Law-Life: Colonialism and the Flows of the Political by Petrus Terblanche Delport 26046424 A dissertation submitted in fulfilment of the requirements for the degree Magister Artium (Philosophy) In the Department of Philosophy at the UNIVERSITY OF PRETORIA FACULTY OF HUMANITIES SUPERVISOR: Prof. Ulrike Kistner CO-SUPERVISORS: Prof. Reingard Nethersole, Prof. Karin van Marle March 2017 © University of Pretoria DEDICATION Forever to Cherise Botha; forever and always. PAD and JD, for the impulse to enquiry. 1 © University of Pretoria PLAGIARISM DECLARATION I declare that the dissertation, Law-Life: Colonialism and the Flows of the Political, which I hereby submit for the degree Magister Artium (Philosophy) at the University of Pretoria, is my own work and has not previously been submitted by me for a degree at this or any other tertiary institution. 2 © University of Pretoria ABSTRACT In the Constitutional Court case of Mazibuko and Others v The City of Johannesburg and Others CCT 39/09 [2009], a case dealing with the question of access to water, the presiding judge, Kate O’Regan CJ, makes the following opening remarks to the judgment: ‘Water is life. Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising then that our Constitution entrenches the right of access to water’. My aim in this dissertation is to investigate the couplet of law-life and the political in the Constitutional Court case of Mazibuko and Others v The City of Johannesburg and Others. The case stands as an exemplar of the intersection of life and the political by virtue of its focus on socio-economic rights, specifically the right of access to water enshrined in the Constitution. The history of the case, the jurisprudence employed by the courts, and the responses and critiques to the Mazibuko case add to the problematics to be investigated here. What would it entail if the couplet of law-life would be brought to the concept of the political? It would mean interrogating how life and law is constructed by the political and not merely how the political manages and regulates life through law. If life is considered to be a matter of bare necessities, or mere biological life, there would not be a need to consider the question of the political relation to life; it could be delegated, as it has practically been, to technocratic governmental policy. Bringing the political to questions of life would reveal how the political implicates life in its constituting moment. In this dissertation, I will explore how the political could be brought to the couplet of law-life, focusing particularly focus on socio-economic rights, international law, colonialism, and constitution making. KEYWORDS: Colonialism, life, law, socio-economic rights, constitution, critique, the political, water, human rights. 3 © University of Pretoria ACKNOWLEDGMENTS First and foremost, I want to thank Professor Ulrike Kistner, who taught me so much more than what is written on these pages and did so much more than what is required, or even asked. It has been a long journey with, what I believe, a requisite amount of disagreements and frustrations – perhaps more for Prof of the latter and myself of the former. What Prof. Kistner taught me is how to think critically, judge cautiously, read widely and historicise properly; Prof. Kistner taught me a disposition, an approach. Thank you. I want to thank Professor Reingard Nethersole for showing me that philosophers are also allowed to think for themselves, not just think about what others wrote. Professor Karin van Marle for guidance and support intellectually and professionally and for welcoming me into the Department of Jurisprudence for discussions, lectures and fierce debates. I want to express my deepest gratitude to Professor Mogobe Ramose for his time and patience with a young and excitable philosopher and for setting an example of how to live a good life in a bad world. To my mother and father, for choosing to bring me into this life during these times. But more than that, for home always being a place to go to when these times are too much to bear. Freud teaches us that our childhood enquiries from our later intellectual pursuits, and my pathologies seem suitable in this case. Thank you for the support, love and devotion. It is difficult to thank a person that has been there since the very beginning. Since the first day I set my foot in a philosophy class, to tearing up criminology textbooks, drinking cheap wine in a makeshift room, to completing a Master’s degree: thank you Cherise Botha for always being there. You are my ally, friend, and the most insightful person I know. During a journey as long as this one, many people enter and exit one’s life and all of them have an influence in one way or another. One of the more important and influential aspects of my journey thus far was my joining the Department of Philosophy, Practical and Systematic Theology at the University of South Africa. It is a great honour and privilege to be a part of this department and I have benefitted 4 © University of Pretoria greatly from the opportunities that this has afforded me. I owe a great amount of gratitude to Professor Rothney Tshaka, for taking a chance on a lowly philosopher and welcoming me into the department of choice. I was lucky to have many friends and colleagues that I met and was able to benefit from in discussions and much more. To all my friends that assisted in many ways in the process of this dissertation: Melusi Mbatha, Tshepo Lephakga, Mofenyi Mataboge, Guguraj Mbatha, Molora Mabheba, Bra Steve Lebelo, Thabang Dladla, Benjamin Saggaci, Joel Modiri, Derek Hook, BB Senokoane Ziyana Lategan, Quraysha Ishmael Sooliman, Neil Eccles, Michael Cloete, Rudi van Rensburg, thank you very much Finally, I want to specifically thank Ndumiso Dladla, with whom I discovered the real object of philosophical study: life itself. During the research for this project I benefitted from the funding of the National Research Foundation as well as the University of Pretoria’s post-graduate bursary fund. 5 © University of Pretoria TABLE OF CONTENTS PLAGIARISM DECLARATION .................................................................................. 2 ABSTRACT ................................................................................................................... 3 ACKNOWLEDGMENTS ............................................................................................. 4 TABLE OF CONTENTS ............................................................................................... 6 INTRODUCTION ......................................................................................................... 8 Summary of chapters ............................................................................................... 15 CHAPTER 1: A CASE TO ANSWER ........................................................................ 19 Introduction .............................................................................................................. 19 The case ................................................................................................................... 20 Water, water nowhere .......................................................................................... 20 Prepaid survival ................................................................................................... 25 Interpretations of the case, the law, and the Constitution ........................................ 31 The limits of the law ............................................................................................. 32 Law’s utility ......................................................................................................... 36 Another world is possible (AWP)? ....................................................................... 38 Conclusion: Towards the past .................................................................................. 43 CHAPTER 2: A PARADOXICAL RULE .................................................................. 45 Introduction ................................ .............................................................................. 45 International constitutionalism ................................................................................. 47 Transformative entitlements of a Human Rights state ......................................... 47 New jurisdictions of the old ................................................................................. 50 Global thinking ........................................................................................................ 53 International(isation) of law / The nomos of the earth ........................................ 53 Vitoria’s law ......................................................................................................... 57 Lawfare and the paradox of conquest .................................................................. 61 6 © University of Pretoria Conclusion: The historical present ........................................................................... 64 CHAPTER 3: LIQUID CAPITALISM, FLUID IMPERIALISM ............................... 67 Introduction .............................................................................................................. 67 Colonialisms and civil society ................................................................................. 68 Rule/s ......................................................................................................................