Altum Sonatur Volume 4 Issue 3 - Faculty of Law

TR
1
2
3
UCT Law Students’ Newsletter
Volume 4, Issue 3
AN
SF
OR T
M HE
AT
IO
N
September 2013
IS
SU
E
Iowa Gun
Laws
In the kingdom of
the blind, the blind
guy with the gun is
king
Page 2
Animal
Rights?
Chops,
cheeseburgers and
transformative
constitutionalism
Page 4
A Mlungu on
my Stoep
In conversation with
the new BLSF
leadership
Page 8
‘No Blacks
Allowed’?
Transformation in the judiciary and higher education
Fewer words in the South
African political sphere elicit as
much
comment,
both
enlightened and ignorant, than
the
word
‘transformation.’
Considering the extreme views
on both the right and left and
with little sign of genuine
consensus, this is unsurprising.
The debate has now shifted
gear slightly and is moving
away from the usual vitriol of
News24 comments on BEE to
two equally contested realms of
the public sphere: the legal
profession
and
higher
education. As a law school, the
faculty has a vested interest in
both of these areas of society
and there are many similarities
between the debates on both
sides. It is a debate that will
have a major influence on our
futures and the successive
careers of the bevvy of
prospective students hoping to
wrangle themselves into the
Faculty.
Considering that the judiciary is
one of the three hallowed wings
of government separated by the
fictional
bridge
of
the
‘separation of powers’, it is the
most visible battleground for
transformation.
The
Constitution at s 174(2) has
the specific mandate that the
judiciary must ‘broadly reflect
the
racial
and
gender
composition of South Africa.’
The effect of this is marked at
the apex of the judiciary with
the fact that seven justices of
the Constitutional Court are
black. Despite this, there are
only two women on the court
and there is a dearth of
women in the judiciary in
general. Pierre de Vos has
described this as the ‘the
replacement of old guard
(white) patriarchs, with new
order (white and black)
patriarchs.’ This is one of the
looming dangers of the
numbers game, to fixate over
one figure and then cast the
false dichotomy of black or
white, when that in fact belies
the complex make-up of
South African society.
Despite
this
piece-meal
reform at the top courts, there
is an even slower movement
in the rest of the legal
fraternity. Not long after the
fracas over Chief Justice
By Kevin Minofu
Mogoeng’s
comments
on
transformation,
he recently
wrote an article where he
claimed that 90% of the
advocates that argued before
the Constitutional Court were
white and male. This is an
appalling statistic twenty years
after the end of apartheid. And
considering that this group of
10% comprises ‘black’ people
(African, Indian, Coloured and
Asian) and also white females,
then the usual arguments from
some transformation sceptics –
or perhaps racists –
Continued at page 5 …
Exploring
transformation at
Kramer
Page 10
KramerBuzz
13 law school memes
that are actually the
story of our lives
Page 16
Quidquid latine dictum sit, altum sonatur.
1
2
3
In the Kingdom of the Blind …
The blind guy with the gun is king
By Scott Salusbury
Iowa is a medium-sized state with a
moderate-sized
population,
somewhere close to the middle of
America. The state became a focal
point of US news interest in
September 2013 with the revelation
that it has been issuing blind Iowans
with permits to carry a firearm in
public. Michael Barber, one of the
permit recipients, raised eyebrows
when he told the Des Moines Register
‘When you shoot a gun, you take it out
and point and shoot, and I don't
necessarily
think
eyesight
is
necessary.’
Iowa has an industrious legislature which
this year passed 144 Acts including an
amendment to the law prohibiting the
discharge of a weapon within two
hundred yards of an animal feedlot (it is
now permitted for purposes of police
target practice), and an Act making a
lifetime fur-harvesting license available to
persons sixty-five and over. Other issues
which have engaged the state lawmakers over the years include the kegbeer rules of 2012 which permit
consumption in state parks after
completing a ‘responsibility agreement’
(‘We the undersigned, being over 21
years of age and desiring to entertain
ourselves…’); and the rules establishing a
pecking-order, so to speak, for taking
possession of a road-kill (persons
involved in the accident first, followed by
public institutions, and finally non-profit
organisations).
Page 2
I raise these example not to trivialize the
task of government in middle America,
but to show that Iowan life is more
extensively regulated than the state motto
‘Our liberties we prize and our rights we
will maintain’ might lead one to believe.
Even dental hygienists in Iowa require the
authority of a dentist to remove plaque by
means other than toothbrush, floss or
rubber cup polish. Which makes the issuing
of ‘concealed carry’ permits to blind Iowans
all the more perplexing. Sections 724-8 of
the Iowa Code list only four grounds on
which a person over 21 can be ineligible for
a permit to carry a weapon. These relate to
felony
convictions,
gun-and-domesticviolence-related misdemeanours, probable
cause to suspect unlawful gun use, and
alcohol addiction. In addition, any ground
for federal prohibition on carrying a weapon
(insanity, drug addiction, restraint for
stalking, dishonourable military discharge,
renouncement of US citizenship) also
renders a person ineligible. The code
makes no mention of visual impairment and,
while an applicant is required to undergo
gun safety training, it is not necessary that
the training include a test of shooting
competence. Iowans can, in fact, take a free
online course in fulfilment of the training
requirement.
It’s worth pausing here for a moment to
consider how our own law would treat a
would-be blind gunslinger. The framework
statute for our gun law is the Firearms
Control Act, 2000 (FCA) which, along with
its subsidiary regulations, commenced in
July 2004. Section 9(2)(a-s)) of the FCA
provides an extensive list of grounds for
exclusion from a gun license. Section 14 of
the regulations goes even further and lists
factors which might make an applicant
subject to special enquiry – including
reported threat of domestic violence or a
forced job loss in the past two years.
Despite these precautions there is no
mention either in the FCA or in the
regulations of vision-impairedness affecting
one’s competence to carry a firearm.
Our law, like that of Iowa requires an
applicant to complete the prescribed
training on safe and efficient handling of
guns, but here is where we diverge
significantly. The training standard set by
the South African Qualifications Association
requires trainees to hit an A3 target ten out
of ten times from seven
metres. There is no
time limit for firing the
ten
shots.
This
standard may exclude
completely blind people
from a competency
certificate, but it is not
unthinkable
that
a
person whose vision is
substantially impaired
could pass this test in
the closed, distractionfree environment of a
firing range. The Des
Moines Register notes
at least three Iowans in
one
county
whose
Whatever is said in Latin sounds profound.
vision precluded them from driving but who
had been issued with firearm permits.
Might something similar happen here? It’s
possible, although the range test would
surely limit the number of vision-impaired
people who would qualify for a license and
limit it to those who are relatively sighted.
A more interesting question is why neither
our law nor Iowa’s provide for exclusion on
the basis of physical disability. In South
Africa such a restriction wouldn’t seem to
be problematic. Certainly s 9(3) of the
Constitution read with s 9(5) creates a
presumption that discrimination on the
basis of physical disability is unfair, but it is
a discrimination which is easily justified in
terms of the general limitations clause. The
same logic that justifies refusing driver’s
licenses to blind people would apply. In the
US, though, the situation is complicated by
the existence of an additional constitutional
right – the Second Amendment right to
keep and bear arms.
The Second Amendment takes some
understanding on the part of a South
African reader. It makes sense in the
context of the American Revolution where
the British colonial authorities attempted to
disarm the ‘patriot’ militias that resisted
them. Even after independence, the early
confederacy had no standing army. Instead
it could raise the militia – a force consisting
of able-bodied citizens who were expected
to keep themselves and their weapons
ready to defend the state. Clearly this is
why the second amendment reads the way
it does:
‘A well regulated militia being necessary to
the security of a free state, the right of the
people to keep and bear arms shall not be
infringed’
Simple enough, one would think. With the
advent of a standing army one might
suppose that the duty to fight in the militia
and the corresponding right to keep and
bear arms had been ceded to the state. But
4
1
2
The majority in Heller was careful to point out
that its decision does not affect the federal
prohibitions on gun-carrying by felons and
the mentally ill. Nor does it mean that laws
regulating firearm sales are necessarily
unconstitutional. So if Iowa, like some other
states were to refuse a carry permit to the
blind
it
wouldn’t
automatically
be
contravening the Bill of Rights. It would
however have to square up its need to
protect the public from blind shooters with
the Second Amendment as well as the
equality rights protected in the Americans
with Disabilities Act.
Ultimately, it seems to me, the issue is
something of a storm in a teacup. Iowan law
already allows anyone, including the blind, to
carry a weapon without a permit if they are
on their own property or lawfully engaged in
hunting or target practice. The controversial
permit is only needed to carry a gun in
public. Exclusion from this permit would
seem to be a fairly limited inroad into the
rights of blind gun owners, especially
considering that Iowa touts itself as one of
the safest states in the US and that the need
for self-defence cannot therefore be a major
consideration.
For the moment though it appears that Iowa
will continue to issue gun permits to the
blind. And when the current furore has blown
over the state legislature will doubtless return
to less controversial matters. Perhaps
another amendment to the feedlot shooting
laws, allowing the blind to get in some target
practice? AS
Sounds Profound?
Continue the Discussion
facebook.com/altum.sonat
ur.uct
@AltumSonatur
THOUGHTS FROM THE
EDITOR
The ‘T’ Word
By Kwadwo Ofori Owusu
‘Transformation’ has achieved buzzword
status in the South African sociopolitical space. One hardly opens a page
of a newspaper or new website without
being confronted with a number of articles,
opinion pieces or letters to the editor that
are heavily charged with this issue. In truth,
this vexed transformation question has
come to represent one of the toughest knots
for a South Africa struggling to unpick the
seams of the legacy of our colonial and
apartheid past. Yet the subject receives
relatively little airplay within the walls of the
face-brick fortress that is the Wilfred and
Jules Kramer Law Building.
The common refrain is that at Kramer we
have a lot on our plates trying to balance
our academic lives in the lecture theatre
with our academic lives in the library.
Granted — law school is tough. But when
did that become an acceptable excuse to
cede the spirit of damn-giving? As students
of the law, we know that transformation is
mandated by the Constitution. As people
living in South Africa, we don’t even need
that to see how crucial transformation of our
society is, or that we are in a position to
help bring it about.
The blame doesn’t lie squarely on the
shoulders of us as students. It’s hard to
accept that the Faculty has no role to play in
educating us to be more than just good
lawyers. There are very real impacts of the
kind of lawyers and people we become, and
there are human beings on the receiving
end of our professional and other actions.
Our law school, through our legal education,
should strive to ensure that it contributes
positively to the transformation of the legal
profession and to the graduation of lawyers
who articulate that transformation in the way
that they work, think and live.
We are certainly left poorer if we leave the
hallowed halls of Kramer with a gold-lined
bachelor’s hood, a certificate and little more
— no degree of social consciousness and
no comment on the world. And the truth is
that, as you will read from the pages of this
issue of Altum, we are up against a society
that perceives us, rightly, in my opinion,
to be aloof and untransformed; out of
kilter with the reality of South Africa.
Some of us will be making laws
someday; some of us will be striking
them down; still others will make it our
life’s mission to find ways to get around
them. We must be endowed with a
worldly outlook when we don our robes
and our suits and beg to please our
clients and the Court. Perhaps more
importantly, we need to be attuned to
the realities of South African society,
even if they are inconvenient.
Especially when they are inconvenient.
It starts here. It starts with each of us
acquainting ourselves with the issues,
forming
opinions,
testing
those
opinions, and then changing those
opinions when better ones are
presented. Transformation requires that
we challenge ourselves, and each
other, because silence settles into
complacency, and complacency is the
best friend of the status quo.
Transformation is by its nature
dynamic; as dependant on a mixture
active minds and human effort as
success in law school is on a cocktail of
hard work and good luck.
In order for this transformation thing to
work, we have to be on the same page.
We have to be talking about the same
thing. The obvious question that follows
is, ‘So what exactly is transformation?’
Here I will invoke my editorial license
and refrain from providing a definition of
something I have yet to grasp fully,
even after years of playing mental PingPong on the subject. Instead I will say
read the pages of this issue, and read
wider. And once you think you’ve finally
understood what this transformation
thing is about, once you’ve internalised
it, write about it and read some more.
Wash, rinse, and repeat.
Whatever you do, don’t fall into the trap
of settling for ‘transformation lite’, as if
you can have transformation without all
the mucky stuff. We have a restless
society that’s aching for real change, so
let’s put our overalls on under our robes
and get to work. AS
Page 3
in District of Columbia v Heller 554 US 570
(2008) the US Supreme Court found that the
Second Amendment actually protects the
constitutional right of the individual to keep
and bear arms. The reference to the militia,
according to the majority judgment, does not
mean that the right is relevant only to military
use of arms. This is because the militia in
colonial America consisted of a subset of ‘the
people’. In other words the people had an
individual right to keep and bear arms,
because they needed to staff the militia. This
is a perfectly tenable, though rather literalcontextual, interpretation of a text written in
1785. But for all the linguistic wrangling that
occupies the court in Heller there is no
consideration of what would happen to the
Second Amendment if its premise – that a
militia is necessary to the security of a free
state – were to fall away over 200 years or
so, as it arguably has. It makes me wonder
how we will view certain provisions of our
own Constitution (the traditional leaders
section comes to mind) in centuries to come.
Quidquid latine dictum sit, altum sonatur.
1
2
3
Chops, Cheeseburgers & Transformative Constitutionalism
A necessary jurisprudential step
By Alexander Friedmann
least,
possible
that
one
may
discriminate against a non-human
animal without good reason by, say,
eating it. So if, and only if, there is good
reason to treat man and animal
differently, such treatment would be
justified. Otherwise, it would fall foul of
the aforementioned principle of nonarbitrariness and equality. So, in other
words, ‘I have rights just because I’m
human’ may be no more compelling an
argument than, ‘I have rights just
because I’m white’.
I write this article to achieve one simple
objective: to convince you that nonhuman animals should have substantial
rights under our current constitutional
dispensation. There are no good
reasons to exclude the fundamental
rights of non-human animals from
constitutional consideration, such as
their right to life. I do not argue for an
unrealistic constitutional standard; but
rather for substantial animal rights
gradually
to
assume
a
more
prominent position in South Africa’s
constitutional jurisprudence.
In order to understand why our founding
provisions are the way they are, one
needs to reflect briefly on our dreadful
history of institutionalised racism. We
must draw on the historical context of a
long-standing and entrenched colonial
background of unfair discrimination. No
doubt, the founding provisions find their
roots partly in a determination never
again to countenance such harmful and
arbitrary discrimination. Yet, the result of
this historical analysis leaves us, at least,
with a prima facie case for animal rights.
Page 4
This is because the principle underlying the
foundations of our Constitution is,
essentially, this: an individual may not be
subject to differential treatment where no
good reason for such treatment exists.
Human rights may be justifiably limited
under section 36 or discrimination deemed
fair by section 9(5). Arbitrariness was
considered intrinsically ‘dissonant’ with the
vital
principles
of
South
Africa’s
constitutional order in Pharmaceutical
Manufacturers Association. With this
concept of equality in mind, it seems, at
It is necessary now to make an obvious,
but important, observation. Because the
vast majority of non-human animals can
feel pain, they are capable of being
included in a determination of whether
unequal treatment has occurred. The
idea that animals indeed feel pain is
evidenced by the existence of a humanlike nervous system with sensory
receptors and physiological changes in
response to harmful stimuli in many
non-human animals. Of course, we
cannot know for certain that non-human
animals feel pain; but neither can we
know for certain the same of toddlers.
Nevertheless, the empirical evidence
suggests strongly that animals are
indeed sentient and thus there appears
to be very good reason to consider their
steaks off the grills of Burger King,
thus effectively sounding the death
knell for the meat industry as a whole
and, accordingly, a considerable
portion of our economy.
I respond by pointing out that public
policy should be approached with
caution where such a progressive
interpretation of the Constitution is
proposed because public policy
considerations are made largely with
reference to internal societal values
that have come to be accepted by the
community over time. It is thus
problematic to propose the idea of a
normative moral system of substantial
legal protection of non-human animals
to a society that has already deemed
permissible their exploitation because
such a suggestion would be likely be
dismissed outright.
‘That is why they’re here, to provide
food us,’ would probably be the
response secundum bonos mores.
But, there seems to be something
familiar with this reasoning and
actually something rather sinister as
well. What if I had argued for the equal
treatment and non-discrimination of
women, homosexuals, or black people
during the height of each group’s
respective struggle for equal
rights? The majority or those with
power would, no doubt, have
responded as above and hence
the existence of a struggle in the
first place. It stands to reason,
therefore, that public policy
considerations will not ipso facto
suffice to keep the chops on the
braai because such action is still
morally objectionable.
‘“I have rights just because
I am human” may be no
more compelling an
argument than “I have
rights just because I’m
white”.’
interests in not being unfairly treated.
Having shown that the Constitution
rightly
denounces
arbitrary
discrimination, particularly in light of
historical injustices, and that non-human
animals feel pain, I now respond to the
anticipated argument from a public
policy perspective. In reading my
arguments thus far, any constitutional
lawyer worth his salt will be quick to
point out that South Africa’s public policy
is clearly not in favour of upholding
animals’ right to life. They would scoff at
the idea of a liberal interpretation of the
founding provisions that could bring the
meat off the shelves of Woolworths, or
Whatever is said in Latin sounds profound.
At this point I add another
consideration to the argument. I
am not arguing for the identical
treatment of animals but merely for
their
equal
consideration.
Discrimination
between
sentient
beings may be justified where there is
a relevant difference between them.
For example, we may discriminate
against kittens by not allowing them to
stand for public office, or against
seagulls by refusing them the right to
social housing because neither have
the necessary cognitive capabilities. I
am obviously not arguing for the
identical treatment of non-human
animals, as a kitten clearly cannot
represent my political interests.
However,
where
a
being
is
4
5
It is helpful to consider the main
differences upon which one might be
discriminate that are irrelevant: cognitive
capacity and social utility. The first
difference asserts that because humans
have superior cognitive capabilities to the
non-human animals, treating them
differently by killing them is justified. In
other words, because one is more
intelligent than pigs, it is justifiable to kill
pigs. But this is reasoning is dubious.
Certain humans have similar cognitive
capacities to that of a pig, namely babies
and the severely mentally ill, while some
might even display no cognitive
capacities such as the comatose.
Moreover, it seems morally wrong for one
to discriminate on the basis of a being’s
sentience when it is capable of
experiencing pain. Thus, to harm nonhuman animals for cognitive reasons
would be to discriminate against them on
an irrelevant ground because we do not
harm fellow humans on their intelligence,
despite their sentience.
The second difference often raised is that
because humans have a greater capacity
to contribute to the well-being of society,
they are therefore justified in treating the
latter differently. Because no sheep can
ever be able to contribute to the good of
its own species, let alone other species,
discriminating against them is justified.
But this seems problematic for two
reasons. First, it falls to similar objections
as the previous argument – certain
humans are not capable of contributing to
the well-being of society, like toddlers and
the mentally ill. Still, others have such a
capacity; but choose not to act on it.
Secondly, the argument just seems false.
Guide dogs, drug and bomb-sniffing
dogs, and horses and dolphins used for
animal-assisted therapy may contribute
far more to the good of society than
certain classes of humans, such as
convicted prisoners or the comatose.
Hence, a capacity to contribute is an
irrelevant difference and discrimination on
this basis would result in unfair
discrimination.
So where does this leave us? The
arguments for the rights of non-human
animals not to be hurt or killed are
surprisingly robust and find their strength
in the same reasoning that underpins our
constitutional rights to non-discrimination
and equality. And if this is so, it must
follow, by a commitment to reason and
logic, that the Constitution be interpreted
to include substantial animal rights within
the (hopefully) near future. AS
From page 1
… that it is some sort of inherent cultural
reason that black lawyers cannot succeed
in the profession is invalid. Why are white
women, even accounting for maternal
reasons, not advancing to higher echelons
of the profession? There clearly must be a
link between the machismo filled fraternity
of white lawyers that prevents the
incorporation of other segments of
society.
Following from this, one of the reasons
why there is a lack of black lawyers in the
legal profession is that there are failures in
all levels of education but more directly a
problem in transforming higher education
to pump out quality graduates that
‘broadly reflect the racial and gender
composition of South Africa’. In response
to this, a recent controversy arose over
the Minister of Higher Education, Blade
Nzimande’s, plan to form a higher
education committee that would be
charged with overseeing transformation
policies
and
failures
across
the
universities. This is a break from the
regime that had governed higher
education through the Higher Education
Act of 1997. This had been based on the
notion of self-governance by the
universities and interactions with the
state’s interests being managed through
the Council of Higher Education. The
formation of the committee was a
recommendation from the Soudien Report
that was tasked to assess inequality and
discrimination after the Reitz episode, a
racist incident at the University of the Free
State. The universities have generally
been reluctant to the proposed reform
fearing further interference from the state
in university policies.
One of those policies is the race-based
admissions policy. Especially at UCT it
has been the battleground for various
SRCs and university councils. This
culminated with UCT’s announcement that
the race-based policy will be re-assessed
with the possibility that it may be phased
out. This reignited the debate around it
and, most recently, has had the UCT
Student’s Assembly endorse a race-based
admissions policy. Although the increased
representativeness of UCT’s students is a
crucial debate, it has tended to give a
jaundiced and myopic view of the higher
education debate. Too much emphasis
has been placed on getting students into
the university without enough attention
being given to the experience of students
actually in university. The latter may be
one of the more direct causes of a white
and patriarchal legal community.
To bring things closer to home, a
fascinating study done by Final Year
students of the Woman and Law elective
uncovered some interesting findings on
the race and gender issues within the
faculty. From the survey conducted by Ms
Kelly Martin, it was found that with
regard to gender issues, women
generally do as well academically as
men in Kramer. However, many women
seemed to be less satisfied with their
academic performance. Nonetheless,
they did, from the pool of students
surveyed, seem to be a general belief in
equality between males and females in
Kramer.
The interesting findings regarded race.
The survey found that black males
averaged almost 7% less than their
white counterparts based on 2011
results. Coloured men averaged almost
10% less. Coloured females averaged
almost 5% less than their white female
counterparts
and
black
females
averaged almost 10% less then their
white counterparts. These findings are
unsurprising considering the greater
pressure on black and coloured
students. 88% of white students
responded that their parents, along with
82% of Indian students, financed them.
The responses for black and coloured
students were both around 42%. The
obvious response would be that bursary
and student loan opportunities are more
available to blacks and coloured. This
may be true, but an interesting statistic
was the consequences of failing a year.
The majority of white students
responded that there were no real
consequences other than repeating the
year, while the majority of black
students responded that they would be
forced to leave university.
The results of the survey are interesting
in that it shows that the experience of
black and coloured students in Kramer
appears to be more challenging than for
others. Specifically, there is the
pressure of financial and academic
exclusion. This point illustrates how
ignorant
of
other
issues
the
transformation debate has become. The
numbers game of black and white
largely ignores an underrepresented
and struggling coloured segment of
society, and glosses over gender
issues. The focus on admission policies
ignores the experience of black
students who are already struggling in
higher education. The end goal must be
to have more women and people of
colour writing judgments to be read by
law students that include more women
and people of colour. AS
Page 5
discriminated against on the basis of
irrelevant differences, such conduct ought
to be remedied and prevented through
the
Constitution–
this
is
equal
consideration.
Quidquid latine dictum sit, altum sonatur.
1
2
3
Plan B
Rethinking land redistribution in South Africa
By Jacobus du Plessis
unjust the consequences of that Act may be, I
believe the government should take heed of
those oft quoted wise words: ‘Rome wasn’t
built in a day.’
Back to the plan. On the face of it, this plan
for land redistribution seems just, fair and,
perhaps, like the solution. However, it should
be borne in mind that this is the South African
government and plans made by it can seldom
be described as, even hyperbolically,
sensible. No, on closer inspection, this
proposal falls to a thousand pieces of
indivisible shares.
In the famous words of Oprah Winfrey,
‘you get one, you get one, EVERYBODY
gets one!’ It is no secret that there are an
abundance of role models who inspire
the Legislature and Executive in their
duties every day. Visionaries such as
Steve Biko and Nelson Mandela
represent the spirit of the values
underlying the three arms of government
and are commonly recognised and
celebrated.
It must be said, however, that I believe that
there is a role model who receives rather
less recognition than the struggle heroes,
yet her influence is surely just as strong.
She regularly undertakes death-defying,
daring exploits to bring hope to the wild and
neglected parts of the world. Places where,
as a result of an abject fear of losing their
beloved Wi-Fi-coverage, no other American
dares set foot. I am referring, of course, to
Oprah Winfrey. Although – her other
endearing qualities aside – I believe our
government must admire her for her cavalier
approach to distributing goods.
I make this bold assertion in the wake of
another hit-and-miss attempt at land
redistribution. Recently, the Department of
Rural Development and Agriculture came up
with a green paper flaunting a new and
innovative plan for land reform. However,
after the plan was more closely inspected by
a passing pedestrian toddler, it was
apparent that it left a lot to be desired.
If there is one worker who has been working
on a farm for 25 years and thus he is entitled
to 25%, this is sensible. However, what if
there are 20 such workers? Logically, the
original farm cannot be sub-divided by 25%,
20 times over. Thus the plan in its current
form does not appear to be practicable.
Despite its logical inconsistencies government
has attempted to allay the fears of farmers
who might feel, not without grounds, that their
property is being grabbed from under their
feet. Government has promised that the new
scheme of share distribution will be purely
voluntary. Now then, any farmers around here
feel like giving up 50% of their land today?
Did not think so. An alternative to the
voluntary approach may be to make the
shares scheme legally enforceable. As law
students, however, we are all well aware that
the right to property is jealously guarded by
the Constitution, and it will not allow for any
arbitrary intrusion.
The options therefore seem nothing more
than few and far between. Clearly then, even
if this illogical plan miraculously saw the light
of Parliamentary approval, it would have no
practical effect and, if enacted along the
alternative line, it is likely to be struck down at
the first sight of a constitutional challenge.
Furthermore, it has been reiterated by various
The proposed plan is essentially structured
on a shares scheme whereby if a farm
labourer has been working on a farm for 10,
15, 25 years she/he is entitled to a
percentage share of the farm equivalent to
the amount of years worked. Therefore, a
worker who has been working on a farm for
15 years would be entitled to a share of 15
percent.
Page 6
This revolutionary plan has surfaced during
a period where the government of South
Africa is pulling out all the stops to correct
the wrongs of the past in the space of a
single year. This principally has found its
cause in the recognition that it has been a
hundred years since the enactment of the
Land Act. However, regardless of how
Whatever is said in Latin sounds profound.
agricultural unions that this sort of behaviour by
the government will discourage farmers from
making extensive use of labour and instead
urge them towards the automation and
mechanisation of their farming operations. This
is due to the simple cost calculation that
automation and mechanisation will cost rather
less than giving 50% of your farm away. In
conjunction it is argued that this approach to
land redistribution will cause international
disinvestment in South Africa.
In light of all the above, it seems that the
instant land redistribution proposal seems
nothing more than untenable.
What could then have inspired the evercapable ANC-led government to even propose
such
a
policy?
The
answer
is
uncharacteristically simple: electioneering. The
ANC is no doubt hoping to re-engage with its
support-base after another 5 years of living the
high-life. The most efficient way of doing so is
to press on the open wound of land and the
redistribution thereof, which has been
omnipresent
in
the
South
African
consciousness. This rings home more so in the
Western Cape (the only non-ANC led province)
where recently the wildfire of agricultural labour
unrest burnt white. Alternative motive?
Conspiracy theory? I think not. Their attitude
seems to be one of ‘damn the consequences
as long as we get the votes.’ They can always
sweep the mess under the rug after they have
won the next election.
In the first instance this sort of ‘Oprah Winfreyian’ form of policy-making appears to be just
another avenue for tax wastage.
It is
submitted, however, that this sort of shameless
electioneering through the proposal of pie-inthe-sky policies is not only irresponsible, but,
quite simply, dangerous. A ruling party, or any
party for that matter, should be aware that
when voted in as the government, it is the
government of the entire South African nation,
and not just the persons who voted for it. AS
1
2
3
What You May Have Missed
Recent changes in the political arena
By Stefanie Busch
News broke on September 12th of President
Jacob Zuma’s decision to refer the
Protection of State Security Bill back to
Parliament for redrafting, as opposed to
signing it into law. Zuma’s approval rating
seemed to rise automatically, as he had finally
demonstrated his willingness to listen to
society’s calls for the bill not to be signed into
law. For a few moments, he was the hero of
the nation who had stopped the Secrecy Bill
from muzzling the media by punishing
whistleblowers
for
bringing
important
information to the fore.
Alas! Along came the doubts. A mere two
weeks later, Sunday Times reported on the
exposure of a strategy document. This plan
contained the ANC’s secret election plan to
instruct MPs on their exact spending in
Parliament over the following months in
preparation for the upcoming elections.
Instructions included the postponement of bills
likely to cause controversy or that which would
offend traditional leaders.
Thus, with that blow, election season had
officially begun, together with the ANC’S
strategic manoeuvring to maintain its public
image. At this point, one wonders whether
Zuma’s referral was really out of good political
conscience or whether it was political
manoeuvring. The referral of the bill was a
Economic Freedom Fighters: showcasing
the importance of multi-party democracy
Oh, Julius Malema – infamous as the onehit wonder singer of ‘Kill the Boer’ and best
known for saying ‘That is racist’ at every
opportune moment. The former ANCYLleader who blindly followed his mentor,
President Zuma, for years, until he was
expelled from the league in 2012 due to his
disrespectful behaviour. However, whoever
thought Malema was going to disappear from
the political limelight was clearly wrong. Since
his expulsion, the gloves have come off. A
high-school-like-vendetta has since ensued:
with SARS issuing corruption, fraud and
money laundering charges against Malema.
After months of inactivity, on 27 July 2013,
Malema finally threw his first punch by
launching his new political party Economic
Freedom Fighters (EFF), which aimed to offer
an alternative to the hegemonic one-party
dominant system of the ANC under the slogan
‘Economic Freedom in our lifetime’. The party
has officially been registered by the
Independent Electoral Commission (IEC) as of
September 2013.
‘The people of South Africa should now take a
sigh of relief that a giant movement of the
people, a fighting force for change, a radical,
militant,
innovative
and
determined
organisation is now going to be an option to all
existing
political
parties,
which
have
perfect opportunity for a re-branding of the
controversy that is Zuma and that just about a
half a year before the 2014 national elections!
Coincidence or political opportunism, I ponder?
To deduce this, it is necessary to evaluate the
effects of Zuma’s referral of the Secrecy Bill
back to Parliament. Does it have the effect of
forever bringing to rest, at the very least, the
most controversial parts of the bill? Or does the
referral rather serve as a charade, merely
bringing the bill into a deep Snow-White
slumber, to be awakened the moment Zuma
and the ANC are re-elected?
The President is empowered by section 79(1)
of the Constitution to refer a bill back to
Parliament due to concerns of the bill’s
constitutionality. President Zuma stated the
reasons for the referral as being the
‘reconsideration insofar as sections of the Bill,
in particular sections 42 and 45, lack meaning
and coherence, consequently are irrational and
accordingly are unconstitutional.’ As rule 203(2)
of the Joint Rules of Parliament states, the
committee tasked with considering the
President’s objections to a bill ‘must confine
itself to the President’s reservations.’ Thus,
although many view this referral as a victory for
the right to access information,
these hopes fall short due to
Zuma’s (strategic?) framing of his
reservations
regarding
the
constitutionality of the Bill.
collectively failed to transform
South Africa,’ Malema states. The
description of the EFF as radical
is,
nonetheless,
a
clear
understatement.
The
main
principles advocated by the EFF
are expropriation of South African land without
compensation and the nationalisation of the
banks. On top of all of this, the EFF has
launched a direct rhetorical assault against the
Madiba’s rainbow nation myth by advocating
the general move from reconciliation to justice.
Many have resorted to ridiculing Malema and
his fellow beret-wearing colleagues. However, I
am of the opinion, that interesting times loom
for South African politics. That is, however, on
the condition that the EFF can remain
financially afloat and properly regulated in order
to be capable of mobilising voters. Do not
misunderstand me – there is little evidence
suggesting that we will wake up one morning in
mid-2014 with Malema as our President and
EFF as the ruling party. This is all the more so
considering how the EFF’s policies have
dangerous interpretations, which are drenched
in hypocrisy. An example of this is such
preaching that the ruling class has fallen prey
to capitalism whilst the EFF is lead by a man
that is awaiting a corruption trial. In spite of
these unseemly characteristics, I would still
argue that EFF’s representation in Parliament
would have a good impact on South African
democracy.
In addition to this, the sections mentioned in
Zuma’s referral are not the ones that have
been viewed as the most problematic.
Section 42 would have made it an offence to
conspire or counsel someone to commit an
offence in terms of the act. Section 45 would
have made it an offence knowingly to
provide false information to a national
intelligence structure. As Pierre de Vos has
stated, the latter section does not even
seem
constitutionally
problematic,
amounting rather to the President sending
back a section because he dislikes it, being
‘an impermissible exercise of a veto of a
section of the Bill.’
Meanwhile,
concerns
about
clauses
imposing harsh sentences, a lack of a public
interest defence clause and vague
definitions of ‘national security’ still remain,
and reveal how the Secrecy Bill is a deeply
flawed document. Consequently, it would
seem that, rather than having South Africa
and the Constitution’s best interest at heart,
President Zuma has engaged in a strategic
publicity stunt by means of the referral of the
Secrecy Bill in order to raise his approvalrating amongst South Africans before the
general elections next year. AS
One of the founding values of our
Constitution enshrined in section 1(c) is that
our democracy should be founded upon a
multi-party
system
of
governance.
Additionally, section 19 provides that “every
citizen is free to make political choices,
which includes the right to form a political
party”. Thus, the Constitution calls for
various types of political movement, be it to
the left or the right, to participate and
engage in the political dialogue of our
country.
Being the first post-94 party to gain a
significant following, as well as vast media
attention due to its controversial leader, the
EFF could have a good chance of shifting
the debate in Parliament towards the left if
the elections go well for them. Therefore,
the ANC government should rather start
engaging with the EFF, instead of viewing
them as a dangerous, revolutionary
organisation. It should be recognised that
opposition to the ruling party is healthy
(instead of unpatriotic) as it provides a new
base for building a more transformative
South Africa as it provides for a forum for
engagement with others about their different
political views. AS
Page 7
Zuma’s referral of the Secrecy Bill: political
conscience or strategy?
Quidquid latine dictum sit, altum sonatur.
1
2
3
There’s a Mlungu on My Stoep
In conversation with the new BLSF leadership
By Ebrahim Shaikh
As mentioned previously, transformation in
the law faculty is a hot topic, led by reports of
unimpressive
graduation
rates
for
disadvantaged students. I asked Nott and
Trengove how, as student leaders of a forum
dealing primarily with transformation, they
view this issue. According to Nott, it is not an
issue that can be solved solely by the faculty
itself; he identifies an institutional failure at
the foundation level of education for
disadvantaged students.
The Black Law Students Forum (BLSF)
that exists within our beloved Kramer
walls comes across as an obscure
society that many perceive to be
redundant after nearly twenty years of
democracy. The reality is, however,
that transformation has become a hot
topic at UCT. This debate places the
Black Law Students’ Forum in a rather
favourable position to take the baton
and push through a concrete
transformative agenda for the coming
year.
Founded in 1992 by Joel Baepi, the BLSF
has recently undergone a committee
handover, and interestingly enough, two
white males, Markus Trengove and
Joshua Nott, have been appointed as the
President and Vice President of the forum
respectively. I decided to interview these
two student leaders to ascertain their role
in what has historically been a forum for
the empowerment of black law students.
The purpose of the interview was to gain
some insight into the vision of the BLSF
as well as to investigate the motivation
behind two white male law students
joining this organisation.
Page 8
BLSF President Markus Trengove
explains that the BLSF’s goals are
twofold; firstly, they focus on the pushing
through of a transformational agenda,
and secondly, they aim to make provision
for
the
support
of
historically
disadvantaged students in the law faculty.
These goals are accomplished through
the BLSF’s seats on both the Academic
and Outreach Councils of the faculty.
When questioned on their vision for the
future, Joshua Nott, the Vice-President,
concurs with Trengove in that their vision
for the coming year is to place the BLSF
on a more accessible level to the
students, through effective marketing and
by narrowing the disjuncture between the
perception of the BLSF, as opposed to
what it actually does.
The allegation that the failure of the
Department of Basic Education to implement
basic standards has resulted in a poor
foundation for disadvantaged Black students
to build upon in university, is a commonly
held view. The rather obvious lack of black
student leaders in Kramers’ student
governance structures could be attributed to
the fact that many disadvantaged Black law
students prefer to focus on their academics
as they have to work harder due to their
disadvantaged
backgrounds
and
circumstances.
Trengove concedes that a lot can be done
within the law faculty insofar as mentorship
programmes and treatment of the current
disadvantaged students is concerned. In
particular Nott and Trengove cite the
possibility of a leadership based mentorship
programme for Black students. Both agree
that race should remain as the proxy for
UCT’s admissions policy. On that point they
both agree that it is imperative that the goal
of transformation at UCT be to reflect South
Africa’s demographics.
What’s interesting, however, is that Trengove
and Nott are both white males in a historically
Black organisation. Given that South Africa is
a fledgling democracy, with racial tension
burbling under the surface, the positioning of
white males in such societies on campus
comes as a surprise. It comes as a surprise
to not only myself but to the student body at
large, not because we are all inherently racist
(which we are not), but rather because white
students involved in politics at UCT are more
often than not liberals who stray from
contentious
issues
of
race
and
transformation.
So how did two white males ended up at the
BLSF? Nott believes that growing up in a
political family contributed to his political
involvement and Trengove believes that his
journey began in first year when he decided
to break the shackles of liberal conditioning
from his schooling days to join the South
African Students’ Congress (SASCO). Nott is
the outgoing SASCO Secretary-General and
Trengove the outgoing SASCO Chairperson.
They both laugh when I initially refer to them
as liberals, preferring to fall under the banner
of progressive politics.
Whatever is said in Latin sounds profound.
Personally, I believe that the element of
surprise in the race of these two
gentlemen stems from our inability as a
nation to effectively reconcile. Trengove
points out that focusing on his race
detracts from what their vision is, as they
are fighting for something which they will
ultimately not materially gain from. Nott
says that his stance on transformation at
UCT will effectively mean that his younger
brother may not get a chance to study
here, but that it is all in the name of
building our nation.
When asked about the reactions to their
political
affiliations
and
leadership
positions, Trengove concedes that
initially, people are surprised at their
involvement in SASCO and the BLSF,
purely because seeing white males in
such organisations is considered an
‘anomaly’. This raises the question as to
why after nearly two decades of
democracy we still place such an onerous
burden on race. Perhaps it is indicative of
the poor interracial social cohesion within
our nation.
Ultimately what I gained from our
conversation was that my personal focus
on their race detracted from their vision.
This flaw which is evident in many South
Africans causes us to often lose focus on
the bigger picture. I paraphrased Biko,
when he said that white liberals had no
place in black movements, because black
South Africans needed to emancipate
themselves on their own terms. Nott
countered this by arguing that the context
of the new South Africa advocates
integration. Trengove went further to
explain that while they do have to tread
on coals to ensure that their advocating
for pro-Black transformative policy does
not end up being condescending, the
need for integration in order to solve
issues is of utmost importance.
I wish the new BLSF committee well on
their journey to transformation. Aluta
Continua. AS
1
2
3
‘No Blacks Allowed’?
Exploring transformation and throughput of black students
at Kramer
Above are the controversial comments of
Marius Fransman, Deputy Minister of
International Relations and Co-operation
on 12 April 2012, made at a summit on
Post-School Education. The University of
Cape Town promptly responded stating:
‘While Fransman clearly shares UCT's
commitment to transformation, it is
unfortunate that he got many of his facts
wrong in the full text of his speech. [….] In
fact, there are 44 black LLB finalists in
UCT's 2012 LLB programme at UCT. Over
a third of the final year class are black
South Africans...’
Albeit inaccurate, Fransman’s assertions
speak to a taboo subject. This is with
regards to perceptions held by some,
concerning the low levels of South African
black students in the law faculty. To
illustrate the systemic nature of these
perceptions, a common phrase among
students (of colour) was to the effect that
the UCT law degree is an African degree
(not a South African degree by
implication). The debate of which I speak
is
not
the
standard
quantitative
transformation debate that is mired in
numbers
and
reduces
people
to
percentages and totalities.
Could the causal factors of the low
throughput levels of South African black
students in the faculty be as simplistic as
matters of race and nationality? Through
consultation with specially mandated UCT
higher learning professionals as well as
published works, I have come to identify
some underlying factors which interact so
as to result in the disparities manifesting
primarily along racial lines. Furthermore, it
has transpired that the issues are not
merely cognitive, but are rather those of a
particular cultural capital, as well as
language and critical reading and thinking
skills that extend beyond superficial ‘rote’
learning.
It seems those who are not endowed with
the requisite non-cognitive attributes
specific to the discipline, scarcely have the
skill-set necessary to be competent in the
discipline. However, what seems even
more detrimental to a successful
transformation process is that these
students are not afforded the sufficient
opportunity to attain these skills. Bongi
Bangeni in her paper on the experiences
of postgraduate law students not that this
disconnect is particularly evident within the
discipline of academic law. The less
documented
area
of
postgraduate
experiences of transition into coursework
programmes is illustrative of this,
‘specifically where one of the disciplines
has a different epistemological grounding
to those within which their undergraduate
degree majors were located.’
In this context, Bangeni’s work elucidates
the gravity of the often-overlooked habitus
renegotiation process and the substantial
implications on academic writing. Social
practice theorist Bordieu conceptualises
the habitus as the ‘cumulative exposure to
certain social conditions [which] instils in
individuals an ensemble of durable and
transposable dispositions … structures
new experiences in accordance with those
existing structures produced by an
individual’s past experiences’. Drawing on
Bizzell’s notion of academic disciplines
constituting
discourse
communities,
Bangeni’s thesis is that participation in
such
communities
necessitates
assimilation, which in turn requires time
and investment.
Across the university, the work of the
Centre for Higher Education and
Development has identified a disparity
between the completion rates between
races. On the faculty level, the centre
found that the law faculty has been less
able than others to reach the ‘cohort
completion rate’ benchmarks set for
undergraduate degrees. The 2012 ADP
position paper advocates the improvement
of black completion rates as key to the
student body’s overall transformation
process. Yet, given the particular noncognitive
requirements,
the
accommodation of Black South African
students in the faculty’s cognitive
community seems elusive.
With the disparity being a reality within the
law faculty, it seems pertinent that the
paper goes on to call for a willingness to
review traditional practices, especially
where there exists the debate about
maintaining standards as opposed to
increasing the throughput rate. It is
submitted that this ‘cynical’ view does not
take cognisance of the fact that improved
rates need not compromise standards if
there is an improved learning process for
the full range of the diverse student body.
It seems there is an odd resistance to
availing the tools to reach said standard to
all on an equitable basis persists. Hence,
students who do not hail from a culture rich
in legal discourse and those not well
versed in the language are often frustrated
in their cognitive endeavours
A further illustration that a simplistic
discussion about race and nationality does
not suffice is seen when examining a 2012
final year research paper. The paper sought
to ascertain the experience of law school by
different races and genders. The study
presented a nuanced synopsis, which
detailed
the
academic
performance,
perceptions and expectations of UCT Law
students. Of particular significance were the
findings on students’ perceptions and
expectations.
An interesting observation from the survey
was that Coloured males had the hardest
experience in the UCT Law Faculty, Black
South Africans having had the second
hardest experience which adds to the need
for more than a binary transformation
debate.
Despite the reinforcement of academic
performance disparities along racial and
seemingly nationality lines, the purpose of
this endeavour was to find any factual basis
for these beliefs thereby stirring a
widespread awareness and hopefully
building an arsenal of knowledge against
this insidious psycho-social discourse. It
cannot be said that it is by virtue of one’s
race and nationality that one is less likely to
succeed in law school. That would ignore
the wealth of underlying factors informing
the debate, some of which were mentioned
above. Also, it is important to note that
various forums exist geared toward the
advancement of the black law student. It is
where these extracurricular efforts do not
have the sufficient reach that I hope to bring
these realities to the attention of South
African black students and encourage them
to stop sheltering under ill conceived
stereotypes and actively seek means of
attaining the standard and quality the UCT
LLB degree has come to be synonymous
with. AS
Page 9
‘Today the number of black students at
UCT in some faculties is the lowest it
has been in twenty years. For example,
in the Law Faculty there is not a single
black (Coloured and African) student in
the final year LLB class of 2012.... In
2012 there will be zero black (Coloured
and African) students graduating in law
from UCT.’
By Mpho Raboeane
Quidquid latine dictum sit, altum sonatur.
1
2
3
Urgently Seeking White Noise
The dumbing down of mainstream media and LGBTI rights
in Russia
By Matilda Nengare
ever, Prison Break – came out as being gay.
This announcement was followed by much
consternation from the female population,
more than a few ribald jokes, and a series of
wild speculations as to who his leading man
was, personally. And then on to the next juicy
scandal.
No one really spoke of the issues underlying
his coming-out: draconian Russian laws on
homosexuality. The decision of this notably
private man to declare openly his sexuality at
the age of 41 was not merely an attentionseeking stunt.
The actor was invited to the prestigious St
Petersburg international film festival in
Russia. He politely declined citing his inability
to legitimate the Russian government with his
presence in light of their continued
persecution of homosexuals. Profound.
We are a distracted lot – worshipping at the
altar of the celebrity. I am not sure if, as a
general population, we have become less
interested in real news and have opted to
embrace the superfluous, the banalities and
fleeting appeal of celebrities (perhaps to
escape the horrors we are confronted with
daily) or whether there is some profoundly
nefarious plot between our governments
and media magnets to dumb us down and
distract us from the real issues in the world.
Whoever is responsible, there has been a
gradual, worrying and undeniable dumbingdown of the mainstream media and news
sources – a celebrification of the news. If a
celebrity is not somewhere mentioned in the
story, we are not interested or we never really
hear of it. That is the only explanation
I can forward to calm myself and allay
the shock I felt over the last vac when
I had the most cohesive conversation
with my parents on Kanye ‘Yeezus’
West – self-proclaimed Deputy God
and father of North West – who in 12
short years will probably be the leader
of the non-ironic hipster movement.
They were all clued up on his new
album, his connection with the most
famous-for-being-famous family and
his general affairs.
‘I am deeply troubled by the current attitude
toward and treatment of gay men and women
by the Russian government. The situation is
in no way acceptable, and I cannot in good
conscience participate in a celebratory
occasion hosted by a country where people
like myself are being systematically denied
their basic right to live and love openly.’
He took a principled stand, but the media
latched only onto his declaration of his
sexuality, and none of the reasons behind it.
The reason is simply that it was more exciting
to speak of that aspect, to try link him to any
number of leading men in Hollywood and to
speculate on his private life rather than to
deal with the difficult questions as to why
children by gay couples, another bill
classified ‘homosexual propaganda’ as
pornography with fines and arrests for those
making it accessible to minors. Last year a
law was passed banning gay pride events in
Moscow for the next 100 years. The current
laws grant the widest discretion to
government officials who are not at all
known for their willingness to construe laws
in favour of the individual freedom, liberty or
even general human decency.
‘Homosexual propaganda is defined as the
purposeful and uncontrolled distribution of
information that can harm the spiritual or
physical health of a minor, including forming
the erroneous impression of the social
equality of traditional and non-traditional
marital relations.’
Essentially, what is being said is that it is
criminal not only to allege, but also to create
the impression that it is acceptable to claim
social equality as any non-heterosexual
person. This is effectively a law stating that
all LGBQT people are 2nd class citizens and
have no right to claim equality with the
straight. Russia is already struggling with
deep-seated homophobia. The new laws will
only reinforce that distrust of the LGBTI
community and they have been deemed
dangerous and likely to worsen the
homophobia and attacks on LGBTI
community and gay rights activists. Human
Rights Watch has stated that while the laws
purport to protect children, they do so by
effectively infringing the rights of a whole
sector of people– depriving them of equality,
freedom of expression and by
promoting discrimination.
‘News, war, award
ceremonies, life, death,
scandal, affairs, drugs:
everything seems to be
a series of Blurred
Lines.’
Page 10
It was not because they had suddenly
become fans of E!. No, what
happened was that the entertainment
section of the news somehow has
managed to permeate the main news to such
an extent that side pieces are now the main
attraction and one cannot actually escape them
– try as one might. While Syria burns, we are
distracted by a robust debate on the antics of a
former child-star gyrating endlessly in response
to Jay Z’s command for her to keep twerking.
News, war, award ceremonies, life, death,
scandal, affairs, drugs: everything seems to be
a series of Blurred Lines.
A few weeks ago, ‘The Twitter’ was in an
uproar. Wentworth Miller – smooth, suave and
stubbled star of one of the best shows on TV
Russia is persecuting homosexuals and
lesbians and what that really means. No one
really wants to hear about the rights of
homosexuals in Russia when we can speak
on the more saucy issue of with whom
Wentworth Miller chooses to spend his
nights.
Sadly, his grand gesture and principled stand
got lost in the noise. Most people are still not
aware of what is happening in Russia, and
will probably remain so unaware.
After prohibiting the adoption of Russian-born
Whatever is said in Latin sounds profound.
‘As a gay parent I must flee
Russia or lose my children.’
There has been some publication
of the plight of homosexuals in
Russia. Stories of people actually
fleeing their home country to
protect themselves and their
partners and children – such as
that of renowned journalist,
Masha Gessen – have been
widely reported. A bill was
recently
introduced
in
the
Russian Duma that equates
LGBT people with alcoholics and
drug-abusers and would deny LGBT
Russians custody of their own biological or
adopted children. It simply keeps getting
worse.
There have been calls for the boycotting of
the Sochi Olympics in Russia. Some have
even gone so far as to pour Russian vodka
down the drains in protest (weeps gently).
But for the most part, the Russian LGTB
community is on its own. The media is not
reporting widely enough on this issue.
Apparently it is still waiting on word from Jay
Z… AS
1
2
3
‘So What if I Am?’
The discrepancy between legal and social equality for
LGBTI people
By Clifford Ncube
It is trite to the point of cliché that South Africa
enjoys one of the most renowned
constitutions in the world, which contains a
very progressive bill of rights. Great stuff
indeed, but within that Constitution lies one
foundational value: diversity. It is a great legal
ideal that celebrates difference foresees
harmonious co-existence.
This new era has seen the realisation of the
rights of and increase in protections for
lesbian, gay, bisexual, trans and intersex
(LGBTI) people, and the emergence of
organisations that serve these people,
Legally, LGBTI people may, inter alia, now
serve openly in the military, adopt children,
get married and take full advantage of
benefits reserved for married persons.
Legally, one can say that the law
has gone ‘all out’ in ensuring the
rights of all, and protecting
everyone from discrimination on
grounds of sex, gender and sexual
orientation. As a heterosexual man,
what I am more concerned about,
however, is the way society, as a
whole,
has
perceived
these
developments. My article focuses
on how our society views members
of the LGBTI community. [Let me
pause here to acknowledge that
that acronym incorporates a wide
spectrum of persons, which might
not neatly fit into some notion of a
single ‘community’.]
Home Affairs in relation to the Alteration
of Sex Description and Sex Status Act 49
of 2003 that allows for sex changes for
transgender
people
in
certain
circumstances. With regard to this issue,
there was less delivery in terms of
issuing new identity and birth documents
to the transgender people. The statute
was there; but the implementation of the
statute was non-existent thus placing
transgender people in a difficult position.
For example, one problem was that
without an identity document stating that
one is male, by virtue of being a
transgender man, one immediately faces
a lot of problems. Your ID document
says you are female but you look like a
man since you have undergone
extensive surgery. This means that when
you walk into any public office for assistance,
people think you are a fraud because your ID
book does not tally with your appearance.
There are many cases that have been
reported in the last five years and many of
which are related to the violation of rights of
the transgender people based on this
strongly believe in my right not to be
discriminated against by anyone or any
organisation on the grounds of my sexual
orientation. However, it is unfortunate that I
cannot change the society’s perspective or
view of us as homosexuals and there is not
much that we can do to change it,’ he said.
‘Is society embracing
diversity the way they
speak of it, or is the
diversity we embrace
exclusive to certain
circumstances and
people only?’
Do LGBTI persons get the same
efficient services as straight people
do or does their sexual orientation or society’s
view of the ‘lifestyle’ affect what they can get,
and from whom they can get it? These are
intense questions that once addressed will
give you answers that you would never
expect.
There have been reports from Gender
Dynamix about the service delivery from
discrepancy between the gender that is
written on the identity document, and the
gender one actually is inside and out.
In regards to the gay community, what one
does not necessarily realise are the scary
situations which homosexuals face and have
to deal with on a daily basis. I read an yet
another article not long ago about a lesbian
woman who was raped by a gang
of men who told her that they were
showing her that she was a woman
and not a man. Corrective rape.
These stories are altogether too
common. Painful and shocking.
In doing my research for this article,
I spoke to a man who identifies as
gay, who stressed to me the point
that it took a while for him accept
himself and live as who he is,
despite what the society thinks.
‘I am gay, and fortunate or
unfortunate as this may seem, I
‘People or the society as a whole
should understand that being gay is
not a condition at all, and we do not
need special attention because we
are people just like anyone else,’
said another lady, who chose to
remain anonymous.
I also am of the view that
homosexuality is not a condition at
all. Sexual orientation is just a part
of who people are — one facet of
our identity — and society has to
accept this, in the name of diversity.
The law can do its best to protect
the rights of the transgender and
homosexual community, but it is
quite unfortunate that it cannot
change the views and the beliefs
that society has.
It is the issue of social transformation that is in
question. People walk around heads high with
pride about the Constitution, but what I wonder
about is whether they have brought to life the
new social dispensation that this constitution is
seeking to promote. Is society embracing
diversity the way they speak of it, or is it that
the diversity they embrace is exclusive to
certain circumstances and people only?
It is quite an interesting topic and also a
painful one considering the human rights
violations in the last decade that are
associated with sexual orientation and change
of gender identity. I think it is time for society
to move from the era where phrases like
‘That’s gay’ are acceptable as a joke, to an era
where such a phrase will get a response of,
‘So what if I am?’. Who one chooses to have
sex with, or what gender one perceives
oneself to be is definitely not anyone’s
business, except for oneself and one’s partner.
AS
Page 11
A question to ponder as you read through
this article: How far are we as South
Africans or Africans in embracing this
diversity of which we so proudly speak?
Some might already be wondering what
exactly I mean by this ‘diversity’ – such a
broad term. The answer lies exactly within
breadth of that term.
Quidquid latine dictum sit, altum sonatur.
1
2
3
UCT Exposed
Freedom of expression or defamation?
By Jamie-Leigh Brandes and Jessica Mann
preventing the spread of
malicious
or
damaging
statements about them. On
the other end of the scale,
however, the right to freedom
of expression is protected
through a closed-list of
defences available to a
charge of defamation. As a
result
of
this
careful
pendulum of freedom of
expression versus the right to
dignity and reputation, we as
a democratic society in which
a free-market of information
is necessary, are left with a
troublesome
task
of
balancing.
The, by now, infamous publication of the
‘UCT Exposed’ blog has caused major
controversy in the realm of social media,
as well as becoming a major talking
point on campus and particularly
amongst us folk on Middle. The blog,
created by students at the University,
appears to pass itself off as the ‘Gossip
Girl’ of UCT by providing juicy, intimate
details of its unlucky victims.
Inevitably, the blog sorely backfired, leaving
in its wake a virtual plethora of potential
lawsuits for the so-called ‘named-andshamed’ victims. For the law faculty
especially, this blog was particularly
intriguing in that it dealt with various issues.
Some of which include constitutional
challenges, the crimen injuria offence, and
defamation– a delictual remedy that forms
part of the actio iniuria. For those of us in
intermediate year, the arrival of this blog
and its aftermath coincided wonderfully with
the start of our lectures with Helen Scott,
which were as you guessed, on the inuria of
defamation. So we’d like to say thank you,
‘vigilante truth-tellers’, for providing us with
such a wonderful case-study to breathe life
into our lectures.
For the purposes of this article, the potential
crimen injuria aspect of the actions of the
blog will not be the focus (Terribly sorry,
Burchell and Phelps!)
Page 12
The closely-related interplay between the
right to expression and the right to dignity
(and included in this, reputation) is a vital
issue that has arisen from the virtual pages
of the infamous blog. The law of defamation
gives effect to, and limits, many
constitutional rights. On the one spectrum
of the scale, it protects people’s dignity by
Be that as it may, the
infamous blog leaves readers
with a great sense of moral
unease that what was
published could not be
considered mere freedom of expression.
The blog’s very aim and object was to
‘name and shame’ its victims. The
anonymity of it all further lends credence to
this objective in that it seeks maliciously to
ruin the reputation of its victims– seemingly
for the creator’s own entertainment. The
blog illustrates the fine line between
freedom of expression and the right to
dignity and reputation.
On the one hand, section 16 of the
Constitution affords the right of freedom of
expression to all South Africans. The right
includes the following: freedom
of the press and other media;
freedom to receive or impart
information or ideas; freedom of
artistic
creativity;
academic
freedom
and
freedom
of
scientific research. It is within
this framework that the law of
defamation protects the right to
dignity and with it, the protection
of an individual’s goodwill or
reputation.
On the other hand, the action of
defamation can be briefly
defined as the following: the
wrongful
and
intentional
publication of a defamatory
statement
concerning
the
plaintiff. Proving a cause of
action for defamation is thus
relatively simple in that the
complainant need only establish
conduct in the form of a
publication, which is objectively
speaking, injurious to the
plaintiff’s reputation. If the
ordinary, reasonable person
deems the publication to hold a
Whatever is said in Latin sounds profound.
defamatory meaning, the publication is seen
to be so. Once this has been established,
the other elements of liability, namely
wrongfulness and intention, are rebuttably
presumed to exist. This means that if the
defendant is unable to raise a suitable
defence, the plaintiff is entitled to damages.
In terms of defences for publication of
alleged defamatory statements, some of the
established defences in South African law
include justification in the form of the
statement being true and in the public
interest, fair comment (honest opinion
without actual malice), qualified privilege,
and media privilege.
The blog accused one student of being a
racist, which, within the context of this
country’s historical background, is a very
damaging thing to attribute to someone. The
blog further published the marks of a certain
under-achieving student – resulting not only
in an invasion of privacy, but also
undeniably having an impact on the victim’s
reputation. Another entry on the infamous
blog brutally insulted a particularly
flamboyant individual’s sense of style in a
most humiliating way.
Overall, this blog is a blatant attempt to
lower the esteem of its victims within the
university community. The blog, which has
since been taken down, was for a while
freely available to all. The effect of the
attacks thus extended further than merely to
the university community.
4
6
5
1
2
3
Any attempt to establish the defence of
‘privileged occasion’ would be futile in that
this publication was made available to
anyone with internet access. The blog
creators attempt, rather poorly, to attribute
their
actions
to
‘public
interest.’
Considering the fact that these entries
were made maliciously and that their
subject matter seemed to be comprised of
private individuals and topics that are
seemingly useless information to the
public, the blog would most definitely fail
on any attempt at defence in this regard.
Further to this, the blog entries may have
been a statement of opinion, but since
none of the persons ‘exposed’ are
prominent public figures, the defences of
‘public interest’ or ‘fair comment’ would not
be particularly useful. With regard to the
latter defence, it has furthermore not been
proven that the allegations of racism on the
part of the first victim are truthful. A defence
of reasonable publication by the media is
available exclusively to the press in the
interests of protecting democratic interests.
excitement experienced by such
vigilantes upon their blog catapulting
them into the limelight will be rather
short lived. Attempts have already
been made to discover who is behind
the blog and may or may not have
already been successful, not to
mention that the University itself has
launched an investigation into the
identity of the perps. This article does
not in any way claim to have the final
say on what legal actions may have
arisen from this infamous blog; but this
whole situation certainly makes one
think about the ever-thinning line
between freedom of expression, and
the protection of the other notable
fundamental rights guaranteed under
the Constitution.
Unless these vigilantes are secretly
reporters for The Star or Carte Blanche, it
is unlikely this would apply.
Suffice it to say, therefore, that any glory or
When the ‘vigilantes’ are discovered, and
we have no doubt they will be, their illthought out and malicious acts of cyberbullying are going to cost them a lot of
money indeed. AS
Russia vs US vs Syria
Test case heralding the changing waters of International Law
By Belinda Hlatshwayo
The whole world waited with baited breath to
hear whether the US was going to carry out a
military strike on Syria. To contextualise: the
Syrian government may or may not have
used chemical weapons against its own
people. President Obama deployed ships to
the Mediterranean ready to retaliate to this
alleged use of nuclear energy. President
Putin strongly disagreed with this action,
worrying that this military strike could lead to
a nuclear war of sorts. Several watchdogs, as
well as Amnesty International, stated the
same: a country undergoing a civil war, with
access to nuclear weaponry, which exists in
an unstable climate where it is not clear who
has which arms, is not the ideal target for a
military strike given its evident volatile nature.
As the CNN and BBC coverage of the story
gave 15 minute updates with breaking news
flashes and a new speech by either Obama
or Putin every so often, the words ‘in
accordance with International Law’ were
thrown about in tandem. What was
fascinating was that both camps (for and
against military action) kept reiterating
this sentiment leaving viewers hardpressed for thought as to what it truly
meant.
In a nutshell there are two ways of
interpreting
International
Law
in
circumstances like these:
Looking at the Conventions: The Putin
strategy
We live in the nuclear age (that is no
secret) but what seems to remain a
mystery is what are the international
rules in the nuclear playground, which
countries are bound by them, who
influences them and in practice and who
has the right to enforce them. In terms of
chemical and nuclear warfare examples
of the treaties and conventions that protect
us from a nuclear war are:
•
•
•
Non-Proliferation Treaty of 1968
Geneva Protocol for the Prohibition of
the Use in War of Asphyxiating,
Poisonous or Other Gases
Chemical Weapons Conventions
Syria was one of the few countries that
refused to sign the Chemical Weapons
Conventions. Which raises the question of
how does one enforce a law that the
accused is not privy to? The argument
from the U.S here would be that an
argument can be made that through State
practice and opinio juris (belief that a
custom has become a law) these treaties
have created customary law –this would
mean that Syria’s action against its people
would be considered illegal and therefore
a military
strike justifiable under
International Law.
However, there is an alternate route:
looking at the other conventions. Syria is
a signatory of the Nuclear NonProliferation Treaty. Enter the Nuclear
Non-Proliferation Treaty– signed after the
Cuban missile crisis, it is aimed at making
sure that signatories use nuclear power in
a peaceful manner. The Treaty further
established the International Atomic
Energy Agency which inspects every
signatory’s nuclear plants and ensures
that they act in accordance with the
safeguards. Syria is also a signatory of
the Geneva Conventions of 1949. By
attacking civilians, the Syrian government
breached Article 3 of the Geneva
Page 13
As the conversation about transformation
in government and in the South African
community continues, so does that the
transformation in the world at large. To
paraphrase the words of the poet John
Donne, ‘no country is truly an island.’ It is
for this very reason that the question of
what happened in Syria (the potential
nuclear war), and what the plans that lie
ahead for it, are of such great importance.
One of the tenets of the rule of law is that
no man is allowed to take the law into his
own hands and another is that rules
should apply equally to the general public
– no one is above the law. This said, the
growing impression coming across from
our television and computer screens
regarding International law is that the law
applies to different countries in different
ways.
Quidquid latine dictum sit, altum sonatur.
4
6
5
Conventions– on treatment of civilians in
times of warfare in a politically unstable
country. It is to these to which Putin looked.
Syria is bound by the Treaty and the
Covenant.
In cases of a suspected breach of these
treaties, there are peaceful avenues one
could take: by means of the International
Atomic Energy Agency, the culprits are tried
by the International Criminal Court of Justice
and there is precedence for the issue to be
handed over to the U.N for deliberation on a
solution. The International Atomic Energy
Agency (IAEA) mostly looks at testing of
various areas to see if indeed there is a
breach – it has little sway in
punishment of countries that do
breach its regulations so drastically.
Though not an organ of the UN, the
IAEA would then be expected to
hand over results to the UN Security
Council for deliberation as to how the
international
community
would
respond to the breach and then
further to the International Criminal
Court of Justice which would try the
individual’s responsible. This is the
interpretation that Putin chose to take
– which in itself is not free from
political and economic bias (a military
strike on Syria would affect Russia’s
investment in the country).
the search of nuclear weapons, the near
nuclear encounters with North Korea, the
ever mounting tension with Iran, even the
fear of Al Qaida, revolve around the
different interpretations of the International
Law and an unwillingness for the most part
to follow the Conventions’ Line of
reasoning.
Looking straight ahead to Customary law:
The Obama fallacy
Theorists such as Mario E. Carranza in:
‘Can the NPT Survive? The Theory and
Practice of US Nuclear Non-proliferation
Policy after September 11,’ have pointed
the growing distrust amongst powerful
field of international law. Reason for this is
understandable – power means that more
people target that society. This explains
why an alternate interpretation to the
conventions has been preferred in
International diplomacy over the last
decade.
The murky waters are made murkier by
the
sub-category
of
International
Humanitarian law, in which there is a
customary law of doctrine of humanitarian
intervention which suggests that a country
may intervene in the crisis of another for a
humanitarian purpose. It is under this
doctrine that the United States had
claimed their proposed attack
of Syria was lawful. However,
this
doctrine
has
been
criticised for being too wide
and therefore difficult to police
by academics such as David
Scheffer in his article: ‘Toward
a
Modern
Doctrine
of
Humanitarian’. According to
Scheffer, the doctrine needs to
undergo re-examination so
that it can keep up with the
ever changing social world.
Today, modern warfare has
changed substantially since
the end of the Cold War (which
was the last ‘re-examination’
according to Scheffer); yet the
doctrine remains in itself
unchanged. Even more so it
remains vulnerable to irrational
change by countries who have not yet
been told where the line not to cross is.
‘The growing impression
coming across from our
television and computer
screens regarding
International law is that
the law applies to
different countries in
different ways.’
It is widely known that instances of
conflict
are
under
the
UN’s
jurisdiction. In an ideal world this is
understood. The UN Security Council may
have been biased – possibly, ineffective –
maybe, but all this due to the conflicting
political interests in Syria. What was
astounding with this case was the quickness
to assume so by the America Presidency.
The sad fact is that this is not the first time
within a decade. The war in Iraq started over
nations in the effectiveness of International
conventions as the problem. As a result,
according to Carranza, powerful nations
have been able to pick and choose which
policies
and
conventions
by
the
International Atomic Energy Agency, they
want to follow. This creates an uneven
power dynamic in the ideally level playing
Page 14
Whatever is said in Latin sounds profound.
Faced with a reality were varying power
dynamics frustrates younger developing
democracies, as well as superpowers’
unchecked use of this doctrine, could
prove apocalyptic in a world with an
already delicate political balance. Lack of
substantial precedence, though thankfully
so, nevertheless requires there to be more
authority in the form of international
conventions and consensus. Syria as a
test case illustrates how there is a lack of
a single legitimate interpretation and
consensus on what to do should a country
breach the terms of a convention. The
customs so established by International
law are such that they no longer fit in the
uneven international political playing field
that we now find ourselves in. As the ships
sailed to Syria, so should the waters of
change once again begin to ripple. The
instances of nuclear abuse are not few
and far from far between. The
transformation of modern warfare together
with the metamorphosis in international
relations beckons a transformation in
international jurisprudence too. Realising
that this article raises more questions than
answers – but it is precisely so because
we are in a time of nexus, where nothing
can be determined for certain – it is
beyond a doubt that a definite resolution
must be found so that we are more
prepared to stop a nuclear war. AS
1
2
Societies Page
Law Students’ Council and LAWCO
Author Robert Gass, in his book ‘What is
transformation,’ states that:
“Transformation is profound, fundamental
change, altering the very nature of
something.
Transformational
change is both
radical
and
sustainable.
Something that
is
transformed
can never go
back to exactly
what
it
was
before.”
I write this article
as the newly elected Law Students’
Council Transformation Officer. What I
hope to convey to you, the reader, is what
I believe transformation means within the
context of the University of Cape Town’s
Law Faculty. I will do this through the
knowledge that I have gained in my short
time as a Kramer law student. This
knowledge was aided by the outgoing
Transformation Officer, Tracy-Lee Lusty,
and by what I have learnt as a past Black
Law Students’ Forum executive member.
The concept of transformation is greatly
debated in the new South Africa. I believe
it can be an inspiring concept that is
critically important in the context of South
African law because anyone who is
associated with or works with our law
should always remember the injustices of
the past and should keep close to their
hearts the will to work towards a more
equitable and just future.
But what does transformation mean within
our law faculty? In the past, the Law
Students’ Council has had three main
transformational duties. Namely organising
Africa Day, the Cape Bar Exposure
Programme and consistently facilitating
the Student Crisis Fund. The 2014 LSC
intends to work closely with student
organisations such as the Black Law
Students’ Forum, LAWCO and Students
for Law and Social Justice,in an effort to
create a united front for transformation in
the faculty.
I believe the concept of systemic change,
discussed by Robert Gass in his book, will
aid student participation in advocating
transformation in our Law faculty. It means
putting in place a system that will spread
awareness on the need for transformation
within our legal education. This can be
done through compulsory talks, workshops
and seminars. One of the main obstacles
to transformation at UCT is retention. We
need to investigate whether the Law Faculty
is successfully adhering to the Quality
Improvement Plan, which was put in place
to improve support for students within the
university as a whole. I believe that ideas
such as hot seats for essays and an
increased number
of tutorials per
semester would
aid
in
this
process.
The
formidable
transformative
hopes
and
dreams
are
always going to
soar high for me
personally but in
this coming year I hope to see realistic
change occur in UCT’s Law Faculty. As
Nelson Mandela once said, ‘it always
seems impossible until it’s done.’
Yours in transformation & on behalf of the
2014 LSC,
By Melissa Rabe (LSC Transformation
Officer)
LAWCO
Coming to the end of a year which was full
of firsts for LAWCO, it seems only fit to
reflect back on the achievements this
project made in spite of setbacks such as
gang violence, protests and service
delivery strikes. Besides going out to
Khayelitsha and Mitchell’s Plain to hold
workshops for underprivileged students,
educating them on things such as their
rights, responsibilities, labour law and
equality, our committee also came up with
a few exciting initiatives throughout the
year.
At
the
beginning
of the year,
we helped
SHAWCO
and RAG
in selling
SAX Appeal, where a lot of money was
raised for the organisation. After the
success of SAX Appeal, we were inspired
to come up with our own initiatives – a
fundraiser and an outing – both never
before done by LAWCO.
The fundraiser was inspired by the gangviolence in one of the areas where we work
in Mitchell’s Plain, where a part of the
schools fence had been stolen resulting in
even more danger to the students. After
seeing this, we came up with the idea to
hold a fundraising braai to get some money
to help with the rebuilding of the fence. It
was a resounding success and we raised R
3650 through the sale of boerewors rolls,
drinks and cupcakes. This money went
directly to the school to help with the
rebuilding of the fence. Thanks must go to
everyone involved in the event as well as
those who supported.
The outing was an event that we started
planning at the beginning of the year,
ultimately deciding to take the students to
Parliament as we felt this was relevant to
what we had been teaching them
throughout the year. Planning involved a lot
of sweat and tears, especially on the part of
our Events Co-Ordinator, Christlynne
Limberg. First, we had to settle on dates on
which to do the outings, then decide on
numbers and who would be eligible to
come. Moreover, we had to organise
transport for everyone and food and drinks.
On top of this all, in order to make a
booking to visit Parliament, they require ID
numbers of every person attending. This
proved challenging as some students did
not have IDs and we only received a
numbers at the last minute. In spite of all of
this, we managed to book and organise the
outing. The first outing took place on the
th
20 of September, with a second taking
th
place on the 27 September. The outings
were a success and the students
absolutely loved visiting a place they had
only so far seen on TV. Seeing their
excitement definitely made all the hard
work worthwhile and it is my hope that we
can make an outing such as this a regular
on the LAWCO calendar.
The committee of 2013 has had one of, if
not the most, successful years in LAWCO
history, and it is up to the new committee to
keep this flag flying high. Recently
appointed, the
committee for
2014 is as
follows:
Maeve
Macglinchey –
Project
Leader, Daniel
Isaacson
–
Volunteer Co-Ordinator, Kate Mackay –
Community Co-Ordinator, Felicia Hlophe –
Community Co-Ordinator Logistics, Yasin
Chetty
–
Marketing,
Events,
and
Fundraising,
Christlynne
Limberg
–
Curriculum, and Faryn Pearson –
Administration and Logistics. While it is sad
to say goodbye to the committee of 2013, I
am excited to work with the new committee
and I cannot wait to see LAWCO go from
strength to strength in the coming years.
By Maeve Macglinchey
Page 15
LAW STUDENTS’ COUNCIL
Quidquid latine dictum sit, altum sonatur.
13 law school memes that are actually the story
of our lives
Page 16
Whatever is said in Latin sounds profound.
1
2
3
In Class…
So here I sit nearing the end of second year
and it has definitely been a very tough two
years, more difficult than I have ever
experienced and I am certain that many of
my fellow colleagues would be more than
willing to agree. However there is a silver
lining: a while ago I discovered the golden
circle.
Simon Sinek in his book How Great Leaders
Inspire Action speaks of what he has
codified as the ‘golden circle’. He looks at
great people and companies who have
achieved massive amounts of success and
says that they have followed the very same
pattern. Everyone knows what they do,
some people know how they do it, but very
As the dreaded exam period draws ever
closer and our lectures prepare to examine
our knowledge on the law, (or for some our
comprehension of the magic notes which
Professor Burchell calls ‘the notorious
golden folder’) I would be remiss if I didn’t
mention at least two or three events that
make intermediate year a unique and truly
enjoyable experience – and no, I’m not
talking about the looming prospect of the
fat Faustian cheques Professor Fagan
warned his Jurisprudence class about.
On that note, as we approach our Final
Year there is the inevitable impending
worry about what exactly we shall be doing
once we leave the comforting face-brick of
the Kramer walls. The itching worry about
articles, postgraduate degrees and a year
left to live worrying about how successfully
to acquire apparently compulsory course
readers.
Preliminary Year
few know why they do it. Making a profit
is the result but questioning ‘why’ is
questioning why we even exist. Why do
you get out of bed? Sinek takes Apple
and Martin Luther King as examples,
saying that it is not a coincidence that
they have attained massive amounts of
success
as
they
have
both
communicated from the inside out.
How Apple really communicates is that in
everything that they do, they believe in
challenging the status quo. They do this
by creating user friendly and beautifully
designed technology. They just
happen to make great technology.
This proves people don’t buy what
you do, but why you do it.
gave the ‘I have a dream’ speech, not the ‘I
have a plan’ speech. Politicians with their 12
point plans do not inspire us. Leaders hold
power, whilst those who lead inspire us start
with the ‘why’.
In essence my appeal is a simple one: to
reverse the order you communicate and to
remember why you’re giving your life to the
law. Start with your ‘why’. The ‘how’ and the
‘what’ will follow naturally. The lawyers this
faculty produces must be the ones who
inspire great action and hopefully still cling to
the ideal that the law is a vehicle for change.
By Erin Goliath
In the summer of 1963, 250 000
people showed up to hear Martin
Luther speak. No Invitations were
sent out, there was no Facebook or
Twitter. How did he do this? Simple
- no one showed up for him but
rather for themselves as they
believed what he believed - his
‘why’ was also their ‘why’. King
Intermediate Year
We also recently had LSC elections where
our Intermediate Year class, in accordance
with our birthright, set out completely to
ignore the keen bunch of students
interested in a life of Kramerian politics,
who came to convince us how their
‘change’ was different from the next
candidate’s ‘change.’ This is brave,
considering that LSC elections eclipse
SRC elections. We all know that, although
Kings Landing is where the King sits, the
real power resides at Casterely Rock– and
Kramer is UCT’s Casterely Rock.
Maybe more importantly than elections, we
recently had what can only be described
as an academic flea market where
lecturers attempted to convince us to take
their final year electives. So who had the
best pitches?
Notable mentions:
Professor Pierre de Vos – who despite
making us read those infamous Sachs
dissenting judgments (which often
amounted to individual cases on their
very own), most people thoroughly
enjoyed Prof. de Vos and his lectures so he didn’t have a hard time selling
his course. He cracked a few jokes to
put everyone at ease for the hard work
that lies ahead. We commend you for
your efforts, Sir.
P.S It also doesn’t hurt to see your lecturer
on ENCA either. One can only hope that he’ll
quote your essay on live television so your
mom can see that you’ve finally made it.
Professor Jaco Barnard-Naudé – he is
nominated simply for defining his course as
a ‘luxury course.’ So why buy Gucci or Prada
when you debate the themes and legal
development parallels in a J.M Coetzee
book?
Ms. Lee-Ann Tong – who got the class all
excited for intellectual property law and had
some classmates frantically confirming the
direction of the Polo horse on their golf
shirts.
Professor Fagan – our class almost shed a
tear when Prof Fagan revealed to us that,
although he is the academic Superman, he
too has a Kryptonite. What is it you ask?
Well it’s a little thing called ‘transformative
constitutionalism’ which Fagan professed not
to understand. I was tempted to hand over
my Foundations notes, but resisted because
every great lecturer needs a weakness.
However, he remains a great lecturer and
one who has a wealth of knowledge to pass
on. Don’t believe me– ask the SCA and the
Constitutional Court who he lectures on
occasion through his journal articles.
On a final note good luck for the exams, may
the force be with you!
By Mthokozisi Tshuma
Page 17
Aside from a few other achievements,
one of my proudest and fondest
memories was my acceptance into UCT
Law School. I matriculated with big dreams
and hopes for the future; I never doubted
that law was for me. I wanted to change the
world and law was the vehicle for this
change. I was the naïve first year. They
said it would soon change; “Legal studies
and law school will suck the very life out of
you,” they said. Only hefty pay checks after
graduation would heal all the wounds law
school had caused.
Quidquid latine dictum sit, altum sonatur.
1
2
In Class…
Final Year
Post-Grad
Ahhh Final Year! Most, if not all, of us
have been consumed by that dreaded rite
of passage known as the Independent
Research Paper. It’s an eight thousand word
goliath that consumes, at one point or
another, your life. It’s an eight thousand word
goliath that, apparently, is no longer a
requirement. Of course.
It begins with an idea, or the absence of one.
Then comes a hounding professor harshly, or
gently, prodding you toward a shining
epiphany…that never comes until a week
before the deadline. There’s the impassioned
and slightly worrying meetings where you’ll
punt an idea only to be met with an
unimpressed albeit slightly crumpled brow,
cynically and silently saying ‘no’.
There are no two ways about it, thesis is
nightmarish and brings out the violent
archetypes we all try to hide. For lecturers
there’s the chilled homie who seems like the
best supervisor you could ever have.
Deadlines are more like guidelines and
footnoting? So not an issue. It’s all hunky
dory till you’re sitting there, the day before the
real deadline and thinking ‘F**** why didn’t
she set stricter deadlines?’. Then there are
the pedantic supervisors who make you feel
like not even PhD work could impress them.
Their obsession with footnoting and that thing
called ‘op cit’ drive you crazy and every time
you write a sentence, you’re forced to think
whether you do actually have the required
five different sources to support it. Writing is
agonising because even though she’s not
there, you can imagine the frown, the pursed
lips that scream…Catastrophe. Finally there
are the ninja’s who seem to have forgotten
that they are supervising you. They are never
in their office or even in the country and any
attempts to contact them are sucked into the
vortex of things lost.
Of course there are the lucky few, always
done a month before the Final Deadline who
had the perfect supervisor. The one who took
them to tea and joins them for cigarettes
outside level 2. I won’t tell you which one I
got, but I will say, I’m haunted. It was a
Goliath but in this one instance, I’d like to
think I David’d this…at least until the marks
are out.
By Safura Abdool Karim
I’m the eldest of three girls in my family.
Both my sisters are married and the second
youngest has an adorable two year old son!
I’m telling you this as both my sisters are
younger than me and this is where I guess
most people don’t understand how we can
be at such totally different stages in our
lives. My sisters both married their first
loves, bought houses and are now nicely
settled in suburbia. I’m beyond happy for
them and love watching their lives progress
in the directions they’ve dreamed of.
When my youngest sister tied the knot this
year, I had recently turned 30 and slowly
but surely, the comments started coming
my way.
‘So…any plans to get married Siyaam?’
And my ultimate favourite: ‘Oh, do just you
and your cat live alone here?
As a rational, intellectual woman, I know
that deep down I shouldn’t get overly
worked up about what they’re saying.
Perhaps they’re eager for me to proceed
with the next stage of my life. I’m pretty
sure none of them intend for it to be hurtful,
but the truth is, it really doesn’t feel very
nice. I understand of course that we’ve
been raised to celebrate the events in a
woman’s life such as marriage, having a
baby or starting your first home. But I can’t
help but think to myself: What about me?
What about all that I have achieved?
Page 18
It’s a pity that there are no parties or gifts
when I reach certain milestones in my life,
which to me are a
measure of success. How
about a shower party for
my successful career? A
housewarming present for
my award winning fashion
blog?
Whatever is said in Latin sounds profound.
Believe me friends, I am
well aware of how old I am
and the decisions I have
made to up this point. I’m
not oblivious to the fact that I’ve chosen
not to follow in the same footsteps as my
parents, my sisters or most of my peers.
I’m aware that my fertility will halve by the
time I’m 35. I am DEFINITELY conscious
of all these facts! So it really doesn’t help
when you, my friends and family, convey
your opinion that I am nowhere near
where I am expected to be at my age. It
makes me feel that I am disappointing
you, that I am doing something wrong
and that all I have achieved thus far is
not deserving of praise.
This is really a shame, because it is not
the way I feel about my life at all. I feel
free to pursue all my passions,
aspirations and limitless possibilities that
life has to offer me at this stage. And I
would feel even more elated if you would
accept the choices that I make and
support and celebrate them with me.
What is the point of having freedom in
our lives if we cannot give one
another the freedom to decide our
own futures? When you query my
unconventional future plans, I don’t have
an explanation that was will satisfy you.
And I shouldn’t have to. It doesn’t help
me grow or make me feel content with
where I am.
What brings me happiness is when you
recognise my right to choose my own
path and when you acknowledge and
appreciate the courage it has taken for
me to get where I am today. Ask me
about law and what motivates me as an
attorney! Ask me about my Blog and
what the inspiration is behind my posts!
Ask me about Now. I have so many
exhilarating
and
fantastic
things
happening in my life right now and I
would love to tell you about it. Celebrate
my choices. Celebrate my Freedom to
make them. Celebrate Me.
By Siyaam Ally
Attorney and Style Blogger at
www.simplysiyaam.com
Contributors
Articles:
Kevin Minofu
Meet the New Team
Scott Salusbury
Alexander Friedmann
Jacobus du Plessis
Stefanie Busch
Ebrahim Shaikh
Mpho Raboeane
Matilda Nengare
Clifford Ncube
Jamie-Leigh Brandes
Jessica Mann
Belinda Hlatshwayo
Editor-in -Chief
Deputy Editor
Deputy Editor
Kwadwo Ofori Owusu
Stefanie Busch
Kevin Minofu
Secretary-General
Treasurer
Copy Editor
Ebrahim Shaikh
Tlholo Lehekiso
Fiona Ferhsen
Senior Editor
Senior Editor
Senior Editor
Matilda Nengare
Belinda Hlatshwayo
Jessica Mann
Societies Page:
Melissa Rabe
Maeve MacGlinchey
Classes Page:
Erin Goliath
Mtho Tshuma
Safura Abdool Karim
Siyaam Ally
If you ar e keen o n w rit ing
for altum sonatur or jus t
v oicing y our op inion s
ab out t he iss ue, em ail t he
te am at
alt um sonat ur@ gm ail.com
WANTED:
Altum needs someone to
assist us with layout as
well as web-design. If
you’re interested, please
email the team at
[email protected]
This issue of Altum
Sonatur was made
possible through the
Societies Editor
Head of Sponsorship
Head of Marketing
Clifford Ncube
Maeve MacGlinchey
Jamie-Leigh Brandes
Page 19
generous sponsorship
of Edward Nathan
Sonnenbergs.
Quidquid latine dictum sit, altum sonatur.
!
!