South Africa's Constitution has a fantastic Bill of Rights. But sometimes a series of injustices, already transpired, cannot be completely cured.
The rule of primogeniture (Latin: primus, first + genitus, born) is the exclusive right of inheritance belonging to the eldest son. This was the system of intestate succession followed in African customary law before the Constitution. The rule was overturned by the South African Constitutional Court in a case called Bhe and Others v Khayelitsha Magistrate and Others, [2004] ZACC 17 as discriminatory against women. However, the law could only be declared unconstitutional retrospective to 27 April 1994, which was when the interim South African Constitution came into effect at the end of apartheid.
Enter our client, Mr. X, a black man. He was dealt one of the many injustices under apartheid when his land was expropriated by the state in the 1980s. The apartheid government implemented systematic racial segregation by declaring specified areas “Indian”, “White”, or “Coloured” areas and establishing Bantustans, or black homelands. The LRC was assisting Mr. X with his claim for restitution of the property to the Commission on Restitution of Land Rights, which was set up in the spirit of the new South African Constitution.
Mr. X inherited the land in the 1950s from his father under the rule of primogeniture. However, Mr. X has two sisters -- whose existence the LRC only learned of last year. The Commission has generally taken a firm position that it will not exclude women from the restitution of land. Thus our conundrum.
Legally, the Commission may have little basis for insisting that Mr. X share the property with his sisters since he inherited the land in the 1950s, long before women had equality rights under the Constitution. However, the LRC would be in an uncomfortable position if we had to argue in court against the Commission that his sisters should be excluded from sharing the land based on the archaic and unconstitutional rule of primogeniture. The spirit of the LRC is to work for the mistreated and excluded. That is why we took Mr. X’s case over 10 years ago. But that is also why we now had to give it up.
It was sad to give up Mr. X’s case after the LRC had spent over 10 years working on it and was just reaching the exciting stage of court application against the Commission. It is even sadder that Mr. X would rather pay a private lawyer rather than share the property with his sisters. But I can understand his position as the original dispossessed. And that is his legal right.
Living in a small place like Grahamstown, sometimes the weekend brings a longing for big city life. Late on a Friday night two weeks ago, I was drinking wine at my apartment with Emily and Paddy (a journalism professor at Rhodes) when – after plenty of wine – the crazy idea occurred to Emily and me to fly to Cape Town the next morning. We booked our flights just before midnight, and at 6am the next morning we were off!
It was a whirlwind trip that was an introduction to, rather than a tour of, Cape Town. Having lived in cities all my life, we set about satisfying all the big-city cravings I’ve been deprived of during a month of tiny Grahamstown – mainly food and shopping! We shopped at a few boutiques on Long and Kloof Streets and at the mega-mall at the Waterfront. I took the opportunity to buy a few warmer items as I have been surprised by the COLD COLD weather in the Eastern Cape. We stumbled upon a friendly Capetonian who told us about the Saturday market at the Old Biscuit Mill then kindly gave us a lift there in his glittering SUV. It was full of little boutiques, funky shops and galleries, and a huge organic and specialty foods market! The lovely thing about a visit to Cape Town is that you can actually do your grocery shopping there and bring it home to Grahamstown. I think I almost choked with excitement when I saw a table full of pâtés and specialty meats. We picked up an assortment of lovely things like olives, cheese, pestos, salami, and fresh artichokes that are not readily available in Grahamstown. We caught a minibus taxi and headed downtown to our hotel, a cool boutique called the Grand Daddy. On Saturday night, Emily and I celebrated Canadian Thanksgiving in style with oysters and sushi at the rather pretentious Beluga Restaurant.
My first impression of Cape Town is of a cool metropolis with a stunning natural setting between the ocean and Table Mountain – in some ways, it reminds me of Vancouver. What doesn’t remind me of Vancouver is the racial segregation. I don’t think I’ve been anywhere in Africa where I saw so few black Africans. I suppose that we also have a stark contrast between rich and poor in Vancouver – I think of clearly ill people begging for change on Robson Street – but it is just not on such racial lines.
The other day I did something very South African: I went for an HIV/AIDS test.
The place to go in Grahamstown is the Raphael Centre, a non-governmental organization for people living with HIV/AIDS. I decided to go check it out, and why not? Get tested.
The Raphael Centre is located on a quiet residential street. I entered and told the woman at reception, “I’d like to get tested.” I was immediately guided to the counsellor’s room, where the counsellor asked a few questions like: “Are you sexually active? How many partners have you had in the past month? Four months? Did you use a condom the last time you had sex?” I then went to see the nurse, who administered the test. She took a drop of my blood and put it into a notch on a small plastic slide, then added a drop of test solution. While waiting for the results, we chatted. She educated me on the “window period”, the three-month period immediately after contracting HIV/AIDS where it might not show up on a test because your body has not yet produced the antibodies. I could see my blood seeping across an open slot on the plastic slide, reach the other side, then come back. A small line appeared.
The strange thing was how nervous I felt while waiting for the results, even though I knew my chances of testing positive were virtually nil. I suppose this is the reason so many people who actually are at risk don’t get tested. HIV/AIDS is very much a part of the consciousness in South Africa. The statistics are frightening – about 20% of the population is infected, and rumour is that 1 of 6 students at Rhodes are positive. Advertisements encouraging people to practise safe sex and get tested are everywhere. And so is the fear.
I recently read this passage from Stephen Lewis’s book Race Against Time (pp. 53-54):
On the floor of the hut lies a young woman – always young – in her twenties or thirties, so wan and emaciated as to be unable to lift either hand or head. I bend down, painfully inadequate to the circumstance, and touch her brow, uttering some pointless banality which is intended to soothe, and then as I step back, looking around me, I see her children, all her children, standing in the darkened shadows, watching their mother die.
How do they ever recover? The death is long, agonizing, and filled with indignity. The children wash their mother, they clean her up when she’s incontinent (an experience of excruciating embarrassment for both mother and children), they search everywhere for an aspirin to relieve the pain of some opportunistic infection, and then, horrified, gaping, they stand in the darkened shadows, and watch their mother die.
Many of us know the pain of losing a loved one. Five months ago, I lost my mother to cancer. They were painful times but we were also surrounded by love and comfort. She passed away in a hospice, where nurses provided 24-hour care and gave us hugs and cookies. I realize how lucky we were and I cannot grasp how great the pain of these orphans.
I tested negative.
On my way out, I made a small donation and spoke to someone about volunteering for the Centre. I learned that the Raphael Centre – despite providing one of the most important services in South Africa – is not government-funded, and that everyone who works at the Centre is HIV positive. I will hopefully be assisting the Centre with throwing a children’s party in December.
Here are some pictures of the wildlife at Addo Elephant National Park, about one hour’s drive out of Grahamstown. We saw tons (literally) of elephants, plus warthogs, kudu (stunningly beautiful with their spiral horns), ostrich, tortoises, jackals, zebra, and lots of deer-like animals like the red hartebeest and bushbuck.
Kim and I rented a car to go there, and I took advantage of the traffic-less park to try driving on the left side of the road. It’s quite a twister as the steering wheel is on the right, but the stick shift are still in the middle and the clutch, brake and gas pedals and gears are all in the same relative position. What I found most challenging is remembering not to veer off the left shoulder of the road, since the driver’s seat is on the right sight of the car and I’m used to a perspective of the road from the left side of the car. I think it may be a while before I take a stab at navigating left turns and traffic circles and such!
Sorry for the delay in updates but there have been two film festivals in town at Rhodes University over the past couple of weeks -- which means that, for once, there has been something to do in Grahamstown! I've seen a number of films and documentaries including "Suffering and Smiling", "Thomas Sankara: The Upright Man", "The War on Democracy", "Four Wives, One Man", and "Bamboozled". One of the festivals with the catchy name FilmFest 08: More Zen, Less Phobia continues and next week will show "Up the Yangtzhe", a Canadian documentary about China that I missed at last year's Vancouver International Film Festival because it was sold out.
Last weekend, Kim and I headed out to Bathurst to stay with Sarah, our supervisor and director of the Grahamstown LRC. Sarah, Monty, and their beautiful blond son Dan live on a farm just outside Bathurst. Monty’s parents and brother have houses on the same big property. “Welcome to paradise”, said Sarah as we pulled up to the house – and it really was. You really miss family time when you’re living abroad, so it was extra lovely to pass the weekend at their house enjoying simple pleasures like cooking together, reading, picking salad greens from the “tunnel” (where Monty grows native and food plants), watching Tom and Jerry with Dan.
One reason for the trip was a farewell party for a girl named Ronelle to be held on Saturday night at the Bathurst Arms, the local pub. The Bathurst Arms is the drinking spot in town… well, the only one since the Pig & Whistle closed down. It’s a classic small town pub – everyone knows each other, dogs roam around, and if you’re lucky (like we were) you’ll be treated to an impromptu jam session by a few local boys. We had a grand time, and at one point I even got drunk enough to pick up the djembe and start playing with the boys.
Sunday was a quiet day troubled by a few hangovers. The main event of the day was a big fish braai that Monty cooked up on a fire outside. It was my first South African braai and Monty did it justice.
