My colleague from Stellenbosch University, Prof Sandra Liebenberg has written an excellent piece on the notion of transformative constitutionalism. I could not have said it better:
The notion of ‘transformative constitutionalism’ has found a deep resonance in the jurisprudence of the courts, academic literature and civil society campaigns for social justice. As our constitutional institutions are feeling the strain of recent developments, it is fitting to reflect on some of the challenges which face the realisation of this transformative vision of the Constitution. …
The first challenge concerns the increasing signs of the emergence of a narrow, patriarchal nationalist identity with its characteristic penchant for the exclusion and marginalisation of ‘the other’. This was most graphically manifested in the explosion of xenophobic violence earlier this year. However, its insidious presence can also be detected in the reactions of the Labour Minister and BEE leaders to the court’s ruling concerning inclusion of South Africa citizens of Chinese descent in empowerment legislation, the daily ‘bureaucratic violence’ dished out to refugees, asylum-seekers and other categories of non-nationals in their attempts to gain access to basic services from government departments, the endemic violence against women and AIDS activists, and the horrific conditions in which prisoners are incarcerated in many prisons in South Africa. These phenomena are the antithesis of a constitutional project which values human dignity, interdependence and a diverse society.
Secondly, the statistics continue to tell the tale of increased socio-economic disparities in wealth. The on-going systemic inequality and deep conditions of poverty afflicting a large proportion of the population risks making the constitutional commitment to social justice and an improvement in people’s quality of life seem hollow.
Finally, there are the subtle undermining and the not-so-subtle attacks on the foundation of a constitutional state – the rule of law and an independent judiciary. The subtle undermining refers to the trend which has emerged of many government departments failing to respect court orders. This has a long history stretching back to the government’s failure to respect orders of the courts primarily in the Eastern Cape and KwaZulu-Natal to ensure that social grants are paid timeously and are not unlawfully terminated. The courts have struggled valiantly to deal with this phenomenon through a range of mechanisms such as maintaining judicial supervision over mandatory orders against government departments, making awards of constitutional damages against the relevant departments, citing government officials for contempt of court, and even threatening to make government officials and the heads of department responsible for paying the costs of cases out of their own pockets.
I am surprised Prof that you have not added anything to what Prof Sandra wrote. At least you could have prevented just reproducing what she and made your own conclusions, explain the apparently difficult concepts in her extract, etc so that there may be increased interaction with her extract.
As far as things stand at the moment, this is a mere infringement of Prof Sandra intellectual property rights.
Sandy wont mind me using her words. I am travelling so no time to write….
Sne
Prof Pierre acknowledges Prof Sandra’s authorship and prefaces his publication of her work with the statement “I could not have said it better”, which really says it all as far as Prof. Pierre is concerned.
I can, therefore, see no infringement of Prof. Sandra’s copyright.
All true and undeniable tendencies pointed out here by Prof Liebenberg.
I will therefore revisit my very first statement in this forum. Africa do not value or hold dear fundamental democratic principles such as the rule of law and the independance of the judiciary. We are more and more leaning towards what Africa so cherish and that is a totalatarian state. Do I see another Zimbabwe in the not too distant future? We are on a daily basis confronted with mob-rule incidents and have in the process become blunt to these happenings. The red light is switched on daily and only the blind can ignore it!
Maurice // Aug 13, 2008 at 9:22 am
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Acknowledging sources does not mean that you have not impinged on the rights of the author of an article or book, etc. but it just means that your infringement thereof is excusable or justifiable in law.
What Prof has done here is like shooting a person in self-defence. He would not be convicted of murder or culpable homicide because he is excused for breaking the law against killing of another person due to acting in self-defence. However, this does not alter the fact that killing of another person is still illegal or unlawful.
In the premises, there is an infringement of Prof Sandy’s intellectual property rights because she is the only one who has the rights to reproduce what she has written unless she cedes those rights in favour of someone else. Acknowledging her as the source merely excuses Prof Pierre from being criminally and civilly liable therefor. I hope this makes sense to you Maurice…
AB // Aug 13, 2008 at 9:28 am
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It is utterly disappointing when supposedly erudite individuals make such disturbing statements. Instead of outlining the challenges that Africa has and conteplating a way to confront and tackle those challenges, you merely exacerbate them by your reckless misuse of this platform provided to us courtesy of Prof Pierre.
Rather tell us what you think could be done to deal with these abundantly psychological problems and ameliorate our communities through provision of better and independent thinkers…
Sne
Disturbing? Have you read the article above, if so, is it not telling you anything? It surely indicates a very dangerous route our nation is following, and this route can not lead to a democratic future? Or does it do so for you?
Suggestions on how to deal with these trends? I am afraid SA does not have the economy and or capital to adress the hugely inflated expectations of the masses.
A word of advice to you would be to stear clear of your dictionary as your usage does not impressed at all!
AB // Aug 13, 2008 at 1:19 pm
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Your failure to address my concern and merely to allude to it has resulted in me deciding to refrain from entertaining you any further in order to avoid proliferation or multiplicity of collateral issues…
AB, really, you havent dealt with the real issues, namely Prof P’s infringement of Prof Sandy’s intellectual property rights. What were you thinking commenting an that illegally quoted piece!
Sne
I concede your proposition, i.e., what is justifiable legally is not necessarily morally justifiable .
I am, however, not sure where your logical proposition takes us, as Prof. Pierre says he’s sure that Prof. Sandra, a colleague of his, wouldn’t mind.
So, be it on Prof. Pierre’s moral conscience!
I think that we should leave the matter there, but you may, of course, choose to respond.
You do realise, of course, that shootmeup is laughing at our theoretical, and off-topic, discourse?
Nice one, shootmeup, and you made your point to AB at the same time!
shootemup
Abject apologies for misspelling your charming pen-name!
“The party [is] in danger of following other liberation movements that lost their way after succumbing to division, factionalism, stagnation and patronage.”
Anybody care to guess the name of the person who made this statement recently in referring to the ANC?
Helen Zille? Nah, guess again …
For the answer, go to:
http://www.economist.com/world/mideast-africa/displaystory.cfm?story_id=11893529