely when the invisible hand fails that we need government intervention and where law has a role to play.

It is here that we need to be careful. Often, the existence of tragedies of the commons is used as an argument for privatisation. The idea being that this will solve the incentive problem at the heart of the phenomenon, making the owner of the resource bear the costs of overuse. This argument can be disposed of easily by distinguishing between resources that are amenable to privatisation and resources that are not. For example, agricultural land is a resource that may benefit from privatisation and thereby be spared from over-utilization. But none of the resources discussed so far in this article - roads, the atmosphere and water - can or should be privatised.

ALTUM SONATUR Another contention - put forward by Elinor Ostrom, who was awarded a Nobel Prize in Economic Sciences for her work on this issue - is that tragedies of the commons are not actually that difficult to solve, since it is in the interest of users of a resource to come up with a compromise that avoids overuse. She cites as an example an agricultural commons in the Swiss Alps that has been run to the mutual benefit of a collective of farmers since 1517. But this argument can be disposed of with another distinction, between small- and large-scale coordination problems. Small-scale coordination problems may be solvable locally, since the level of coordination required is sufficiently simple for local users to solve. On the other hand, large-scale coordination problems - of the type we have been concerned with in this article - cannot be solved locally. It is very difficult to reach a compromise on acceptable driving behaviour while in a traffic jam, or for industrialists around the world to agree on a pollution cap, or for millions of city residents to agree on admissible water usage.

Very difficult, that is, unless there is some government intervention to coordinate and police such efforts.

Governmental regulation is particularly well placed to change the incentive structure that governs these interactions, since government is not a player in these games: it is the referee.

Suppose, for example, that the following regulation is adopted: “When, due to traffic congestion, a road user is driving below forty kilometres per hour on a National or Municipal Road, said road user will keep to their lane.”

Enforcement of the regulation could come by placing traffic cameras along congestion hotspots. With the aid of machine learning, identification of ‘shirkers’ - people who flout the regulation - can be automated, and they can be fined accordingly. This changes the calculation for road users to a choice between being marginally late, or possibly being on time but definitely suffering a fine.

As to the problem of global warming, an appropriate response has already been formulated: cap and trade.

This works by allocating a limited number of permits to discharge specific quantities of a pollutant. Polluters that want to increase their emissions must buy permits from others willing to sell them. By shifting the cost of polluting onto individual polluters, they are incentivised to minimise their pollution.

Finally, as to the drought crisis, an appropriate response has already been implemented by the city: punitive water tariffs. Though this is clearly not sufficient to tackle the drought, it should help by reducing certain users’ water consumption.

Living in a large, multifaceted society often implies the existence of problems that cannot be solved by its individual participants. This is one of the reasons we are willing to sacrifice some individual freedoms to a government with the authority to regulate our behaviour. As budding lawyers, we should understand this necessity better than most.

And if you still don’t buy the argument set out above, just remember that more government regulation means more work for lawyers. Agreeing with me is in your best interest.

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A H

ngela DAVIS

ave you dreamed about what it would be like to meet Wonder Woman? The ultimate female heroine that contributes to bringing justice to the world, fearless with her strong and graceful presence? Kramer recently had the honour and pleasure of finally meeting Wonder Woman herself: Professor Angela J. Davis.

Professor Davis is an American academic and author from American University’s Washington College of Law. Her field of expertise is criminal law with a specialisation in prosecution and focused study on the inherent stain of racism in the criminal justice system. The Altum Sonatur team were privileged to interview Professor Davis and find out more about this legal legend.

Where did your interest in criminal law stem from?

A few years ago, I was asked to participate in a book project called ‘How can you represent those people’. It is a book of essays about what motivated people to represent persons charged with crimes. It made me really think, ‘what did motivate me to want to represent these people?’ I think it goes back to my childhood of growing up in the segregated South, always feeling like I wanted to help poor people and people of colour, because I felt like these are the people who are most oppressed in the country. Growing up where there were laws not followed, which were supposed to protect people, I wanted to be a civil rights lawyer. I knew I wanted to go to law school and I just got interested in criminal law as I learned more about the criminal justice system. I learned how people of colour were victims of that system. Being a public defender was like being a civil rights lawyer for me.

You have practised law and are now in academia.

What is the one question you feel people never ask you, but which you would like to answer? What is the message that you would like to convey?

What do I think that people should pay more attention to that they are currently not paying attention to? The

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An Interview

By Mohini Karappian issue that people should give more attention to that is so important? I would say people should put health and wellness first in their lives. I know that sounds strange. People are dying every day because of physical, emotional and mental illnesses, especially black people and poor people. I got so upset when people laughed at Michelle Obama for wanting to put fitness and wellness first. People of colour are dying because of physical issues, malnutrition and mental health issues. Black people suffer from mental health issues caused by the racism and stress they face due to the way they are treated. I have lost far too many friends that were fighting the good fight but were not taking care of themselves. You are not going to be a good lawyer if you do not take care of yourself.

In South Africa, owing to many factors (the gross violation of human rights being a major one), the approach has been to create a strong protection for the right to life. It is a right without limitation. In the Unites States of America, however, the right to life is somewhat limited - giving rise to the death penalty as a part of the criminal justice system. In a country notorious for the disregard shown to black lives in the past, what do you think informs such legal thinking?

Why and how does the legal thinking differ to that which is found in South Africa with respect to the right to life?

I do not know what it leads to it. The United States of America is one of the few Western countries in the world that still has the death penalty, but it is not the only one. The United States of America are aligned with countries that they claim not to share much with but which also have a death penalty.

Individual states are slowly getting rid of it, but it is not uncon-

“People of colour are dying because of physical issues, malnutrition and mental health issues.”

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ALTUM SONATUR stitutional. This comes from who is on our Supreme Court.

They have been chipping at it; it is now unconstitutional to execute someone who is a juvenile. But they keep chipping away at it. I hope it’s abolished in my life. It goes back to democracy and who is appointing the Supreme Court Justices. Where the support comes from, I don’t know. But I do know it needs to change.

With the development of social media, we have this culture of recorded police brutality, especially against people of colour. In your presentation of the book ‘Policing Black Men’ you touch on the disproportionate arresting and more importantly killing of unarmed black men and boys, with no reason, by white police officers. Officers who aren’t charged or arrested. This not only shows how anti-black the justice system is, but also how being pro-white is intrinsic to its nature. Could you speak on this issue, try to unpack it and give some insight on a possible way forward?

A lot of changes have to be made. There are complicated reasons for it [the intrinsically white nature of the justice system in America], but no justifications for it. Don’t think there is any one answer, many changes need to be made. One is the will of police chiefs who should set policies that do not permit police to use deadly force in such a wide range. They will need to be re-trained on de-escalation techniques. Police racism needs to be dealt with. The way police officers are behaving, especially with juveniles, needs to change. Police brutality has resulted in policemen attacking people violently by throwing them on the ground for no good reason and pulling their pants down, obviously people will fight back and then the police accuse the people fighting back as if they are fighting the police on their own accord. It is about retraining police officers, changing the laws on circumstances in which the police are permitted to use deadly force, and the setting of policies in specific police departments that do not allow them to use deadly force, even though the law says they can.

You once talked about discretionary decision-making by criminal justice officials – from arrests through to sentencing – thereby producing racial results. Can you speak on this?You also mention how prosecutors have this power of discretionary decision-making; how do prosecutors play a role in contributing to this racial disparity in the justice system?

I do think they have power and discretion, they can use this discretion to do so much good if they want to. They can decide their goal is to keep the community safe while reducing the incarceration rate, by implementing policies. They can decide ‘I’m going to implement policies that will hold a person accountable without locking them up’. It is not that radical. Just because someone commits a crime does not mean they have to be put in a cage. Prosecutors decide who are in the jails and who are not. It has to be an intentional change in policies.

“Obviously people will fight back, and then the police accuse the people fighting back as if they are fighting the police on their own accord” where they invited chief prosecutors to volunteer to open their offices up to do statistical studies to try and determine whether or not prosecutors were making racial disparities without realising it. This is the simple way of explaining it: people did not realise it. They were ‘not racist’ yet they were prosecuting on the basis of race. Prosecutors have to keep their communities safe. People are committing violent crimes, but there are way too many people who are locked up who are not dangerous. They can pay for their crimes without being locked up. Prosecutors in the USA are starting to do this now.

Do you think there is practicality in requiring law students finishing their degrees to do community service before applying to the Bar? I have mixed feelings about this. This sounds like a great idea. It might work with students better than lawyers. State lawyers go through training and lawyers have to do mandatory pro bono. At public defender service, you don’t want someone to do it if they are forced to against their will. If the student wants to do the community service that would be great. If they are feeling like they might be forced, maybe that might not be the best option. I do not know if I feel strongly about this.

Do you think, as a teacher, that there is a way for us to have greater exposure to where the law needs to be further challenged and developed while also having that experience ourselves? Students often have no idea of their options because they are being driven in a particular direction.

I like this idea. We as professors have to use our teaching time wisely. While we do need to go through the syllabus, I also like to bring people to talk to the class; it is not the same as going out there, but it is a start. I bring in the public defender to talk in the class, to whet their appetite. If you can reach out to one person in that class time, you don’t use class for it, bring that into your classroom environment.

The Altum Sonatur team were humbled to meet Professor Davis. It was insightful listening to her thoughts on racism in the criminal justice system in the United States of America. It was deeply inspiring hearing the story of this woman to whom many of us are able to relate, as well The racial issue is another problem. I was involved in a program called The Prosecution in Racial Justice Program, as learn from.

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Th Ill

by

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e le y on

Life from a Tap

The Cape Town Water Crisis Illuminates Inequality

by Patrick Heron

T

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he City of Cape Town has indicated that Day Zero will not occur this year. However, the water crisis is far from over. At present, total dam storage levels sit at just 23% and level 6B water restrictions remain in effect. While the crisis has brought the

fragility of the region’s water supply into focus, it has also further illuminated the stark socio-economic disparities that still influence access to water. All those caught in the crisis have been affected, but the severity of its impact is not homogenous across all groups. (Continued on Page 10)

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“Socio-economic conditions inevitably influence the severity of the crisis; with the poor experiencing greater exposure to its more severe consequences.”

Socio-economic conditions inevitably influence the severity of the crisis; with the poor experiencing greater exposure to its more severe consequences. The real lesson of the crisis, therefore, is that the right of sufficient access to water is both more fragile and elusive for the economically disadvantaged; demonstrating yet again that a divide still exists between the aspirations of the Constitution and the prevailing socio-economic reality.

I may be accused of stating the obvious, but in light of Cape Town’s water crisis, the importance of water cannot be emphasised enough. It is essential for life and this is recognised within South Africa’s constitutional democracy. The Constitution entrenches the right of access to water in section 27(1)(b) which states that ‘everyone has the right to have access to sufficient food and water’. Two pieces of national legislation, the National Water Act and the Water Services Act, govern the management of water. Both Acts recognise water as a basic human need, but the Water Services Act is more relevant in this context as its primary focus is to facilitate the provision of potable water and sanitation to households and municipal water users by their respective municipalities. Thus, it is the Water Services Act that seeks to give effect to section 27(1)(b) of the Constitution. Section 3 of the Act illustrates this; it not only embodies the right of access to water, but also provides for the obligations imposed on the State to facilitate the realisation of this right.

Exactly what section 27(1)(b) entails was determined by the Constitutional Court in the case of Mazibuko and Others v City of Johannesburg and Others. In delivering the unanimous judgment, which concerned the city’s Free Basic Water Policy and the instalment of prepaid water meters, O’Regan J emphasised the fundamental importance of water to human life. However, despite significant improvements since the onset of democracy, access to water is still characterised by deep inequality. It was highlighted that so long as this is the norm, then the achievement of equality, as envisioned by the Constitution, will not be realised.

The Court was cognisant of the fact that water is a scarce resource in South Africa, requiring effective management by all spheres of government. Against this backdrop, the court delineated the right entrenched in section 27(1)(b) and the corresponding duties of government. The court held that section 27(1), read with section 27(2), imposes a positive obligation on the state to facilitate the progressive realisation of the right of sufficient access to water. The state is required to take reasonable legislative and other measures, within its available resources, to satisfy its constitutional obligation. This qualification is critical to the interpretation of the right of sufficient access to water and the corresponding duties of the state. Drawing on its reasoning in the cases of Grootboom and Treatment Action Campaign (No. 2), the court held that section 27 did not embody a minimum core which, in international law, is regarded as a minimum essential level to be attached to socio-economic rights. It was found that courts are inappropriately positioned to determine what a minimum core would require. Rather, in order to determine the true nature of the state’s obligations, section 27(1) must be read with section 27(2). Having adopted this approach, the Court found that section 27(1) does not entitle people to claim from the state immediately. If the state demonstrates that, within its resources, the measures taken to facilitate the progressive realisation of the rights in section 27(1) are reasonable, then it would have fulfilled its constitutional obligations in this regard.

The Cape Town water crisis has demonstrated the potential fragility of the right of sufficient access to water.

Thus, we must ask the question: did the state do enough to avoid this crisis and were the measures it took reasonable?

Various factors have to be considered, including whether the measures adequately accounted for climate-related factors and whether the City’s population growth was accounted for through appropriate water infrastructure development. It is important to remember that reasonableness is determined within the limits of the state’s available resources. Unfortunately, the uncertainty and the political ‘blame-game’ that has ensued between the DA local government and the ANC national government means that acquiring the answers to these questions is easier said than done. In any event, it would be irresponsible to focus only on blaming government. This is not to say that the state does not deserve to have its management of water scrutinised, but rather that it runs the risk of obscuring the fact that many have taken water for granted and wasteful consumption has signifi-

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cantly contributed to the crisis. Further, it might also distract from the socio-economic disparities in access to water between the rich and poor, which existed long before the crisis, and for which government should also be held accountable.

Affluent individuals have demonstrated that even in a drought crisis, they enjoy greater water security, because they are able to afford alternative water sources.

These include utilising boreholes and water-saving technologies, being able to install ‘Jojo’ tanks, being able to afford large quantities of bottled water and having the means to access spring locations. Not only are these alternative sources more accessible to affluent individuals, but they also help mitigate the impact of the drought and the water restrictions on their day-to-day lives. Meanwhile, low-income individuals lack the means to acquire sufficient access to these alternative sources. There is not only a financial barrier, but also a physical barrier. Travelling long distances to buy and carry bottled water or to access a spring is made more difficult without reliable transport.

A critical question also arises concerning those individuals living in areas that are inherently reliant on communal taps: if the crisis were to worsen and the supply of water is further restricted, what would be the alternative for people in this context? While all Capetonians are affected by the crisis and the corresponding water restrictions, the prevailing socio-economic conditions influence the severity of these effects where individuals in the lower-income bracket are more susceptible to the adverse effects of the crisis.

This represents a microcosm of the socio-economic inequality that still surrounds access to water in South Africa. As emphasised in Mazibuko, the situation since 1994 has improved - when roughly 15.9 million people did

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not have access to piped water. However, millions of people still do not have access today – roughly 9% of the population according to the 2011 census. In terms of the Water Services Act, it is the duty of individual water service authorities (municipalities) to ‘progressively ensure sufficient, affordable and sustainable access to water services’. The Department of Water and Sanitation also manages various projects and programs, one of which is the ‘master plan’. It intends to guide the water sector with investment planning regarding the development of water resources and delivery of water and sanitation services until 2030 and beyond. It plans to allocate roles and responsibilities to actors within the water sector, including various tiers of government, the private sector and other stakeholders. However, given the department’s bureaucratic collapse, it remains to be seen whether the plan’s objectives will be carried out effectively. The year 2030 is a long way away for those who have been waiting for decades for access to piped, potable water – and drought severity could have dramatically increased by then.

While Day Zero may not occur this year, Cape Town’s water crisis is not over and the issues that it has brought to light must be dealt with.

Not only must we re-evaluate how we perceived water, we must also grapple with the gap that exists between founding constitutional values and the prevailing socio-economic circumstances, especially in terms of water access. The urgency with which people have responded to the water crisis should have been present long ago in addressing the inequalities surrounding water access.

As long as this gap persists and inequality continues to impair people’s access to water, the Constitution’s commitment to equality and dignity will only have a hollow ring.

“Affluent individuals have demonstrated that even in a drought crisis, they enjoy greater water security, because they are able to afford alternative water sources.”

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Could the privatisation of schools be a feasible option for South African education?

By Jewel Ormond

W

hen one thinks of private schooling, the last thing one sees is a potential solution to the public schooling crisis in South Africa.

However, when you take a closer look at the possibilities explored in other developing countries, the idea of a private education system doesn’t seem like the most outrageous option.

This does, however, raise the question of whether South Africans should consider such drastic alternatives given that basic education is one of the most important rights given to citizens by the Constitution.

The average cost of a child enrolled in private schooling from grade R to 12 is R3.7 million, according to Businesstech’s research. In contrast, public primary education costs approximately R250 000. The price of private schooling is therefore not merely a small additional cost, but rather a fortune - especially for the majority of previously disadvantaged South Africans. It isn’t difficult to see privatising South African schools as being a catalyst for deepening the divides between rich and poor in our country rather than being a solution to the problem. In the light of private schools charging an average of almost 15 times the amount of a standard public school in fees, how could this possibly be seen as a solution to our schooling crisis?

If one considers the approach adopted in Nigeria, a unique perspective may be gained on private education in developing countries. Notwithstanding the fact that Nigeria has less than half South Africa’s GDP per capita (according to the World Bank), the country has nevertheless seen an increase in small entrepreneur-run private schools specifically aimed at poor communities looking for a quality education - as discussed in an article by the Borgen Project. These schools have even more affordable fees than their public counterparts. Besides the obvious increase in quality of education compared to the under-funded and under-resourced public schools in Nigeria, these schools are attracting more foreign investment into the country. This will boost the economy and has the potential to uplift these poorer communities further.

South Africa is currently ranked 118 out of 187 countries analysed on the UN’s human development education index in 2016, with only 27% of grade 6 pupils found to be literate. This has largely been blamed on union politics interfering with the education system, and on mismanage-

ment and corruption in our education department. These issues cannot, surprisingly, be blamed on a lack of funds. According to The Economist, while most EU countries spend an average of 4.8% of their GDP on education, South Africa spends 6.4% – but with what results? The problem South Africa seems to be facing is that of spacial inequality coupled with under resourcing. While public schools in the suburbs are able to afford better resources, those in rural areas are bearing the brunt of South Africa’s schooling crisis. The geographical divide between public schools is primarily because of the long-standing legacy of apartheid and its crippling Bantu education system which has never been fully dismantled by the succeeding authorities.

Education is a fundamental right entrenched in our Constitution. However, this right is being catastrophically overlooked in many of our country’s schools. The Limpopo textbook crisis is an apt illustration of the neglect the provision of the most basic teaching resources is receiving. The schools affected were predominantly “no fee” schools – lacking either the funds or the permission to acquire their own textbooks for learners. This left teachers and students alike unable to even attempt to continue the routine of learning.

The blame was laid directly at the feet of the Department of Basic Education, which was found to lack the ability to supervise the distribution of these textbooks. Furthermore, between 2006 and 2010, approximately 1000 schools were closed across the country to decrease government expendi-

“Education is a fundamental right entrenched in our Constitution. However, this right is being catastrophically overlooked in many of our country’s schools.”

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ture. This was portrayed by officials as a positive. In reality this was yet another way thousands of children were being stripped of their right to accessible basic education.

South Africa has already seen the introduction of some schools similar to those found in Nigeria, which have a low-cost focus on uplifting disadvantaged communities through quality education. Schools such as Spark in Johannesburg, which was founded in 2012, are a fitting example of a private system which has the potential to help raise South Africa’s education standards by offering private schooling at a public school cost. The school’s syllabus, as laid out on the Spark school’s website, aims to combine that of the South African CAPS syllabus with other leading international systems where CAPS has been found to be lacking. Spark’s Maths curriculum, for example, is based on the curricula found in South Korea, Singapore and Hong Kong, whose education systems have them among the top academic institutions in the world – as assessed by the UN’s human development program. This symbiotic model ensures that students receive the best of both worlds: an appropriately contextualised syllabus which draws on the best practices from world leaders in education. Spark also teaches various African languages, ensuring that students may be taught in their own language at school. This school also aims to socially uplift their students and creates a strong personal drive to succeed in life through the inclusion of core values in the curriculum.

Another example of an education institution working to raise the success of education in poor communities is Grahamstown Area Distress Relief Association (GADRA).

This NGO-run school works to help matric students specifically to improve their marks so they are able to rewrite their

matric examinations and achieve what they need in order to enter into tertiary education. Their work in the rural areas around Grahamstown has yielded consistently improving marks for their students, most of whom go on to study at universities and other tertiary education institutes.

If one considers how this private system is already working in South Africa, as well as in other developing countries, then the current assumption of private schooling in this country as exclusive and unaffordable is replaced by one of tentative positivity. South Africa’s entrepreneurial savvy fits perfectly with this model as these private schools are run by small companies and individuals in their own communities. The potential in this system lies mostly in the private sourcing of resources, as well as in expanding the curriculum to include syllabi from various highly effective systems in other countries. These two factors alone would increase the standard of schooling in poorer areas significantly.

Despite the perception of private schooling in South Africa as being elitist and ridiculously unaffordable, there are other private options which have been tried and tested to fit into a developing country’s educational context and effectively uplift the standard of education in the community around it. After years of our government failing to adequately improve our education system after Apartheid, this is potentially a viable option for South Africa going forward. Although we can look to alternatives such as those found in Nigeria, it is still the primary responsibility of our government to provide education – for education is a fundamental right we possess as South Africans. While privately run schools may be a possible solution, we should not have to fully replace all ill-functioning government services.

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Does the Law Faculty provide sufficient resources to assist in the attainment of an LLB degree?

“No, the resources are lacking in a number of aspects; and this doesn’t correlate to the fact that our school fees are increased every year. We have to pay for our own printing, there’s a lack of working plug points to charge our laptops, the library isn’t 24 hours, we’re not being given proper feedback from our marked assessments, and there’s a lack of ongoing assessments that actually help teach and not pass. I hope this Faculty accounts for all this when they submit their plan to CHE.” -Lebone Matshitse

“The faculty provides a fair amount of resources such as easy access to Vula, the Writing Centre, tutors and the library. This does not mean that the faculty is also not slacking behind, like in case of the paperless method.”

-Noma Rantsho

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“No, the form of support structure does not reflect the reality of law students; it does not take mental health issues seriously. The staff members are also not engaging as they should be. ” -Lindsay Moses

“To a certain extent, yes. The faculty has been doing fairly okay in terms of the infrastructure. However, there is still a lack of resources, such as printed versions of reading materials, which has the potential to hinder the academic progress of students. ” -Boitumelo Sediti

“Yes and no. ECP and Pass classes provide a lot of assistance to students. On the other hand, some lecturers bombard students with unnecessary material.

Accessing all the material online is counterproductive; having hardcopies of the course material makes more sense.

I also think that lecturers should be responsive to the needs of the students. ” -Yonnic Carelse 15 2018_copy.indd 15

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The Resource Curse and Africa’s Development Paradigm Prioritising agriculture to facilitate economic development

By Steven Clowes

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he experience of the African continent is a canonical example of the ‘resource curse’. Most African countries have a wealth of resources capable of transforming the lives of their citizens and spurring economic growth. However, natural resources are often squandered - leading to lack-lustre economic development, political instability, poverty and environmental degradation.

This mismanagement of resources by states is one of the factors hindering the continent in reaching its economic potential. In many cases, political elites monopolise control of their country’s resource stock or misdirect economic activity away from the primary, ‘unsophisticated’, sector to the secondary and tertiary

sectors. This results in the promotion of industrialisation that is often at the expense of agriculture. In the mid- to late 1900’s, newly independent African states perceived agrarian society as economically inferior and as a perpetuation of colonialism. Industry, on the other hand, was seen as the engine of growth and a means by which to catch up with the developed world. This lead a spate of five- to ten-year development plans emphasising an import-substitution industrialisation model.

These plans largely failed, in part due to states’ inability to avoid clientelism and corruption, and in part due of the meddling of Western Institutions (the United Nations and the International Monetary Fund) in African economies through Structural Adjustment Programs. African countries have seen minimal industrialisation, and

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the manufacturing share of African Gross Domestic Product (GDP) remains stagnant at roughly 10%. At the same time, agriculture as a percentage of GDP has declined with an increased services sector taking its place. Despite this, African countries are still heavily dependent on farming, with majority rural populations whose major source of income is agriculturally related. The increase in the services sector relates mainly to the trading and processing of agriculture goods for consumers whose incomes are agricultural.

In addition, the world economy has changed significantly. De-industrialisation and globalisation has seen an increase in the tertiary sector and the decline of manufacturing (synonymous with industry). Automation of production processes has resulted in manufacturing as a share of total employment decreasing, most notably in the East Asian Tigers (Hong Kong, China, Taiwan, Singapore and Korea). However, these countries still maintain a competitive advantage in manufacturing with the lowest production costs and shortest production times. The East Asian Tigers are therefore considered to be the workshop of the world and this has largely inhibited Africa from entering into new finished goods markets or growing its limited manufacturing sector. Africa has itself seen some de-industrialisation, even though its industrialisation was limited. It seems clear then that (in today’s post-in-

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dustrial climate) African states would be ill-advised to put their faith primarily in manufacturing.

However, the latest wave of African development plans has placed major emphasis on industrialisation, whilst often ignoring the power of agricultural development. By way of example, Cyril Ramaphosa (South Africa’s current president) in the 2018 State of The Nation Address stated: ‘We will seek to re-industrialise on a scale and at a pace that draws millions of job seekers into the economy.

We are going to promote greater investment in key manufacturing sectors through the strategic use of incentives and other measures.’ This statement is incongruent with the current post-industrial economic landscape. Unfortunately, it does represent the main thrust of most major African Development plans.

Thankfully, Ramaphosa’s later words are more comforting: ‘Agriculture presents one of the greatest opportunities to significantly grow our economy and create jobs.’ This statement should form the basis of African economic policy.

African states should aim to develop a strong agricultural sector by strategically using its wealth of natural resources. Given Africa’s large rural population, governments should prioritise rural infrastructure development by rejecting the urban bias often present in development plans. Such investment must be directed towards assisting small-scale farmers – a pre-existent class across the

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ALTUM SONATUR continent – to raise their productivity and sell more of their produce. Despite small-scale agriculture being largely subsistence-based, with adequate support it could raise rural incomes and absorb unskilled labour. Small-scale agriculture also helps to distribute the natural resources of the country among the population, preventing its capture by the elites, a phenomenon which is a defining feature of the resource curse. A major impediment is the access to credit for rural small-scale farmers. Governments must therefore set in place policies and programmes to enhance both forward and backward linkages. The former means facilitating processing plants and ensuring a route to market. The latter means providing a source of financing, business services, veterinary services and training to farmers. Furthermore, many foreign agricultural techniques are unsuitable for African conditions. Africa is not a monolith.

Thus, each state must invest in new farming technologies tailored to its specific agro-ecological conditions. This requires agricultural research and education.

More rudimentary and contentious in South Africa, is small-scale agriculture and access to land. Governments need to ensure that existing small-scale farmers are able to use their land productively. Moreover, land that is not being used should be earmarked for agricultural development. Such development should not be for the benefit of a few well-connected individuals but must be allocated to surrounding communities under the condition that they, with the appropriate support, pursue agricultural activities on the land. Unproductive large scale commercial farms must also be divided up into smaller productive units that benefit more people.

It is not asserted that agriculture and manufacturing are mutually exclusive. But, there is unlikely to be any development of manufacturing if there is not a strong agricultural sector that effectively utilises natural resources.

The industrialisation of the East Asia Tigers, for example, was preceded by a ‘Green Revolution’. This revolution was a state-driven agricultural and rural development strategy.

Export-orientated industrialisation then amplified and sustained prior, and parallel, agricultural growth. Indeed, there are many complimentary linkages between indus-

“ Governments need to ensure that existing small-scale farmers are able to use their land productively” try and agriculture. Primarily, agriculture produces food for industry workers and provides raw materials for the production process. Higher agriculture growth also provides autonomous demand for industrial outputs used as agricultural inputs. Agricultural growth further serves to generate surplus wealth to be invested in new sectors and it stabilises both prices and wages, boosting the profitability and competitiveness of these sectors. Higher growth in agriculture also increases the growth of agricultural exports and decreases food imports. This reduces foreign exchange constraints on industrial accumulation by increasing the capability for importing capital goods.

Agriculturally-focused development could also serve to empower a large proportion of the population.

This will promote social and political stability. Furthermore, it reduces inequality by allowing less educated and underprivileged citizens a chance to actively participate in the economy. African states should thus embrace participatory democracy, embedding the state within civil society. This will allow the African citizen to have a greater role in, and be more committed to, development. Increasing accountability also guards against monopolisation of resources and state capture.

African states have so much potential to effectively utilise their resources to the benefit of their people. Prioritising agricultural development, while no silver bullet, is the best way to harness the enterprising power of the African continent to promote economic and social development. It will also provide a spring board to developing new and existing economic sectors.

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Petrichor

By Murray Walters As I lie in bed and listen to The rain fall from the sky I feel somewhat overwhelmed By the fact that I’m alive I can hear her ageless whisper As she gently sings to me I can taste her sweet and timeless breath As she cascades from the trees She throws herself from mountains high She sings to rivers deep and dark She crawls between the amber eyes Of roots, branches, boughs and bark She brings a certain zest to life An ethereal flow of energy She brims our eyes and holds our hearts As she fills the dams and strokes the seas She represents the flow of life She is the womb for everything Her song will keep the world alive And she will never cease to sing Such beauty takes my breath away The song she sings will never fade I wish I had the words to say How much this rain has made my day.

Artwork by Megan Dyamond

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Weapons, Warriors and

Wakanda Black Panther and Afrofuturism

By Tirivashe Mubika

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t was a lazy summer afternoon when the topic of the then up-and-coming movie ‘Black Panther’ first came up. I was with my cousin and, as fate would have it, on my way to watch 2017’s own version of ground-breaking cinematic genius: Wonder Woman - but that’s a review for another day. I listened half-heartedly as my cousin enthused about how excited she was for the release of a superhero movie with a black/African lead. It was then that I confessed to not sharing her sentiment. My experience of Africans being portrayed in Western cinema left a lot to be desired.

For years, I had grown up seeing African characters brought to life on the small or big screen as various incarnations of one of two African stereotypes. One is ‘The Enchanted African Royal’ who is positively tickled to be in the ‘West’; marvelling at the smorgasbord of magical creations, the likes of which included (but were by no means limited to) television sets, milkshakes and cars. There

“For years, I had grown up seeing African characters brought to life on the small or big screen as various incarnations of one of two African stereotypes.”

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Artwork courtesy of FANART.TV

was also the much more widely used number two: ‘The Impoverished African’. A figure invoked by Western mothers everywhere to get their children to ‘eat their vegetables’ and ‘be grateful that grandma bought you those socks for Christmas’ because of course, some child in Africa is - by virtue of being African - starving. So, one can imagine why I was a tad sceptical, to say the least, about the idea of a Hollywood movie starring an African hero.

However, less than a year later I found myself seated in a dark and crowded theatre; cheering enthusiastically with a group of strangers whenever the characters appeared on screen, laughing with abandon at the wisecracking antics of a relatable character, and brought to tears by the stunning visuals and moving performances brought to life by the cast and crew. To say Marvel’s Black Panther surpassed my, nearly non-existent, expectations would be an understatement. Not only did Black Panther push barriers and make breakthroughs in terms of gender norms and roles associated with black and African men and women, and create insight into the complexities of Africa, the African diaspora and the ‘black experience’ as a whole; it also introduced the world (more specifically the world of cinema, television and fiction) to the concept of Afrofuturism.

So, what exactly is Afrofuturism, you ask? Afrofuturism is defined as: ‘A movement in literature, music, art, etc. featuring futuristic or science fiction themes which incorporate elements of black history and culture.’

Black Panther, a movie set in the fictional African country of Wakanda, with its combination of African traditions and customs, as well as its futuristic technological advancements, well embodies the concept of Afrofuturism. The movie also presents an interesting and thought-provoking premise through the existence

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“Afrofuturism is at the heart of the Black Panther film.”

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of Wakanda itself: a country of prosperity and peace, endowed with a powerful and extremely valuable mineral known as Vibranium.

Most notably, Wakanda is an African country never to have been colonised. The fact that Wakanda has accomplished advancements in technology through the extraction and use of Vibranium, and has achieved political tranquillity and sustainability through the unification of the diverse ethnic groups with little to almost no Western influence, is no accident. The movie inspires and invites the audience to ponder and reflect on what an African country could have been, and quite possibly would have been, if it was never ravaged or exploited by external powers. If it was allowed to flourish naturally, advancing at its own pace without the scars and ghosts that haunt the identity of an entire race. Wakanda exists as the quintessential paradise, the haven, the Promised Land for the black individual. This is unsurprising, as fiction is often used and arguably exists as a form of escapism - an exit from our reality, a way of experiencing that which we never could in real life. However, the fantasy of Wakanda is also grounded in reality, jarringly so. The film places Wakanda in the context of our own world’s tense political climate, and it is in this climate that the flaws of Wakanda, as a country, come to light: the consequences of isolation and the controversy of being an African country living in prosperity but ignoring the plight of the world. The brilliance in doing so, in portraying Wakanda as ideal but still imperfect, is that it becomes even more realistic.

Afrofuturism is at the heart of the Black Panther film. Technology is at the core of pretty much everything in Wakandan everyday life; Vibranium-powered trains transport

them, Vibranium-enriched medicines heal them, and Vibranium-fuelled machinery protects and defends them. The importance of showcasing an African society that is technologically advanced and has made leaps and bounds in terms of human knowledge and advancements is, simply put, powerful. This is particularly so because Africa has been and more often than not, still is, associated with backwardness. The use of accents and language in the movie also served an important purpose. The Wakandan people all speak with notably African accents, for example, pronouncing words like ‘water’ as ‘woh-tah’ rather than the usual American twang of ‘wah-tir’. The importance of this is how the film takes a manner of speaking that has been caricaturised and played off for laughs for centuries and gives it to characters of great intelligence, bordering on genius, and great valour. The African American accent and African American vernacular is also treated with respect through the potent words of Erik Killmonger, who though in an antagonistic role in the film, has understandable motives and is portrayed with complexity and depth.

The inclusion of Klaw, another prominent, antagonistic character in the movie, who speaks with an Afrikaans accent and has a rather unsettling obsession with Vibranium (Wakanda’s most powerful natural resource) may also have been a reference to the Apartheid regime of old. A dark, nightmarish period in African, more

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specifically South African, history. It would therefore be fitting that that period be reflected and personified in the form of one of the movie’s antagonists. There is also something to be said about the comparatively minor role that Klaw plays when compared to Killmonger, a black man of Wakandan descent, particularly as a villain.

Could ‘Black Panther’ be indirectly hinting at the fact that, having more or less defeated the villains of our past, we, as Africans, as the African diaspora, are standing in our own way? In our haste to catch up with the rest of the world, that built itself on our backs, are we doing so by stepping on one another? Are we our own final hurdle in the race to greatness and our full potential? The prevalence of dic-

“There is also something to be said about the comparatively minor role that Klaw plays when compared to Killmonger” tatorships and corrupt governments in African countries may suggest so.

However, it is important to ponder on whether or not those same villainous forces of yesteryear, namely Apartheid, as well as other spectres of African history such as slavery and colonialism, are indeed ‘defeated’ in this day and age.

So, why is any of this important? You may ask, ‘Yeah Black Panther was cool, but why is it held in such high esteem, particularly amongst African people and people of African descent?’ In my opinion, it’s because of two things: 1) the movie was brilliantly executed, in terms of writing, acting and direction. In a way anyone irrespective of race, ethnicity or gender could enjoy. 2) Because it could mark The Beginning. The cinematic and box office success of Black Panther has not only ensured the existence of a sequel but it could perhaps usher in a new era of story-telling. One that focuses on the inclusion of more diverse characters and settings. An era of fictional narratives in which a young boy of dark skin can look at a movie or television screen, see a version of himself and realise that he can be a hero and a leader. An era in which a young girl of dark skin can see a version of herself and be inspired to be a thinker, an innovator and a warrior. An era that I for one am sincerely looking forward to.

So, in closing: Wakanda forever!

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Interview with the Chamber of Legal Students

By Danielle Champ

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ho said we needed to wait for vac work or graduation to start living a highly romanticised Hollywood life of law? A few Fridays ago, I found myself in conversation with Nqobile Dabula, fondly known as Que, a fellow friend and Kramer classmate. More importantly, he’s a second-year law student and already putting his theory to practice in the legal community through the Chamber of Legal Students (CLS). The organisation is founded on mutually beneficial values where students as aspiring lawyers come together in the aid of students suffering the injustices of an institutionalised education system, to ensure procedural fairness between clients and Student Governing Bodies (SGBs).

What better way for law students to make themselves available as a resource to vulnerable members of society?

What attracted you to the organisation?

I think, as law students, we don’t get enough opportunity to put our classroom theory into practice before working for firms, and because this career is so competitive, there isn’t much that separates us from our peers. The CLS is a unique platform to start putting yourself in the deep end now and have a more tangible understanding of what it means to be a lawyer. Besides that, my biggest attraction to the organisation is being able to help indigent families. Often, families come to us because they’re desperate and the chamber is their last resort. Because of this, you witness how a hearing really takes its toll on the relationships of the client, so when a hearing ends, you experience restoration of these relationships and that’s probably been the most fulfilling feeling for me.

What is the core goal of the CLS? Ultimately, it’s to not exist. There’s a misconception that the CLS aims to ‘get bad kids off punishment’, but this is incorrect. The reason for our existence is because an injustice has been done to the concerned students. So, we aim to equip SGB’s with the correct skills and procedures that establish fair ways of solving conflict. We’ve found that sometimes the manner in which a governing body treats a student, results in the student’s systematic exclusion and thus perpetuates the creation of criminals.

We’ve also found that even criminals are presented with more rights than some of these students. For example, we worked on a case where a nine-year-old kid had brought his dad’s leatherman (knife) to school. You know how kids are, trying to be ‘the main cheese on the playground’, there

wasn’t any malicious intent behind it. But when this was discovered, he was accused of threatening behavior and possession of a weapon. However, when we had asked the child if he was aware of what a weapon was, he had no idea that what he carried met that description, because no one had explained to him the potential danger that he could have caused. Our goal is to tilt the scale back to a just balance on the student’s behalf because sometimes the system forgets that it’s dealing with children who are still learning about the complexities of the world around them.

Why do you believe that the CLS is an organisation that students should be involved in?

It’s the most self-developing experience and will gear you towards excelling in your legal career because it’s the closest experience to reality. I wish it could be somehow incorporated into our syllabus. It’s so easy for us to talk about how the law is failing impoverished communities and how our degrees will hopefully urge us to do something about it – but with the CLS students don’t need to wait until they graduate. They have that opportunity right there, ready for taking.

If you’re interested in setting your legal flame alight now or have further questions about this brilliant organisation, below are the contact details to get in touch with the CLS team.

Email: kramer@chambers.org.za or quedabula@chambers.org.za or richard@chambers.org.za * CLS is in the process of attempting to be recognised for community service hours but is not as yet

“I think, as law students, we don’t get enough opportunity to put our classroom theory into practice before working for firms.”

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This Land.

by Analisa Ndebele

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haracterised by dispossession, segregation and inequality – the narrative most South Africans have to share in respect of land is not one short of violence. This is something that was recognised by the forefathers of democracy upon South Africa’s entry into its new constitutional dispensation.

And this is where the land issue still finds itself.

Section 25 of the Constitution of South Africa, 1996 (referred to as the ‘property clause’) is said to reflect what was coined as the foremost consideration at the time of the Constitution’s formulation. Indeed, the wording in this provision corroborates a desire to ‘recognise the injustices of the past’ and consequently

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ALTUM SONATUR ‘heal the [resultant] divisions’ as described in the Constitution’s preamble. With this desire to effect land equity, came the express provision for expropriation in our supreme law. Yet, when one asks, more than two decades into democracy, if rural or urban land equity has been achieved, the answer is a resounding no.

The present condition, as put by former Deputy Chief Justice Moseneke, is that ‘rural land hunger stands in the way of genuine rural development, women who till the soil and live on communal land don’t have the protection that secure land tenure provides, communal land vests in traditional authorities who do not always act in the best interest of their communities, urban homelessness persists, apartheid spatial patterns remain, people in informal settlements continue to run the risk of eviction.’

Indeed the dreary picture of the overall land inequity as a result of ineffective land expropriation in South Africa is clear. While the political rhetoric has largely been focused on rural land, recent commentary suggests that the scene is even worse in the context of urban land.

Urban South Africa finds itself victim to the oxymoron said to be common in most of the cities of the Global South: on the one hand we find formal urban areas established in terms of conventional town-planning procedures, and on the other hand we have shanty towns that develop without official authorisation – referred to as ‘urban settlements’.

These two settings derive their oxymoronic nature from the fact that most often, they are not more than a stone’s throw from each other. This is because, in South Africa, inequality is often not inconspicuous: it is common for a person to find themselves driving through luxurious suburban residential areas in one breath and densely overpopulated townships in another.

The lived experience of millions of South Africans reflects this. Townships across the country are characterised by ‘shacks’, illegal electrical wiring, and dusty untarred roads. Sadly, this is an inequality still to be experienced by an exponentially large number of people in the years to come should change not be effected.

The general consensus amongst scholars is that South Africa is facing an urbanisation crisis and an urgent urban land question. At present, at least two thirds of South Africa’s population is said to live in urban areas, with most people seemingly preferring to build homes within close distance of urban employment. Yet, adequate housing in these spaces remains inaccessible to many due to the exorbitant cost of basic dignity – which at minimum involves having a roof over one’s head – in this country.

A clear disparity between the constitutionally enshrined promise of land equity and the lived reality of millions is left exposed by the current living conditions in urban areas. This is primarily because, since 1994, land redistribution policies by the ruling political party in the country have put too much emphasis on the needs of rural communities whilst ignoring the

needs of urban communities. This attitude continues to permeate debates around land expropriation with particular criticism being dished out on newly-elected ANC president Cyril Ramaphosa for the fact that he (in recent public statements surrounding the expropriation without compensation debate) has “perpetuated the misunderstanding that land is a rural issue”. The focus of the debate urgently needs to shift to address the urban housing crisis. This is where the majority of the population feel land deprivation most acutely, and it is the setting in which expropriation is arguably most needed.

“Urban South Africa finds itself victim to the oxymoron said to be common in most of the cities of the Global South: on the one hand we find formal urban areas established in terms of conventional town-planning procedures, and on the other hand we have shanty towns that develop without official authorisation” 25

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South Africa’s Evolving Energy Mix

by Rozelle Wentzel

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outh Africa is in the midst of an energy crisis. Power cuts, hiked electricity tariffs, and the risk of a complete grid power failure is the order of the day. Politicians, academic scholars, and most importantly, South Africans have realised that the government must implement radical and effective changes to the energy sphere to be able to meet the needs of its citizens.

South Africa is primarily a coalrun country. Approximately 77% of South Africa’s energy supply comes from coal, whereas only 6,5% comes from nuclear plants. The remainder of 16,5% of energy is generated through renewable energy sources. As a stateowned enterprise and the only energy utility in South Africa, it is the duty of Eskom to provide electricity and energy resources to municipalities,

who in turn provide these services to South African consumers. However, with Eskom’s inner workings allegedly beleaguered by corruption, nepotism, and severe financial debt, it is no surprise that it is failing to provide enough power to South Africa’s growing population.

Since 2014, there has been mass speculation surrounding the South African government’s notorious “nuclear deal” with Russia’s state-owned Atomic Energy Corporation, Rosatom. In this agreement, fraught with a lack of transparency, South Africa allegedly undertook to pay more than a trillion Rand in exchange for Russian nuclear technology. This is by far the most expensive public procurement project South Africa has ever embarked upon. To make matters worse, the deal sidestepped the State’s constitutional obligation to hold open and competitive process-

es for public tenders. Not only does this agreement prohibit South Africa from seeking more affordable and flexible nuclear vendors, but it is also binding for a minimum of 20 years – essentially giving Russia monopolised access to South Africa’s energy imports and exports.

Risks such as project failure or abandonment, massive installation costs, construction and operational difficulties resulting in serious delays, and the potential for financial losses to investors, remain key reasons for scrapping the nuclear deal. Upon serious consideration of the benefits and downfalls of the nuclear deal, the Western Cape High Court held in April 2017 that the nuclear agreements were unlawful and unconstitutional, and ordered the agreements to be set aside, rendering them unenforceable. Parliament has furthermore elected to reconsider the Integrated

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Image by Rogan Ward- Reuters

Resource Plan to adopt an approach favouring renewable energy sources.

Despite these changes, former Minister of Energy, Mr David Mahlobo, stated that the nuclear deal is still in the best interests of the country, because it will provide cheaper electricity (at 35c per kwh) as opposed to electricity obtained through renewable energy (at 90c per kwh). However, this brief comparison seems to ignore the R 1 trillion overhead costs of facilitating this type of energy generation. Mahlobo also mentioned the fact that our only nuclear power station, Koeberg, in Cape Town, has never caused safety or en-

vironmental problems. In contrast to Mahlobo’s comments, the newly appointed President, Cyril Ramaphosa, has recently stated that our country does not need more power-generating technology, and that South Africa cannot afford to waste billions of Rands in this regard.

In recent years, there has been a call for South Africa to move away from a coal-reliant energy system to a cleaner, renewable, and more sustainable energy system. Using forms of wind-, solar-, and hydro-electricity not only reduces carbon emissions and uses less water, but could possibly create more job opportunities

than nuclear or coal-reliant energy sources. Furthermore, through competitive bidding by Independent Power Producers (IPPs), the prices of installing and maintaining renewable energy sources have fallen considerably. Given the fact that South Africa is planning to invest more than R 200bn in improving the country’s energy infrastructure, international investors are eager to get involved, and the renewable energy avenue is much more affordable.

South Africa also has an international obligation in terms of the Kyoto Protocol (ratified in 2002) to reduce its greenhouse carbon emissions by 45% by the end of 2025. It is suggested that this can only be achieved through replacing coal-reliant power generation units with wind turbines, solar panels, and hydro-electric projects. South Africa’s efforts in this regard contribute to an important attempt to curb the air pollution caused through coal-based power generation. We are also a signatory to the Paris Agreement (ratified only in 2016), which provides strategies such as carbon taxes and low-emissions electricity plans to enable countries to achieve the target of using 100% renewable energy sources.

With the majority of South Africans rejecting the nuclear deal, and the judiciary declaring it to be unlawful and unconstitutional, the government is now looking at signing agreements with renewable IPPs in the near future. In general it seems that all parties are supporting this move to a more sustainable energy supply, but are also seeking to ensure job security and avoid poverty as a result. South Africa has a long path ahead towards greener energy, but constitutional and international obligations could help to ensure that our country places environmental sustainability at the heart of its energy-related decisions.

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50 Shades of Consent

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esides trolling Michael B. Jordan, another passion of mine is studying body politics—the issues that arise from experiencing your environment according to the identity portrayed through your body. In most circumstances, our sense of self-identity is

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practically perpetuated through one of humankind’s most primal acts: sex. Whether it’s navigating our sexuality, proving faithfulness to our religion, consummating relationships, or just looking for a good time, the ‘Birds and the Bees’ are a societal fixture. The post-80s generations have seen the evolution of an activity that was once taboo in its Eurocen-

tric/Catholic perceptions (i.e. sexual intercourse was strictly a means for procreation in heteronormative marriages), to a publicly acknowledged experience where universities openly distribute condoms in bathrooms and halls of residences. As much as we have normalised this weapon of mass liberation, we have negated its destructive side: the taxing consequences that sex has on our psychological and emotional selves.

In most romantic relationships, sex has become as much an expectation as ketchup is in a McDonald’s Happy Meal.

Outside these relationships, not much is different. Meeting someone deliciously attractive in a club or at a restaurant (hell, even sitting in front of you as you’re reading this), our thoughts are inevitably stripped down to bedroom basics. Ours is a generation where Anastasia and Christian Grey have become our contemporary Romeo and Juliet. Yet, a tiny detail begs for questioning: what if Ana refused to sign for consent to Mr Grey’s sexual deviances?

Since the increase in courageous women speaking out against sexual abuse and harassment in the work place, there has been nattering of a question that deserves just as much attention: what does sexual consent mean? And, more importantly, why is it so difficult to recognise? While attempting to answer the question myself, it became apparent that I wasn’t the only one perturbed by this conundrum. LegalThings, a Swedish-based firm, is in the process of developing an online application that ‘gets explicit about sexual consent’. Initiated by four men, the app serves as a

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By Danielle Rachel Champ secure recording database for contractual agreements between two (or more) consenting parties to engage in sexual intercourse. The concept is not a new one and has been a developing idea of many since 2015. LegalFlings, as the company has dubbed it, encourages its users to avoid ‘ruining the moment’ because ‘asking to sign a contract to have sex can be awkward.

Get sexual consent with a single tap.’

The basal function of the app is to serve as legal evidence in a court of law if one of the parties is wrongly accused of sexual assault by the other who, according to the app, definitely swiped right. Additionally, it ensures that both parties are clear on certain boundaries: the app also offers options for the sexually curious to send their night into the realms of Christian Grey’s Red Room. Simply pick a contact and send an invite. If the invited disagrees to some of the terms, adjustments can easily be made or consent can be denied entirely.

Unsurprisingly, the brutal backlash the app has received is threefold.

Firstly, that its creators are capitalising off attempting to rectify the sexually abusive injustices perpetuated against women. Secondly, that by anticipating legal disputes based on accusations of sexual abuse or impropriety, the focus is on protecting the reputation of men who are suddenly in a panic about being (rightfully) held accountable. Finally, the app’s premise completely misrepresents consent, by assuming that consenting to participating in sexual activity is done by way of a single, once-off, blanket agreement. What if I change my mind?

Consent is affirmative, for sure, but it also needs to be continuous.

Not to relive past nightmares, but in the case of The People v Turner - where the defendant was caught raping a female student whilst she was unconscious - I fail to see how effective such an app would be. Or, in the case of where the defendant was an uncle to the nine-year-old victim who had no idea of what was even being done to her, let alone what ‘consent’ meant. Or, and this is where

I think we should be directing our attention, in everyday encounters that you and I may have, where ‘no’ still means ‘no’ but may not necessarily always be expressed as blatantly.

Consent is an internal logic that is affected by not only the individual, but also the circumstance in which it is (or isn’t) being exercised. In other words, I may have chosen to say ‘yes’ to Whats-His-Name yesterday, but I definitely feel uncomfortable now and I don’t know how to tell him that because for some reason he’s under the impression that my ‘yes’ from yesterday gave him an unlimited right to my body. If someone consents to participating in a certain form or degree of sexual activity then their consent extends only to the extent that they agree (and to their chosen partner), but they also have the right to withdraw that consent during the fact. What happens when consenting to sex or sexual activity is treated as a legally binding (and actionable) contract? This is where the law gets sticky. In order to prevent sentencing alleged perpetrators into the pit of reputational disgrace according to (possible) false accusations, the onus remains on victims to prove truth in their statements, making it so easy to get away with rape.

As a result, our legal system is depleting in its ability to accommodate society’s evolving definition of sexual consent. Furthermore, the stretch of its scope does not reach those who are in the most need of its protection. For these (often indigent) people the law is ultimately a

resource that has long surpassed its expiry date. In more cases than we would like to see, the extent of the law’s ambiguous definition of ‘consent’ is reflected in its leniency in sentencing rapists. Thus, leading us to taking the law into our own hands.

So, how do we change an inherently prejudiced legal system? Maybe we change the values of those who shape it. Although the law seems to be an abstract commodity geared to protecting a small elite, for the better part of our modern history it has been sculpted according to progressive democratic values. Otherwise, swearing life-long fidelity to our significant others at the altar would prove nulland-void and sexual offence legislation would seem redundant.

With the blurriness of sexual consent in the law, we should avoid using sex as a tool for liberation.

I stand by the mantra that our bodies are temples, temples with a consciousness that cannot be quantified into a cell phone app which aims to monopolise off sexual experiences.

Unfortunately, we cannot expunge the Brock Turners of this world from existence (yet…) but we can, to a pleasantly large extent, choose who we allow into our temples. Entrance should be a humbling privilege, not an expectation. Maybe, just maybe, if we channel our fiery liberation in this direction, our law will prove to be a far more effective armour that truly holds sexual predators accountable for their actions.

“Ours is a generation where Anastasia and Christian Grey have become our contemporary Romeo and Juliet.”

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Achieving the Right to Adequate Healthcare Examining the socio-economic right to adequate healthcare as compared against comparative jurisdictions

By Geoffrey Allsop

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hether the state should be under a positive obligation to provide its citizens with socio-economic rights is a continuously contested issue. Juxtaposing many foreign constitutions, ours is somewhat unique in this regard as it not only expressly provides for a range of these socio-economic rights, but it also renders these rights justiciable in courts of law. Reality attests, however, to the fact that despite the conferral of such entitlements, most poor South Africans lack even the most basic of these social goods - especially that of adequate healthcare services.

Our Constitution recognises the fundamental interdependence within these socio-economic rights. Without adequate food, water and social security, the right to healthcare would be meaningless – and vice-versa. Regarding these rights, section 27(2) of the Constitution places a peremptory positive obligation on the state to progressively achieve these rights within its available resources. Therefore, should this rationale fail, the majority of our citizens would lack access to goods necessary to maintain their wellbeing. Ultimately, the exercise of civil and political rights (such as freedom of expression, privacy or the right to vote) would be rendered meaningless. In this respect, the Constitution echoes the United Nations International Covenant on Social and Economic Rights (to which South Africa is a party) which recognises that the achievement of human dignity, democracy and social stability is dependent on creating conditions where social and economic rights are protected and fulfilled.

The first socio-economic rights case to reach the Constitutional Court - and coincidentally which also dealt with the right to health care - was Soobramoney v MEC Health: KZN. Soobramoney, an unemployed man suffering from terminal

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renal failure, was refused the dialysis treatment necessary to prolong his life by Addington State Hospital in Durban. The hospital turned Mr Soobramoney away because of the limited number of dialysis machines and because it believed that providing him with treatment would place the lives of other patients at risk. Unfortunately, Mr Soobramoney died shortly after a disfavouring judgment on the matter was handed down. At the centre of the judgment, Chaskalson CJ acknowledged two principles critical to the adjudication of socio-economic rights in South Africa. The first is the recognition that socio-economic rights invariably bring to light that South Africa is a society characterised by severe economic inequality; if Mr Soobramoney were wealthy, he would have been able to procure his treatment from a private source. Instead, he was forced to approach the courts to prolong his life. The second acknowledges that the achievement of socio-economic rights is contingent on (and limited by) available economic resources. This is explicitly

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Therefore, it must be that reasonableness is the standard against which the courts determine whether the state has adequately fulfilled the right of access to healthcare. In Government RSA v Grootboom – which dealt with the right of access to housing – the Court defined ‘reasonableness’ to mean that if the state has adopted certain measures to provide the socio-economic right in question, there is no further constitutional challenge. However, ‘reasonableness’ could then have different interpretations in different contexts. While this much has not been expressly stated by the Constitutional Court, the reasonableness test is subject to a spectrum of justiciability. This means that in some instances, the court will apply the standard in a strict man-

ner, while in other instances (especially when there is a lack of adequate resources) the court will apply a more lenient standard and as such, will be more inclined to accept any state measures as ‘reasonable’.

The justiciability spectrum was further articulated in Minister of Health v Treatment Action Campaign, the second major socio-economic rights case to reach the Constitutional Court that dealt with the right to healthcare. This case involved challenging the government’s refusal to extend the distribution of Nevirapine (an ARV drug which prevents mother to child transmission of HIV) beyond various selected test sites in the public health sector. The issue of the court was whether the refusal of the government to do so was unreasonable as measured against the constitutional right to adequate healthcare. In the end, the application was successful and the failure of the state to extend the provision of Nevirapine beyond the pilot sites was declared unconstitutional. Contrasted with Soobramoney, the TAC

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case had both a fundamental similarity and difference. The similarity was, like Mr Soobramoney, the mothers in question would not have been obligated to approach a court to protect their rights if they had the financial resources to procure ARV drugs from a private source. However, unlike Soobramoney, the question of resources was never an issue.

In fact, the manufacturer of Nevirapine had offered the drug to the state free of charge.

Even where it is clear that the right to public health care is applicable, the provision of public health care in any meaningful and substantive sense, continues to remain illusory. This is largely, but not exclusively, an effect of a dysfunctional public health care system. It is a horrific reality that public health care in South Africa is the cause of multiple human rights violations, especially that of human dignity. In this respect, one of the lowest possible points in South African post-Apartheid history is the Life Esidimeni tragedy, where over 140 mentally ill patients died in conditions of extreme hunger, fear and exposure to the elements whilst being under the responsibility of public health care authorities. While Life Esidimeni was an instance of what was arguably gross criminal neglect; holistically, the public health care system suffers from a multitude of institutional weaknesses. These weaknesses can largely be attributed to poor governance, corruption, a culture of impunity and a resistance against involvement in our public health sector.

According to economic consultancy Economex, South Africa suffers from a severe shortage of medical doctors – approximately 25 doctors per every 100 000 South Africans in the public sector. Globally, the average is 152 per 10 000 people, while comparative BRICS countries such as Brazil and China have 189 and 194 doctors per 100 000 people respectively. This is partly explained by the fact that the majority of medical graduates do not want to work for the public sector. Economex explains that between 70-80% of newly qualified doctors do not want to work for the state.

This also explains the fact that there are 90 doctors per every 100 000 people in the private sector – almost 4 timesthe amount of public sector doctors. More worryingly, data obtained from the Office of Health and Standards Compliance reveals that of the 1427 public hospitals inspected in the last four years, only a shocking 89 were sufficiently compliant with health and safety regulations.

I have tried to argue that the enforcement of socio-economic rights is inextricably intertwined with the question of the availability of resources. This forces the courts to make hard (and even unpopular) decisions. In the case of Mr Soobramoney, the decision denied him a treatment that would have prolonged his life, resulting in his death shortly after the decision was made. In TAC, the decision was to save the lives of millions of people – preventing them from contracting HIV at birth. Generally, however, this is not enough. It is worse that often public health care does more to hinder (or even destroy) material wellbeing, rather than foster it. While much progress has been made, the institutional healthcare crisis is far from over. It is clear that as long as the majority of South Africans continue to suffer from a lack of these basic goods, whilst a minority hold them in abundance, the future stability of South Africa’s constitutional order will continue to rest on increasingly shaky ground.

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Life Beyond Law

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Kudiwa Natalie Shonhiwa and Danielle Dallas are two Final Year LLB students who decided to go against the grain and to extend themselves beyond the perimeter.

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By Somila Dondashe

enior Editor’s Note: Our Life After Law School series continues with an article that includes perspectives and advice from two current Final Year LLB students whose ambitions have led them away from the traditional route of completing articles and qualifying for legal practice.

Picture this: it’s Monday morning and you are in class feeling utterly demotivated. Those lecture readings you were supposed to do for the lecture have not been done (what’s new?) and you seem to be the only one present with no idea what’s going on. Your thoughts move from regret about your lack of time management to questioning your choice of study. You wonder, will you even make a good lawyer? Better yet, do you even want to be a lawyer? And as fun as contemplating the deeper meaning of your life choices is, it’s unfortunately “earth to reader!” and back to the reality that for most people, there’s no turning back.

There is very little that we agree on at law school, but I think the above scenario is something many of us can relate to - even if only in part. There are times where you overthink yourself into a state, wondering what will become of you after law school. Your classmates have already secured articles at law firms and here you are… still wondering. Finding your niche is obviously daunting. But why do we confine ourselves to law firms and Kramer’s Big Five culture?

Kudiwa Natalie Shonhiwa and Danielle Dallas are two Final Year LLB students who decided to go against the grain and to extend themselves beyond the perimeter. I sat down with them to find out a little more about what their post-graduation futures hold.

Kudiwa has always been passionate about fashion and art. She learned how to use a sewing machine from a very young age; starting with altering her mother’s clothes and leading to her entering a clothes-making competition - casually bagging a second-place win and beating out entrants from across Zimbabwe.

From there, Kudiwa decided at age 14 that she was going to pursue a career in fashion, but her parents’ scepticism about her chosen path forced Kudiwa to reconsider and put aside her dreams. She decided to pack her love for fashion and the arts away and pursue a ‘safer’ career in law. After derailing her itch for making clothes and constantly convincing herself that she did not have time for her craft because of school commitments, the bug came back to bite in 2016. Initially, Kudiwa saw her conflicting interests as being impossible to manage: “I had a very important conversation with my mother at the beginning of that year because I felt like I had a choice to make between law and my creative side.

She basically asked me why I had to choose.” Alongside her legal studies, Kudiwa now designs and sews clothes, selling them via her Instagram page and cultivating a

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keen following.

Many of us probably know someone like Kudiwa, whose interests outside law school are seemingly incompatible with their studies; some of us are probably that someone. What is Kudiwa’s advice to those afraid to take the leap and pursue their ‘alternative’ passions? “Just start! Whatever it is, whether it is following a passion or engaging more with your law degree, just start. You will even have people around you who will constantly keep you accountable to your dream.”

True to her nature of not letting law school keep her down, last year Kudiwa registered her own business. Next year she plans on enrolling in a part-time design programme. “Sometimes we are multi-faceted beings and need not confine ourselves (Continued on page 34)

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to one path. It is okay to be good at law, fashion and painting. I just had to learn to marry the different worlds and try to learn from each discipline. The moment you take the first step things will become easier. I found my niche.

Find yours!”

Danielle Dallas definitely found that business and entrepreneurship was her niche, but she also advises that students who are still grappling with settling into their studies shouldn’t be too stressed about finding their niche.

She advises first years not to stress about finding their calling immediately. “Your first year is about academics and getting that right. Second year was when I started asking myself what I will do with this degree afterwards, and third year was about acting on it.” Danielle says that owing to her desire to ultimately start her own business, she knew she would only be in the legal field for a few years. She started taking an interest in McKinsey,

“Your first year is about academics and getting that right. Second year was when I started asking myself what I will do with this degree afterwards, and third year was about acting on it.” the consulting firm, when someone said they could see her working at such a firm. “I had established what I wanted and it was time to start applying and securing vac work where I could,” Danielle says. After applying and being through quite a rigorous programme, she eventually signed to pursue a career in management consulting. Danielle is not alone — many students from Kramer and beyond are being sought out to join a variety of management consultant firms after graduation, but to most the career is still slightly mystifying.

Danielle breaks it down, explaining that management consulting is essentially about solving problems for big companies. “My job will entail sharing ideas with a company about how they could grow, and unlike working at a law firm, as a management consultant, I will not be confined to legal work alone. Consulting allows me to be creative and innovative.” However, Danielle will still be able to use her legal know-how in her work. “Law is not just law; there is an entire business around it and we need to stop treating it as a one-dimensional discipline.”

Beyond what to study and where to pursue vacation work, Danielle emphasised the importance of mentoring.

It is important to network; join societies or take part in activities where you can meet people you can relate to, even those whom you have less in common with. Networking upwards isn’t the only way to do it; networking with peers or contemporaries you want to emulate is also important.

Lastly, she believes confusion is good. The questions you are asking are good, keep questioning what you want to branch out into. It is very important not to attach your worth to law firms and to rather explore the different sides of you.

For Kudiwa, her different side was art and fashion design. For Danielle, it was business, entrepreneurship and solving socio-economic issues. What is it for you?

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Book Review of ‘Blackass’ by A. Igoni Barrett

By Danielle Champ

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n a time where Wakanda is calling back its descendants, I think one just went rogue. On the day of his first job interview, Furo Wariboko awakens to find that his reality has taken an unexpected turn for the worst: he has become a white man. Far from being worried about the incident that led him to becoming someone’s cathartic voodoo experiment, his biggest concern is slipping out of the house without his family noticing his new inconvenience. Adamant not to let his new prospective career fall to the dogs; he makes a seemingly callous decision to leave his family, money and blackness behind. But how easy is it to cut ourselves loose of our roots? Once he frees himself into the streets of the city in which he was born and raised, Lagos becomes a completely different world – a world in which anything is possible.

If you love anything Franz Kafka, you’ll love this.

If you don’t know who Kafka is, you’ll love this anyway.

As law students, we spend our semesters drowning in readings, readings based on the socio-economic injustices of a scale that is fixedly tipped to favour a white elite. So why not add to that? But for fun? Igoni Barrett simulates a Dali-like world where both the fiction and non-fiction spiral together in a satirical whirlpool.

Furo embodies the stereotypical struggles of experiencing both forms of identity otherness through the eyes of all onlookers. From being a black man in a country slogging towards a white man’s Westernised development, to being a white man in a black man’s country - Furo decides to take ownership of his dualistic ordeal and begins his life afresh, leaving all he knew to be comfortable and familiar behind. To help him along the way is the captivating Syreeta and tongue-incheek writer Igoni. Both characters are magnetically drawn to Furo’s circumstance through identity struggles of their own. Through the intertwining of their narratives, Furo attempts to take on numerous obstacles that seemingly refuse to allow him to forget his past – one of these being: his black ass.

Though crass in its stylistic ventures, Blackass takes a serious yet light-hearted gander at a world where identity of all forms is no longer a so-

cial construct, but an individual one. Through the day-to-day portal you, the reader, are given to the buzzing Nigerian capital, you find yourself getting caught up in the hubbub of Furo’s peculiar and extensively superficial existence. Is he symbolic of the epitome of human greed, or is he just a lonely man striving for the life for which he has worked tirelessly? The question is yours to decide. I managed to get my hands on this nonstop page-turner from the main library on Upper Campus. In fact, I requested it from the UCT Library site and had it delivered to Kramer. So, for those who are keen to put the textbooks down for a highly deserved study break, this is the next book I recommend you pick up instead.

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COntributors Tirivashe Mubika

Somila Dondashe

Quentin Du Plessis

Patrick Heron

Mohini Karappian

Jewel Ormond

Analisa Ndebele

Dan Champ

Geoffrey Allsop

Rozelle Wentzel Steve Clowes 36 2018_copy.indd 36

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