Legal dialogues

Hans Visser, Christof Heyns

Description

In memoriam: Hans Visser26 November 1953 ~ 14 June 2007It is important to note at the outset that, as joint editors of this compilation, we disagree fundamentally on some of the issues addressed here. Some of these differences are known in the Faculty. Nevertheless, we do agree on the need for an ongoing and honest discussion of the issues and it is in this spirit that we join forces to create this platform.This publication contains essays on transformation and the Faculty of Law of the University of Pretoria. All of the authors are all attached to the Faculty and express their personal views. The initiative behind this publication is an informal conversation after a Faculty Board meeting in June 2006 when we were both brought strongly under the impression that members of the Faculty will have to contribute to placing on a different plane the way in which we present ideas and differ from each other concerning the activities and interests of the Faculty. We invited our colleagues to submit essays on the important and controversial question of transformation in relation to the Faculty. This compilation represent the reactions we received to our invitation. We thank all the authors for their valuable efforts and their willingness to be part of a pioneering exchange which could develop into a better understanding of the challenges in developing and managing transformation in a responsible way.The essays are arranged in alphabetical order according to the names of the authors and cover a variety of issues from different perspectives. They make for interesting — and in some instances provocative — reading. The essays include the subjective views and experiences of the authors — and, as could be expected from lawyers — in certain cases also legal analysis. We hope that this opportunity to air views, concerns and aspirations will make a contribution to the ongoing process of trying to establish what ‘transformation’ should mean in the context of an institution such as our Faculty, and perhaps also in the broader context of our country. We also hope that it will serve as an opportunity to take the debate to a different level — one of openness to reconsider one’s views and those of others. We are not looking for ‘final solutions’ — but rather to making a contribution to the way in which we proceed from where we are now.Not all change can be described as ‘transformation’. According to the New Oxford Dictionary (2001), transformation means a thorough or dramatic change in form, appearance or character. Transformation is also defined as a ‘complete change’. The Handwoordeboek van die Afrikaanse Taal (HAT) (2005) explains ‘transformasie’ as: ‘’n Gedaanteverwisseling; die oorbring in ‘n ander vorm; verandering in die samestelling van iets’ (‘A change in appearance; changing into other form; a change in the composition of something’). It also reflects something of the political meaning in the contemporary context: ‘Die transformasie van die staatsdiens deur die aanstelling volgens ander kriteria betreffende ras en seks’ (‘Transforming the civil service by making appointments in accordance with other criteria regarding race and sex’). The concept of ‘transformation’ should not be confused with the many other mechanisms of change — although overlap is possible. The following are examples of some methodologies of change: revolution, evolution, renovation, elimination, renaissance, reformation, modernisation, restructuring, conversion, rationalisation, modification, addition, deletion, reconfiguration, reorganisation, rearrangement, re-orientation, revision, correction, upgrading, variation, adjustment, amendment, or a shift of emphasis or in priorities.If transformation denotes ‘complete change’, it is clear that an acceptance of the idea that the Faculty has to be transformed entails a process in terms of which the comfort of some certainties will have to be discarded. This is bound in many ways to be an uncomfortable and, indeed, disquieting process.We hope that these pages will provide some insight into the way in which individual staff members see transformation — and that they will contribute to the way in which we interact on such contentious issues.

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2006
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

Thisbookletcontainsanumberofshortessayswritten   bystaffmembersattheFacultyofLaw,Universityof Pretoria,dealingwithissuesoftransformation.

TRANSFORMATION andtheFacultyofLaw,UniversityofPretoria

VisserandHeyns(eds)

TRANSFORMATION AND THE FACULTY OF LAW, UNIVERSITY OF PRETORIA

Visser and Heyns (editors)

2007

TRANSFORMATION AND THE FACULTY OF LAW, UNIVERSITY OF PRETORIA

TABLE OF CONTENTS

Preface and introduction

Abdul Funnah

Michelo Hansungule

Christof Heyns

Tshepo Madlingozi

Caroline Nicholson

Annette van der Merwe

Karin van Marle and Danie Brand

Hans Visser

In memoriam: Hans Visser 26 November 1953 ~ 14 June 2007

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Preface and introduction

It is important to note at the outset that, as joint editors of this compilation, we disagree fundamentally on some of the issues addressed here. Some of these differences are known in the Faculty. Nevertheless, we do agree on the need for an ongoing and honest discussion of the issues and it is in this spirit that we join forces to create this platform. This publication contains essays on transformation and the Faculty of Law of the University of Pretoria. All of the authors are all attached to the Faculty and express their personal views. The initiative behind this publication is an informal conversation after a Faculty Board meeting in June 2006 when we were both brought strongly under the impression that members of the Faculty will have to contribute to placing on a different plane the way in which we present ideas and differ from each other concerning the activities and interests of the Faculty. We invited our colleagues to submit essays on the important and controversial question of transformation in relation to the Faculty. This compilation represent the reactions we received to our invitation. We thank all the authors for their valuable efforts and their willingness to be part of a pioneering exchange which could develop into a better understanding of the challenges in developing and managing transformation in a responsible way. The essays are arranged in alphabetical order according to the names of the authors and cover a variety of issues from different perspectives. They make for interesting — and in some instances provocative — reading. The essays include the subjective views and experiences of the authors — and, as could be expected from lawyers — in certain cases also legal analysis. We hope that this opportunity to air views, concerns and aspirations will make a contribution to the ongoing process of trying to establish what ‘transformation’ should mean in the context of an institution such as our Faculty, and perhaps also in the broader context of our country. We also hope that it will serve as an opportunity to take the debate to a different level —

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one of openness to reconsider one’s views and those of others. We are not looking for ‘final solutions’ — but rather to making a contribution to the way in which we proceed from where we are now. Not all change can be described as ‘transformation’. According to theNew Oxford Dictionary(2001), transformation means a thorough or dramatic change in form, appearance or character. Transformation is also defined as a ‘complete change’. TheHandwoordeboek van die Afrikaanse Taal (HAT) (2005) explains ‘transformasie’ as: ‘’n Gedaanteverwisseling; die oorbring in ‘n ander vorm; verandering in die samestelling van iets’ (‘A change in appearance; changing into other form; a change in the composition of something’). It also reflects something of the political meaning in the contemporary context: ‘Die transformasie van die staatsdiens deur die aanstelling volgens ander kriteria betreffende ras en seks’ (‘Transforming the civil service by making appointments in accordance with other criteria regarding race and sex’). The concept of ‘transformation’ should not be confused with the many other mechanisms of change — although overlap is possible. The following are examples of some methodologies of change: revolution, evolution, renovation, elimination, renaissance, reformation, modernisation, re- structuring, conversion, rationalisation, modification, addition, deletion, reconfiguration, reorganisation, rearrangement, re-orientation, revision, correction, upgrading, variation, adjustment, amendment, or a shift of emphasis or in priorities. If transformation denotes ‘complete change’, it is clear that an acceptance of the idea that the Faculty has to be transformed entails a process in terms of which the comfort of some certainties will have to be discarded. This is bound in many ways to be an uncomfortable and, indeed, disquieting process. We hope that these pages will provide some insight into the way in which individual staff members see transformation — and that they will contribute to the way in which we interact on such contentious issues.

Hans Visser & Christof Heyns

Transformation and the Faculty of Law of the University of Pretoria: Not a bad time to ‘really’ start

Abdul Funnah Lecturer, Department of Public Law

Introduction

Hold on to your seat — it looks like we have a lift-off. As I reflect on the title I have chosen —not a bad time to ‘really’ start— it seems inappropriate to me. Surely it is too late — more than ten years after the election of a Government of National Unity — merely to be starting the process of transformation in the Faculty? You will excuse me for thinking that the process should have begun before now; having been here for just about a year it worries me if I differ. There is no denying the gains that had been achieved through transformation in other faculties; however, it is highly unlikely that the Faculty of Law will follow the university trend of transformation at this rate. In any event, it makes little sense for me to place too much weight on changes in other faculties, which may have been accomplished under different conditions, especially as the reform or transformation of some Faculty arrangements may be easier than others. Building on many years of exclusion based on race, it seems that issues of race have become part of the Faculty’s road ahead. The transition from what previously had been a Faculty of one race involves more than changes in policy, but also extensive cultural and ideological — as well as social and structural — transformations. In short, the transformation process should amount to nothing less than a revolution of the social order. Perhaps I should explain myself more clearly. I have stopped trying to wonder why, when I enter the elevator, I look like just ‘one of them’; I have stopped wondering why, when I make what seems to be an academically

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sound statement, I sound like just ‘one of them’.It is time to stop expecting everyone to greet me. Perhaps I do not greet them loudly enough, but yet again, with a hoarse voice like mine, it is hard not to hear me say ‘good morning’ or ‘goeie more’. Don’t get me wrong. I really love being in the Faculty. I enjoy the support I receive, in particular from the members of my Department. I talk well and loud about being in the Faculty. I enjoy hearing all the positive comments from outsiders, and in particular from friends I studied with.

Discussion

I would like to take as a starting point Professor Jonathan Jansen’s preface to his Innovation Lecture, entitledWhy Tukkies Cannot Develop Intellectuals.He says: What I share this morning, coming in from the outside, will intrigue some of you, will be familiar to most of you, and will anger all of you’. But, yes, I am going to say it anyway, and I will enjoy my time in the Faculty. I begin. Given contemporary experience, it is certainly true that our transformation, if it is actually to occur, will have to take place at an accelerated pace over a short period of time. Many show a commitment to bringing about the transformation of the social, economic and above all, ‘senior’, authority in the Faculty. Indeed, there are some so-called success stories in the process of transformation. But surely, in a Faculty with a staff compliment of over seventy, we cannot ponder on these cases. On the contrary, we should not even consider any of the so-called success stories because these examples have succeeded in nothing more than exposing our lack of transformation, particularly after all this time. It is difficult to judge the success of any transformation within the Faculty without comparing it with the detailed picture of the pre-existing socio- economic position; more importantly, without an analysis of how these cases link into the overall transformation plan of the Faculty.

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Here again I reiterate the fact that I have just joined the Faculty, behaving ignorant to what might be documented on transformation and focusing merely on what meets my eye. In a sense this brings to the fore the statement which I drew attention to earlier — of wondering why, when I greet someone, my greeting is not returned. I do not mean to generalise at all, but colleagues who have not answered my greeting outnumber those who have. What is the essence of this paper you might ask? My intention here is not an attempt to be academically right. I speak from experience. At best the paper may be an attempt to say that there is no transformation in the Faculty, ‘at least not at face value’. Further, it argues that transformation in the Faculty should not merely amount to the appointment of a few African lecturers, administrative staff and students, but that it should be coupled with a change in the mindset of those in the Faculty. An acknowledgment of a greeting begins one’s process of social transformation. Those who resist transformation, therefore, benefit from not greeting another person, because greeting someone else is the first step towards transformation. Transformation should not be one-sided; we all arrive with our own prejudices, but it is difficult to show one has changed when one is not given much of a platform to do so. We all experience transformation in different ways and we do not all like transformation. Transformation is not easy. Transformation is accompanied by concern, frustration and doubt. But, yes, we all have to transform, and we all have the ability to transform. Transformation helps us to draw from past experience and learn from them. No matter how bad things may seem, or how intense the pain, it will pass. The irony of the lack of transformation in the Faculty is that we are all lawyers. Lawyers are meant to appreciate the differences in individuals, reflect on those differences, and contribute towards ensuring that individuals appreciate and accept their differences. One may then ask what values we are really teaching our students, the lawyers of the future, [the future us] when we are divided amongst ourselves?

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The challenge of transformation is to prevent it from becoming mere window-dressing — we must embrace transformation. Transformation should not be measured by the number of African students enrolled in the Faculty or the number of African lecturers in the Faculty, but rather in the worth of those Africans in the Faculty. It should be measured by the skills they possess and the value of their contribution to the Faculty. Yes, I know there are many facets of transformation; but I did say I would focus on what meets my eyes. There is a need to develop skills amongst young lecturers, but especially amongst young African lecturers. Do not get me wrong — I am not asking for hand-outs, but there is a need to develop skills for purposes of succession. There is no doubt that transformation is in the best interest of the Faculty. It increases our value to stake–holders. However, the Faculty must be willing to transform. The transformation of attitudes is important. On the other hand, perhaps it is I who need to transform. I need to understand that I may not be accepted by others because I am not as academically sound as they might be, and not because of my race. Nevertheless, come to think of it, were they not once where I was, were they not given the opportunity to get to were they are now? Perhaps it is I who should embrace change — and it is not a bad time to start.

Conclusion

To conclude: My aim is not to expose the Faculty and its attempt to define a path for transformation nor is it to offend any individual. My purpose is to contribute to the ideas around the process of transformation which I believe is in its infancy, as well as share my thoughts on the crucial and simple conditions which may impede or facilitate transformation. I have tried to identify some of the issues to be dealt with, which are perhaps not dealt with in any other document on transformation issued by the Faculty. I would like to suggest that the transformation of our attitudes is central to the realisation and implementation of policies for the transformation of the Faculty.

A case for the transformation of the Faculty of Law

Michelo Hansungule Professor of Human Rights Law, Centre for Human Rights

Introduction

The general perception out there is that the University of Pretoria has not transformed. If it is indeed transforming, then the process is too slow to be noticed by the general public. This is not just a view from outside the gates of the University: several people within the University share the view. Recently, a senior member of the academic staff in one of the faculties bitterly criticised the University for what he called ‘window dressing’ the 1 transformation exercise. The staff member concerned may have been rather too extreme, but this is the view that a good section of the people in the country entertain. This perception depends on several factors. Included in this is the fact that some of the monuments of apartheid remain visible around campus. In its programmes, staff and student composition, language policy, key decision- making structures and institutions, right down to the way the University does its business, the past continues to haunt it. In other words, those who view the University from the outside continue to see apartheid intact as if nothing had happened since freedom in 1994. The more positive outsiders see change that is too slow relative to the rest of society.

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This criticism was uttered during discussions at an audit session of the University’s self-evaluation exercise. The exercise involving select senior members of staff and outside experts took place at the main campus of the University of Pretoria on 21-25 May 2007.

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Some of the features of the previous society reflected in the Faculty include:  disproportionate number of white staff versus other races;  disproportionate number of white students versus their counterparts from other races;  tendency among various racial groups (both staff and students) to keep to their races;  perceived lack of a faculty-tailored programme at transformation with specific targets;  absence of a pro-transformation curricula in various departments;  accusations of favouritism on the part of academic staff during lectures said to be racially motivated;

 unfair advantage by the Afrikaans language relative to other equally constitutionally guaranteed languages;  that the Faculty and the University pay lip-service to the Faculty transformation and to the Transformation Committee;  that some members of staff and students deep in their hearts do not really accept the need to transform;  perception that decision-making structures in the Faculty such as the Committee of Heads of Departments are not based on diversity, and so on. Of course the University of Pretoria is the sum of all its faculties, centres, departments, programmes and activities. The Faculty of Law is a central feature of the University, and, just like the rest of the University, the Faculty of Law is generally perceived not to be trying hard enough to transform. What is significant is that the Faculty itself has on several occasions recognised this fact. The appointment of the Transformation Committee (even though not effective) is one manifestation of this recognition. Previously, staff in Faculty board and other meetings alluded to the fact that the Faculty was ‘too white’. This recognition is positive as it provides an opportunity to begin the process of change inherent in transformation. It is easier to promote transformation if the majority of staff in the Faculty recognises the need for it.