Category: Activism

Cannabis & Canapax: healing not dealing?

WHILE THE Canadian state of Ontario was removing the cap on the number of marijuana shops in the province, South Africa’s drug enforcement agencies were busy taking down a dagga dispensary franchise operation known as Canapax. News of cannabis operations being opened to the public overseas were met by stories of SAPS beating up on local dagga activists. The death of Rastafarian Jan de Bruin at the hands of law enforcement, is a particularly galling example. De Bruin’s crime, having the audacity to grow weed in the small town of Wellington.

The country’s inability to deal with the ramifications and nuances of the end of prohibition  follows a groundbreaking ConCourt ruling last year which allows use of the herb in private, yet expressly forbids dealing, while granting Parliament a period in which to review regulations.

Canapax, a going concern was ostensibly rolled out in terms of the ‘Traditional Health Practitioners Act of 2007’ (THP). The result was a tragic case of magical thinking. Franchisees sincerely believed that Canapax had all its papers in order, and was operating as a registered entity under the act.

Out of the frying pan and into the fire, to put it mildly. Since in terms of the law, it is still an offence to practice as a traditional healer without a licence  — health practitioners may not prescribe nor examine patients without authorisation under a regime, which is essentially based upon a medical model.

Fields of Green a website published by Julian Stobbs and Myrtle Clarke maintain that the real reason was that THP precludes healers from prescribing any ‘dependence producing or dangerous substance or drug.”

The statement were supposedly backed up by a briefing issued by SAPS and comes after a directive was issued by the NPA on the subject calling upon officers to obey the ConCourt decision.

That both law enforcement and the so-called Dagga Couple had it wrong can be seen  by the fact that our apex court had already ruled that dagga was no longer a dangerous , dependency causing substance but rather could be used in private. The law in this respect had yet to be confirmed by parliament.

As I suggested to Gareth Prince and Richard Kraak, during the period of the High Court trial, your crime is essentially, ‘baking bread in a no-baking zone’. Microbrewers of gin don’t have the same problem as growers of cannabis in selling their product,  nor do bakers of bread, what exactly is going on?

The ConCourt decision essentially shifted weed from the realm of the narcotics and medicines act into the realm of the liquor act, at least insofar as harm was concerned. Ganga is no more harmful than a tipple and in many respects less harmful than alcohol.

Here is another way of looking at this: Under Dagga Prohibition, the law had three pillars; 1) Dagga is a dangerous, dependency causing substance and therefore is prohibited 2) It must follow that no dealing or possession is allowed 3) You cannot grow or produce a prohibited substance.

Along came the ConCourt decision, down went pillar one:

1) Dagga no longer dangerous

2) It read into law the decision, and gave Parliament two years to come up with regulations.

3) It maintained the regime with regard to dealing, but stated that possession and growing in private was allowed.

It doesn’t take much further reasoning to show how dagga prohibition came to an end, and how dealing in dagga today, is about as bad as dealing in bread without a licence.

Yet absolutely nobody gets bust for baking bread or distilling alcohol these days. It serves no purpose to continue to claim that dagga is harmful and ergo, must be regulated.

There really is no sense in cannabis culture continuing to pursue a medical model ( ditto patient confidentiality?) and for regulators to continue to pursue a regime which no longer has constitutional validity.

If anything Canapax erred in not seeking proper registration with the THP council. Under THP penalties are imposed on individuals who practice as traditional healers sans registration.

This model was clearly not the best vehicle for a commercial dispensary operation, and yet, significantly, THP does create a system for dispensing ganga which is no longer considered dangerous, but only if you happen to be licensed. No need to read new laws, while we here, may as well state the obvious, ganga has been prescribed for many decades by registered alternative health practitioners, they are not dealing, but healing.

Evidence lead during the ConCourt “trial of the plant’ was that dagga had many health benefits, and the evidence is both mounting and persuasive.

Clearly, Traditional Health Practitioners may prescribe cannabis,  as a complimentary traditional therapy, but may run foul of the law in calling it a medicine.

It is surely up to our legislature to clarify and refine the regulations.

Following Reconciliation Day, an open letter to the TRC Commissioners

Messers Desmond Tutu, Sisi Virginia Khampepe, Wynand Malan, Yasmin Sooka, et al.

Dear Commissioners,

I write this letter having had good cause to reflect upon several events of this past year on Reconciliation Day.

It should be noted that Reconciliation Day, formerly ‘Day of the Vow’, or ‘Day of the Covenant’ or ‘Dingaan’s Day’ became the source of some controversy this year when a well-known pastor made a reference to the Covenant within racist terms that brought back memories of the quasi-religious holiday commemorating the ‘Voortrekker victory over the Zulus at the Battle of Blood River in 1838′.

As a secular humanist of Jewish origin, I have on more than one occasion, rejected theological justifications for race segregation, in particular the apartheid euphemisms used to justify separate development as a mere ‘accident of nature’, or a ‘miracle of sameness’ and the like.

My beliefs and faith (or lack thereof) unfortunately became the subject of a race-based interrogation of my Jewish identity during the course of an unfair proceeding in 2010 in which absolutely nothing was done to protect my rights. The least of which is that the TRC itself was under the machinations of senior council reduced to ‘merely a commission’, and your report ‘merely a report’. And where those selfsame euphemisms were trotted out to justify racism.

It was thus within a bizarre inversion of reality, that I was deemed not to ‘be a credible person’ on the basis of my ‘opposition to apartheid’, by a corrupt adjudicator presiding, it appears, without the necessary authority, over a matter effecting not only his own client, but also his business partners. All explained away in a report to the Cape Law Society in which a corrupt relationship is justified on the basis of a decision in Bernert v Absa Bank Limited.

The labour proceeding against Media24, was anything but a fair hearing, an ‘irregular proceeding’ if you will —  not only did I not possess an attorney (following the group’s 2007 gagging attempts which put paid to my legal insurance), but I was further restrained from calling any witnesses. I was therefore not present when the decision was handed down, was not granted leave to appeal, nor did I secure a successful petition to appeal to the Labour Appeal Court.  This after the respondent’s ecclesiastical case alleging inter alia, I was more than simply a “Jew in breach of my religion” but also ‘guilty of driving a car on a Friday night, and/or attending a mixed race nightclub apparently in violation of my religion’. Nothing less than a piece of savage quackery, written up by the respondent and cut and pasted, and handed down as the purported decision of the court.

In 2015 I thus filed a distantly related complaint before the Equality Court against then Min. of Justice Micheal Masutha and also Naspers, the holding company of Media24, citing the former’s failure to exercise powers in terms of the TRC Act and thus the astonishing failure of the TRC Unit to defend both the TRC and its recommendations from ongoing acts and omissions in the face of racism and a culture of impunity.

My filing sheet thus also listed an apartheid media company named as a ‘gross perpetrator of human rights violations’ in the final report that all TRC commissioners signed off on. It was filed two days before Media24 issued a mea culpa to the heavens referencing one case-limited example of a single ’employee of colour’, Conrad Sidego, who had apparently experienced problems with separate amenities.

It further went on to list several shortcomings of the first TRC, in particular the failure to deal with extra-curial evidence — evidence arising after, and subsequent to the first commissions winding up. It noted other failures, including errors with acronyms, Congress of South African Writers ( COSAW) is not Congress of South African War Resisters (COSAWR).  It may be demonstrated that TRC One represents the absence of an in-depth inquiry into the role played by women, war resisters, the struggle press, the environmental movement, the use of technology by the state, coercive psychiatry and so on.

Despite the merits of the case,  I once again found myself in court sans attorney and I was eventually granted leave to formerly seek legal aid by Judge Bozalek after the Equality Court had previously acted under Judge Veldhuisen to deny me access to legal aid.

I thus sued Legal Aid SA in a collateral matter before the High Court, Western Cape, which took some three years of my time.

It was more than a little alarming to find that in the interim, ‘apartheid memory’ had been relegated to the dust-heap by our judiciary, alongside our constitution. That portraits of apartheid and colonial judges still hung from chambers, and AJ Martin of the High Court of SA, now agreed with a racist merit report by John van Onselen, of Legal Aid SA, stating in his decision of 2019, that he was now ‘entirely satisfied that the TRC report would take a long time to read, and may thus be ignored’.

Despite my application for leave to appeal the racist decision, and despite oral testimony citing the High Court’s misreading of the Separation of Powers, (Legal Aid SA is not a constitutional entity as such, but rather directly answerable to parliament — a result of the Legal Aid Act, which makes LASA subject to the Public Finance Management Act, as a Schedule 3 entity alongside Boxing SA) both the application for leave and for Martin’s recusal from the proceeding were rejected out of hand. In the process a racist exclusion to the Preamble was created, one which has had the deleterious effect of derogating rights commonly held under our constitution.

As we near the end of 2019 following a troubling period in which several well-known activists of my generation have passed away, including Peter Horn, Sandile Dikeni and Ben Turok, I find myself reaching out to a public case that has been at the back of my mind ever since the TRC Report was released.

Surely, you as commissioners knew that when you signed your name to the report, that it was an incomplete report at best, and would require further redress in the future?

Surely,  you as commissioners, knew that when the TRC Act was promulgated under the interim constitution, that it was a necessary pre-condition for the constituent assembly to pass Act 108 of 1996, in other words our Constitution, whose Preamble says, ‘recognising the injustices of the past’?

Surely, TRC commissioners are aware that if you did not broker any guarantees from the state, to make good on the recommendations issued that you would be opening the doors to accusations that you are yourselves complicit in a crime against humanity and the after-effects thereof?

Surely you as commissioners are aware that in doing nothing except write letters to our President, of which there have been quite a few following the winding up of the first inquiry, that you would indeed, stand accused, as you do now, of doing absolutely nothing of any consequence to uphold the legal framework upon which the entire transitional justice arrangement was based, and that anyone wishing to bring civil litigation to defend rights in law is now faced with the odious task of defending the public record left by yourselves?

I therefore have no hesitation in stating here on Reconciliation Day, that the current TRC process is an abject failure.

Not simply because of the conduct of the Minister’s TRC Unit, but because of the collective conduct of the TRC commissioners.

Instead of defending the report to which you have placed your signature, you have instead been regaling all and sundry on the joys of turning the other cheek, travelling the world like religious pilgrims claiming to have discovered a novel process of reconciliation.

Engaging conference after conference and airtravel that merely pumps out CO2 while promoting your own estate as a national treasure and depriving the victims of restitution.

Those persons like myself, who were never called to testify, and yet suffered the consequences of apartheid dirty tricks need to be told the truth.

Future generations and ordinary South Africans need to be told the truth of what has occurred in the name of the TRC and in the the name of justice.

I beg your forgiveness, as fellow citizens, it may no doubt still be in the public interest to motion for yet another TRC process, TRC Two.

Sincerely yours

D R Lewis

 

SEE: Corruption could undermine the integrity of SA’s legal profession

SEE: Mogoeng Mogoeng’s lack of judgment

Deep Fakes, AI and the New Electronic Struggle

THE PRESIDENT’S youngest son Tumelo Ramaphosa recently appeared on national television, punting blockchain technology, artificial intelligence (AI) and a digital financial future. Some of his previous projects include turning wildlife into digital tokens via a crypocurrency investment scheme for stud farmers called StudEX, and a swathe of more ephemeral ways to fleece (some might say leverage) the startup space in San Francisco.

Apparently drones to track SA wildlife conservation efforts are being funded in part by auctioning off Dad’s bulls via cryptocoins. Aside from the unfair advantage that comes with being the president’s son, one can think of far better ways of spending one’s pocket money than reducing animals to mere fractions.

As Elon Musk stated during his encounter with Jack Ma, ‘don’t assume that artificial intelligence research is being conducted by intelligent people’. Indeed there are many critical and exceedingly dystopian concerns about the emerging paradigm that looks set to surpass humanities ability to comprehend the impacts of AI.

A recent research paper published by Yale fellow Michael Kwet paints a rather bleak picture of how smart CCTV networks are driving an AI apartheid. 

In the process video analytics are reinforcing racial and class divisions,  creating a world in which the poor are lo and behold, excluded by the rich. The latest round of criticism has an eerie similarity to my complaint made to the US press back in the 1980s. In a letter published under a pseudonym and carried prominantly by cyberpunk magazine Mondo 2000 I outlined the manner in which the apartheid regime had weaponized the banking sector, deploying ATMs as a convenient means of entrapping activists.

The complaint predated the later unsuccessful IBM case brought alongside a suite of apartheid litigation against Ford and other US companies, which unfortunately never made it out of the starting blocks, thanks to overly broad generalisations in the founding papers, lack of public interest here and abroad, and a US second circuit decision striking down the Alien Torts Act.

Suffice to say, that IBM were most certainly responsible for the technology behind the Dompas and thus apartheid race classification technology.

The mind shudders to think what would have happened if the apartheid state had access to AI technology, although somehow I like to think that the anti-apartheid movement would have probably hooked onto blockchain and crypto in the same way that Rhodes Must Fall/ Fees Must Fall took to social media.

If the thought of racist rednecks weaponising AI is a little disturbing, a recent news article warned that a group called OpenAI had ‘declined to release research publicly for fear of misuse.’ Apparently “the creators of a revolutionary AI system that can write news stories and works of fiction – dubbed “deepfakes for text” – have taken the unusual step of not releasing their research publicly, for fear of potential misuse.

The ability to fake and control news in the process driving public influence is not a new concern, as movies such as Videodrome (1983) and Network (1976) have already pointed out.

What is new, are privacy concerns such as mine, about the potential of AI to unlock passwords, defeat cryptography, and reassemble data in new and innovative ways. On the flipside, AI will improve our understanding of past civilisations, forgotten languages and art. Like any tool it may be used for good and bad.

A Japanese research team using AI recently uncovered some 2000 new Nasca lines, previously invisible images in the Peruvian desert.

Back home, this jump in processing power, represents an incredible opportunity to recover ancient memory lost to pre-colonialism. Settlements such as Mapungubwe and Great Zimbabwe have a lot to offer. Deciphering and protecting texts surrounding the university of Timbuktu, will undoubtedly grow in leaps and bounds, but not if AI is simple code for venture capital and used tech salesmen,  while our nation’s research institutions are quietly stripped of intellectual capital.

Again, AI for all its scifi brohaugh is really a misnomer, the correct and better phrase is ‘machine learning’. Its a synonym for AI, not a sub-set as in ‘reinforcement learning’.

In particular, the terrain of intercultural communication could take off in significant ways, if our country were to set national goals, for instance providing each and every citizen with the tools to communicate across the linguistic divisions which have traditionally acted as hurdles to our understanding of each other.

As an individual afflicted by the presence of several African languages each competing for his or her attention within my own household, I can only hope that instead of auctioning off bulls via blockchain like our president’s son, our nations youths, instead present us with with a workable plan to grant each and every South African the benefit of instantaneous machine translation — a fact of life still missing from the Southern African region, but surely one that will become a boon in the future?

UPDATE: Ramaphosa’s son slammed for cancelling conference without notice

Ramaphosa Junior’s blockchain belly-flop

 

Towards an African, humanist environmentalism for South Africa

IT WAS during the dying days of apartheid, that I wrote a series of articles promoting ‘ecological sustainable development’ and deep ecology. The pieces published by Grassroots and South Press were extraordinary, the least of which is that they were published by a working class imprint shortly after the state of emergency.

They dovetailed my criticism of race-based conservation efforts by elements within the regime, for example the Rupert Family, and addressed perceptions that the emergent environmental justice movement in the country was, to put it crudely, an all-white affair.

The result was the ‘First National Conference on Environment and Development’, in which academics and activists from all quarters joined hands on a broad eco-justice platform which included both the ANC and PAC, and which resulted in the placing of Earth Rights at the centre of our Constitution, in the form of article 24.

Today’s political pundits Carilee Osborne and Bruce Baigrie , conveniently ignore the history of environmentalism in South Africa, preferring to situate their respective struggles within the contemporary milieu of the Climate Strike — the recent Cape Town March which saw some 2500 people from various organisations and civic structures take to the streets in what they view “as one of the largest environmental protest actions in South Africa’s history.”

This is no mean feet and without wishing to downplay the successes of these epic events during the course of the past year, one should always remember that the environmental justice movement arose as a foundation stone of our Constitution during a period of mass democratic action, the likes of which have yet to be repeated. And thus a struggle which was situated not upon my own writings, nor the writings of any one particular individual, but rather the Freedom Charter, which (within the colour of the time) called upon people black and white, to “save the soil”, whilst sharing the land, and assisting the tillers of the land.

A similar mistake in historical proportion and misreading of history occurs within the various articles penned by one Farieda Khan. She writes in “Environmentalism in South Africa: A Sociopolitical Perspective”, (an otherwise excellent paper written over the turn of the millennium): “The first extra-parliamentary political organization to commit to a formal environmental policy was the Call of Islam, an affiliate of the United Democratic Front (the South African front organization for the then-banned African National Congress).” She goes on to state: “The Call of Islam had a formal environmental policy since its inception in 1984, due in large measure to the efforts of its founder, Moulana Faried Esack.”

If only history were so convenient as to claim environmentalism on behalf of any one religion or individual, whether Islam, or the Church, as many within SAFCEI and SACC would have it, or on behalf of one or more important groups or class formations formulated by those on the left, as those within AIDC would have us believe.

Rather, I think it more accurate and best to take a broader arc of history — one that includes the Freedom Charter and reaches forward to the essential humanism espoused by the deep ecology movement of the 1970s, whose distinguishing and original characteristics are its recognition of the inherent value of all living beings: “Those who work for social changes based on this recognition are motivated by love of nature as well as for humans.” And by extension, as much of my writing and published work from the 1980s suggested, an African environmentalism which realises that Ubuntu is not simply being human because we are all human, but rather, a common humanity contingent upon the necessary existence of our habitat, without which we could not exist as a species.

Instead of situating the environmental movement within so-called ‘working class’ struggles, or working class factions as Osborne and Baigrie attempt in “Towards a working-class environmentalism for South Africa”, and thus the binary of a grand populism vs narrow neoliberalism which simply perpetuates the idea of man’s dominion over nature and thus a struggle which of necessity is juxtaposed alongside the authoritarian grip of party politics, another path must be found.

It is all too easy to issue anti-capitalist prescriptions, leftist directives and cadre-based imperatives calling for the end of free markets whilst, forgetting that it is Eskom’s captive market, Eskom’s socialist ambitions, and Eskom’s coal barons which have pushed South Africa ahead of the UK in terms of GHG emissions, a country with 10-15 million more people. Although only the 33rd largest economy, South Africa is the 14th largest GHG in the world. Our national energy provider, Eskom has yet to adopt GHG emissions targets.

All the result of  the boardroom compromises of the statist, authoritarian left, whose policies have seen our country embrace ‘peak, plateau and decline’ alongside a COP-out strategy excluding South Africa from the Paris Agreement, and thus a national environmental policy which is not based upon empirical science and evidence-based research but rather class driven kragdadigheid and Big Coal.

If those on the far left expect us all to reject secular humanist values alongside Norwegian philosopher Arne Naess who introduced the phrase “deep ecology” and thus an environmentalism which emerged as a popular grassroots political movement in the 1960s with the publication of Rachel Carson’s book Silent Spring, simply because these persons are lily-white, or tainted by the liberal economics of the West, then they are sorely mistaken.

Instead, I believe, that it is far better to formulate an African-centred response, and rather a Pan-African struggle which is broad-based and inclusive of our collective humanity and common habitat. Such a broad-based struggle out of necessity includes an African-Centered Ecophilosophy and Political Ecology.The draft Climate Justice Charter is one such vehicle and deserves our full support.

The struggle for survival during the collapse of the Holocene, includes those already involved in conservation and preservation efforts and those who now join because of concerns about the detrimental impact of modern industrial technology. When one talks about climate justice we thus need to include the voices of those who have not been given an opportunity to speak, and remember that without mass mobilisation, nothing would have changed during apartheid.

Angus Buchan: The Covenant of Double Standards

SOUTH AFRICA is unique in the world so far as right-wing Christian theology is concerned. The so-called ‘Covenant of Blood River‘ is one of the few instances in which settlers went far beyond racist concepts such as ‘manifest destiny’ and ‘eminent domain. The Boers literally declared themselves one of the lost tribes of the Hebrews at the Battle of Blood River, which during apartheid was remembered as the Day of the Vow. After 1994, the holiday became Reconciliation Day.

We should thank Angus Buchan for putting his foot into the racist muck, because in so doing he stepped on a minefield of racist cant and apartheid theology, of the type espoused by Media24 council and one AJ Cheadle, who during 2010 thought nothing of reframing my case of racism and race profiling, to summarise, as a contravention of the ‘Covenant governing the South African People’.

The bizarre statement made by controversial evangelist Angus Buchan that ‘only Jewish and Afrikaans people have a covenant with God’ was met with derision, and caused quite a flap amongst those seeking to score cheap political points at the same time that they patently ignore the ecclesiastical charges put to me by our politically-compromised general bar and judiciary.

Apparently I am in breach of “God’s Will” for referring to a Media24 editor’s statements about the effects of apartheid separate development, being pretty damn close to the racist dogma touted by the NGK before they dumped theological justifications for apartheid. Race segregation is not a current teaching of any major religion.

Calling the after-effects of ‘separate development’ a mere ‘coincidence of homogeneity’ i.e an accident of nature (all memorialised in the decision written up by the respondent), while pushing a hard-line on Sabbath observance, is so beneath the pale that the corrupt judgement deserves a comparison with the statements made by Buchan and commentators such as Alan Horwitz.

According to Horwitz quoted in the daily press ‘there was no special covenant that the Jewish people had with any higher force’. Accordingly Jewish people have  merely an ‘obligation’ to ensure that the 10 Commandments are followed and adhered to. “This does not mean we are elevated above anyone else,” he said.

The gist of the racist and irregularly-gained 2010 decision in which I was restrained from calling any witnesses, and did not possess an attorney remains in full view of the public. The sole witness for the respondent was allowed to make false statements under oath including defamatory remarks regarding several music-industry related articles and interviews — and  apparently I was the one holding up the Covenant i.e God’s Law whilst seeking to break it by attending a mixed race music venue on a Friday evening.

All my papers filed in the matter refer to my wish to defend my Jewish identity and culture from racism and Anti-Semitism i.e. opposition to secular Jewish identity.

Furthermore, all my evidence lead in the matter refer to the fact that Judaism is not monolithic, thus there are many divergences within Judaism, in particular the Enlightenment put an end to the bizarre belief that the ‘Torah was written by God hand’, and so far as I am concerned, what one does on a Friday night is a private matter between oneself and one’s maker, the same way that freedom of religion is also freedom from the religious views of others.

South Africa, a country which banned the Dalai Lama, is a secular country in name only. Its people continue to espouse pathetic, libellous and racist views, whilst critics equally engage in apartheid double-standards.

As we speak, I am also one of the few citizens to be excluded in recent times,  from the Preamble to our Constitution.

I therefore beseech readers to reconsider their views on the subject.

 

 

 

 

 

Mogoeng is misinformed, disingenuous and unhelpful

IN A LENGTHY statement to the press early this month, South Africa’s Chief Justice Mogoeng Mogoeng warned those ‘making allegations against judges and the judiciary to stop hiding behind fictional identities or names’

He claimed further that he never received any formal complaints against his colleagues.

“Only a sworn enemy of our constitutional democracy would make allegations so grave against the judiciary without the evidence to back them up.”

He said he never received any formal complaints against his colleagues.

“Make your true identity and contact details known to us and the South African public. Tell us which judge has been captured, corrupted and by whom.”

The chief justice said for the sake of a South Africa that deserves a corruption-free judiciary, those making allegations should be willing to give evidence even in a court of law.

He said he never received any formal complaints against his colleagues.

That the Chief Justice was being disingenuous and more than unhelpful can be demonstrated by the fact that Independent Media have published criticism of the judiciary as a prominent OP-ED piece under my own byline, not a nom de guerre , in which I proceed to refer to a sworn affidavit and supporting documents regarding the capture of a well-known member of the legal profession performing judicial duties.

Medialternatives can reveal that the individual, who presided over a 2010 discrimination case involving his own client and business partners is none other than Halton Cheadle, and that my affidavit details the lengths to which I have gone in informing inter alia, SAPS, NPA, JSC and the Cape Law Society.

My Op-Ed also makes note of the manner in which South Africa’s justice system has turned into a mere business system, and one should add, a system that is not evidence based per se, but rather an opinion-based system inherited from the past period of colonialism and apartheid.

Until the evidence in my affidavit  is heard before an impartial court of law, in a fair hearing in which I possess an attorney, there is  absolutely no likelihood that the Chief Justice’s advice will be adhered to, and any averments in this regard should be rejected by free-thinking citizens.

Other statements attributed to the Chief Justice claim that he has requested SAPS to investigate allegations against the judiciary, but fail to record that the NPA appears to have a policy of doing nothing about the problem, when it comes to corporate and party-political capture of judicial officers.

 

Discipline and Punish: the troubling end of spanking.

WITH LITTLE or no debate on the issue in the public sphere, (no Imbizos, lekgotlas nor indabas ) South Africa’s constitutional court delivered yet another major decision. This time making the country the 57th nation in the world to ban child spanking.

That we appear to be moving away from the casual resort to violence towards a regime seemingly based upon peaceful dialogue, openness and problem-solving is obviously to be welcomed (see below). If only discipline and punishment were as simple as sending ones dear child a memo, or informing a potential brat, your own offspring or an abusive parent about the new law.

That the ruling was equally couched within the tinsel baubles and holy sheen of an ongoing debate between those who resort to religious texts to defend their actions and those like me, who do not, is equally bound to be controversial. The decision stems from a case involving the beatings received by a 13-year-old inflicted by his father.

More worrying and irksome, is the manner in which a well-established common law defence of ‘justifiable chastisement’ has been replaced, or so it seems, by the noble rhetoric of ‘positive parenting’ — an effete legalistic notion that will needlessly bring an end to family life — now with the merest domestic squabble under judicial and state scrutiny and child discipline in effect, under the exclusive aegis of the state?

Pundits were moved to play down the implications of a sudden growth in new categories of felony and misdemeanours, for which both parent and child could pay an enormous price, if only to weed out those parents who really do engage in acts of petty assault, and hang-on, didn’t the list of activities which may be construed as common assault just get a lot longer?

Much is being made by a vocal minority, of a ruling which apparently overturns various biblical psalms, who could have guessed?

Think nothing of destroying what little remains of parental privacy and civilian-based discipline — thanks to the religious nutters,  that sacred bond between parent and child is, well, no longer so sacrosanct.

The impact of the ruling on privacy in the home, remains unexamined by the media — will private acts regarding child discipline now fall under the purview of the state?

Let’s be open and frank here, as a parent and child-rearer — my daughter Vumani Nina Lewis was born without being spanked by a doctor, in the privacy of our own home. Instead of being assaulted by a medic, she was revived by a midwife, granted air by the judicious use of a simple hand pump.  Thus she arrived smiling instead of yelling.

So where is the bar in this matter?

Just about nobody accuses rugby players of assault when they tackle per the rules of rugby, but I fear, doctors will have a harder time persuading patients and the state that they didn’t commit a crime when they applied the Heimlich Manoeuvre, and likewise, parents when they give a slap on the wrist, or a clip to the ear.

Yes, the ruling is a major victory for those wanting freedom from the religious condonation of private violence in the form of beatings, circumcision and the like,  and a major setback for those who have always relied upon secular arguments to justify spanking.

Like many South Africans I was brought up with corporal punishment in school, and the threat of beatings with a belt, applied by my own mother.

Canadian guidelines for instance allow spanking under a number of conditions including corrective force (or physical punishment) that is minor or “transitory and trifling” in nature; no physical punishment on children younger than two or older than 12 …

Corporal punishment, i.e physical punishment inflicted by the state in the form of caning,  went the way of the Dodo after 1994, but justifiable chastisement lived on. In an effort to appear trendy and with-it, the common-law defence of ‘reasonable and moderate parental chastisement’ has been ‘rendered constitutionally indefensible’ by the nation’s moral guardians. One would have thought that the defence would have been restricted to certain categories of chastisement, but no.

Henceforth, all children will be free to accuse their parents of assault for the merest reprimand, while parents will suffer needlessly the consequences of vexatious and trivial allegations of unlawful aggression.

What can be done to rectify the overreach of South Africa’s juristocracy? The law-lords who appear want to invade our living rooms at the same time they move for privacy in drug use and the onward march of progress in every arena, except when it comes to equality before the law for TRC victims?

How to limit the effect of every case before the ConCourt turning into a day vs night, Roe v Wade moment?

At first one should add that the state itself is an unfit parent. The republic and its judges have not disavowed themselves of the need to discipline and punish. Instead they have reserved this power for themselves. You may read my published criticism here.

The case appears to have revolved around religious justifications for chastisement, not secular and civil arguments, and it does not immediately follow that each and every justification is henceforth, null and void.

Citizens, including children will still be subject to a system of justice which is anything but modern, extremely expensive, time-consuming, wasteful and whose penal codes inevitably result in obscure interpretations of law on the one hand, and overcrowded prisons on the other.

Household discipline, parental authority, the right to chastise, call it what you want, necessarily keeps children away from the criminal justice system.

As Michel Foucault the author of Discipline and Punishment, would have put it: “Where there is power, there is resistance.”

In this arena, expect resistance.