As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
This is a presentation I gave earlier this week at a conference in Stellenbosch on Slow Violence, the idea that unspectacular life circumstances can also have a devastating effect.
I know where this particular narrative must end. More or less. But where should it begin? I am not sure what kind of detail I must include in the narrative and what would better be left in the private domain. How brave am I?
The story could begin with the man, a greying, middle aged constitutional law professor who often comments in the media on current affairs and the law, receiving a message from B on Gaydar, a popular gay male dating and sexual hook-up site. B writes that he is a young lawyer who loves movies and fashion. He suggests an email correspondence with a view to meet “for a date, the old fashioned way”.
The man studies B’s profile picture for clues of his personality. He thinks B is sexy – in a nerdish kind of way. Or maybe he only decides this later, after their first date. In the picture B’s head is clean-shaven. Delicate hands peek out from the sleeves of the well-tailored black jacket. (On their first date the man would approvingly note that B’s nails had been carefully painted black. Trust him to hook up with probably the only camp, coloured, Goth on Gaydar.) B’s smooth olive skin radiates health. But it is the eyes, partly obscured by thick-rimmed glasses, that convinces the man to take a chance – despite his apprehension. Huge eyes. Slightly watery and a little bit sad. Kind eyes, the man assumes. It is the eyes that reveal that at least some of B’s forbears arrived in South Africa from South East Asia centuries ago, perhaps as slaves. “Slaves”. The word sticks in the man’s throat, a reminder of what his kind is capable of doing.
The man spends hours composing the emails he exchanges with B. He strives for a light, witty, but intellectually clever tone. He keeps the polite boasting to a minimum, but hopes he comes across as erudite and informed, yet attuned to popular culture and not over serious. About the calamity, the man, says nothing. B agrees to a “date”. They will go to “On Broadway” to watch a revue performance of scantily clad men singing about love and love lost. The man is nervous. He has never been on a real first date with any man in his life before. In the past he has always first slept with a man and then decided afterwards whether he would see him again. But now it’s become more complicated. The date goes well. They drink moderate amounts of wine – not enough to get drunk, but enough to get over the first awkwardness. Did they drink white wine or red wine? Several years later, the man cannot remember these details. The man is just tipsy enough not to pull away when his knee touches that of B under the table. B is a little giggly when the man drops him off outside his flat in Vredehoek. They kiss hurriedly – like teenagers on a fist date – and this too, goes well. A second date is on the cards.
Having gotten this far, I am not sure how to proceed with my story. It is still a problem of where to start, of how to structure my story, of what to reveal and what to keep to myself. Do I even remember these events relatively accurately? Do I have to stick to the facts – as if this is a legal document? Or can I lie to get to another kind of truth? How do I present my case to you, my jury, without sounding too self-indulgent or narcissistic? How do I elicit a sympathetic verdict and why do I care? How do I write a story without it sounding like an article published in the South African Law Journal – which, let’s face it, is not really a publication read for laughs.
Only the most formalistic lawyer will deny the fact that legal “cases are decided not only on their legal merits but on the artfulness of an attorney’s narrative” presented to the court. Does life not imitate the law in this regard? I recall reading an article by Robert Cover – not his famous article which starts with such a bang: “Legal interpretation takes place in a field of pain and death.” – no, not that one, but rather another article published in the Harvard Law Review about narrative, meaning and the law in which Cover wrote:
“We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. … No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”
The story could also begin at an altogether safer, more familiar, place. The man is standing in front of a class of 250 students at the University of Western Cape. He is teaching students about the right of gays and lesbians not be discriminated against, protected in the South Africa’s Bill of Rights. This happens several years before he went on a date with B, during an altogether happier time.
A short chubby woman with protruding teeth – one of the talkers in the class who, many years later, would bombard the man with a string of Facebook messages, asks whether you can reconcile the Constitution and the Bible. “The Bible is mos a mess about gay rights,” she laughs. Whatever happened to this student? In the Facebook messages the man later receives the former student suggests that she had lost her job as part of an unnamed conspiracy aimed at her because she has become a reborn Christian. “I know you will find this strange but God speaks to me in visions,” she writes on Facebook.
But that is far into the future. In class, the man proceeds with some delicacy. The majority of students do not support the prohibition of discrimination against gays and lesbians. “So you want to discriminate against me,” the man laughs. “If I did not know you better I would feel offended.” He flashes a smile. “And let me tell you, my boyfriend is not going to like this.” A snigger runs through the class. Another smartly dressed woman with long braids – the one who approached him early in the year, wetted her middle finger and tried to rub off the beauty spot from his left cheek – speaks up. “If the law prohibits discrimination it does not prevent anyone here from believing what they want to believe.”
“Let me ask a different question,” the man laughs. “Is it acceptable to discriminate against someone because, for whatever reason, you do not like that person?” A murmur runs through the class. A man with rosy cheeks and a goatee pipes up: “If you fail me because you don’t like me I will really be pissed off.” Everybody laughs. Nothing like some swearing in class to liven things up. It is time for the quote from the Constitutional Court judgment in Hoffmann v SAA. It is the case of the SAA who claimed it could not appoint Mr Hoffmann as an air steward because he was HIV positive and because their clients would not fly with SAA if it employed HIV positive staff. The man loves the quote. He tells the students it encapsulates all that is good about South Africa’s Constitutional Court and, for once, he says it without any irony.
“We must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests…. Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.”
I am stuck again. I used to quote that passage from the Hoffmann case so easily and with so much joy and pride. Now it sounds a bit cheesy. I open the Safari browser on my laptop and start searching Google Scholar and the Taylor and Francis electronic database for academic papers and books on how to tell a story of shame and loss and internalised stigma. During this search I chance upon Jerome Bruner’s book Making Stories: Law, Literature and Life. Bruner also writes about the way in which the law – like our lives – is about the telling of stories, about arranging facts in a manner that appeals to a judge (or, in the US context, a jury). A storyteller – like a lawyer presenting a case – needs to decide what to include and what to leave out. But what strikes me with some force is the following passage from his book: “Stories are surely not innocent: they always have a message, most often so well concealed the teller knows not what axe he may be grinding.” Is this story, then, about an axe I still have to grind with B? Or is it really about my fury at M, who, in the months before he left me, could not look me in the eye when we had sex? Or – dare I ask this? – is this story really about the axe I still have to grind with myself?
The story could also begin on a Sunday morning on a sunny day in January – 18 months before the man met B – in the front room of the house the man shares with M in Sea Point. The man nervously wipes the sleep from his eyes. Or maybe he is just fidgeting with his hands because he is anxious about what is to come. The smell of shit from his most recent bout of diarrhoea lingers on his fingertips. He wonders whether M can smell the shit from where he is perched on the armrest of the chair nearest the door, ready to flee to freedom. M, the man’s partner of 9 years, is uneasily fidgeting with his cell phone. He is wearing the yellow and green havianas the man brought back from a recent trip to South America. M has the habit of placing his hand in front of his mouth when he laughs in order to hide his protruding teeth. A few years before on their way to Grahamstown for the Arts festival a petrol attendant in Graaf Reinette told M that he looked like the Brazilian soccer star Ronaldinjo – although he did not call him Ronaldinjo but tandjies. M is not in the mood to laugh this morning. His left leg bops up and down as he speaks. “I can’t go on like this,” M says “because of what you have done to me. Because of everything”. A classic case of: it’s not me, it’s you. M stares out of the window towards the frangipani tree in full bloom, studiously avoiding eye contact. Maybe he is not staring at the frangipani tree but at something else. In any case, M is definitely not looking the man in the eye when he speaks. At least M is embarrassed. But probably not because he had to reach for a cliché to finally say the words which for the past three months have been hovering in the air, just this side of being spoken. There are no tears. The man jumps up from the couch and rushes past M. “Sorry,” he says, then dashes to the toilet to deal with another bout of diarrhoea.
Only several months later M would tell him about the love letters M wrote three years previously to a communal friend living in London. And it would be another year before M would phone him on a bright morning on new years day, teary and incoherent, and confess that he, M, had told his friends the previous night while he was high on too much acid and cocaine that he had never loved the man and that the nine year relationship was one more of convenience than emotional commitment. But when exactly was it that the gas heater M demanded for himself during the break-up exploded, gutting M’s new apartment in the ensuing fire? And when did the man’s oldest friend, hearing of M’s calamity, joke that the fire was to be expected “Dit wys jou net”, (It just goes to show) “Want God slaap mos nie” (Because God does not sleep).
I return to Bruner’s book on law and literature. Perhaps I can find an appropriate quote to cloak my sad and self indulgent story in a somewhat more intellectual garb. Bruner writes that “A self is probably the most impressive work of art we ever produce, surely the most intricate. For we create not only one self-making story, but many of them…. The job is to get them all into one identity, and to get them lined up over time… [It] is not only who and what we are that we want to get straight but who and what we might have been, given the constraints that memory and culture impose on us, constraints of which we are often unaware.” But a self is now conseptualised as a fragmented, ambiguous and ever changing cultural construct. Who you are is forever being created by power relationships over which you have no control. “Autobiography, then, is not a genre or a mode, but a figure of reading or understanding that occurs, to some degree, in all texts.” The self becomes a storyteller. Which is no longer a demeaning term, not someone who tells lies but who creates the self.
Every Sunday afternoon the man turns the house in Sea Point over to the estate agent while he wanders in a haze on the promenade. He returns home with only a vague memory of the afternoons. The taste of regret in his mouth. The house quiet and empty. The “For Sale” sign on the front gate telling its own story. The bare stubby branches of the frangipani tree casting melancholy shadows over the stoep. Not, it must be said, that the man would have noticed the frangipani at this stage of his life. He hardly notices anything not directly linked to his misfortune.
The man invites B for dinner at the house. B does not have a car, so the man drives to B’s flat to pick him up. B is carrying a small stylish leather bag. The man imagines it contains a toothbrush and a pair of clean underwear and socks. B is talkative. He keeps on touching the man’s arm. He throws his head back and laughs. The man pours wine, fries two pieces of steak in the kitchen while B perches on the marble counter top, his colourful socks peeking from beneath his skinny black jeans. The man pours himself another glass of wine. He only half listens to the story B is telling him. In his head he is rehearsing his speech. The man lights the candles. The blood oozes from the pink meat onto their white plates. He dishes up the salad and smiles vaguely while B starts telling a complicated story about how he went to watch the Oscar awards ceremony at a friend’s house and spilt red wine on the white sofa. The man is too preoccupied to wonder who the hell is stupid enough to serve red wine to a half drunk friend sitting on a white sofa. When B is finally silent, chewing on a piece of steak, the man takes the gap. Stuttering, his sweaty hands clutching the cutlery, he tells B that he is HIV positive. Before he can talk about ARV’s and how it saved his life, B shakes his head. Is he crying? No he is just shaking his head from side to side as if to shake off the words just spoken. “I cannot deal with this,” B says. “How can you do this to me?”
In another story, a story not more or less committed to the facts, in other words a supposedly less legal kind of narrative, he would have flicked the glass of wine (and it would have been red wine) into B’s face. Or he would have taken his plate of food and turned it over on B’s lap, B’s white pants stained bloody red by the juices from the steak. Or he would have plunged the steak knife into B’s right hand, pinning the hand to the table, blood spurting over the white tablecloth while B squeals in pain.
But in THIS story, in the narrative of what actually happened, he smiles at B and says. “I understand.” He comforts B with more empty words, careful that their hands or knees do not touch. He smiles encouragingly and nods and nods like an interviewer on a current affairs TV programme signalling interest in what her guest is saying. Eventually he drives B home. In front of B’s flat, he waits in silence as B clutches his leather bag in the hand that remains whole, unstabbed, before fleeing up the stairs of the Art Deco block of flats. Even when he drives home he is not angry with B. He dumps the half eaten bloody steaks into the rubbish bin, pours the glasses of half drunk wine into the sink, and packs away the candles. Later, after brushing his teeth, he sends B a text message. “Hope you are ok?” It is more than a year later before he sees B again.
I am not sure what the common script is for the kind of story I wish to tell. I am used to writing legal articles in which you have to spell things out, in which there must be a clear beginning, middle and an end. In my world the things I write about are supposed to be logical and to make sense. I again turn to Cover. Maybe there is help there.
The various genres of narrative – history, fiction, tragedy, comedy – are alike in their being the account of states of affairs affected by a normative force field. To live in a legal world requires that one know not only the precepts, but also their connections to possible and plausible states of affairs. It requires that one integrate not only the “is” and the “ought,” but the “is,” the “ought,” and the “what might be.” Narrative so integrates these domains. Narratives are models through which we study and experience transformations that result when a given simplified state of affairs is made to pass through the force field of a similarly simplified set of norms. The intelligibility of normative behavior inheres in the communal character of the narratives that provide the context of that behavior. Any person who lived an entirely idiosyncratic normative life would be quite mad. The part that you or I choose to play may be singular, but the fact that we can locate it in a common “script” renders it “sane” – a warrant that we share a nomos.”
It’s a year after the man last spoke to B. The man joins his friends to watch Ms Vanilla Von Teese performing her drag show at Bubbles Bar in Green Point. At the crowded bar, waiting to buy drinks for his friends from the beautiful barman whose bare lean torso is covered in glitter, B taps the man on the shoulder. “Hi,” says B, smiling sheepishly. He is wearing new glasses with modern lightweight frames. B is dressed smartly, a thin black tie matches his black jacket with thin lapels. The man nods stiffly towards B, but does not smile. Or if he smiles, so he imagines, it is not a warm and inviting smile. Then he turns back to the barman and orders drinks. To B he says nothing.
It is more than a week later that he receives a Facebook message from B. It contains only three words. “I am sorry.” If this was another story, not one hewing close to the truth, or at least close to the facts, the man would have deleted the messages without responding. Or it would have ended with the man replying with an eloquent message lecturing B about his prejudice and the ability of prejudice to devastate others. But the man knows how this story ends. It ends with him replying to the Facebook message with a one word message of his own. “Thanks!” It is only several weeks after sending that message that the man wonders for the first time why he attached a friendly exclamation mark and – for gods sake – a smiley face, to the end of that “Thanks!”BACK TO TOP