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?

Thursday, June 16, 2016

No, people really don't need to warn you, to record your phone or personal conversations with them...

This might be a eureka moment for some, but covertly recording your own telephone conversations, or your in person ones for that matter, is not unlawful in South Africa.

The flip side is also true: if you don't trust someone not to record your conversations with them, don't say anything orally that you wouldn't want splashed across the front page of a newspaper, in writing.

Like the private Facebook message a certain now infamous High Court judge wrote several years ago, which someone unearthed when they saw an opportunity to promote their social media company, your personal conversations can come back to bite you ages after you forgot you even had them. Audio recordings of personal, private, oral conversations, have also, in the past, been used at court.

Those recorded warnings that you get when calling certain companies are done out of politeness, or otherwise due to it being the company, not the individual making the recordings.

In fact, telephone voice recordings are often enough 'discovered' (declared as evidence to be used) in litigation and are used in court, against unsuspecting members of companies or the general public. Some companies specialise in such a practise and make phone calls prior to litigation, in order to use the contents of the calls against the unsuspecting targets of their work. If what you say later on the witness stand contradicts what you said on the telephone, they might claim that you are unreliable, or changed your story.

While RICA bans third party monitoring outside specific ambits, it does allow a person who is not an officer of the law to record and allow others to listen in on their own conversations (those in which they are one of the parties). The Act also allows for recordings to be made of speech made generally to multiple persons, when the recording individual is within natural hearing range, such as where a person is party to a meeting in the board room.

What I am referring to is sections 4 (1) and 5 (1) of the Act, namely:

'(1) Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.'

'(1) Any person, other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted by such person for purposes of committing an offence.'

Other provisions of the act deal with when law enforcement officers may make recordings, but that is not the ambit of this article.

So, firstly, what does intercept mean in terms of the act?

In terms of section 1:

'“intercept” means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the –
(a) monitoring of any such communication by means of a monitoring device;
(b) viewing, examination or inspection of the contents of any indirect communication; and
(c) diversion of any indirect communication from its intended destination to any other destination,
and “interception” has a corresponding meaning;'

'“monitor” includes to listen to or record communications by means of a monitoring device, and “monitoring” has a corresponding meaning;'

'“monitoring device” means any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to listen to or record any communication;'

'“indirect communication” means the transfer of information, including a message or any part of a message, whether –
(a) in the form of –
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether animated or not;
(v) signals; or
(vi) radio frequency spectrum; or
(b) in any other form or in any combination of forms,
that is transmitted in whole or in part by means of a postal service or a telecommunication system;'

'“direct communication” means an –
(a) oral communication, other than an indirect communication, between two or more persons which occurs in the immediate presence of all the persons participating in that communication; or
(b) utterance by a person who is participating in an indirect communication, if the utterance is audible to another person who, at the time that the indirect communication occurs, is in the immediate presence of the person participating in the indirect communication;'


That leaves need for the definition of a party to the communication, also in terms of section 1, that would be:

'“party to the communication”, for purposes of –
(a) section 4, means, in the case of –
(i) a direct communication, any person –
(aa) participating in such direct communication or to whom such direct communication is directed; or
(bb) in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct communication is specifically directed to him or her; or
(ii) an indirect communication –
(aa) the sender or the recipient or intended recipient of such indirect communication;
(bb) if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients; or
(cc) any other person who, at the time of the occurrence of the indirect communication, is in the immediate presence of the sender or the recipient or intended recipient of that indirect communication; and
(b) section 5, means, in the case of –
(i) a direct communication, any person participating in such direct communication or to whom such direct communication is directed; or
(ii) an indirect communication –
(aa) the sender or the recipient or intended recipient of such indirect communication; or
(bb) if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients;'


c.f. REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT 70 OF 2002

http://www.saflii.org/za/legis/consol_act/roiocapocia2002925/

This article does not constitute legal advice. For legal advice, consult your attorney, with all the facts of your matter, in person, and within the context in which such advice is to be deemed reliable and applicable to your circumstances. This article, while based on research of the law, is published purely for topic interest purposes, and cannot replace the advice of a properly briefed legal practitioner.

Thursday, April 28, 2016

Donald Trump didn't actually pronounce the word Tanzania incorrectly, when he called it 'Tan-Zane-Nee-Yah'.

Journalists love to butcher the language. Just a few years ago, the word 'terror' referred to an emotion, rather than to terrorism, a slightly longer word. Lately, media has set itself up as a watchdog on language usage, nonetheless. A favourite target is controversial and poorly spoken American politician, Donald J. Trump.

Most dictionaries give a uniform IPA rendering of the name of the African country known as Tanzania: /tanzəˈnɪə/. That is to say, following the American tradition of spelling out syllables: Tan-Zah-Nee-Ah (the 'ee' in the 'nee' technically being the 'i' sound in the word 'bit'). The blundering politician, The Donald Trump, called it /tanˈzeɪnɪə/ (Tan-Zane-Nee-Yah) in a recent speech, prompting media condemnation, and headlines about a 'zany' pronunciation. It also prompted me to feel slight surprise. In Africa, where I live, Tanzania is often pronounced /tanˈzeɪnɪə/, following the same manner as Trump pronounced it. I have always considered it one of several correct pronunciations for the word.

A quick Google search, followed by clicking through to travel and pronunciation forums and articles, reveals that /tanˈzeɪnɪə/ is a common pronunciation the world over, and is used in Tanzania itself, along with many other renderings of what is essentially a manufactured word. Whether you say /tanzəˈnɪə/ or /tanˈzeɪnɪə/, the meaning is translated, but more than that, a good portion of speakers recognise both as correct pronunciations, amidst others.

'The name "Tanzania" was created as a clipped compound of the names of the two states that unified to create the country: Tanganyika and Zanzibar' (to quote Wikipedia) i.e. it is a created word, rather than one which naturally developed. Both common pronunciations give the 'za' sound one which is not in the first part of the word Zanzibar (i.e. zæ). If we were to combine the two words with their sounds intact, we would speak of: /tanˈzænɪə/ instead.

Oxford Dictionary of English also references its origins: 'Tanzania consists of a mainland area (the former Tanganyika) and the island of Zanzibar. A German colony (German East Africa) from the late 19th century, Tanganyika became a British mandate after the First World War and a trust territory, administered by Britain, after the Second, before becoming independent within the Commonwealth in 1961. It was named Tanzania after its union with Zanzibar in 1964'

So, for a made up word, Tanzania sure creates some controversy. It probably is best to pronounce it as /tanzəˈnɪə/, which is how many dictionaries render the word, but on the ground level of real, spoken speech, /tanˈzeɪnɪə/ or /tanˈzænɪə/ are equally correct. You would have to be a pedant to declare otherwise.

Tuesday, April 26, 2016

A satirical piece: Why did the ANC charge Malema with high treason? Interview with the Minister of Labour.

The following piece is satire.

Not to trumpet my success, but I got an interview with Minister of Labour, Oliphant. Nelisiwe Mildred Oliphant is usually pictured as a queen size woman of African descent, with hair hanging to the bottom of her neck, and sun spots sprinkling her visage. The Oliphant I met, however was alabaster white, was a member of the species, Loxodonta africana, and had a rather large and delightful nose, which she moved about, eloquently, as we spoke. She was also a minister in the church of nature, and was undergoing labour at the time.

Q: The ANC recently laid charges of high treason at the Hillbrow Police Station against Julius Malema and the EFF. Why did your party do so?

A: He, Malema, said on Al Jazeera, my favourite TV network, by the way - that if the government violently quashed dissent, that the EFF would remove it by the barrel of a gun. Some people have said that that is speaking of a theoretical scenario, and therefore could not be taken as a serious threat of violence, after all, the government is not a dictatorship: we can't even dictate who our ministers will be, we actually get dictated to by figures such as the Gupta brothers in that respect, so we aren't a dictatorship. Would a dictatorship assign three ministers - myself included - to hound banks and demand they tell us and the Guptas why they broke up with them? No, a dictatorship would not care whether banks are doing business with foreign nationals. In any case, we are using violence to quell protests. We even use security forces to remove members of parliament from the building, so what Malema is talking about is not theoretical, and his suggestions that we have deployed the army to stop people stepping out of line are also true, so he should be charged with treason. I think Nelson Mandela would approve. In any case, we have wanted to brand him a traitor since he betrayed us by forming the EFF. What happened to his non-treasonous claim that he would kill for Zuma, whom Thabo Mbeki tried to remove... he betrayed us... Malema betrayed the struggle to keep Nkandla under wraps as well.

Q: You recently lamented that not enough board and executive positions are occupied by previously disadvantaged people, and said companies had six months to fix that before they faced you in court. Would you be upset if EFF supporters were appointed to these positions, and are only capitalists allowed?

A: We have charged the EFF and their leader with high treason. Appointing traitors or those who associate or sympathise with traitors to boards would not satisfy the ANC. A traitor isn't really a South African, and BEE is designed to benefit South Africans... and associates of the President from India, but currently in Saudi Arabia. So, it is best that companies appoint capitalists to bord positions. People like Cyril Ramaphosa... one man can occupy many board positions, and there are many ANC supporters out there who are prepared to do their civic duty and become executives of major companies, which might in turn gratefully pay the ANC money to use for elections, and for lavish parties.

Q: Some have accused the government of using BEE/EE as a front to empower the elite few who are already empowered.

A: Of course we are. We call it empowerment of the previously disadvantaged for a reason. It implies that the beneficiaries should not be those currently disadvantaged, like all of those people in the rural areas or informal townships. We were very clear that it is about being previously disadvantaged, not currently disadvantaged. Being currently disadvantaged should exclude you. We are not the EFF. We understand that the pie is only so big.

Q: What about the accusations that it has mostly been ANC connected figures who have benefitted.

A: Of course it has been. ANC figures are highly educated people. They grew up in the lap of luxury in places like the USSR and Great Britain... while crying daily over not being in South Africa, of course. How can you expect someone without an economics background to run a company. Our focus on executive positions, I think, highlights this as well. We don't mind what levels of EE exist at lower levels, because ANC leadership cannot occupy those positions - that's more of an EFF concern anyway. Are we worried if the Guptas are alleged to discriminate against black South Africans when hiring? No, of course not. Perhaps the EFF would care about those, if people elected them. And the DA, maybe they would do away with EE altogether, people shouldn't vote for them. We often tell people who have seen their lives worsen in recent years just that - if they happen to become currently advantaged and EE no longer exists, how will they benefit from it?


Q: You recently said that you were disappointed with EE in top industry positions. You said that while white people are losing their jobs, they are also being hired by other South African firms. You said that this meant positions stayed white, and that ideally the white executives would be excluded from the South African labour market, rather than being reemployed.

A: Yes, I did say that. We did something similar with white farmers. We encouraged them to give up farming in South Africa. When their farms were bought, they moved overseas to places like New Zealand and Eastern Europe, where their rare skills were cherished. It is a good thing too, now that South Africa is being forced to import food to feed its population. The presence of thousands of South African ex-patriots farming overseas, means that the overall price of food goes down, due to an increase in supply, and we can thus buy staple foods at cheaper prices. We hope something similar will happen to the white executives we want to exclude from the labour market: granted, some will sit at home and do without a job, or take up jobs they are overqualified for, but it is our sincere hope that many of these tough executives will leave South Africa for our major competitors' markets, and work to take our share of exports markets away. That way, the global market becomes more competitive. It's like when we made sure barriers to trade with China were reduced, destroying the local textile market of the time, in doing so, we increased global market efficiency.

Q: What is the relationship between Zuma and the Gupta brothers?

A: They call him their 'Number One', and he calls them each 'G'. They really are cheese boys though, all that high flying cash making they do... even a new deal with Denel to cut metal... I hear they are firing their own metal cutting team to hire the Gupta's firm to do it... that is reduction of government. That is efficiency. Right now it is a priority to have FNB and the other banks open Gupta accounts so that those upgrades to Nkandla can be paid for.

Q: Thank you for your time, Minister Oliphant.

A: Oh! Call me Minister White Elephant, I don't like Afrikaans at all. It was a pleasure. In fact, call me Auntie. I like phrases of endearment.

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