THE AGE of Enlightenment eroded the power of kings, birthed modern democracy and produced a political model known as the social contract. Typically the theory in moral and political philosophy addresses ‘questions of the origin of society and the legitimacy of the authority of the state over the individual’.
Social contract arguments ‘posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights.’
It is during times of unrest and social turmoil that the issue of the social contract is most visible, and especially on the question of the relationship between natural and legal rights.
The burning of two law libraries, at Howard College and UKZN coming after similar incidents on campuses at Wits and elsewhere, has shone the light on the legitimacy of such institutions. It is no coincidence that while students are demanding #FeesMustFall, there are several post-Marikana challenges, each one stemming from the narrative of state capture and closure of the democratic ideals of freedom and civil liberties.
As I write this, I find myself in the invidious position of being embroiled for the past 18 months, and a decade long respectively, in post-TRC litigation against the Minister of Justice and a well-known apartheid media company. Despite statutes guaranteeing access to legal representation at state expense in appropriate cases, I am still battling to gain the right to an attorney. The reason for this is because our Minister Michael Masutha in his sageness, has failed to promulgate the regulations referred to in several acts.
It is not for lack of rights that we have ended up with a breakdown of the democratic narrative. It is because of the stark failure of authority to uphold the very ideals which gave birth to our democracy.
Openness, transparency, fairness and accountability. It was only a short while ago, at least in geological time, that the ruling party was hailing emancipation and the birth of the nation’s democratic institutions. Now in the very same year of the twentieth anniversary of the signing into law of our constitution and Bill of Rights, (founder Nelson Mandela put his pen to the final paper on 18 December 1996) there is very little to be said about this formation document, except to plead that it is ring-fenced by legal professionals, in an arrangement which is clearly out of the reach of ordinary citizens, a noble document pended as if merely an elegant afterthought, bolted haphazardly onto the colonial legacy and legal canon, inherited from the past regime.
Thus whilst commentators such as Franny Rabkin of Business Day were bemoaning the loss of our sacred law libraries and battling to understand the motivations behind the several acts of campus arson, I found myself unable to condemn these essentially cowardly acts.
If the legal profession could not find the wherewithal to defend the TRC Final Report, nor to protect Constitutional values such as secularism, then it was surely asking a lot for the public to defend the law libraries of the self-same legal profession — one that was painfully ignoring all the evidence and trashing the findings presented by the commission into gross violations under apartheid — presumably in order to maintain race and class privilege?
“Since the incident,” Rabkin says, “I have read both justifications and condemnations. I accept that the burning of the library was, in a way, a rational step. In the weeks of struggle leading up to the incident, the demands of the students were all but ignored by the public.”
“And this was not just about fees. What seemed to have triggered the burning was a report that a student had been raped by a policeman — the very people the Constitution entrusts to protect us. It certainly warranted our immediate and urgent attention. But, we mostly did not pay attention, until the library was burned.”
Scholasticism is “the system of theology and philosophy taught in medieval European universities, based on Aristotelian logic and the writings of the early Christian Fathers and emphasizing tradition and dogma”. It resulted in a ‘narrow-minded insistence on traditional doctrine’.
The very same logical fault is at the heart of our legal system. Take the cab rule, in which junior attorneys are expected to defer to their more esteemed senior colleagues in the advocates profession, (a modern version of droit du seigneur, right of the lord), and ask yourself, is it fair to expect a layperson to defend the TRC Final Report without formal legal assistance?
Until South Africa truly has a legal system that admits the human rights enshrined in the Bill of Rights, and upholds this foundation document as the alpha and omega, there will be those who reject the “Western values” of the imported Roman Dutch system and who wish to burn law libraries. Until a greater role is given to lay assessors — giving affect to citizen’s rights as jurors, and especially findings on questions of fact — for instance the problem of apartheid denial, did apartheid really happen? — one cannot help but sympathise with the arsonists and insurrectionists.
Such persons assuredly follow in the footsteps of the student revolt of the 1980s, and 1970s — the tumultuous struggle of which activists such as myself and many others, were very much a part.
Providing South Africans with an option of a jury trial in TRC-related cases, or where appropriate in capital crimes and defamation cases, is one way of assuaging the central charge leveled against the current legal system, that it is out of touch and elitist. Now is the time for urgent reform and progress on the democratic project, and this means greater inclusion of citizens in the law.
It is not the time for defending the traditions inherited from apartheid.