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Pretoria Student Law Review (2018) 12 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: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za ISSN: 1998-0280 © 2018 TABLE OF CONTENTS Editors’ note vi By Jurgen Zwecker 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 Lobola culture and the equality of women in Zimbabwe 112 By Priccilar Vengesayi 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 in Commissioner 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 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 Zwecker Managing editor 2018 vi NOTE ON CONTRIBUTIONS We invite all students to submit material for the eleventh edition of the Pretoria 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: [email protected] 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 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. 1 Precarious life Judith Butler in her work Precarious life. The powers of mourning and violence published 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 two points of departure for political life.’1 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 of Precarious life is the rise of censorship and anti-intellectualism in the US after September 11.2 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. * 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. 1J Butler Precarious life. The powers of mourning and violence (2004) xii. 2 As above 1-18. 1 2 Precarious 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 used the term the ‘banality of evil’ to describe him.3 As Young-Bruehl notes, Arendt regarded Eichman as a ‘superficial person, thoroughly conformist to his thoroughly banal society, with no independent sense of responsibility.’4 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 ability to think.’5 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.
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