Friday, January 20, 2017

A considered reply to a ‘Plight of a Black Law Graduate’ who spent unlucky years seeking after articles of clerkship.

A considered reply to a ‘Plight of a Black Law Graduate’ who spent unlucky years seeking after articles of clerkship.

Law is a difficult profession. It requires an excellent memory, near perfect comprehension skills, an ability to deal with clients and opponents, and a good knowledge of several languages, and at the very least, a passing knowledge of English and Afrikaans, the languages most cases are written in, and in which the courts conduct their business.

South Africa has 11 official languages, practically speaking, this means that anyone can go to court and have their testimony translated into English or Afrikaans from these languages. However, the languages of the courts in South Africa are only the two aforementioned tongues.

In Britain, court was conducted in Norman French for many years. It is where the term attorney (appointed) comes from, and it also largely limited the profession to the upper classes who could speak Norman. You might have heard the classic ‘ey’ sound with which the British pronounce French words. This comes from Norman French. While conducting trials in French, the British courts would use Latin as the language of record. Most legal concepts have thus been rendered in multiple languages: Peace and quiet; Breaking and Entering; and so forth.

In South Africa, Latin, Dutch, Afrikaans and English, are the essential languages of legal discourse. While I write, I have a trilingual legal dictionary sitting next to me. It is that important to be prepared.

A misplaced comma can and has cost millions of dollars in legal cases, and contract work. A misspelling in a will or legal letter can be catastrophic. Law is a profession which takes no prisoners, and which vastly favours suitors from the upper class, and with elite private school education and accents. I, like many in my profession, speak Cultivated South African English, or Received South African English, a dialect almost identical to the Received English spoken by the British nobility. It is a widely-understood accent, and research shows that speaking clearly and being easy to understand, makes people believe you are more likely to be telling the truth.

I spend tens of thousands of Rands a year on up to date legal literature, precedents and so forth, and I have a wardrobe including bespoke suits of the required type for court, and robes which are quite literally the funeral wear of the semi-wealthy of the Holy Roman Empire. If I make an error, I have sworn an oath, and thus can be sued for my negligence, as can my firm. Law takes no prisoners as a profession. It has to be so.

As LAWSA puts it:

'The Emperors Leo and Anthemius in their advice to Callicrates, praetorian prefect of Illyria, stated in the year 469 AD: “Advocates who explain ambiguous questions which arise in the course of litigation, and who, by the ability of their defence, frequently, in both private and public matters, restore the fortunes of those who have been ruined, are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds. For We, do not think that those who are equipped as soldiers with swords, shields and cuirasses should be considered the only ones who protect our Empire, but that the advocates, also, who have charge of cases contend as soldiers and, trusting in the glorious power of eloquence, protect the hopes, the lives, and the children of those who are distressed.”' (Law of South Africa, Volume 14(2) - Second Edition Volume, Legal Practitioners, Advocates, General, paragraph 112).

In South Africa, there are two education systems, one which some White South Africans, and many Black South Africans, have for years slaved to keep their children in, that of the IEB private schools, and the other provided by the government. Despite not speaking English or Afrikaans at home, if a student wants to pass matric, it must be in English or Afrikaans, no matter which government school they attend. There are arguments about whether the local languages are developed enough to accommodate advanced English and Afrikaans concepts, however, loan words would likely suffice in that area, the diktat is more policy than anything else.

Even if students were not learning in languages not their own, they still receive vastly inferior education in most government schools, where educators likewise are hired to fulfil quotas rather than on merit, and where teachers are vastly underpaid as is. Students are taught in English by teachers who themselves struggle to articulate in the language, and standards of learning are also affected by a void in resources, and underinvestment in the future of students, never mind a lack of nutrition, and the fact many students miss out on early learning prior to school, which is shown to bridge the recorded IQ gap between rich and poor (which can also be bridged by better nutrient intake and by reducing stress levels by either exercise prior to classes, or by enhanced policing to create a safe environment).

Universities are instructed by the government to essentially engage in practises akin to usury. They accept students by the droves into university, who they know cannot afford to pay fees, and won’t afford annual increases. These students often have to work part-time, affecting academic performance, and also have the struggle that comes with the added stress of not being able to afford their fees. Universities have introduced tutorials, and have continuously dumbed down the teaching of law as a result, but even then, the students able to access the law as it really is are often those able to afford textbooks, again those from the upper classes.

I often found that many of my lecturers at the University of the Witwatersrand Oliver Schreiner Law School themselves did not understand their subjects, and struggled with the English language. I would tend in those classes to take typed notes from other students, with different lecturers, with the money to buy laptops, and exchange my own typed notes in barter. Plagiarism and misunderstanding of English continued to be a mainstay for many students, right through to final year. Students were unable to do basic referencing, which IEB students were taught in school.

A famous law graduate and one who also gained a postgraduate degree in Oxford, is Ntokozo Qwabe, who worked as a checkout clerk at Checkers while making his way through law school. Besides the racist, anti-British, anti-French and anti-White rants which made him an international laughing stock at Oriel College and beyond, he struggles with basic spelling and grammar. He still cannot spell the word ‘Africa’, which he spells as ‘Afrika’. I tended to be someone other students let read their essays after we’d submitted them. I remember one Constitutional law lecturer giving me a something like a 0% for a well-researched essay, while one which was poorly reasoned and full of spelling, grammar and other mistakes but written by a student of the right colour, was given high marks. Because I got such high marks on multiple choice and in the final exam, I still passed the subject with high marks, but it shocked me that my fellow student also passed. Their level of argument would have gained them a failure even at high school level in the tougher syllabus of the IEB. Yet, that was enough for them to pass, in a profession based on argument and language.

As I have shown before, one of the reasons that Black advocates are often not briefed has nothing to do with their merit and ability, and everything to do with the universities’ policy of pushing through law graduates who cannot write or speak effectively in either of the languages of the courts, and the BEE program which prioritises race, not ability. White students who get into university, achieve this despite their skin colour, and those who graduate are sure to experience discrimination against them by lecturers, and to still succeed.

This also applies to pupillage, if you are not Black, then you had better prove why you deserve it or you are out. Having very lax standards for people of one race, and extremely high standards for those of another, can force those of the other to try harder.

The best chefs are often male, precisely because the system opposes them, as with many fashion designers. When Rome put unliveable demands on the Phoenicians, they upped their game and tried harder. While the Black lawyers and advocates I know are top notch, those who are there purely due to their skin colour have poisoned the well for everyone.

I have often had to defend fellow lawyers who happen to be Black, for instance, on Facebook, where their fellow Black South African friends say they would not hire them because Black lawyers are not as good. I tend to respond and say ‘so-and-so’ is just as good as any White lawyer.

Jacob Bongani Hlongwane, writing in golegal.co.za airs a letter (namely 'Plight Of A Black Law Graduate' [Which should properly be titled: 'Plight of a Black Law Graduate'], 5 April 2016) which he received from a reader of that publication, a nameless Black law graduate who had been attempting to gain articles of clerkship for two years at the time of writing. I think it is important, as it expresses incorrect and career limiting views which are often silently held.

Nameless, as we shall name him, has had it rough. He has been out of law school for two years and he hasn’t been afforded articles of clerkship. He cannot speak any Afrikaans, does not own a car, and says he cannot live on a R 3 000.00 a month intern salary. He sees all of these as structural obstacles designed to keep Black graduates out of the system.

My Afrikaans is far from perfect, but many important cases have been in Afrikaans, and I have often dealt with matters where everything important was written and communicated in Afrikaans. Asking that prospective attorneys be able to speak the two main languages of the legal profession, is not much to ask, and is logical.

Nameless specifically writes: ‘I stand corrected, but legal practice [sic, though I will not note his mistakes from here-on-out as there are many] is mostly concluded in English and thus it begs answers as to why the requirement to be able to speak Afrikaans, if a law firm’s clientele comprises of Afrikaans speaking individuals, I doubt it follows that they cannot speak English, thus rendering the Afrikaans requirement suspect and exclusionary.'

Yes, most Afrikaans people can speak English, but if a significant portion of clientele of a firm is Afrikaans, it makes sense for the firm to want their candidate attorneys to communicate with clients, to be able to read case notes and emails from clients, and to be able to conduct business as such. Also, pleadings and case matters are allowed to be in Afrikaans, and that candidate attorney would thus likely receive both correspondence from opponents in the language, and pleadings in it.

He goes on to say, again showing a very poor understanding of English: ‘The meagre salaries offered to candidate attorneys can be deemed exploitative at best and downright tantamount to slavery at worst. With a candidate attorney earning as less as three thousand rands per month.’

Which tells me that he has either not gained many responses, or has not looked at jobs websites, or has not sent his CV to many firms. In some parts of the country, candidate attorneys are paid low amounts like that, and sometimes attorneys can only afford that, but generally speaking, candidate attorneys are paid between R 5 000.00 and R 30 000.00 for their services.

In Johannesburg, candidate attorney positions are hardly ever advertised, that’s more of a Pretoria thing. If you want a position as a candidate attorney, it is best to get a copy of Horters, or download the contact details for attorneys in your area on the website of the local law society, and start mass mailing or e-mailing out your CV and letter of introduction. Such should be in PDF format, entirely free from any spelling or grammar errors, and should flow and read easily. Any spelling or grammar error, and firms tend to toss your CV in the trash. In the current competitive environment a candidate attorney aspirant should probably send their CV to at least 300 firms, which should get a good candidate an interview for every few dozen firms sent to.

Nameless has been without articles for two years and is working elsewhere in a non-legal position. In fact, he says: ‘An LLB degree without admission is worthless, legally impotent.’ This not only shows his poor understanding of words such as ‘legally’, but also shows his deep misunderstanding of the legal profession.

His misconception is unsurprising, as Nameless, despite his poor grammar and incorrect interpretation of what a lawyer is, and of articles, says quite clearly: ‘'When one studies towards an LLB the aim is mostly to become a lawyer. Either through articles to get admitted as an attorney two years later or serve pupillage and get admitted as an advocate a year later.'’

A lawyer is not just an attorney or an advocate. There are many legal jobs, from that of a compliance officer, to that of a legal adviser in a big company, to that of paralegal or legal secretary, to that of any number of positions. Most of these positions are filled by Black candidates, given companies’ needs to comply with BEE legislation which mandates discrimination. However, many of my White colleagues have gone that route with success. An LLB is also a shoe in to many non-legal jobs given the prestige associated with it, and can stead one well in management and upper level positions.

Many students, myself included, way back when I was a student, got out of university, and instantly signed up for practical legal training at the School for Legal Practice, which took a year off of our articles and better prepared us for the profession, as compared to those who went straight to applying for articles of clerkship. From there, we applied for positions and quickly got offers.

Nameless, in his despair, adds: ‘Here is the deal breaker, most law firms, whom I apply to on a daily basis, require an LLB Graduate to have own transport. Now, this is a deal breaker with a potential employer but then how do you begin to expect someone, a Black child, straight out of University to own a car? One can barely make ends meet and you are expected to own a car to be even considered for a shortlist.’

Own transport does not necessarily need to be a car, it can be a motorcycle, etc. The fact is, many candidate attorneys are required to act as messengers, serve, file, arrive at courts timeously and predictably, and to even be involved in evictions, etc. Without reliable, efficient, transport you cannot do the job of the average candidate attorney. It is of course possible to be a candidate attorney and not own or rent a vehicle, I know many who are in just that predicament. They use public transport to get by, and take the bus or taxi to and from courts etc. It is possible, but it is a whole lot more difficult.

Nameless further notes: ‘Then there is an issue of serving pupillage, which mind you is far more difficult to secure than articles. The paralyzing prospect of doing pupillage for a year without any monetary compensation during the course of training is a deterrent for Black graduates to even apply, given our harsh economic conditions compared to our White counterparts, who can make do without a salary for that period owing to a secure financial background.’

Nameless seems unaware that he can apply for financial assistance during pupillage, and also seems unaware of the fact that pupillage is for people who have already been admitted as an advocate by the courts of law, and is really about joining the bar and then hopefully getting admission to a group of advocates. He also seems to be unaware that not all White people are wealthy. I know of enough impoverished Whites who worked their way through law school and are now admitted attorneys or advocates, or working in corporates. This sort of skewed logic does not bode well for someone attempting to enter a field based upon logical argument.

One of Nameless’s final remarks is: ‘The reality with Black and White graduates is that we are not the same and are treated equal in recruitment. Equal treatment of unequal people heightens inequality.’ I disagree with him, I believe many Black South Africans are as much a catch in the job market as many White South Africans. Many have faced his similar challenges and succeeded. No one owes him a handout, where they should be forced to take what he sees as an inferior candidate instead of someone capable of doing the job. Inequality is solved not by treating lesser candidates as greater simply because of their race. It is solved by making them equal through better education, and poverty ameliorating programs.

Then again nameless begins his letter by writing: ‘I bemoan the lack of transformation in the judiciary. We constantly read about the White and male dominated industry and skewed briefing patterns to the exclusion of Black Counsel. At the root cause of this is the inherent structural inequality that exists from day one of entering law School.’

Another use of an LLB besides becoming an attorney or advocate or assuming countless other roles, is to apply to become a judge or magistrate. Many of Nameless’s colleagues have, and they sit in various courts around the country. Granted, it used to be attorneys or advocates who became judges, and these had to be top professionals; this is no longer the case. If nameless wants to become a judge, there is very little standing in his way.

My experience when I stand or sit in court, is that most of the attorneys and advocates present aren’t White. Yes, the few White students who got top marks in school, allowing them into university despite their skin colour, and who either made a plan, or had family money to get them through varsity, despite every obstacle thrown in their way by government, often tend to get jobs. However, this is not due to unjust discrimination, though the skewing of the statistics tends to be. If White matriculants had an equal playing field, in getting into university, in being allowed to pass, in so much else, then you would likely see just as many drop out, etc. As it is, just getting to the level of graduate as a White South African, is a mountain to climb. Lesser White students, those in poverty, those who might not make it, are mostly weeded out long before first year of university, and if not, they struggle to make it through, given a system designed to exclude them and to make them fail.

My advice to Nameless is to look into what he is sending to law firms, into what his CV says, and then to send out his CV to hundreds of firms. He is sure to find something, the law itself demands discrimination against the White graduates he dislikes so much, and persistence will do him well. If his letter is anything to judge by, he might want to have someone proficient in English write his CV for him. His letter is full of inaccuracies and mistakes, and his misuse of idiom clearly marks him out as lacking proficiency.

Whether he is of a standard to ‘restore the fortunes of those who have been ruined, [as a member of a class of champions that] are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds’ or not, however, is a different story. Far harder than getting articles of clerkship, or into pupillage, is completing such, and passing the four board exams, and passing muster for a court to actually order that you be made an attorney etc. Even then, many attorneys struggle to find employment. They are after all in a profession where they have to compete against others in court and elsewhere, and which is not kind to the weak stomached, or incapable. Attorneys who make it in practice tend to be even matched warriors of a high calibre. He could gain that ability on the job or through further education, but if he cannot be his own champion, he will struggle to find it in himself to fight for others. Many candidate attorneys never become attorneys.

There are many highly able Black professionals who enter the attorney’s profession and flourish. However, those are not the ones who were pushed through school and university without being able to spell the word ‘Afrika’ correctly. They are the ones who really deserve their positions, and given that lawyers are the buffer which preserves our democracy, it is important that they be up to standard.

The profession of attorney, after all, has its origin in the profession of champion, of those who physically fought on behalf of others. Nameless needs to abandon his comfortable safe space, and get into the fray. The meek may inherit the earth, but they don’t become attorneys. And until he puts his best foot forward, Nameless will remain a nameless figure among the meek. And yes, it is acceptable English grammar to start a sentence with ‘and’, I blame South Africa’s education system if you weren’t aware of that, just as I blame it for the predicaments of Nameless, who genuinely seems to believe a law degree should be a ticket to success, rather than a weapon to be wielded to gain a much sort after prize.

Friday, December 16, 2016

Potent anticipation

There is a power in want, in anticipation, which many have lost to that which is instant. We are taught to live in the very moment, not to worry, or hope, or long for too much. We are taught to want and have more and quickly consume it. There is a power in the opposite of this.

Perhaps I should use the example of foreplay.

Two strangers meet in a bar, they rent a hotel room and have sex. They never speak again. Touch your soul?

What about this? (And don't worry, those who don't read naughty novels, there will be nothing you need to confess to your wise elderly priest on a Saturday afternoon.)

Two strangers subtly eyed each other across the room. It is a boutique coffee shop, where they have now met. They furtively glanced and quickly looked away, until they furtively glanced and looked away at the same time. Over six months, they frequent the same expensive provider of unexpected thrills and caffeine, sometimes coinciding with one another, sometimes not. He longs for her voice, the smell of her hair, the touch of her heat. On the seventh month, they are in the line together, and for the first time, they speak. Her hair is an ocean breeze, her touch is soft and silky, and oh, her heat of her skin upon his. Their hands touch, and just don't move away. They have coffee together, and hope it is more than a physical thing. His eyes glint and glitter as he speaks, his red lips are newly scarred with bite marks as he nervously whispers to her, biting his lips in a new anticipation. Bit by bit, they slowly, cautiously discover it is more than lust, more than a thing of the merely physical, but even the physical, they cannot yet handle. They don't kiss, yet. What if anticipation isn't met, what if the kiss isn't what it could be? He'd been lucky when her hair was an ocean breeze, when her heat was gratifying and her skin so silky, silky smooth. What if the kiss wasn't all that? His worry consumed him.

They text and chat over the telephone at all hours, he craves her soft, light voice, she longs for the depth of his, a tsunami of force overcoming her. Eight months in, they share a subtle, single kiss. His lips brush softly against hers, and that is it, though for hours later, they remain back in that moment. A few years later, they marry, they have been through fights, and challenges, and love every detail about each other. But they fear the intimacy, and don't do anything on their wedding night. Weeks later, they are at a restaurant enjoying wine. The wine is heavy in its smell, and as it swirls about in their mouths, hitting each taste centre, it slightly dulls their senses and inhibitions.

At their small, cosy cottage, they lie together on the couch, heartbeat against heartbeat, warmth encompassing warmth. He kisses the top of her head, then slowly moves down to her forehead, her nose, her mouth, all of her, but her sensitive areas, and with a slow urgency about it. They kiss for twenty minutes, before heading gradually towards the bedroom door. He has lit scented candles, her favourite scents, and she wears the lingerie she knows he finds most delightful, yet classy. Shortly after crossing the threshold, anticipation becomes sumptuous reality, and after it, they cuddle, and fall asleep in one another's arms. As the morning light peeps through the curtains, together, and in love, they lay fast asleep, anticipation didn't exceed reality, and what worry there was has faded.

Which pair would you prefer to be?

What about these four?

She sits down, writes the examination, and passes easily. She knows already she has passed, and is unsurprised when it happens.
He sits down, writes the examination, and unknowingly fails. He wasn't worried at all. The failure is a shock, with massive consequences. He is so shocked by the results, he is unable to study and fails the supplementary, too.
She sits down, writes, fails. She worries about the results until she gets them, and is almost relieved when she realises she did fail. Her worry had her going over all the contents, and she passes a supplementary exam.
He sits down, writes the tough examination, and passes easily. He worries he may have failed, and goes over his work. He wonders right until the mark comes through, and erupts with pleasure when he realises he has passed. Like a rocket reaching orbit, he feels weightless and ecstatic.

Who would you rather be? Is worry that evil, if upon having worried you are better prepared to move on from defeat, and all the more overjoyed at victory?

What about food?

He eats an expensive, well presented meal. The end.

Or:

She sits down slowly in front of the table. In the kitchen, its door near her seat, she smells the subtle hints of flavour, and hears the sizzle of the divine meats. The smells invite her, and draw her in. Before she knows it, she is upon her feet, walking towards the kitchen door. She stops herself and returns to the hard, cold wooden table, and sits before her mat, knives and forks. A starter comes first, a small chocolate thing. She lets the smell overcome her, and holds it up to her nose. She eyes it out, and pushes its texture against her mouth, not eating it, yet. She lets the smell captivate her, until, without realising it, she has nibbled just a little bit off. She swirls it across her mouth, squeezes it, sucks upon its chocolaty veins of pleasure, and lets it rest in her mouth for ages, until it has dissolved. She slowly swallows, and places the morsel against her lips again, until, without knowing it, she has nibbled a small little piece again. Pleasure hits her subconscious and lights up her face. Her scarlet lips move into a slight, then great and potent smile. She giggles and laughs in delight, and releases soft, high sounds of delight. In half an hour, the morsels are all eaten, and she moves happily to the main course.

Meals at the best restaurants are often smaller, but should be enjoyed in the same time as a larger selection of food.

The smell, the texture, the heat, the taste, upon all the senses, is heightened, and heightens the experience. Without hope and dread, without worry and anticipation, what is there left in life, but boredom of a present not hyped up beforehand?

Mindfulness and calm are great things in moments of chaos, but like all things, they should be carefully moderated. Otherwise, life is empty, and achievements are but the void, and the nothingness semblant of unimportant things.

Wednesday, December 14, 2016

Larry Lessig is lying about potentially flipping 20 Donald Trump GOP electoral college voters.

Larry Lessig told Politico that his group, Electors Trust, has been approached by 20 Republican electors for free legal advice on whether or not they can be Faithless Electors and vote for someone other than Donald Trump to be President of the United States of America. Media report that this is half the number of Faithless Electors needed to thwart an electoral college vote for Trump.

So, how likely is he to be telling the truth?

Is there a conflict of interest? Larry Lessig is a former Democrat presidential contender.



For a start, Politico introduces him as not just a Harvard Law professor. University lecturers in the United States of America usually veer to the left of the political spectrum. Barack Obama went to Harvard, before becoming a professor at the University of Chicago. Larry Lessig himself is certainly on the left, having been a Democratic nominee for President at one stage. That stage, being this year, 2016, where he withdrew before the Primaries.

What are the chances of mass faithless electors joining hands?

There have been 157 Faithless Electors in the history of the American nation, a rather small number overall. None has ever been able to change the outcome of an election, and, generally, they did it because their conscience could not countenance a candidate. Three of those 157 abstained from voting at all.

As for what Democrats want Trump voters to do:

'Only 82 electors in history have voted against their state’s popular vote for personal reasons. Another 71 electors have changed their votes after the death of a candidate. None of those instances have ever changed the outcome of an election, according to data compiled by the nonprofit group FairVote. ' Jonathan Easley and Ben Kamisar, 'Electoral College voters under intense pressure', The Hill, 13 December 2016.

However, while Democrats are horrified by Donald Trump, white men, white women, and Republicans, all got out to vote for him. Belief in a party's best interest, and survival, increase generally when a person joins that party's official ranks. Republican electors are just that, Republicans. Even Ted Cruz eventually endorsed Donald Trump, his political career depended on it. Any Republican who votes against a candidate who gained such majorities as Trump did among Republican voters, is committing career suicide. The party has united around their candidate, and voting against the herd when the American people have endorsed their candidate, would be viewed as treason of the highest order.

Conscientious objectors also tend to act as they do in order to follow their conscience with integrity. A Republican whip operation found only one faithless elector who won't be voting for Trump, Texan, Chris Suprun. Suprun, like past conscientious objectors, has publically made his stance known. Suprun lists Megaphone Strategies, a PR firm hounding Republicans to vote against their orders, for queries about his decision. Megaphone Strategies is associated with CNN host, Van Jones, who famously called the last election a 'whitelash'. If their conscience and integrity is so important to them, and if Republicans can't force them to change their vote, why would they lie to the whip operation?

Do the electors not have their own attorneys?

As an attorney, myself, this is the most striking thing. In life changing decisions, when people seek legal advice, they tend to approach their own trusted attorney, assured of his confidentiality, and past assistance. An attorney is like a hairdresser, you tend to keep the one you have. That attorney might then approach experts if there is something they cannot handle on their own. The law on Faithless Electors is rather clear: if a state has no rules against their changing their votes, then they may vote for someone other than the candidate they have chosen. There is no complex legal issue at work.

Larry Lessig doesn't substantiate his claim of 20 Republican electors. How did they contact him? Did he verify it was them and not a prank or activist disinformation attempt. He, himself, has been a liberal activist for decades.

Why would they approach Lessig?

Finally, with the only known Faithless Elector choosing the Van Jones organisation, why on heaven and Earth would the Republican electors chose some obscure law professor with political ambitions to advise them? All twenty of them? Even factoring in the rule of small numbers, that is an oddity, especially as they allegedly asked for free legal advice in an instance where even the average man on the street could tell them the law on the matter, and where their own attorneys certainly could. Republican electors don't tend to be the sort of people who are living from hand to mouth and can't afford a consultation with their own attorney.

Furthermore, one would expect such Republicans to gather around Megaphone Strategies if they were seeking to consolidate.

What if they were to succeed?

If the Faithless Electors succeeded only slightly, then the House of Representatives would elect the president: almost certainly Donald Trump. If Hillary Clinton won the electoral college vote, the Faithless Electors would go from being traitors to being successful traitors. Republicans would destroy their lives. With such a pressure upon the Faithless Electors, it seems unlikely they would risk not voting for Trump.

The electoral college was not created to prevent a tyrant from taking power. It was created because America is a federation of once independent states, which didn't want more populous states taking away their voice in elections. Even if Trump were to become a dictator, or all the Left Wing campaign presents him as, the Electoral College was not given the power to overthrow him or people like those they fear him to be. It is simply an accident of history, which has stuck through the years.

In conclusion, it is very unlikely Lessig is telling the truth. Perhaps 20 Republicans will change their vote, but it is unlikely they would have all approached him.

Thursday, November 24, 2016

Bridging Classes: Fixing the Inequality Divide through Education

Article by Kate Ellis-Cole (Published with the author's permission)

The squeaky wheel gets the grease, as the Americans say. For our #FeesMustFall student protesters, ‘grease’ has come in the form of an additional R17bn for higher education from Higher Education Minister, Blade Nzimande, over the next three years.

While the protesters are within their rights, what some refer to as the most integral education sector – Early Childhood Development (ECD) – is being effectively muted by comparison. Poor foundation phase education lies at the heart of SA’s most harrowing education challenges, like poor literacy and a lack of numeracy aptitude. Yet, there is no identifiable government programme for financing the construction of new ECD facilities. Let alone, upgrading and maintaining existing ECD facilities, and improving general access.

The only hunger that a child should experience is the hunger to learn. But, sadly, South Africa’s children continue to go hungry, and the country’s macro-economic ills continue to push these potential stars further back in the pecking order.

South Africa’s notoriety for being the most unequal society in the world – our gini coefficient hovers at 0.69, with 1 representing a perfectly unequal society – has resulted in our children being disenfranchised. In a no-growth economy, and in a country gripped by extreme social and political turmoil, inequality is an evil that must be vanquished for the good of us all.

Measures of inequality are based on access to basic services, including health care, essential infrastructure, electricity supply, sanitation, and education. However, quality education can scarcely be expected to occur in the presence of enormous lack in the other areas. Poor teacher education, a lack of sanitation and infrastructure, and poor learning resources in rural areas mean that quite aside from the injustice faced by children without access to ECD centres, inequality wreaks havoc even among those rural children who do indeed attend ECD centres.

According to the World Bank, only 30% of South Africa’s black children have dual-parent households, in contrast to 83% of white children. On average, black children are also more likely to have a large number of siblings, live in poorer or informal areas, and are orphaned or part of a child-headed household. There is, of course, also the cataclysmic state of the education system in South Africa, which sees our children’s numeracy and literacy ranking among the lowest in the world. This stems from a flawed ECD phase. It is important to therefore consider statistics published by the World Bank, that show that 60% of South African school leavers do not have a proper matriculation, and those that do pass, do so with an aggregate mark of less than 40%. Low quality education also contributes enormously to unemployment, which in turn proliferates the prevailing inequality.

ECD is the psychological, social and physiological education and care of small children, younger than school-going age. It comprises quality nutrition needed for the healthy development of the child’s brain and musculoskeletal system; social interaction, love and affection; health care and treatment; age-appropriate physical exercise and strengthening; and cognitive and academic opportunities for learning. The South African government and National Development Agency are aware of the need for quality ECD centres, citing scientific studies that prove that the academic abilities of school pupils, students and graduates are enhanced through their involvement in ECD from a young age. But is government playing its role in executing early learner development programmes? Then, there’s the question of whether parents have been educated around the benefits of their children attending ECD centres, before primary school-going age.

One of the reasons that ECD seems unlikely to reach the lofty goal of being universally accessible and equitable by 2030, as set by government, is the restrictive costs of establishment and attendance. Our government provides a miniscule subsidy for indigent children’s education, an amount which scarcely enables attaining even the bare minimum required by legislation to open an ECD centre. This presents an obstacle to the construction of new facilities, upgrading current ones, and improving resources and equipment to better the state of facilities.

Only one third of the children eligible to attend ECD programmes have access to them. And a sore lack of governmental policy is hampering the coordination and integration of ECD into an actionable plan. Established ECD programmes and centres provide economic and social benefit through giving job-seeking parents an opportunity to work away from home, and be stimulated themselves. Add to this, children’s improved proficiency at school, improved intellectual development, better social competency, and higher verbal and intellectual capabilities. In turn, these skills contribute to a stronger workforce and a more productive populace, shrinking the inequality divide.

So, if there’s any squeaking to be done, let it be to project the voice in favour of quality early foundation phase education for our children. While they’re in no position to march to parliament and present a memorandum and demand to be heard, they’re the silent carriers of the unlocked economic potential of SA Inc. The South African government and civil society hold the key to this potential. Why won’t we unlock it – together?

Kate Cole – IQ Business

Wednesday, November 9, 2016

If you studied history, Donald Trump's win would be obvious, not surprising

There's this misperception in parts of the world that we as humanity gradually step forward, towards one goal. I love to read world history, and right now, as always, I am working my way through the complete general history of some or other nation you might not have heard of. It's what I like to do, and it teaches a lot. Nations go on all sorts of journeys, and after all sorts of ideologies. Donald Trump is not some outlier. He is pretty much the political norm. We don't make big decisions, like who to vote for, with our logical minds, we make such decisions with the part of us that decides 90% of everything we do, it is an intuitive decision, a decision of the primitive brain, and Donald Trump is an expert at reading the zeitgeist of the primitive human mind. There is a reason people such as he are called populists, their views are very popular with the general population, even amongst those who abhor them.

Studies of subconscious bias confirm this. Even the most liberal, pro-black American white person tends to score badly on subconscious bias against black Americans, Hispanics, homosexuals, bisexuals, transsexuals and so forth. Despite mass open support for LGBT in America, those four letters make up half of America's homeless. Gays make less than straight Americans, and bisexuals do even worse. Subconsciously, Americans are more likely to associate blacks with violence, evil, crime and so forth. Granted, Black Americans are disproportionately part of America's poorer communities, and demographically, the poor are both more likely to commit crime and more likely to have crimes committed against them, but both activists and popular media ignore this in favour of a narrative that isn't quite sold to Americans. Black Lives Matter rioting and protests against the American national anthem haven't helped the black community's subconscious status as 'other', and this increases the likelihood of poverty and exclusion, which also makes crime and victimhood more likely, a cycle that continues, along with increased subconscious bias against African Americans amongst the white American majority. If anything, subconscious bias is at one of its worst levels in recent American history, and as we vote with our subconscious, media highlighting to voters that Trump was just like them, fearing immigrants, and other scapegoats, was pretty much all Trump needed. The fact media likes to treat White Americans as unimportant, redundant, and yesterday's news, was only likely to increase the likelihood of a vote for the Republican candidate.

Let's look at other media attacks on Trump: he kissed women without permission. In South Africa we call that sexual assault, but watch any American television series, and kissing another unexpectedly is portrayed as courageous and hardly anything wrong. I personally am rather proud of the number of women who have felt the need to secretly pinch my butt when I wasn't looking, but their actions would also technically be sexual assault. Trump's assertion that women would be prepared to consent to anything he did to them because he was a big star and rich and famous, is an assertion most Americans would agree with: they widely view their elite as being able to do as they please. The worst thing Trump could be accused of, therefore likely didn't really sway many voters, given that American culture tends to view such acts as ones of courage or humour. One need only listen to rap music, or watch American television to see just that. Trump represents the id of the American people, that which their national ego tends to hide from, but that which at its root, controls all their major decisions.

Research has shown that the only real way to combat extreme views is by presenting facts in a non-confrontational manner, and appealing to norms and standards that an opponent is likely to adhere to, in a non-emotive manner. Attacking those holding extreme views, calling them names, isolating them, and so forth, only strengthens their views. Trump caught onto this when he announced that he could murder in broad daylight and not lose support. An anti-Trump media had so buffered the American public against anything Trump could do, that he really had free reign, and could cleverly gain free publicity to tap into the national id, due to media's insistance that they had to denounce him. Really, all media did was reinforce an opinion of Trump the American public already had. Attacking him for being an uncouth man off the street, when he really is an elite billionaire, only got the incredibly wealthy tycoon more support from struggling men on the street and gave him grassroots appeal.

Media also refused to broach Hillary Clinton's weak points, and her policy and character failings. She never had to defend herself, save against Wikileaks, and as a result, voters were left with the impression that she was fragile, weak, and incompetent, protected by a friendly media and not really worthy of office, given her supporters' fear of the spotlight hitting her. When James Comey announced investigations against Hillary, and the Justice Department said they tried to stop him from telling the public, while Democrats threatened to punish him, the view that Hillary had something to hide became something that deeply sunk into the subconscious. Voters felt they just couldn't trust her. Trump, who they also deeply disliked, was the devil they felt they knew. What was there left to dig up, that media wouldn't have splattered on the front pages of every newspaper, after all, media had almost universally stated that they opposed Trump. What better way to make sure Trump won? Foolish media, but they were unperturbed.

Donald Trump will likely spend at least four years in the White House. Hopefully he will realise, as Reagan did, that he is woefully incompetent for the job, and appoint a wise team of experts to advise him, so that he does not drive America into the Titanic's field of icebergs. Regardless, no one should be surprised that Donald Trump won. Democracies throughout history are prone to electing sandmen just like him. It's the great terror, and great beauty of democracy: it is not the experts and wise guardians who elect a president. A president is not a pope. He is elected by the unwashed masses, and their choice is often messy, difficult and may seem undesirable. Yet, without that power to elect the uncomfortable into power, the unwashed masses would be at the mercy of the elite. This is the essence of democracy, and democracy this election has been.

They say love is blind, precisely because the intuitive, primitive mind controls whom we fall in love with. That same mind makes our most important decisions, it is what we vote with. I am not surprised that a man who is an expert at manipulating the zeitgeist, achieved election to the highest office in the United States of America. In hindsight, is anyone really that surprised? After all, would you have told pollsters you supported Trump, when for all you knew it was a prank by friend or foe, which could affect your career prospects? When media is as biased as in the Brexit and Trump elections, polls cannot be trusted, but underlying fears and primitive emotions are usually a steady guide as to a vote. They stood true as a north star to predict this last election, and will, in similar circumstances, in the future. Populism is called populism for a reason.

Tuesday, October 11, 2016

Should Father Graham Pugin be charged as an accessory to public violence, or is he a hero?

Trinity Parish in Braamfontein, is a campus church best known in media for its thriving LGBT activist group, and for its vocal opposition to the previous more conservative pope on matters of sex and sexuality, a news search reveals. It is also very much known amongst Wits students, for locking its gate to campus, meaning they have to go all the way around to another exit, and for preventing anyone parking in its almost always empty parking lot, unless they are specifically visiting the church. A priest standing defiantly in front of a vehicle of some or other person desperate to find parking, is not an unusual image. For that vehicle to be a police Nyala, sent to deal with violent rioting, arson, intimidation, assault, and malicious damage to property, is a more unusual sight.

Fees Must Fall protests have become increasingly violent of late. From assaults carried out against students who attempted to attend classes, to protestors throwing rocks at security, passers-by, and vehicles in the area, and with protestors even turning to theft from local stores. Videos and voice notes spread by protestors also warned white students that their days were numbered, even calling for the death of a random white student in order to get more media attention. Protestors also bombarded students who called for the academic year to resume on social media, and sought to disrupt a protest by students, against their intimidation tactics, held on campus. An SMS poll the University of the Witwatersrand did of students and staff, found strong support for resuming academic activities, something protestors are dead set against.

On the day Graham Pugin was shot in the jaw by a rubber bullet fired by police, he had been particularly active. Students, denied the opportunity to protest wherever they wanted and to riot freely on Wits East Campus, had taken to the streets of Braamfontein to do so, rather than be confined to designated protest areas. A police Nyala had been assigned to deal with the rioting and looting which followed, as Fees Must Fall protestors broke shop windows, and stole the goods of businesses within.

Protestors even stoned a bus owned by a private company, until its occupants fled, proceeded to set it on fire, and then set about stoning firemen who had attempted to put the explosion danger out. An SABC news crew caught a number of these events live. However, the incident at Trinity Parish was caught by amateur photographers.

'Running clashes between students throwing rocks and police firing rubber bullets, tear-gas and stun grenades continued throughout Braamfontein today and this culminated in students seeking refuge in the church and the police attempting to drive a Nyala into the yard to arrest them.

'While some students threw rocks and others scattered away from the church’s entrance, Pugin stood in front of the gate in his white church robes with his hands raised in the air. Then, police shot him from the Nyala and the rubber bullet struck his mouth.' (Mail & Guardian | '#FeesMustFall2016: Holy Trinity Catholic Church priest shot in face, sparking clashes' by Govan Whittles 10 Oct 2016 17:00).

Father Graham Pugin, of Trinity Parish, had tried to insure that the gate between his church property and the university stayed unlocked and open, impeding police efforts to control the areas in which violent, armed protestors had free reign.

'Earlier in the day he had been instructed by the police to lock the gate between the Wits University campus and the Holy Trinity Catholic Church where he is parish priest. He refused to do, wanting students fleeing from clashes with police on campus to have a route to safety at the church.

'“When I refused to promise to keep it locked, they took my name,” Pugin told Daily Maverick after being attended to by a maxillofacial surgeon on Tuesday morning. 'Later the police returned and locked the gate with their own padlock and posted three officers to stand guard. During the day of high drama, with students intermittently running into the church property to seek cover from the hail of rubber bullets, Pugin found time to carry cups of water to the police officers standing guard.' (Daily Maverick | 'Holy Shield: #FeesMustFall priest tells of his day of terror' by Ranjeni Munusamy 11 Oct 2016 06:10).

The priest also relays to the Daily Maverick how he gave sanctuary to the heavily armed students involved in violent intimidation, stoning of others and other such things. To quote the same article:

'Pugin has a soft spot for the students but also an edge. There are media pictures of him wagging his finger at protesting students carrying makeshift weapons.

'“I insisted they weren’t allowed on the church property with weapons. I told then to put down any sticks and stones before coming in.”

'During Monday’s running battles, there was much pushing and jostling, Pugin says, but the students were never aggressive.' (Daily Maverick | 'Holy Shield: #FeesMustFall priest tells of his day of terror' by Ranjeni Munusamy 11 Oct 2016 06:10).

The video footage of the events, shows a massive crowd of rioters flee into the church with a police Nyala in hot pursuit in an attempt to arrest the violent fees protestors. Father Graham Pugin, however, stands in the way of the police, with the specific intent of allowing the protestors to escape. As the Mail & Guardian relays, protestors began using Trinity Parish as a sanctuary and perhaps a launching pad, assaulting police officers with rocks, knowing they could safely flee into the church, which would also provide for their medical needs. Police seemingly responded with rubber bullet fire, some of which hit the Jesuit.

R v Van Rensburg 1943 TPD 436 sets out that: it is 'sufficient if there is any assistance given to the perpetrator of the crime which in the ordinary course would lead to the perpetrator being helped in escaping detection or in avoiding the consequences of his act' for a person to be accessory after the fact, while of course also taking into account other factors such as intention and so forth. The question as to whether the priest could be charged under common purpose for the acts committed by protestors while under his sanctuary also arises.

Of course, being that he is a priest, this is South Africa, and protestors have tended to avoid any real long term side effects from their actions:

'On Tuesday, a police delegation led by Deputy National Commissioner Gary Kruser visited Pugin at the home of the Jesuit Fathers in Auckland Park to “apologise unconditionally for what happened”. After meeting with Pugin, Kruser told Daily Maverick that he had instituted an official investigation into the incident, which is to be led by the Gauteng provincial commissioner. He said there had been no command to shoot Pugin and he himself had been calling for religious leaders to intervene to defuse the situation.

'“I can’t speak on the merits of the case while it is under investigation. We have a responsibility to ensure there is no loss of life. The police are under a lot of pressure and the levels of violence are high,” Kruser said. He said provocation and criminal elements were exacerbating the situation.

'Pugin’s order, the Society of Jesus, is still considering possible legal action against the police. But they said in a statement that they were willing to continue facilitating negotiations at Wits and participate in national mediations to resolve the fees crisis.' (Daily Maverick | 'Holy Shield: #FeesMustFall priest tells of his day of terror' by Ranjeni Munusamy 11 Oct 2016 06:10).

So it looks like Father Graham Pugin is more likely to be in court to claim monetary compensation from the police force, than to defend assisting rioters, seemingly the same ones involved in stone throwing, arson, looting, intimidation, and public violence.

In other words, for Fees Must Fall, and the Jesuits, a hero and martyr is born.

That said, a statement by the Southern African Catholic Bishops Conference, posted to the Trinity parish website on 11 October 2016 states:

'What the students desire is more equality in access to good education at university level. We support this request. But we don’t condone the violence, looting, and vandalizing of property by students and the use of force by police army.

'By now we feel that the students have made their protest.  The whole society, other students, universities, and the government are very aware of the student’s protest.  It is time now for the disturbances to end and for the academic year to continue and for exams to be written.'

Perhaps not quite the martyrdom event after all.

Nothing in this article constitutes legal advice. Any mention of law or legal principles is made purely for topic interest purposes. For legal advice, please make an appointment with your attorney, and appraise him or her of all the facts in your situation.

Thursday, October 6, 2016

Sonke Gender Justice's Patrick Godona falsely claims that a man cannot be raped in RSA law.

Concerning words hit the website of South Africa's national public broadcaster, the South African Broadcasting Corporation, on Thursday. The gender NGO,  Sonke Gender Justice, has claimed that women who raped a man on video could not be charged with rape, because men, its spokesman said, can't be raped.

Here's the quote, now:

"Rape as it stands it's about penetrating and in the case of a man it is not a women who penetrates the man but the man is actually forced to penetrate and therefore it becomes a sexual assault because this man has been unwillingly without consent forced to this sexual act." says Sonke Gender Justice's spokesman, Patrick Godona, as quoted by the SABC ("Three women charged with sexual assault, not rape", Thursday 6 October 2016 06:16)

In the now repealed common law, 'the crime of rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent' (LAWSA).

However, s 68 (b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 clearly repeals the common law definition of rape, allowing the act's definition to be the definition which counts in all rape cases.

To quote LAWSA's apt summary of the Act (which causes penetration to be considered irrespective of who is penetrating whom):

'The statutory crime of rape has been expanded to include all forms of non-consensual sexual penetration, and makes no distinction in terms of gender with regard to perpetrator or victim.7

'Any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without the consent of such complainant, is guilty of the offence of rape.8 “Sexual penetration” includes any act which causes penetration9 to any extent whatsoever10 by: (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person; (b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or (c) the genital organs of an animal, into or beyond the mouth of another person.11 The use of the word “causes” denotes the shift from the formally defined common-law crime of rape, where a certain type of act was criminalised, to the materially defined statutory version of the crime, in terms of which a certain situation, that is, sexual penetration, is brought about.12 Thus, rape is no longer a crime which can only be committed personally. ' (Volume 6 - Second Edition Replacement Volume by W A Joubert SC MA LLB LLD LLD(hc) Founding Editor; JA Faris BA LLB LLM LLD Attorney of the High Court of South Africa, Professor of Law, University of South Africa, Planning Editor; LexisNexis Editor: Ashleka Kanjan.)

Please be aware that:

This article, while written by an attorney of the High Court, is provided for topic interest purposes only, and is not legal advice. For legal advice, please book an appointment with your attorney and explain your own legal matters in the proper context for your attorney to provide you with such.

Monday, August 29, 2016

Now India says women shouldn't wear skirts, if they don't want to be raped.

There is a complex polemic at work when discussing women's attire.

Clothing in general is complex enough. Television shows routinely shame women for what they wear, from shows such as Fashion Police, to those which occupy the Style Channel, or fashion networks. A woman must neither be too revealing, nor hide too much from the imagination, if she wants the praise of her fellows in society, but those standards are liable to change with time, geography and ideology.

Open You or People magazine, and the shaming continues, as celebrities are mocked for poor outfit choices. Fashion bloggers might roast transgressors in print, while in some parts of the world, victims of societal standards might face actual roasting, a real knife in the heart, or a spray of acid in the face.

What we wear oddly defines us in society, whether male or female. And however much certain voices say that no one should tell a woman what to wear, at least when activists are looking to certain less savoury characters, an essential tenant of society, is that we are all told, daily, by our interactions with others: what to wear in our particular cultural or other bubble.

Like the voice of television and radio shows which judge singing and dancing, society has an obsession with voices which speak on fashion, partly because it defines a person's place in the social order. Few voices are more revered in parts of society, than those of harsh, unforgiving fashion designers and style gurus.

In France, a woman wearing essentially a repurposed scuba suit is considered a threat to the public order, for her wish to be more modest than society desires, and town mayors still insist on arresting those deemed anti-secular fashion offenders. This, despite the ruling of the highest administrative court: that burkinis are not against secularism.

Clothing is deemed by many to be an extension of the self, a declaration of intent, even of war.

The most controversial discussion however, resonates around rape.

A Canadian police official once told women to dress modestly, as rapists, he said, were more likely to target women who dressed in revealing attire. The term slut walk thus entered the vernacular of much of the English speaking world. Women objected to what they saw as the implication that 'slutty' women warranted or deserved rape. That implication hadn't been the intention of the witless police official, but by putting the spotlight on victims, the said official had stirred just the right hornet's nest, partly because such an unfortunate number of men believe that 'slutty' women are always up for sex.

With a mass epidemic of rape, mutilation and murder of women on its hands, India is handing out advice to tourists as they touch down. Controversially, they have told women not to wear skirts in small towns. They fear such women may be raped. Given the culture of some small towns, they might well be subjected to 'rape as punishment'. An example of this from South Africa, saw women trying to hire taxis being raped quite openly by taxi drivers, who claimed that women dressed in that manner deserved it, to teach them to dress in less revealing outfits in future. In truth, while women in miniskirts were turned into sitting ducks and easy targets, if it weren't those women who were raped, the taxi drivers likely would have found the next most societally acceptable victims for their criminal intents.

It all comes down to an old polemic.

Criminals are more likely to rob individuals who lift their feet higher off the ground as they walk, so authorities say to walk differently. Fidget much? You might be showing a high level of nervousness, a victim sign, perhaps? Research from a top university shows that people with ethnic names are less likely to get replies from a therapist, so should they change their names? A serial killer targets women with red hair: women should thus dye their hair blonde? A cult sacrifices virgins, so women, a certain logic says, should then stop being virgins, or pretend not to be? Friends claim that Catholics are evil, so a student pretends to be Anglican.

Human beings are adaptable creatures, we learn to adapt to circumstances, though sometimes that adaption is considered unwarranted, or a compromise of integrity and of self.

Rapists, according to statistics, rape for the fun of it, and are the sort of men who also have a lot of consensual sex, and frequent prostitutes. For them, rape is fun, a past time like watching the game or reading a novel. Rapists tend to target women that the rapists think they will enjoy raping, so women are told to dress in a way that makes them less likely to be a target? But rapists target more than miniskirts and tight shirts. Like all criminals, they look for victims they feel they can get away with wronging. The very things which also attract rapists, though, also tend to be things which attract ordinary men, potential husbands even. Who doesn't like a damsel in distress? Yet a woman who is vulnerable is a target both for saving by white knights on horses, and for forces of darkness.

Warning women not to dress in a certain way, and perhaps teaching them a posture and manner about themselves which says: don't victimise me, might well prevent those specific women from being the target of rapists, but those same rapists will simply target other women they think are target worthy, and standards of clothing change over the years. There was a time in our culture when a woman who showed her ankles was considered 'slutty'. Cause women in general to dress less revealingly, and those who are most revealing, will still be the most likely to stir many a man's fancy, and some of those men, might not understand the word no, or might relish in ignoring it.

The debate over what women ought to wear, and whether it is too revealing, is a cultural debate. No one would say that tribal women in the amazon are sluts because they go topless, but even in that sort of culture there is likely some sign of a woman who is more revealing than others. This debate, however, has very little to do with rape. Even if individual women are taken off the radar, others will still be raped. As a public policy matter, changing individuals away from the alleged victim profile for a certain crime, doesn't help reduce the crime, it merely changes who the victims are. India's government should not focus on keeping women from dressing in a manner that displeases some small town men: its focus should be on protecting victims, regardless of their attire. The duty of a government is to preserve order, law, and the safety of those within its borders.

What are your thoughts?

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