Pretoria Student Law Review 2018-12

Jurgen Zwecker, Primrose E.R. Kurasha, Agnes Matasane, Vaughn Rajah, Kirstin Swanepoel

Description

It is with great joy that I, along with the editorial committee, present to you the reader, the 2018 Pretoria Student Law Review. In the past twelve years, the journal has gone from strength to strength and nowhere is this more evident than in this year’s edition. We have received more submissions and published more articles than previous years. We have expanded the reach of the journal by including authors from not only outside UP but also outside the borders of South Africa.Fittingly, the wide range of articles in this year’s edition are topical, engaging and critical of the law. Most importantly, the articles spark conversation. If this is the quality of writing that Africa as a continent can produce, we as law students, young scholars and future legal practitioners can only reach new heights. I am proud of the work that the authors have put into their articles, but especially I am proud of the editorial committee and the work they have done to ensure that the PSLR delivers quality articles. The role of an editor is difficult, time consuming and often thankless and therefore I would like to thank the 2018 editorial committee – Primrose E.R. Kurasha, Agnes Matasane, Vaughn Rajah and Kirstin Swanepoel. Without your hard work and dedication to this journal, nothing would have been possible, it has been a privilege to work with all of you.Furthermore, I would like to thank Prof Karin van Marle for her guiding hand that shepherded us throughout the highs and lows of this year. To Lizette Hermann, thank you for your dedication to the PSLR. About the cover, I would like to thank Adebayo Okeowo for his submission. The cover and back page compliment the Year of the Women as celebrated throughout the year by the Law Faculty and UP Law House in particular.Turning to the future, it is with pride that I can say that I leave the PSLR in the custody of strong hands and even sharper minds. To you future author, I implore you to continue writing. To you the reader I say expand your mind, question all that is in front of you — for this is the only way we, as scholars, grow.Jurgen ZweckerManaging editor2018

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2018
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

PRETORIA STUDENT LAW REVIEW (2018) 12

Pretoria Tydskrif vir Regstudente Kgatišobaka ya Baithuti ba Molao ya Pretoria

Editor in chief: Jurgen Zwecker

Editors: Primrose E.R. Kurasha Agnes Matasane Vaughn Rajah Kirstin Swanepoel

2018

(2018) 12 Pretoria Student Law Review

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: Minit Print, Hatfield, Pretoria

Cover: Design by Adebayo Okeowo

To submit articles, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

ISSN: 1998-0280

© 2018

TABLE OF CONTENTS

Editors’ note By Jurgen Zwecker

vi

Precarious life, judgement and a story of a stork 1 By Prof Karin van Marle

Towards an ethically organic jurisprudence: A paradigmatic re-imagining of South African constitutionalism 7 By Louis G. Hennop

The cogitation of the value of epistemic diversity in South African jurisprudence, as influenced by the project of intellectual history: Lessons from Rhodes must fall — ‘All “Rhodes” lead to the colonisation of the mind’ 18 By Tshepo K. Twala

‘War is not always violent and violence is not always war’ — An anecdote on how language and ultimately the law is used to perpetuate epistemic violence in South Africa 32 By Thato Maruapula

Exposing the true argument, a student’s response to Willem Gravett: ‘pericles should learn to fix a leaky pipe’ 40 By Antonie Klopper

Blind justice: An analysis of the impact of the symbolic lady justice in adjudication 58 By Mpho Mogadime

iii

Towards land restitution through an African perspective on justice: A critical analysis of land reform and the role of re-imagination 66 By Mathabo Mohwaduba

Rethinking socio-economic rights in the South African constitutional framework from the perspective of human agency: Reflections of a law student 78 By Vuso Mhlanga

Towards a sexually free South Africa: A feminist and constitutional defence in favour of legalising prostitution through the right to bodily integrity 95 By Thabang Manamela

Lobolaculture and the equality of women in Zimbabwe By Priccilar Vengesayi

112

Damages for adultery: A legal misfit or a necessity? 136 By Shantel E. Ndebele

Understanding the beast of sexual harassment in the workplace 146 By Muano Nemavhidi

Youth unemployment: What role can corporate social responsibility play in curbing this social ill in Swaziland (Eswatini) and South Africa 159 By Simangele D. Mavundla

iv

Developing the substance over form doctrine in taxation after the judgement inCommissioner for The South African Revenue Service v NWK 180 By Johan Coertze

A constitutional democracy should provide for the legalisation of organ trading 201 By Bianca Murray

The cost aspect of medical expert witnesses and the possible introduction of a medical expert witness panel in South Africa 222 By Emma Tratschler

v

EDITORS’ NOTE

It is with great joy that I, along with the editorial committee, present to you the reader, the 2018Pretoria Student Law Review. In the past twelve years, the journal has gone from strength to strength and nowhere is this more evident than in this year’s edition. We have received more submissions and published more articles than previous years. We have expanded the reach of the journal by including authors from not only outside UP but also outside the borders of South Africa.

Fittingly, the wide range of articles in this year’s edition are topical, engaging and critical of the law. Most importantly, the articles spark conversation. If this is the quality of writing that Africa as a continent can produce, we as law students, young scholars and future legal practitioners can only reach new heights.

I am proud of the work that the authors have put into their articles, but especially I am proud of the editorial committee and the work they have done to ensure that thePSLRdelivers quality articles. The role of an editor is difficult, time consuming and often thankless and therefore I would like to thank the 2018 editorial committee – Primrose E.R. Kurasha, Agnes Matasane, Vaughn Rajah and Kirstin Swanepoel. Without your hard work and dedication to this journal, nothing would have been possible, it has been a privilege to work with all of you.

Furthermore, I would like to thank Prof Karin van Marle for her guiding hand that shepherded us throughout the highs and lows of this year. To Lizette Hermann, thank you for your dedication to thePSLR.

About the cover, I would like to thank Adebayo Okeowo for his submission. The cover and back page compliment the Year of the Women as celebrated throughout the year by the Law Faculty and UP Law House in particular.

Turning to the future, it is with pride that I can say that I leave thePSLRin the custody of strong hands and even sharper minds.

To you future author, I implore you to continue writing. To you the reader I say expand your mind, question all that is in front of you — for this is the only way we, as scholars, grow.

Jurgen Zwecker Managing editor 2018

vi

NOTE ON CONTRIBUTIONS

We invite all students to submit material for the eleventh edition of thePretoria Student Law Review. We accept journal articles, case notes, commentary pieces, response articles or any other written material on legal topics. You may even consider converting your research memos or a dissertation chapter into an article. Please visit our website at www.pslr.co.za for more information. You may submit your contribution to: [e-mail] Alternatively you may submit your contribution by hand at the office of the Dean of the Law Faculty: Dean’s Office Faculty of Law 4th Floor Law Building University of Pretoria Pretoria 0002

vii

PRECARIOUS LIFE, JUDGMENT AND A STORY OF A STORK

1

by Karin van Marle*

In this short reflection I focus on a number of notions and issues that for me are of value and relevance within the time and space that we find ourselves at present. I consider what meaning a life in the university could have and what kind of space the university should be to make this meaning and life possible.

Precarious life

Judith Butler in her workPrecarious life. The powers of mourning and violencepublished in the aftermath of September 11 argues that the event raised the ‘question … as to what form political reflection and deliberation ought to take if we take injurability and aggression as 1 two points of departure for political life.’ After another year filled with events and actions that showed aggressions and caused injury on global, national and sometimes on a local level very close to home we might consider exactly the question invoked by Butler. She hopes for the ‘chance to imagine a world’ with less violence and where interdependency is deemed necessary and foundational to all relations.

A theme coming to the fore in the first essay ofPrecarious lifeis the rise of censorship and anti-intellectualism in the US after 2 September 11. For students and academics these issues should be of a big concern. To what extent are the media, artists, authors and closer to home students and academics free to express their views — even if not censored in strict legal sense, are we silenced, dis- encouraged, dissuaded to speak up and speak out? Maybe even a bigger concern is not only the absence of intellectual engagement, conversation and discussion at the university but the active anti- intellectualism that comes in many guises.

*

1 2

Karin van Marle served the University of Pretoria, Faculty of Law, Department of Jurisprudence from 1 February 1999 - 31 January 2019. She will continue her service to legal scholarship and academia at the University of the Free State from 1 February 2019. J ButlerPrecarious life. The powers of mourning and violence(2004) xii. As above 1-18.

1

2Precarious life, judgment and a story of a stork

2

The banality of evil and judgment

Hannah Arendt in her report on the trial of the Nazi, Adolf Eichman 3 used the term the ‘banality of evil’ to describe him. As Young-Bruehl notes, Arendt regarded Eichman as a ‘superficial person, thoroughly conformist to his thoroughly banal society, with no independent sense 4 of responsibility.’ The only thing that motivated Eichman was his own ambition to be promoted. Arendt perceived him as being ‘thoughtless’ and by this she means that he didn’t have ‘common sense or the 5 ability to think.’ Apparently Eichman could recite moral rules, even the categorical imperative as developed by Immanuel Kant, but he couldn’t think for himself. Later in her life Arendt reflected on the notion of judgement, the feature so lacking in Eichman.

Judgement of course as the ability to think and act responsibly is of utmost importance to all people, but maybe in particular to those in legal scholarship. Arendt believed that judgment should take place in relationship with others. Following Kant’s notion of aesthetic judgement she believed that when one judges one imagines the perspectives of as many others as possible and enters into a conversation with them. Young-Bruehl explains that what is needed in judgement is ‘an enlarged mentality’ a ‘communicative experience’ that could allow one to ‘transcend’ one’s own subjectivity and reach 6 ‘common sense.’

… judging presupposes being able to see what the world is like from another’s perspective. This does not mean adopting another’s judgment or agreeing with another’s opinion, or even emphathizing with another’s experience or reading his or her mind. It simple means using your 7 imagination to see things from another’s standpoint.

Arendt noted that: ‘The more people’s positions I can make present in my thought and hence take into account in my judgments, the more 8 representative [my judgment] will be.’

Following form the above I believe the university and the faculty of law should be a place that encourages this kind of judgment - meaning a place where a plurality of perspectives could be considered. Thinking should be central to all teaching and learning and research in order not to allow more Eichmans into the world.

ThePSLRreceived many submissions this year covering indeed a plurality of perspectives and topics including medical law, adultery,

3 4 5 6 7 8

H Arendt Eichman in Jerusalem. A report on the banality of evil (1963). E Young-BruehlWhy Arendt matters(2006) 3. As above. As above 166. As above. Arendt ‘Some questions of moral philosophy’ in J Kohn (ed)Responsibility and judgment(2003) 49 as quoted by Young-Bruehl n3166.

(2018) 12 Pretoria Student Law Review 3

prostitution, tax, socio-economic rights and many more. Articles were submitted by students from within and outside the University of Pretoria and include submissions by undergraduates and postgraduates. We are honoured to publish also an article by a visually impaired student this year.

3

Taking stock

Coming to year end we often take stock of what we’ve been doing during a year, what aims or milestones have been achieved and we pose those existential questions of who are we and where are we going? Below I share briefly some of the thoughts that I shared in a seminar hosted by Law House related to their theme of the year, Year of the woman. I started by recalling the following story as told by Danish author Karen Blixen:

A man, who lived by a pond, was awakened one night by a great noise. He went out into the night and headed for the pond, but in the darkness, running up and down, back and forth, guided only by the noise, he stumbled and fell repeatedly. At last, he found a leak in the dike, from which water and fish were escaping. He set to work plugging the leak and only when he had finished went back to bed. The next morning, looking out of the window, he saw with surprise that his footprints had 9 traced the figure of a stork on the ground.

Adriana Cavarero responds to the story by asking if one will be able to see a stork at the end of one’s life — is there a design that has a meaning to be recognised? Following Hannah Arendt, Cavarero insists 10 on the importance ofwhosomeone is rather thanwhatsomeone is. Who someone is can only be revealed by stories. The tendency in philosophy and, of course, law is to give prominence to thewhat rather than thewho. In my work over many years I have attempted to think about and suggest a jurisprudence that strives to be attentive to thewho, that could be open to the possibility of interconnectedness and relations. As Cavarero states, the extent to which a design, meaning could be recognised is not something that can be foreseen, projected or controlled. The man in the story did not intend anything more than to find the reason for the noise and fix it — the design, meaning at the end, the trace of a stork, happened without any preconceived plan, design or project. What stands out in Blixen’s story and Cavarero’s engagement with it, is the emphasis on being attentive to the story ofwho someone is, and the possibility of meaning coming to the fore, interconnection and relationality recognised.

9 10

A CavareroRelating narratives. Storytelling and selfhood(2000) 1. As above 2.