Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
1 November 2010

Sadly no one has a right to party (or to a job)

The United States of America Declaration of Independence famously states that: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (In those days women obviously had no right to be happy, but that is a story for another day.)

I have always wondered about the statement that Americans all have an inalienable right to Life, Liberty and the pursuit of Happiness. If they have these rights, why are so  many of them so angry all the time and why are so many of them so against any pursuit of happiness if it involves any fun? In my experience, there is a surprising puritanical streak among many on both the left and the right in America. While Hollywood may give us a different view, in my travels to the US I have often been quite taken aback by how judgmental some Americans can be about sexual behaviour, the consumption of alcohol and about laughing at the absurdities of life.

Teaching US students can be rather trying because one has to be so careful not to offend anyone. Cracking jokes deemed “offensive” (because it makes fun of something or someone) can be a perilous enterprise. One can easily feel as if one is in the company of Queen Victoria because so often “we are often not amused”.

I have always assumed that South Africans are a rather less uptight bunch. Many of us have personally experienced the deeply conservative Christian Nationalist era when it was illegal to watch a movie or play sport on a Sunday. Buying alcohol at a liquor store on a Sunday was also considered a sin and hence illegal.

When I was ten years old we lived in the then Orange Free State (where it was illegal for any person classified as Indian to stay for more than 24 hours) in a small town called Henneman. (What I had ever done to deserve this  fate I have never been able to tell. Maybe God just hates “fags”.)

What a great day it was when the town council of Henneman announced that it was no longer considered a sin to swim on a Sunday (probably after having consulted the dominee and the local branch of the Broederbond for guidance) and allowed the public swimming pool to open on a Sunday afternoon between 2 and 5.  The only problem was that one was not allowed to jump from the diving board on a Sunday or make a noise because that would have been disrespectful to “our Lord Jesus Christ”, the Church (and probably the National Party too).

And who will ever forget that it was forbidden for students of the Potchefstroom University for Christian Higher Education to dance on the campus and than a trainee dominee was once expelled from Potch because he had danced with his wife on campus? (This led to the old joke that it was forbidden for Potchefstroom students to have sex standing up because it might have led to dancing.)

In 1994 we ditched that absurd moral universe for something rather more open-minded, fun-loving and respecting of diversity. But that brand of Christian Nationalist morality has steadily been making a comeback. For example, (former) Arts and Culture Minister Lulu Xingwana earlier this year demonstrated just what kind of reactionary cretin she was when she stormed out of an art exhibition  because she  was offended by the “immoral” and “un-African” pictures of naked women embracing each other.

One would have thought the “liberal” Cape would be different. But, alas, the deeply conservative attitudes towards fun have now also arrived in the Cape. The city council of Cape Town, who is supposed to be positioning itself as a world class tourist city, passed a rather moralistic and counter productive by-law earlier this year that will  prohibit any bar or club from serving alcohol after 2 am (unless the city makes a special exception) and also restrict the sale of liquor on Sundays.

Sadly, our Constitution does not contain a right to party or a right not to be subjected to the parsimonious attitudes of old fogy’s pandering to conservative elements of the electorate. This means the by-law (and the Provincial Act on which it is based) is probably going to pass Constitutional muster.

Nevertheless, the by-law is reactionary, misguided and counter productive. It is reactionary because it is based on a Christian Nationalist attitude which assumes that we should all go to bed at 2 am, that having access to alcohol in a public place after 2 am would somehow turn us all into evil sinners and that God will punish us if we were allowed to buy liquor on a Sunday. We must be protected from sinning (so much for libertarianism) by the state because the state must protect us from ourselves. I thought the DA was all about people taking responsibility for themselves and making their own decisions on whether they wanted to invoke God’s wrath by dancing the night away.

The by-law is also misguided because it assumes that if one prohibits the sale of liquor after 2 am this will somehow address the scourge of alcoholism and drugs in our community. This is of course a completely irrational and mistaken assumption. Anyone who had visited the United Kingdom at the time when all bars were forced to close at 11 pm would know that earlier closing times for bars and pubs do not necessarily prevent people from getting very drunk and making fools of themselves. There is no evidence to back up the assumptions underlying this by-law.

It is clearly based not on carefully considered evidence but on assumptions prevalent amongst mother grundies who sit at home on a Saturday night and watch reruns of Who’s the Boss or some Chuck Norris movie made in 1987. Besides, alcohol will still be available, it will just not be available in a well regulated and controlled space. By passing laws that cannot be enforced properly one is just driving a problem underground and inviting gangsters and underworld figures to get even more actively involved in the “entertainment” industry.

But the worse part is that the by-law is counter-productive. Forty percent of South Africans are unemployed. One of the most labour intensive industries (and one with real potential to grow in South Africa) is the tourist industry. If we want to create jobs we need to do anything in our power to get more tourists to visit our country and our city.

Cape Town is one of the prime tourist attractions in South Africa and many tourists – especially younger tourists – specifically come to South Africa to visit Cape Town, which is supposed to be a “party city”. These younger tourists are also the more adventurous types who would not be disauded from visiting South Africa by hysterical reports in foreign newspapers about South Africa’s crime rate. But now the city has passed a by-law that will close down most party venues at 2 am and will serve as a disincentive for younger tourists to visit Cape Town.

So much for thinking creatively to help create jobs. I suppose if politicians have to choose between pandering to conservative voters and creating jobs by making Cape Town a destination that younger tourists would love to visit, the politicians will ditch the jobs and go with the votes. After all, unemployed and poor people are less likely to vote than the church-going people who have framed pictures of Helen Zille, Jesus Christ and PW Botha on their walls.

One thing is certain: This by-law will make Cape Town a less desirable tourist destination and will cost us many jobs. Why can’t politicians see the bigger picture? Why can’t they take steps to make the city of Cape Town a 24 hour city, a city that millions of tourists would want to flock to? Why are politicians so short-sighted that they adopt laws that will kill employment instead of creating it? These people really do not have a clue. They realise that the use of  tik is a huge problem in our city and instead of addressing the causes of tik addiction they take popular but utterly destructive and useless actions like adopting a by-law that will in effect close down the city at 2 am in the morning.

Well, in Brazil the party goes on for the whole night, so many of the tourists who would have flocked to Cape Town will go to Brazil instead. And many people who would have been employed in the tourist industry will remain unemployed. Who knows, they might just sit at home and starve. That would be what our politicians would hope for. But the politicians might be mistaken and the unemployed might not sit at home and starve but might join a gang to sell tik or to come into your house and steal your TV or pump ten bullets into your head.

Surely, unemployment is one of the biggest dangers facing our society and is also one of the most morally reprehensible aspects of our country. Does that not mean that whenever the national, provincial or local government makes a decision it should consider what the impact of that decision will be on unemployment. Are we really serious about making our society fairer and making it work better if even a city council who is supposedly well run cannot think further than their noses?

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