Altum Sonatur: Sounds Profound?

Altum Sonatur “Sounds Profound?”

VOLUME 8 EDITION 1

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TABLE OF CONTENTS 3.

“…MUST FALL” MUST FALL?

4.

STRUGGLE SONGS AND THE LAW: APARTHEID TO THE PRESENT

6.

THE USE OF ‘LEGALESE’ AND JARGON

7.

#FEESMUSTFALL: THE POWER OF A SINGLE HASHTAG

8.

RIGHT-ING LANGUAGE IN EDUCATION

10.

CALL ME QUEER: TROUBLING CLASSIFICATION

12.

THE COLONISATION OF THE MOTHER TONGUE

14.

CHRONIC OESOPHAGITIS

17.

ROADS MUST FALL?

18.

‘FAKE NEWS’ – DEFAMATION, DEMOCRACY AND DONALD TRUMP

20.

HUMANS OF KRAMER

22.

LATIN CROSSWORD

THOUGHTS FROM THE EDITOR T

here’s a lot to be said for the way in which language is valued in our society, particularly with respect to the law. This edition of Altum Sonatur is titled ‘Sounds Profound’ and it explores the themes of language and symbolism. The name ‘Altum Sonatur’ comes from the Latin phrase ‘quidquid latine dictum sit, altum sonatur’.

Translated into English it means, ‘anything said in Latin, sounds profound’ (hence the name of this edition).

They form part of not just the law, but society as a whole. Interrogating language and symbolism is therefore an essential part of the decolonial/ transformative process. Even the use of the words ‘decolonise’ and ‘transform’ need to be interrogated, further highlighting the importance of language and how it is used to communicate thoughts, laws and ideologies.

The name of the magazine pokes fun at legal culture’s obsession with Latin phrases and obscure terms. And for those who get it, it’s amusing. But the name itself is exclusionary (who gets jokes in Latin, anyway?).

But, this edition of Altum doesn’t just focus on the past. From defamation cases, to the new ‘trend’ of universities interdicting hashtags, to how the law categorises queer people, this edition’s pieces also deal with modern law’s ever-evolving relationship with language. This year, one of Altum’s aims is to open up the magazine to non-law students, and part of that is making the magazine more accessible. So from poems, to photography, to musings on the mother tongue; this edition also tries to take a more artistic and comprehensive approach to the theme, rather than just providing a legal focus. We hope you enjoy it!

Much like the name of this magazine, the law itself is often obscure and full of Latin phrases. Post-1994, South Africa has tried to move away from a legal culture that is grandiloquent and obtuse (see what I did there?) to one that is more accessible. But how successful has this attempt actually been? How have language and symbolism altered – or failed to alter – South Africa’s legal and social landscape? The symbols and language of South Africa’s Apartheid and colonial past continue to be found in legislation, judgments and legal culture.

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Emma Reinecke

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“…Must Fall” Must Fall?

Is the widespread use of this once radical phrase a sign of its success, or emblematic of something more dangerous?

By Jordan Pfotenhauer

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hen Chumani Maxwele defaced the Rhodes statue in 2015 and started “Rhodes Must Fall”, he certainly had big dreams for the future of his movement.

What he was unlikely to have anticipated, however, was the widespread usage of the phrase which he originated.

Restaurants, clothing stores, and even everyday people, have begun using the phrase “must fall” for reasons far removed from its original purpose. Advertising a sale? “Prices must fall”. Annoyed with the president?

“Zuma Must Fall”. I have even seen a Tinder bio that proudly displayed the phrase “underwear must fall”.

While at a surface level, it may seem good that such a slogan is gaining traction and popularity, there’s also a risk in all this. Does the widespread use of this phrase constitute appropriation? And, if so, is that a problem?

Appropriation is not inherently negative. However, it carries with it three possible harms – exploitation, denigration and erasure. To answer the question of whether the widespread use of the phrase “x must fall” constitutes negative appropriation, it is useful to consider whether it causes any of these harms.

Exploitation occurs when a dominant group benefits materially from a marginalized group’s content, without compensating them. This is the most non-contentious harm here. It is clear that businesses, most notably, are profiting through the use of this phrase and its broader appeal for marketing purposes. Compensating the originators would be difficult though, if not almost impossible. Nobody has trademarked this phrase, or come forward to demand compensation. This harm may have to be overlooked for practical reasons.

Denigration refers to the harm of belittling, or ridiculing. In the context of appropriation, denigration occurs when the usage of a group’s symbol harms that group psychologically. This is a tough harm to unpack, because offense is not always reasonable, but with regards to the phrase “x must fall”, I believe there is a legitimate grievance. Many of those who use the phrase nowadays are the exact individuals who did not

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stand up for the movements that originated it. For a struggling student who was part of the Fees Must Fall movement and who faces the threat of financial exclusion, it must be a slap in the face to see a business use the phrase for profit. To see the kind of person who claims protesting students are “entitled” or “whiny” use the phrase to protest against something which frustrates them, is a bitter irony.

The final harm to consider is erasure, which occurs when appropriation strips a word, phrase or meaning of its original context. For example, when white people wear Native American headdresses without knowledge of their spiritual significance, and this practice becomes widespread, society begins to decouple this symbol from its original meaning. While the symbolic meaning of objects and practices always changes over time, erasure through appropriation is a problem insofar as it takes the ability to construct meaning out of the hands of the group that originated an object. Native Americans lose their ability to control what their traditional dress means when society sees it as a music festival gimmick.

Does the widespread use of “x must fall” constitute erasure? This is a difficult question. On the one hand, just about every South African is now familiar with this phrase. If its original point was to be a successful slogan, known by all, it has succeeded.

However, when most South Africans use this phrase, it is unlikely that they are thinking about its original purpose. More importantly, the originators of this phrase have lost the ability to control its meaning.

To conclude, I think it is important to consider what the phrase “x must fall” means. To see it as merely a strategic tool or pragmatic instrument is shortsighted.

For those who originated the phrase, and brought it into the public realm, it carries immense symbolic weight. It brought them together as a movement and gave them direction. While its morphing of meaning through widespread use may have been inevitable, it is certainly unfortunate.

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Struggle Songs and the Law: Apartheid to the Present

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truggle songs have long occupied a central place in the fabric of South Africa’s social, political and public life. During the Apartheid era, struggle songs played a key role in mobilising and solidifying opposition towards racist white minority rule. In the constitutional dispensation, struggle songs continue to be invoked – ranging from #FeesMustFall activists protesting for increased access to higher education; trade unions agitating for improved labour conditions; and political party rallies more generally.

Constitutionalism has however raised difficult questions as to what extent the law does (or should) give protection to the freedom to express certain controversial songs such as dubula ibhunu (“Shoot the Boer”) and other chants such as “one settler one bullet”, as weighed against potentially competing constitutional values and rights such as dignity, equality and nonracialism.

During the Apartheid era, scant regard and legal protection was afforded to various basic freedoms and rights essential to a democratic society, including the right to freedom of expression, speech and conscience. Among others, the Apartheid state passed various pieces of legislation to this end, such as the Internal Security Act, which gave the Minister of Law and Order a broad authority to ban any person or organisation that propagated ideas calling for social, economic or political change in South Africa.

A banned person was prohibited from engaging with more than one person at a single time, was confined to their district of birth, and any publications or ideas which they had originated were prohibited from been publicly disseminated, discussed or displayed (a 4

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contravention of which led to criminal sanctions). In terms of the Publications Act, the Minister of the Interior was given the authority to ban any publication deemed ‘undesirable’, inclusive of books, movies, posters and other forms of entertainment such as music. The government also used its extensive control over the SABC, whereby ‘undesirable’ songs making reference to rebellion, multi-racialism, or ‘blasphemous’ themes would be prohibited from being played on SABC airwaves. Rather amusingly, the Apartheid censors even banned the book Black Beauty, assuming it to be a book about the struggle for black rights, when in fact it was a 19th century book set in England, narrating the life of a horse from its first person perspective.

The advent of constitutionalism and democracy signified an ambitious and all-encompassing attempt to break from the censorship and denial of freedom of expression which persisted during the Apartheid years. As enshrined in s16 (1) of the Constitution, everyone now enjoys the right to freedom of expression, subject only to subsection (2) which states that freedom of expression which inter alia advocates hatred based on various grounds such as ‘race, ethnicity, gender or religion’, and which constitutes an ‘incitement to cause harm’, is not given constitutional protection. In Islamic Unity Convention v Independent Broadcasting Authority the Constitutional Court affirmed the importance of freedom of expression not only as inherently valuable, but also as instrumentally valuable in that it facilitates many of the other fundamental rights in an open and democratic society such as dignity, freedom of

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association, and various political rights such as the right to vote and to stand for public office. On numerous occasions the Constitutional Court has even gone so far as to add that given the importance of freedom of expression in South African society as a whole, a wide range of expression is given constitutional protection, even when such expression may be seen as controversial to others.

Whilst the Constitution itself does not prohibit any form of hate speech, but rather denies it constitutional protection, in the Islamic Unity case the Court did acknowledge that unfettered freedom of expression does have the potential to negatively impact on the rights of others, particularly the right to dignity. The Court furthermore emphasised that such expression is broadly at odds with the human rights-based society which the Constitution envisages. In order to prevent potentially harmful expression, the Prevention of Unfair Discrimination and Promotion of Equality Act (PEPUDA) was passed in the year 2000. In terms of s10 (1) of PEPUDA, any person who ‘publishes, propagates, advocates or communicates’ any words based on various prohibited grounds, such as race, gender, sexual orientation, or religion, which can reasonably be construed to demonstrate a ‘clear intention’ to be ‘harmful, hurtful’ or ‘incite or propagate hatred’ shall be guilty of hate speech.

The question of whether potentially offensive struggle songs should be given constitutional protection as a form of protected expression was then directly raised in the (somewhat controversial) case of Afriforum v Malema. In short, the Afrikaner civil rights group Afriforum alleged that when former ANCYL president Julius Malema sung the struggle song “shoot the Boer”, on various public and private occasions, he not only advocated literally killing farmers (and the members of the Afrikaner and white community more generally), but also sung words which were directly contrary to the prohibition of hate speech as contained within PEPUDA. In a nutshell, the Equality Court delivered a controversial ruling finding that the singing of dubula ibhunu constituted hate speech and prohibited not only Malema but all members of the ANC and the public at large from singing the song, or else risk facing being in contempt of court. Professor Pierre De Vos (among others) has strongly criticised the judgement, primarily for its failure to accept that the context in which words and songs are sung affect their meaning and interpretation, and secondly, for prioritising the interpretation ascribed to those words by the “target group” (i.e. Afriforum).

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As stated above, the Constitutional Court has held that in order for proper political discourse and democratic engagement to be facilitated, freedom of expression must extend to those forms of expression which others may find controversial or even offensive.

In Malema’s defence, he was quick to state before the Equality Court that his singing of the controversial song was never intended as a literal exhortation to kill farmers or even whites for that matter; but rather to symbolise the feeling of oppression and dispossession felt by the majority of black South Africans both before and after the fall of official Apartheid. Whilst struggle songs (and other chants or claims) may cross the divide from legitimate freedom of expression into the bounds of hate speech, the context in which words are sung and the proper meaning of those words must always be considered. A failure to appreciate context imposes a dominant interpretation of words, heritage, and meaning, at the risk of silencing legitimate protest against, and political debate about, what others perceive to be an unjust society. This is exactly what occurred in the Afriforum case.

Despite numerous gains following twenty one years of constitutional democracy, South Africa remains a deeply divided and politically sensitive society when it comes to issues of race, class, gender, and material dispossession. The case is no less so when freedom of expression directly confronts issues of that very nature. Whilst instances may exist in which struggle songs such as “Shoot the Boer” and “one settler one bullet” could fall within the legitimate ambit of hate speech, a proper appreciation of context and respect for freedom of expression requires a sensitivity and historical consciousness that is often all too easily lost in translation. In order to truly overcome the divides we face, a greater respect needs to be cultivated for the instrumental value of freedom of expression generally, and for the necessary but uncomfortable interrogations which certain struggle songs invite.

Only through an acceptance of the right of others to express views and opinions, often embodied in struggle songs, which some may find controversial (or even personally offensive), can the true historical context and political value of struggle songs and freedom of expression more generally, be realised.

This is an achievement which would do much to foster a respect for diversity and create the enlightened society envisaged by our constitutional dispensation.

Words by Geoffrey Allsop

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anguage is an integral part of our society. It enables us to express ourselves in a manner that makes us comfortable, and plays a crucial role in building bridges between various cultures and ethnicities. Moreover, people are able to communicate with one another and converse in ways most meaningful to them through using their own language. This applies equally to the many professions within our society which make use of jargon. Simply defined, ‘jargon’ refers to special words or expressions used by a profession or a group of people that are difficult for others not part of that group to understand. These words and expressions are not only difficult for others to understand, but they give the impression of being highly complex and impossible to comprehend. The use of jargon thus gives rise to a series of questions that need to be explored, including: why do we tolerate jargon? Is the use of jargon necessary in society? And is it possible to live in a society that does not make use of jargon?

Apartheid deprived people of colour of their basic human rights and freedoms. Although Apartheid is over, its legacies cannot be ignored. Many South Africans are still born into the consequences of Apartheid, and unfortunately have minimal access to opportunities such as education. Crucially, it is only through education that the exclusive language and jargon of various professions can be deciphered.

Thus the legacies of colonialism and Apartheid, which continue to deprive people of the opportunity to be educated, also hinder their understanding of exclusive language and jargon. Consequently, exclusive language becomes a luxury and accessory of the elite, who are able to afford higher levels of education and are, as such, able to understand jargon.

With this background in mind, why is jargon tolerated by society? The right to freedom of expression is enshrined in s 16 of the Constitution. It is a crucial right within our democratic society, especially since the right to freedom of expression was suppressed and under the continual scrutiny of the Apartheid government.

Through this right, we can freely express ourselves and make our ideologies, understandings and politics known. It allows for groups of people to interact and take part in meaningful conversations without the fear of being suppressed. This applies equally to jargon, which people use to express themselves freely and as they wish, and to communicate specific information of professional meaning. In this sense jargon should be respected and appreciated.

Furthermore, the use of jargon is sometimes necessary.

This is especially so in the legal sphere, where there are many archaic terms and words. Nevertheless, 6

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The use of ‘legalese’ and jargon jargon could be used to explain terms and concepts in a manner that is concise, without having to go into lengthy explanations. For example, in law when we see the term bona fide, we instantly know that the party acted in good faith and that there was no intention to deceive. When we see the term separation of powers, we know that it refers to a doctrine based on the distribution of governmental power between the three branches of government, namely the legislature, executive and judiciary. In addition, we know that the separation of powers denotes that every branch has its own functions and responsibilities. Thus, through jargon, lengthy explanations are avoided and replaced by concise meanings.

Ultimately, exclusive language is imperative in our society. However, disparities caused by an unjust past cannot be ignored. The fact remains that jargon is exclusive and at times difficult to comprehend and decipher. Perhaps the solution is not the eradication of jargon from society per se. Rather, the focus should be on how we train lawyers to think, write and communicate.

If lawyers are trained to express themselves without resorting to jargon, they will be able to write clearly and accessibly, and only resort to jargon when absolutely necessary. In this way, a balance can be struck between jargon’s exclusivity and necessity, making the law more accessible for all.

Words by Jaide Wyman

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#FeesMustFall: the power of a single hashtag

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he outbreak of the student protests that have rocked South Africa over the last two years was fueled by the power of a single hashtag - #FeesMustFall. Known collectively under this hashtag, students have led progressive protests to fight against the unreasonable and exclusionary tuition fee hikes imposed by South African universities. Shortly after matters escalated to the point of violence on the University of Cape Town’s campus, the university applied for an urgent interdict against multiple respondents, including the hashtag #FeesMustFall. This somewhat futile legal first was soon followed by the University of Pretoria, which interdicted hashtags like #UPrising.

An interdict can be defined as a court order that is sought to ensure the enforcement of a right. This remedy is usually sought as a last resort, and is granted when the particular right is under severe threat. Even though this is a civil mechanism, it is a crime to breach the provisions of such an interdict. UCT applied for an interdict to allow normal academic activities to continue on campus, while still maintaining a space for peaceful, non-disruptive protests. However, the grounds for the interdict are not the focus of this article, but the issue lies rather in the complications and consequences of obtaining an interdict against a hashtag.

Given that a hashtag is essentially not a ‘person’, but merely something we use to make related opinions search-able on the internet, it is not in itself a threatening or violent concept. Let’s compare it to something as simple as a pen. What if someone uses a pen to write a threatening message – will it help at all to get an interdict against the pen? What if this message is written in blue ink (so you can easily see it among the messages in black ink) – will it help to interdict the use of blue ink? This may be a bit oversimplified, but it does touch on a few greater issues.

The first issue to discuss is how preventing the persons associated with the #FeesMustFall movement from accessing (and disrupting) the UCT campus interferes with their rights to freedom of movement and association. What if a student wanted to hold an entirely peaceful protest under the hashtag #FeesMustFall – will they be allowed to so, or are all activities related to #FeesMustFall

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strictly forbidden? This issue demonstrates not only that the interdicting of the hashtag appears to be overboard, but further that it creates legal uncertainty As argued by UCT, in application for the interdict, the disruptive nature of the unlawful protests and actions of those related to the #FeesMustFall movement infringed on various rights of the university.

On the other hand, the protesting students argued that they were exercising their rights of freedom of association and speech. In summary, the Western Cape High Court granted UCT a very wide interdict, which limited the rights of these protesting students too broadly. It prohibited a broad form of speech and communication which went over the bounds of what is considered to be hate speech. The Supreme Court of Appeal subsequently dismissed some provisions of the interdict. Thus, the remaining purpose of the interdict was to ensure that UCT’s activities could resume normally, and that no right of any individual associated with the university would be infringed by any unlawful behaviour related to the #FeesMustFall movement.

The second issue relates to the fact that the court order that grants the interdict is normally delivered by a Sheriff to each respondent. However, the interdict UCT obtained says that the respondents should be notified of the court order by a “loud hailer” (a loudspeaker). Since #FeesMustFall is a respondent, it must also (technically) be informed of the court order. Does the fact that #FeesMustFall is incapable of hearing such an announcement violate the procedural requirements of the interdict?

In addition, what if students simply changed the hashtag to #FeesMustDrop? What about #FeesWillFall? If students did this, the interdict would no longer apply, and students could continue activities that were once related to #FeesMustFall.

Furthermore, students could even continue using the hashtag #FeesMustFall, but under anonymous, never-to-be-traced social media profiles or accounts.

These possibilities demonstrate the pointlessness of interdicting the hashtag.

Instead of constructively solving the matters at hand and exploring possible remedies, the universities of South Africa seem to have chosen a rather futile and inappropriate way to respond to the national student fee crisis. This response not only has uncertain legal consequences, but might open the door for further problems and complications. A rethinking of the way in which universities characterise, address and respond to social movements is thus required.

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RIGHT- ING LANGUAGE: LANGUAGE POLICIES IN EDUCATION SoundsProfound.indd 8

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anguage policies in education have had a long and contentious history in South Africa. On June 16, 1976, high school students in Soweto took to the streets to protest a language policy which introduced Afrikaans as a compulsory medium of instruction alongside English.

The language policy was part of a broader structure that sought to systemically disadvantage black students from receiving anything beyond a basic education. Police fired live ammunition at the student protesters and this sparked more mass anti-Apartheid protest action than the country had seen for years.

Today, the South African Constitution entrenches both the right to language and the right to education. It also recognises 11 official languages, affirming their dignity, importance and equality with one another. Furthermore, s 29(2) (a subsection of the right to education) provides that everyone has the right to receive an education in the language of their choice, taking into account equity, reasonable practicability, and the need to redress the results of South Africa’s history of racial discrimination. The right to equality also prohibits unfair discrimination on the basis of language.

However, constitutional rights are not always realities, and contention around language remains, particularly with regards to education. This has been highlighted most recently in the controversy around Stellenbosch’s language policy and by black learners at Pretoria Girls’ High, who, in addition to

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facing racially discriminatory hair policies, alleged that teachers had instructed them not to speak to one another in their mother tongues.

lectures was frequently poorly done, and that even where it was not, translation is often a poor replacement for the original.

On the right to converse in one’s own language with other home language speakers, the Constitution is clear. Section 31(a) explicitly protects the right to do so and forbidding students or any other group from talking to each other in their own language is undoubtedly unconstitutional.

Stellenbosch is (at least in part) a state-funded institution. This means that the right to be educated in one’s language does not have absolute protection.

In Hoerskool Ermelo, the Constitutional Court pointed this out, and emphasised that previously white-only education institutions (like Stellenbosch) had amassed far greater resources than institutions designated for people of colour under Apartheid, and that the effects of this are still felt today.

The Court emphasised the need for radical transformation, and the need to redress past racial discrimination when considering language policies.

They also emphasised the right to equality, which includes the right not to be unfairly discriminated against (directly or indirectly) on the basis of race, language or social origin.

However, the position with regards to the Stellenbosch language policy is less obvious.

In the debate about whether or not the policy should be changed, multiple arguments were put forward. They included the argument that the right to language means that Stellenbosch should be able to teach some of its classes in Afrikaans. It was also argued that translation facilities were made available to nonAfrikaans speaking students, and that students who did not wish to learn in Afrikaans could simply go to another university.

However, this needs to be viewed in context. Stellenbosch is one of the best universities in South Africa, and admission to high calibre tertiary institutions is highly competitive. Going to another university is therefore not a matter of simplicity, particularly if the quality of education received elsewhere would be of a lower standard.

Furthermore, for some students ‘going to another university’ just isn’t an option, because they might not have access to the same scholarships, bursaries or accommodation elsewhere.

Students had also complained that the live translation of

Therefore, if the effect of any language policy – as I would argue was the case at Stellenbosch – is that black students or other previously disadvantaged groups are disproportionately and systematically denied the opportunity to succeed, this could justify changing the policy. A 2016 review of the language policy did in fact change the policy to bring it more in line with the Constitution. The policy, which was implemented at the start of this year, effectively makes English the default language of Stellenbosch and also includes isiXhosa as a teaching medium where reasonably practicable.

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Similarly to Stellenbosch, the University of the Free State (‘UFS’) also changed its language policy in 2016 to make English the primary medium of instruction (with tutorials available in Afrikaans and Sesotho). Afriforum opposed the new language policy on the basis that UFS had misconstrued its power by failing to take into account the standard of ‘reasonable practicability’ that attaches to s 29(2).

The Supreme Court of Appeal, in delivering their judgment in March 2017, said that the requirement of reasonable practicability could not be separated from the requirements to promote equity and redress past discrimination. They said that UFS had acted rationally in changing the language policy, as they did so to promote racial integration and equity at the University.

Furthermore, they praised the effort and consideration that UFS had put into their new language policy as ‘exemplary’. Nevertheless, across the educational board, radical transformation is still needed to redress inequalities in language policies across South Africa. For example, sign language is still not a recognised official language in South Africa – a step which would go a long way towards cementing rights for deaf people and promoting their equal participation in society. The Deaf Federation of South Africa approached the Constitutional Review Committee to lobby for the recognition of sign

language as an official language 10 years ago. However, the amendment is only expected to be put before Parliament this year, and it is still uncertain whether this will result in its recognition.

Furthermore, there are a host of other universities besides UFS and Stellenbosch where language policies can – and should – be reconsidered.

For example, at UCT it is only possible to major in 3 of South Africa’s official languages (English, Afrikaans and isiXhosa). What is more, no provisions are made for learning non-language courses – even large courses – in any language aside from English, nor are tutorials or any notes made available in any language apart from English.

Additionally, while it is possible to learn in one’s home language in the first few years of school, after grade 3 schools revert to either English or Afrikaans. The knock-on effect is that many students struggle to understand what is going on in the classroom and get left behind. These students are disproportionately black students, who are more likely to speak an African language as their first language than English or Afrikaans.

Therefore, there’s an argument to be made that the current language policy in schools across South Africa is discriminatory.

While this challenge has not been set before a court, if this were to happen it would need to be proved that

such a policy would be reasonably practicable. This could be difficult, considering the costs involved in, amongst other things, finding and buying the necessary textbooks for such instruction, as well as training teachers. However, a constitutional challenge may be unnecessary for the policy to be changed. Along with the possibility of History being made a compulsory subject, the recent calls for a decolonised curriculum have led the Department of Education to seriously consider extending mother-tongue instruction in schools all the way up to Grade 6. Such a policy, if it is to be implemented, would only happen gradually.

However, the burden shouldn’t – and doesn’t – just lie on the state and public institutions. The changing of language policies at UFS and Stellenbosch happened largely because of student protests about these issues. Language equality can be promoted by all people, at any time, through their own day-to-day actions. Whether it’s taking a class on sign language, or familiarising yourself with a language you don’t know, or even translating law cases into other languages to make them more accessible to the public, there’s a host of actions we, as individuals, can take to further language equality.

So, what are YOU doing?

By Emma Reinecke

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Call me queer: troubling classification

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he word ‘queer’ has a fraught context. Originally understood to mean ‘odd’ or ‘strange’, it was during the early 1900s when the term’s connotations were burdened by its derogatory use towards those who were non-normative. Hurled at people who fell outside of the strict confines of man, woman and heterosexuality, it soon became a slur. “Queer!” is the word many can recall being branded, before being beaten. Hence, the utterance of the word carries with it a history of violence against those who failed at the interconnected systems of binary genders and heterosexuality.

With this complicated history in mind, one may be inclined to object to the significant movement, which has emerged over the last 40 years, towards embracing the term queer. However, before making any such judgment, it is important to understand that the growing use of the word is premised on its reclamation. ‘Queer’ has begun to be utilised in a way that indicates one’s opposition to heteronormativity. Heteronormativity is the view that there are only two sexes, which are male and female, and that sex between these two is privileged.

In challenging this system, the word ‘queer’ is opened up to signify multiple and changing meanings to the different people who claim it. Whilst support of this reclamation is not collective, it is undeniable that the repossession of the word ‘queer’ has had, and can have, a significant impact on the politics of gender, sexuality and beyond.

Legally, the effect of the visibility that the sharing of queer narratives provides – during litigation for example – is the acknowledgement that heterosexuality is a system which pervades more than the act of sex alone. Many LGBT+ movements have begun to veer away from political strategy, as the aim to be included was won simply by being granted marriage rights. However, queer movements view this, at best, as a step towards formal equality. Accordingly, in the struggle for substantive equality, they continue to expose the pervasiveness of heteronormativity – not just in-between the sheets – but in universities, at the borders and between states. This is because a queer jurisprudence recognises that there is neither a universal queer, nor does queerness function exclusively in the private sphere of life. So when can we call the law queer? This depends to a large extent on how actors in the legal sphere talk about the queer person, and how we let the queer person talk about themselves.

As litigation in many countries becomes one of the only or most effective ways in which to hold the state accountable, the influence of the courts’ rhetoric becomes an even weightier force within public and private life. Hence, the court fractures interests that are interconnected when they treat the issues raised by those who transgress heteronormativity as separate to those who challenge hegemonic systems of whiteness, class and ability.

Propelled by academic and activist communities, the reclamation of ‘queer’ has placed the term in a position that troubles the law. Professor Francisco Valdes points out how the queer movement reveals “the heterocentric presumptions and prejudices that permeate” the legal world. In particular, it confronts the heteronormative and traditional understandings of law which view identity as something that is embodied in an unchanging and clear way. Discussions on the law always seem to begin with definitions. This stems from the law’s pre-occupation with categorisation. Hence, it is the self-identified queer person who challenges heteronormativity by troubling how it affects our legal world. The term ‘queer’ encourages the deconstruction of categorisation, and supports the movement to ensure an uncompromising narration of our stories.

In this shift away from pigeonholing identity, lies the realisation of a queer jurisprudence. It marks a transformation whereby the lived experiences of people are valued beyond a single story which categories like ‘homosexual’ and ‘transsexual’ often perpetuate.

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It is the courts’ place in a queer jurisprudence to note the symbiotic nature of oppressive systems. We see this most promisingly in the Supreme Court of India’s judgment National Legal Services Authority v. Union of India. In this landmark decision it was noted that those who find themselves at the intersection of being transgender and from a low caste, are subject to higher levels of discrimination by citizens and the police. In explicating this, the court provides a basis on which to facilitate solidarity and allow people to begin to see identity as complex and connected, despite once having being reduced and compartmentalised by the law.

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However, as we challenge the law to reflect the queer, we ought to wonder if the destabilisation of categorisation is enough to actually begin to call the law queer. Whilst crucial, it is unlikely to be adequate for the complete reclamation of the law which once actively persecuted the transgressive. Perhaps, due to their histories, we can never fully reclaim the word queer, nor the law with it.

Nonetheless, we can but dream.

Words by Nigel T. Patel

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Instagram: @Vuyisanibisholo

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The Colonisation of the

Mother Tongue Uuwo panfiwe elulwe ne chibi. This is my favourite proverb in Bemba. It means that ‘he who has the problem will fight with the door’.

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espite being my mother tongue, the Zambian language of Cibemba has become as alien to me as it will be to most readers. During a recent forest trip with a friend from a similar background, I savoured her description of English as our ‘step-mother’ tongue. While it is an excellent international currency, my step-mother tongue is not only culturally and linguistically biased, but is uncompromisingly colonial and, as such, tends to alienate those whose proficiency is low or non-existent.

Through experiencing the privilege and dispossession of being a grandchild of Apartheid’s exile, I stepped into adulthood unable to think or communicate in little other than this step-mother tongue. With this as a back-story, I held interviews with some friendly students whose mother tongue is not English, or who have been dispossessed of their mother tongue because of the colonial hangover that is the English language. This is what they had to say: Fezile: In some way we have been able to maintain our culture by speaking our own languages. Even in so-called white spaces. People who work in the kitchens speak their own language. It kind of makes them forget about the harsh realities of colonialism or Apartheid. We are so used to living plural lifestyles. In spaces such as UCT, English is the language that everyone speaks here. At home, we speak my mother tongue - isiXhosa. It is a language we associate with pride and culture.

The Capetonian Xhosa accent is not really the original accent. It doesn’t sound very rural. It’s a mixture of different languages –there’s a bit of Afrikaans. There’s a bit of interplay between the languages themselves. It’s quite interesting how the urban area has allowed for the amalgamation of different languages.

Aisha: A colonised mother tongue? I think it was Warsan Shire who said something like, ‘my heart is my mother’s, my mind is my father’s, but my tongue is colonised’. That really spoke to me. My mother is Somali and my father is Kenyan. When I think, it’s in English.

I can speak Swahili – the national language of Kenya. About two weeks ago I lost my grandmother. Traditionally, in the evening, for about three days before the burial, we have a gathering of people who share stories. Unfortunately, I have to say, my mother would try to translate to me (she understands my dad’s language), or else I’d only catch two or three words – not enough to make a full sentence in my head. I just felt like I missed so much learning about my grandmother because I just do not understand what was said. Once it’s translated into English, the essence is lost.

As my grandmother was deteriorating, she only thought in her mother tongue – Kikuyu – so she could only respond in her mother tongue. In that period of time I felt I could have learnt so much. I’m named after her but I couldn’t communicate. It’s made me realise that I really need to do better. An important thing to understand is 12

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that it is not my fault. I’ll start to learn Swahili better, and then Somali.

Jess: I remember talking to my Mum and I was like, ‘Yoh man, what’s going to happen? Our language is going to disappear. None of my peers speak our mother tongue.’ She asked me why I was worrying; everything would be in English eventually. Essentially, she just told me to move on. On one level I was like, wow, how can you be so jaded? On the other hand, she has a point. Our parents are ‘new money’, hardworking individuals.

I can’t even go hang out with my cousins on her side. We don’t have the same lifestyles and we don’t have the same economic means. Apart from it being a language distance, it is an inherited distance passed on from our parents.

They have dissociated so much of their pain and their struggle by trying to be successful on an African continent with Western money and Western success – they have just become complacent. A colonised mother tongue gives us these roofs, these luxuries. The industry that you’re going to be in? They don’t care if you can speak Kamba.

Aisha: They want to read your English. How well can you speak? How well you can answer the phone without someone knowing your race?

Qondiswa: I remember a couple of times in my school speaking isiXhosa was banned.1 Then going home and being known by the elders as the one who speaks English so fast they can’t understand.

I was conditioned but I am grateful for understanding what I did to myself. Now, I do what my brothers did in high school. I consciously choose to speak isiXhosa. It is a shift in the power dynamic, speaking in English. When people are laughing about how you speak, it’s an insecurity in them about this whole thing.

Nazlee: In the context of India I’ve experienced a similar attitude towards language. People are still very well versed in Hindi, Kannada, Tamil and Gujurati. However, as soon as they come into contact with a tourist or business person, they very easily move between the two languages. I think most colonised people occupy a double consciousness. Being born in Durban, living in India when I was seven, and travelling to Cape Town when I finished High School, I find myself mixing up isiZulu, Xhosa and Afrikaans. The English we do speak, we ‘ghettofy’ it and mix it up until it’s not ‘real’ English. At the same time, you do not have the power to force-feed me this English. I’m going to use that nice prim, pretty English wherever I find it necessary. You are not gonna tell me when to speak it. But, damn sure, when I am in your business circles and want your connections, I do operate with a double consciousness.

I have never known what my mother tongue is – being someone who is mixed with, who knows what? But, I’ve bastardised every other language that I know. It is just a radical reclamation of language. I don’t think anyone is a passive recipient of colonialism.

Malaika: When I think about it too much, it makes me not want to speak.

Mwansa (me): Though I cannot speak my mother’s tongue, Bemba; my grandmother’s tongue, Sotho; or Xhosa; with any confidence today, one of the beauties of a colonised mother tongue is an appreciation of forms of communication that are not heard but felt. This sense of otherness has instilled an appreciation that our lives, and our cultures, are composed of many overlapping narratives. What can be mended through the talks of pain?

With Xhosa Communication for Legal Practice a discontinued course at the University of Cape Town’s Law Faculty, one does not have to stretch the imagination to consider the ilk of clients we will be expected to communicate with in practice. My stepmother tongue is the definitive language and mode of communication of the legislature, judiciary, and civil and criminal justice systems in South Africa. This is exclusionary for the majority of the country and undermines the pursuit of social justice. How can people engage with a system that they cannot communicate with and which cannot communicate with them? Those of us caught in between the values of the Constitution and the lived realities of the voiceless are well positioned to become advocates for those who have been othered by a nation that operates under a colonised mother tongue. With regard to individual responsibility, I have to be both my own blessing and my own teacher in consciously engaging my tongue with greater humility and a sense of humour. In short, ‘uuwo panfiwe elulwe ne chibi’.

Words by Mwansa Evans 1

Section 30 of the Constitution provides the constitutional right to use the language of your choice. I doubt playground chats can be inconsistent with the Bill of Rights. Thus, schools appear to be adopting policies inconsistent with the Constitution.

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CHRONIC OESOPHAGITIS (reflections on the b e g i n n i n g of clinical work, MBChB Year III) these white men are speaking over your body now here is the incantation: WCC RBC Hb Haematocrit MCV MCH MCHC RDW they lay hands on your belly and sing love songs to each other you are the basin where their bright waters come to fold these white men have always spoken over your body since before your body and before these white men I know that pieces of your body have been tossed in the mouths of white men since time began since time began with them the language came in from the sea and from over the mountains the names came down on your back so heavy a laryngotomy continuing for 365 years your voice box grows back nightly like the liver of Prometheus and the king’s eagle returns every morning without fail these white men are speaking over your body now here is the incantation: legislation disbursement plaintiff tortifessor enduring power of attorney mea culpa mea culpa maxima mea culpa I carry pieces of you in my mouth to lay at the feet of these white men you say my kidneys are low, my liver is big, my heart will kill me before the cancer will you think these little words are less dangerous but they can kill you too, like: home guard mine tax mad pass stone smile womb dead these white men are talking to your ghost which has not arrived yet you are talking to the opposite wall in all its fantastic whiteness you say it is God’s will you say I loved her more than anything you say he stabbed me in the eye with a screwdriver 14

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you are lying bloodied in the garden at night and you say nothing you are lying with a ventilator moving your chest for you and you say nothing

restless on the sea-floor now all our dark hands work within white walls

these white men think you are lying but you are not lying the language is lying through you

the disease lives within white walls

the language is lying to you I heard the master’s tools grow out of his gums I heard the master swallowed you at the beginning of time I heard de minimis non curat lex

Maya Surya Pillay

I heard you lay quiet in the courtroom while the master made his incisions I heard you were laid open twice over by the tongue the patient was non-adherent the patient was non-compliant the patient resisted arrest the disease came from within the stomach of the patient creeping up the patient’s throat came the bare feet of the ancestors this dysphagia was learned with one cheek pressed to the concrete floor in my white coat in my black robes I carry pieces of you in my mouth to lay at the feet of these white men in your file it says “pericardial effusion” you tell me these men have said there is water around your heart with my stethoscope I can hear it your heart, shifting back and forth flung from the coast restless on the sea-floor o good body 15

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ROADS MUST FALL? F

City of Tshwane Metropolitan Municipality v Afriforum and Another. The case dealt with the more technical issue of irreparable harm, but gave plenty of room for the Court to comment on the impetus and implications of the renaming process.

By Mikhail Kolabhai

or years, South Africa has been engaged in a project of renaming – whether it be buildings, roads, or entire cities. In Gauteng, Hendrik Verwoerd Drive became Bram Fischer Drive. This was only one of many street name changes. Pretoria became Tshwane.

Even long before this, the Constitution set out the new provincial boundaries together with their new names.

At home, Chris Hani, AC Jordan and Neville Alexander have replaced NSLT, the Arts Building, and the Humanities Building respectively. Jameson Memorial Hall is currently being renamed.

The contention surrounding names makes it clear that names do not only perform the function of categorising and distinguishing different places and things. More than this, names hold meanings.

This is especially true of places, because the names of places are often a reflection of the relationship which people have to that place. Who are we? What do we value here? What does this community, this place, mean to us?

And, just as naming a child after someone beloved is to christen them under that person’s values and virtues; to name a place is to associate the best of a person or concept with that place. It creates an ideal and it adds reverence. Names and statues are not so different: both uphold a certain value set, and impose a standard for honour and greatness. But where statues are visible manifestations of this; names instead simply hang in the air, and in our minds.

Yet the power to control a space – and therefore the power to name – is naturally a function of history.

When the power to exist meaningfully in a space was taken from the majority of the population, taken with it was the power to formally attach meaning to spaces through the act of naming. Hence came Verwoerd Drive, Jameson Hall, Pretoria. Colonialism was an imposition not only of physical presence and power, but of the values and histories of the coloniser, onto the colonised.

Renaming is therefore de-colonial. To rename a space is to reclaim it as the community’s own. But this raises more questions than it provides answers; questions which arose in the 2016 Constitutional Court case,

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Some of these questions pertain to the process itself: how must it be enacted, under which circumstances, and to what ends? Mogoeng CJ in his majority judgment emphasises substance over form. The essential aim is to promote ‘sensitivity in the pursuit of inclusivity’. This requires practices of participatory democracy at the local level which are sensitive to the emotional nature of the subject. All views must be aired and noted.

But, says the Chief Justice, the form of the process must not override the substance of the project. All that is required is the airing of opinions so that a nuanced decision can be made. There is no justification for why local government’s power should be ‘frustrated’ by technicalities. Further, it is unacceptable that the Constitution should be weaponized against the previously disadvantaged. This was said in the context of Afriforum’s use of the Preamble and section 31 of the Constitution (the right to cultural community) to argue against name changes in the Tshwane area.

Which itself raises the most critical questions: what does it mean for white people to ‘belong’ in South Africa, and what does it mean to ‘recognise the injustices of our past’? Mogoeng CJ finds that the impetus for the renaming process is captured in these words from the Preamble. He asserts that recognising the past is not a hollow tagline: it must be rigorously pursued, in the interests of equity, and that renaming is a part of this process. White communities’ rights to belonging are not necessarily trumped in this process, but there is the implication that, in the post-colony, our belonging is a shared one.

White communities’ sense of belonging is not denied to them; rather, they are invited to interrogate their oppressive histories and join in a shared belonging which necessarily celebrates the freedom of all South Africans, all of our histories and our heroes. Froneman J and Cameron J, in their dissent, attach a caveat here: that we must approach white histories with nuance, taking the good with the morally reprehensible. This can be accommodated, and should in any case be employed when assessing all of our histories.

And so we begin at last to understand our surroundings, and to feel understood in them. A ‘rose by any other name’ might smell as sweet, but that name might taste sweeter on the tongue and rest easier in the mind.

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Words by Kelsey Pailman

B

eing the President of the United States is no easy task. In addition to tweeting, constructing a border wall and enforcing a travel ban, one also has to warn one’s citizens against ‘fake news’. US President Donald Trump has declared the media ‘some of the most dishonest people anywhere, at any time’ and has called fake news ‘an enemy of the people’. What then is ‘fake news’, exactly? Is it really false, fabricated allegations spread by the media in order to discredit and defame; or is it simply news which one happens to disagree with? In the case of the latter, can media outlets bring defamation suits for being accused of producing ‘fake news’? It has been said that when America sneezes, the whole world catches the flu. This has certainly been the case in South Africa, with the use of the term ‘fake news’ is becoming an epidemic.

In March this year, lawyers acting on behalf of the Cape Times news publication sent out letters of demand to BIZNEWS publication, calling for the retraction of an article published by BIZNEWS entitled “Cape Times Political Gymnastics Knocks it off the Balance Beam”. According to the Cape Times, this article is defamatory in that it contains allegations that the news publication notoriously publishes ‘fake news’ and sensationalised stories. The Cape Times took exception to these allegations, stating that the article was ill-intentioned and an attempt to ruin its reputation. The letters of demand cautioned that if the article is not removed, a defamation suit would be initiated against BIZNEWS, calling for substantial damages under the actio iniuriarum.

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The actio iniuriarum is an action in the law of delict that protects personality interests. While news publications are juristic persons, and thus don’t have ‘personalities’ per se, it has been accepted in our law that a juristic person may nevertheless sue for defamation and claim damages in the event of its reputation being tarnished.

In order for the Cape Times to bring a defamation suit against BIZNEWS it must establish that the article which referred to the Cape Times had the alleged meaning (i.e. that the Cape Times produces fabricated news), and that the publication (given its alleged meaning) is defamatory. BIZNEWS would then have the opportunity to raise defences including truth for the public benefit or that a fair comment was made. Furthermore, even if the allegation made

by BIZNEWS is false, in National Media Ltd and others v Bogoshi it was held that such a publication may nevertheless be lawful, provided that it is ‘reasonable’.

Hefer JA for the Court said that considerations of reasonableness would include, for example: the type of information on which the allegations found their bases, the reliability of the source of information (citing Wikipedia would therefore NOT be an option), and the measures sought to verify the information.

The ‘Bogoshi defence’ promotes freedom of press which is arguably one of the most essential pillars of any democratic framework. The Court in this case emphasised that the prosperity of a modern democracy relies on the constant flow of information regarding matters of public interest, thereby creating a platform

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for rigorous debate and public accountability. This is essential in a country such as South Africa, where propaganda reigned supreme in the pre-democratic era. It is even more important for a democracy such as America, especially given its current turbulent political climate.

Because the press plays such an essential public function, it is necessary that media outlets hold one another to account, and ‘call each other out’ for disseminating fake news. It is also, however, important to note that the health of a democracy can be negatively impacted when the allegation of ‘fake news’ is unreasonably published, thereby compromising the legitimacy of the media. This is certainly the case in the US, where President Trump seems to call any news which he disagrees with, ‘fake news’. In a recent tweet, Trump labelled all negative polls against him as ‘fake news’.

While Trump’s ‘fake news’ appears not to be fake after all, across the globe real fake news frenzies have the danger of bringing the media as a whole into disrepute.

Social media in particular appears to be arable soil in which fake news can be cultivated and consumed. In 2016, a tweet was sent out with a warning that plastic rice from China is infiltrating the Nigerian food market.

The tweet included a link to a website which claims to be ‘Nigeria’s Finest News source’. The website provided a test to determine whether or not rice is real or plastic. This led some Nigerians to believe that the Chinese government was declaring ‘chemical warfare’ on their country by exporting indigestible grains. The Plastic Rice Saga however proved to be a fabrication. In December 2016, Nigerian authorities did in fact seize 21 bags of rice weighing 102 kilograms each, brought into Nigeria by a businessman (not the Chinese government). However, after scientific tests had been conducted, it was confirmed by the Nigerian Minister of Health, Isaac Adewole, that the rice was not plastic, though not entirely wholesome.

One particular aspect of social media platforms which gives rise to fake news is the prevalence of a ‘filter bubble’. Social media platforms such as Facebook filter the information shown on your timeline according to your tastes and interests. Because of the operation of

Defamation, Democracy and Donald Trump the filter bubble, the news that pops up on your feed will most likely be news which you tend to agree with.

Fake news sites see this as a perfect opportunity to reel in unsuspecting social media users, sharing links to their pages on topics personalised to the specific user, thus psychologically creating the impression that the news is true. Eli Pariser, author of the bestselling book The Filter Bubble, has warned that the consequence of this reality is that ridiculously fabricated news is delegitimising the authority that news has.

How then does one differentiate the real news from the plastic (excuse the rice pun)? In an age where information is shared at lightning speed, it is important to view news headlines and articles through a critical lens. Don’t believe everything you read. A simple manner in which to verify a news story is to cross reference it with other sources. It is important also to be able to identify credible sources of information.

There are some other simple checks readers can use, including checking the copyright at the bottom of a webpage, checking the date of the article, and keeping an eye out for strange URLs. In the final analysis, it is important for the reader to remain discerning, even when obtaining information from ‘trusted’ or established media houses, as no information conduit can be completely exempt from publishing stories free from bias or error.

While ‘no news is good news’, fake news cannot be news at all. Within democratic societies such as South Africa and America, it is necessary that the media are able to exercise their right to free speech without fear of arbitrary censorship. It is also, however, important for news broadcasters to take cognisance of the responsibility that comes with the dissemination of information. It is only in this way that we can truly

Make the Media Great Again.

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f o s n huma Compiled Mdutywa Pailman

by: and

Asiphe Kelsey

For some people, Latin is prima facie extinct. However, in the hallowed halls of Kramer, Latin lives on. It is no surprise then that the citizens of Kramer inform the boni mores of UCT. For this reason we asked YOU:

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r e m a r of k In your opinion, which Latin word or phrase best describes Law School?

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EMMA REINECKE EDITOR-INCHIEF

GEOFFREY ALLSOP

CONTRIBUTORS

KELSEY PAILMAN - SENIOR EDITOR

MAYA SURYA PILLAY

JORDAN PFOTENHAUER

NATASHA DUSABE - SENIOR EDITOR

ROZELLE WENTZEL

NIGEL T.

MWANSA EVANS

PATEL - SENIOR EDITOR

MIKHAIL KOLABHAI

JAIDE WYMAN

Design & Layout: IG @thecapetownphotographer | Cover Photoshop: IG @reveal.ing 23

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Magazine Launch Event:Â Sounds Profound

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