10 responses to “Tokologo African Anarchist Collective Newsletter”

1. As a bit of a side note, Linda Stewart recently made an interesting point in a letter to the South African Committee on Human Settlements regarding the Rooigrond informal settlement:

   I do, however, want to stress that I disagree that litigation is the solution to address this issue. By litigating socio-economic rights, we are oblivious to the ability of communities such as Rooigrond to engage outside formal political structures and government on issues affecting their lives and future. It is a process that will force them to be excluded from this discourse and left with predetermined solutions.

   Sometimes it is a stronger move NOT to engage in formal institutional systems so as to avoid being enfolded into the standard mechanisms of power and governance. Communities need to avoid ceding natural powers and autonomy to systems of “oversight” by demanding extra-judicial rights. Formal political structures are designed to benefit those at the top of the hierarchy (misleadingly assumed to be a meritocracy) and are not always the best means of political engagement. The self-determination of people and groups, then, is sometimes generated out of a refusal to play a ‘game’ that is always and already set against them. Perhaps on many contemporary ‘political’ fronts withdrawal from existing societal mechanisms is the most prudent course of action…

2. withdrawal may indeed be more effective as long as it is part of manufacturing some preferable alternative, even if that is just a temporary refusal of the powers/ways that be until something better can be invented, all options should be on the table so to speak.

3. yes, the question is “withdrawal” into what?” An effective exit strategy is to have a plan to sustain yourself after the exit. I have always been interested in ‘transition towns’ and whatnot, and my family and I are currently scouting locations and gathering materials for setting up a homestead (using a series of hightech self-sufficient yurts, and/or ‘earthships’) near a good freshwater source about 35kms from a major city. The idea is to be ‘off the grid’ for water, sewage and food (and most of our energy), but stay on the grid in terms of communication. Our extended families joke that we are trying to start a colony, and we simply say yes, yes indeed. The idea would be to re-colonize/take back the eaarth from the destructive normative systems which assume control at present. a project…

   This rejection/withdrawal movement is also the impetus behind Occupy Wall Street: creating a place/space or temporary autonomous zone (TAZ) as alternative to current worldspaces and the activities they generate (e.g., abusive financial systems). The issue becomes figuring out how to make real and lasting encroachments on the terrain already dominated by mainstream social apparatuses?

   In this vein, then, we have to strike the right balance between utilizing/engaging existing institutions of law and infrastructure (reform) and radical withdrawal from those realities (revolution?). The negotiation will be difficult and fraught with challenges from private interests and governing bodies. The dependencies are many and the domination is structural on multiple levels.

   And re: the notion of HOW i suggest starting with food and energy – a basic materialist move. If we want to transform our worldspaces we must must must start with augmenting the condition of subsistence, as well as minimalizing our involvement with paid labor. Decreasing our participation in the machinations of capital accumulation and “resource” extraction (which is basically at the core of most organized social conflicts) means decreasing basic dependencies, and de-conditioning ourselves to the legal requirements that bind us.

   Please note, however, this can also be done within an urban setting. I am not suggesting that we all go rural and ‘back to nature’, or some nostalgic view like that, rather that we complexify without complicating our modes of subsistence and production by working out different systems for local-to-global flows of water, energy and matter. I’m no Ted Nugent.

   • http://www.cbc.ca/spark/full-interviews/2013/06/14/the-modern-day-homestead/

4. ha, didn’t think of you and Ted together tho the cage-match-up possibility is intriguing, would be interested in hearing more about this whole process of transition as your time/interest allows, this seems to me to be directly relevant to our project here.

5. “Any approach to environmental problems must be sufficiently flexible and adaptable to encompass the entire environmental matrix, which is in constant flux.” – Marshall McLuhan

6. There was a time I really believed in human rights, but today living in a middle-income country and witnessing what going on around me I really turned into a sceptic. What worries me is that every socio-economic issue becomes a judicial matter. We literally turn to the courts to access water, sanitation, housing and even basic education. We currently have a litigation battle on basic norms and standards of school infrastructure that has been going on for more than 18 months.

   Some thoughts why I think adjudication is not an answer:

   1) The modern legal constructs and rights discourses are unresponsive to deal with singularities and different modes of existence.

   2) There is a disjunction between the lived realities of ‘impoverished’ social bodies and the language and politics of socio-economic rights that represents them.

   3) When/where bodies have limited or no access to water, sanitation, shelter, adequate food and health care it is not merely an infringement of their socio-economic rights, it is also a form of systematic and structural violence shaping their everyday existence. (Butler associates this process with vulnerability and precarity, while Deleuze refer to it as real monstrous cases and everyday violence.)

   4) In terms of Butler’s work on performativity and precarity the formation of language and politics that represents impoverished bodies as subjects of socio-economic rights is a discursive formation taking the form of representationalist politics and although the constitutional state is designed to address the needs of these constitutional processes ‘derealise’ the suffering of a certain segment of the population.

   5) While Butler’s and Spivak argue that the only mechanism available to those who are ‘derealised’ is to claim public space and lay claims to their rights, I question this mechanism because I think the very problem of rights discourse is located in representational thought and the notion of a predefined and fixed concept of the subject and transcendental values and western morality.

   6) Deleuze views (representational thought and the notion of a predefined and fixed subject) as a limitation on ‘possibility and experimentation’ but in the context of the African body, representational thought based on a fixed concept of the subject and transcendental values also allows for the continued differentiation and exploitation of those who do not conform with the majority model. (.. the average European adult male city-dweller, for example Deleuze, 1995, p. 173).

   7) Socio-economic rights discourse and practices (adjudication) in as far as it is based on a fixed notion of a subject and transcendental values present hierarchical methods of state capture that only serves the broader capitalist market.

   • All great points Linda. And i love the language you use here. As you know, all those thinkers are very important for me.

     A few questions for you:

     1. Do you think our modernist juridical institutions will have evolve to a point where their is an in-built sensitivity to different modes of existence?

     2. How do we get institutions and institutional bureaucrats to incorporate a sense of suffering and vulnerability into their everyday decision-making? Are there deep mechanisms of bias favouring outcomes that support elite interests that systematically exclude a sense-ability towards suffering?

     3. Do you have any examples of people you work with, at the so-called “grass-roots” level, where people who are fighting not just for their “rights” but basically for their survival and subsistence have been able to shift or augment the dominant narratives about personhood, responsibility, and the like, and thus challenge the set of governance practices they live with?

     You are on the ground with these issues so your experience would be so valuable here.

7. Hi Michael,

   Thank you for these challenging questions!! I’m not sure where to start and I don’t think I have answers.

   1) Do you think our modernist juridical institutions will have evolved to a point where there is an in-built sensitivity to different modes of existence?

   1.1 My thoughts

   1.2 Background

   I hope our modernist juridical institutions are able to evolve to a point where there is an in-built sensitivity to different modes of existence. But again I’m sceptical because legal institutional culture is confronted with legal constraint and jurisprudential conservatism in most countries. Within the South African legal culture of interpretation, judges (and the legal community including the legal educators as such) are confronted with legal constraint and jurisprudential conservatism when expected to interpret the constitutional and other ‘law’ text. Karl Klare (1998) argues that the process of dissolution and reconstitution of legal constraint in South Africa has cultural as well as individual psychological dimensions. Legal constraint is seen as ‘a particular kind of experience a legal actor has (or may have) in the course of doing legal-interpretive work with legal materials’. It includes the perception that judges are only guided by legal factors when confronted with choices and extra-legal factors play no role in the interpretation process. On the other hand, jurisprudential conservatism is

   ‘a kind of intellectual caution that discourages appropriate constitutional innovation and leads to less generous and innovative interpretations and applications of the Constitution than are permitted by the text and drafting history’.

   Traditional approaches to law, such as legal formalism, classical liberalism, liberal legalism or positivism accept a strong divide between law and politics and law and morality and accept the law as a science which may provide a single neutral answer. The South African judiciary is familiar with legal formalism because it was inherited via the British system of parliamentary sovereignty and during the apartheid years, this approach was followed blindly because it suited the judiciaries’ excuse that they did not have the power to question the content of the laws made by a sovereign parliament. But no text has only one meaning and meaning is not discovered in text but is made in dealing with the text. Therefore some of the underlying reasons directed to our courts’ lack of full engagement with the true nature of poverty and needs as part of the political discourse may be attributed to their interpretation of legal rules within the adjudication process namely, the false perception that law has a fixed neutral meaning and the constraint approach of the court to deal with complexity because of its self-imposed limited institutional capacity. In other words, the legal community has not yet even started dealing with the linguistic turn, never mind the rest!

   A further danger presented by the legal constraint and jurisprudential conservatism and the expectation placed on the judiciary to transform society through adjudication, is the limits of law to fully recognise, realise and advance human rights. Amartya Sen (2006) explains that public reasoning is a necessary requisite for the recognition, realisation and advancement of all human rights. Sen argues that ‘there is a huge world of legitimate human rights beyond the limits of law’ (and arguably, beyond the predetermined technical and procedural solutions provided by courts) and warns against the misconception that human rights only ‘become real when placed in legislation’ (and arguably, enforced in judgments by courts). He emphasises human rights ‘are best seen as articulations of social ethics’ and their ‘functional usefulness lies in their role in practical reason’. He therefore perceives public reasoning (political discourse and participation) as crucial and inevitable to ‘look beyond the rigid box of currently legislated rights’. Evans (2005) argues that the modern discourse of international human rights is primarily based on legal (as opposed to political or philosophical) construct and juridical procedures. The result of a ‘legal’ human rights discourse is that it takes the form of procedural repairs for example, the clarification of legal rules or the creation of new juridical norms and principles instead of a more critical substantive reconsideration of the effectiveness of the current register of international law and ‘our abilities to imagine new futures’.

   The discourse of human rights being primarily a legal discourse is also evident in the way the judiciary has dealt with some of the constitutional socio-economic rights in South Africa. In cases where the court was expected to make a decision on the positive obligation on the state to take measures to realise a right, the court was reluctant to provide normative content to socio-economic rights (see Grootboom; TAC, Mazibuko). Instead the court resorted to a procedural and formalistic approach questioning the reasonableness of the measures taken by the state to realise these rights (O’Conell, 2011). The court argued that they are institutionally incapable to deal with the complexity of socio-economic choices. In the context of socio-economic realities these ‘judicial procedures, interpretive methods and doctrinal categories’ are ‘blunt instruments for dealing with particularity and difference’ (Liebenberg, 2012, p. 6).

   1.3 Mazibuko case

   To illustrate how human rights becomes legal human rights discourse focussed on procedural repairs and how this discourse also depoliticises needs issues by way of technicisation and proceduralisation I should mention the Mazibuko case. The case concerned the right of access to sufficient water in terms of section 27 of the Constitution.

   Lindiwe Mazibuko, who passed away while the litigation was in progress (the first applicant in the case), was a 39 year-old woman who, along with approximately twenty other people, shared a stand in the township Phiri, located in Soweto near Johannesburg in South Africa. Lindiwe, her two sisters, their mother and their thirteen children lived in the main house, while six boarders shared two shacks in the backyard. No one in Lindiwe’s house was employed and their income consisted mainly of social assistance grants and the rent of each from the two backyard shacks. On 28 January 2004 the residents of Phiri received notice that a prepaid water system would be put in place. The notice further indicated that if the residents decided on such an installation of the prepaid water system, their debt in arrears would be cancelled. Lindiwe argued that she did not receive such a notice and was not consulted on the prepayment system, and that her water supply was disconnected without notice. As a result of the disconnection she lived without water on her property for approximately six months and during this time she walked 3 km, twice a day, to fetch water. On 11 October 2004 Lindiwe finally surrendered to the prepayment water system. In terms of the prepayment water system, once the 6 kilolitres free water per household per month has been consumed, the water supply is automatically shut off and the consumer has to buy water credits in order to be supplied with water again. The prescribed free 6 kilolitres for each stand has almost never been enough for Lindiwe and her extended family. She indicated that – with extreme care – the water would last for ten to fifteen days. If they needed more water they had to sacrifice other basic essentials such as food. This situation fundamentally compromised their health and human dignity. In her Founding Affidavit, Lindiwe, states:

   In our household of 20, we would only be able to flush the toilet less than once every two days; each person could only have a ‘body wash’ every four days; 2 kettles of water, 1 sink full of dishes and half a clothes wash per day would have to be used by 20 people. After all the free basic water budgeted for that day was used, no water would be left for anything else, such as drinking, cooking, cleaning the house and watering my food garden (Founding Affidavit, paras 101 and 114).

   The case was firstly brought before the High Court by Lindiwe and five other extremely poor residents of Phiri, against the City of Johannesburg, Johannesburg Water and the Minister of Water and Forestry Affairs. After the High Court made an order in favour of the applicants, ruling that every resident is entitled to 50 litres of water per person per day, the respondents appealed the entire decision. The Supreme Court of Appeal then reduced the quantity of water to which the residents were entitled, to 42 litres per person per day provided that residents register at the City’s Register of Indigents. Unhappy with the order made by the Supreme Court of Appeal, the residents of Phiri turned to the Constitutional Court as highest court in constitutional matters. Before I turn to a discussion of the Constitutional Court case, I should mention that both the High Court and Supreme Court of Appeal were prepared to engage in the content to the right to adequate water and affirmed that the right of access to water was not equivalent to access through exclusively commercial mechanisms (Dugard & Liebenberg, 2009).

   The Constitutional Court Case concerned two major issues, the first, whether the Free Basic Water policy (Operation Gcin’amanzi -to save water and the City’s decisions to supply 6 kilolitres of free water per month to every accountholder in the city) was in conflict with the right to access to water (in terms of section 27 of the Constitution and s 11 of the Water Services Act and the second, whether the installation of pre-paid water meters by the state was lawful. Justice Kate O’Regan wrote the judgement for the unanimous court.

   It should be noted at the outset of this discussion, that the court’s evaluation of the state measures in relation to the right to access to water is limited within the ‘liberal capitalist understandings of economic ordering’ (proceduralisation). Dugard (2010) explains, that water services in South Africa are ‘managed largely along commercial lines’ and ‘water has become more of an economic product and less of a public health-related service’. The reason for this can mainly be attributed to the government’s ‘growing neo-liberal preoccupation’. This has been visible in national government’s tight fiscal control over local governments (municipalities); it’s steadily withdrawal of financial support; it’s insistence that municipalities should become financially self-sufficient; and following the advice from the IMF and the World Bank it also decreased subsidies and grants to municipalities. These measures pressured municipalities to commercialise basic services such as the provision of water and electricity. As such the provision of services has become the main sources of revenue for most municipalities and this results in ‘poor households being disconnected for inability to pay for water services’.

   In the introductory statement, O’Regan J recognises the inequalities in the provision of water and water services and the transformative vision of the Constitution to rectify these inequalities. She contextualises the inequalities in the provision of water by stating that

   [w]ater is life. [w]ithout it, we will die … .. despite the significant improvement in the first fifteen years of democratic government, deep inequality remains and for many the task of obtaining sufficient water for their families remains a tiring daily burden. The achievement of equality, one of the founding values of our Constitution, will not be accomplished while water is abundantly available to the wealthy, but not to the poor.

   Technicisation of the issue of access to adequate water as a basic need, already occur in the final part of her introductory statement (and continue through the judgment). O’Regan J describes South Africa, as a largely arid country and depicts water scarcity as a reality and something wholly outside of the control of society (naturalisation). She emphasises that the rights of people to have access to a basic water supply should be understood in the context of government’s duty to manage water services sustainably. The issue of water as a basic need is consequently been translated into a complex problem of sustainable water management which can only be addressed in formal political and governmental institutions.

   The judgment elaborates in detail on the limits and constraints of the powers of the court in adjudication of socio-economic rights and provides extensive reasons justifying the limits and constraints. There is a clear underlying message that the court will not question the substantive content of the obligation placed on the state, that the determination of the content of the right is a matter for political and formal branches of government, and the court is merely there to enquire whether the measure to realise the right in question is procedurally reasonable. This line of argumentation leaves little scope for the future adjudication of socio-economic rights, if the judgment is to be followed.

   Under the heading ‘The role of courts in determining the content of social and economic rights: the proper interpretation of section 27(1)(b) and 27(2) of the Constitution’, O’Regan J echoes the rhetoric used in the previous socio-economic rights cases of Grootboom and TAC by stating the following:
   • Firstly, there is no directly enforceable obligation on the state to realise the right to water.
   • Secondly, the court is only capable of reviewing the reasonableness of the state measures.
   • Thirdly, the court should not determine the content of the right (including minimum core) because the court is institutionally incapable, and because of the complexity involved in making such decisions, and the Court should show deference to other branches of government to avoid infringing the separation of powers.

   O’Regan J seeks refuge in structure by turning the issue into a review of state measures but unlike the preceding cases on ‘reasonableness’ (Grootboom and TAC), the court does not engage in the more robust ‘formal or structural’ criteria for the reasonableness review. O’Regan J proceeds to limit of the Court’s power to adjudicate socio-economic rights by explicitly stating that:

   …it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right. This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights. Indeed, it is desirable as a matter of democratic accountability that they should do so for it is their programmes and promises that are subjected to democratic popular choice (para 61).

   Courts are ill-placed to make these assessments for both institutional and democratic reasons (para 62).

   O’Regan J depoliticises the issue before the court in a number of ways;
   • firstly by the turning the provision of water to indigent members of the society into a complex, administrative and technical issue, that can only be addressed by formally constituted political branches of government (technicisation);
   • secondly, by limiting its engagement in the issue to the reasonableness review (structuralisation); and
   • finally, by showing deference to a (procedural account) of democracy and limiting questions of need within the ‘liberal capitalist understandings of economic ordering’ (proceduralisation).

   Justice O’Regan’s understanding of ‘democracy’ is purely institutional, procedural or structural and lacks the substance required by transformative constitutionalism, transformative politics and political participation as referred to above. O’Regan J describes democratic participation as either a process where government can be held to account over election on certain matters or where courts may be approached to investigate the reasonableness of government measures. She remarks:

   If one of the key goals of the entrenchment of social and economic rights is to ensure that government is responsive and accountable to citizens through both the ballot box and litigation, then that goal will be served when a government respondent takes steps in response to litigation to ensure that the measures it adopts are reasonable, within the meaning of the Constitution.

   and, later she notes,

   The purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account through litigation. In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy (para 160).

   Justice O’Regan’s limited account of ‘democratic participation’ nonetheless excludes those people outside formal political structures and government the space to actively participate, engage and oppose decisions on poverty, needs and social provisioning of the state. She suggests that the only remedy available to people outside formal political structures and government is to turn to highly, complicated, slow and expensive litigation processes. She remarks

   It is true that litigation of this sort is expensive and requires great expertise (para 165).

   Realising the conundrum presented in her suggestion that the certain segments of the population, only resort is to turn to the judiciary when they disagree with policy decisions of government, O’Regan J attempts to distance herself from the problem by arguing that South Africa has a range of civil society and non-governmental organisations to assist the this segment of the population in the legal arena to litigate their rights:

   South Africa is fortunate to have a range of non-governmental organisations working in the legal arena seeking improvement in the lives of poor South Africans. Long may that be so. These organisations have developed an expertise in litigating in the interests of the poor to the great benefit of our society. The challenges posed by social and economic rights litigation are significant, but given the benefits that it can offer, it should be pursued (para 165).

   She therefore also removes the plight and struggle of impoverished members of society to participate in decisions concerning their needs and structural conditions (or to realise their socio-economic rights) from the public/political sphere and locate it as a non-governmental/charity problem. A further problem presented (by this limited procedural perception of ‘democracy’ and the suggestion that the impoverished may turn to socio-economic rights litigation), is that it gravely overlook government’s unfair advantage in the whole litigation process. The state has (almost) an unlimited state resources at its disposal to litigate while impoverished members of society on the other, is forced to depend on the assistance of non-governmental organisations which only have limited resources.

   This limited procedural perception of ‘democracy’ does not take into account the importance of meaningful public participation. As discussed above, meaningful public reasoning in the form of political discourse and participation is a necessary prerequisite for socio-economic transformation. The limited conception of democracy and democratic participation proposed in Mazibuko excludes especially impoverished people, to participate and contribute to decisions that affect them and that affect the society of which they are a part.

   1.4 What to do?

   The complexities described above therefore require ‘a shift in thinking in South African and global socio-economic rights scholarship’. Pieterse (2007) argues that this shift should inter alia recognises the ‘limits inherent to [the] enforcement’ of socio-economic rights and should be aimed to ‘find out how social and economic rights can be used to benefit real people’. He proposes that ‘we need to emphasize the nature and extent of the needs that made citizens want socio-economic rights in the first place and to find ways, in our processes of translation, to make these rights create the experiences that they currently only simulate’.

   Such a shift in thinking is visible when Brand (2009) argues that the adjudication of socio-economic rights should be perceived as part of the political discourse in a democracy. Brand is particularly concerned with the ‘capacity and space for political action intended to advance the interests of impoverished people’ (meaningful participation of the impoverished members of society). He cautions that the judiciary when confronted with the adjudication of socio-economic rights, often engage in language and strategies that remove poverty and needs issues from the discourse of impoverished people. Brand describes transformative politics as the ‘capacity and space for political action intended to advance the interests of impoverished people’ which is ‘critical in its orientation; it is non-institutional; and it is substantive and agonistic rather than procedural and consensual in nature’. Brand explains, that a democratised approach to socio-economic transformation, requires ‘the creation of a society in which all – perhaps in particular impoverished people – are able to participate in a meaningful fashion in the decisions that affect them and that affect the society of which they are a part’, he perceives it as a desired outcome of transformation ‘alongside the physical eradication of poverty and socio-economic inequality’. He suggests that our courts should rather decline to address a matter or find ways to redirect the matter within the broader political spectrum.

   1.5 What do I think?

   [Side Note:]

   I’m not suggesting we should undo human rights. I’m more suggesting we should recompose [human] rights and be highly critical of its underlying discourse/s (it’s expectations and it’s promises). I should also clarify that I think [human] rights should be distinguished from law. I see the latter “law” as a pure manifestation of positivism, a social system with rules. What troubles me is how the law manages to serve the state and capitalist interest even in a country with the most progressive constitution in the world! The more I read and think about it the more I get the feeling that all these human-made laws do one thing: it builds boundaries; it stratifies smooth spaces; it makes it impossible to move in a so-called globalized world. Even the laws created to promote and realize “rights” serve to build the wall. How do jurists start judging without judgment? What happened in South Africa is that rights got absorbed in law and now we are stuck! And because we are stuck we resort to the only language we know, we rebel by way of continues social protests.

   1.6 Rights evolving (an attempt to answer question 1)

   As an educationalist the first thing I really want to shout out is “bring back the humanities in law teaching”. If we want to change legal culture and constraint we need to start with the educational system of lawyers. We train lawyers we don’t educate them. There is currently a small debate going on between some of the younger members of the South African legal community where they argue that you don’t need to be a lawyer to be a judge in the Constitutional Court. I fully agree! I think one of the main reasons why legal systems resist change the almost closed nature of the discipline. I appreciate the work that Paul Patton, Alexander Leverbe and others have been doing on Deleuze’s idea of jurisprudence. I have to say I find it difficult to apply in my field but I will have to continue thinking towards singularities and rights.

   [Another side note]:

   I always tell my students you cannot eat or drink a piece of paper. I send them out to visit shack settlements and come back and report on what they see. Most of the times with their first visit they will return and talk how dirty these places are. I then refuse to listen and send them back and ask them to look deeper to investigate further but explicitly warn them to listen and not give legal advice. It is my attempt to install a bit of compassion but I am amazed at the response I get from these very privileged students once they become involve with the plights of others. But this is a highly controversial method of learning and I was recently stopped from doing this, presented with a bundle of paper work to request permission to continue this method.

   What worries me is my own incapability of changing what is currently happening. And by this I mean observing signs and hearing about incidents that is sanctioned by the law but are truly so unjust.

   2. How do we get institutions and institutional bureaucrats to incorporate a sense of suffering and vulnerability into their everyday decision-making? Are there deep mechanisms of bias favouring outcomes that support elite interests that systematically exclude a sense-ability towards suffering?

   I need to think about this question so I will turn to question 3.

   3. Do you have any examples of people you work with, at the so-called “grass-roots” level, where people who are fighting not just for their “rights” but basically for their survival and subsistence have been able to shift or augment the dominant narratives about personhood, responsibility, and the like, and thus challenge the set of governance practices they live with?

   If I understand you correctly you are asking me 1) what is the type of “language” used in the struggle for survival and subsistence and 2) have we seen change in the use of this alternate non-rights approach?

   Regrettably my answer from my experience is no, but this still does not mean we can afford to continue the current dominant rights discourse where we exclude a major part of the population to participate in decisions affecting their needs.

   As explained to participate or voice their concerns, impoverished social individual and collective bodies are left with the option of approaching those mechanisms that have been provided for by the state or by formalised civil society organisations or they may turn to the courts. The Constitution, 1996 brought about a complicated legal system which is governed by judicial adjudication, legislation and policy; managed, administered and organised by different levels of government, which are also divided into different areas of competence on each level, and all this is overseen by various independent constitutionally mandated structures working with different segments of civil society involved formally and informally with socio-economic issues. As such socio-economic rights adjudication, translation and implementation produced a multifaceted web of striated space.

   John Comaroff (Bangstad, Eriksen, & Comaroff, 2012, p. 127, 128) argues

   But the law does not, in itself, empower; nor does it yield an ordered world. That world, the shape of power within it, is produced as people seek to impose their wills on others by whatever means come to hand. Among those means, legal instruments have become the weapon of first resort for many, often encouraged and facilitated by NGOs dedicated to the support of those who would otherwise lack the means to take their fights to the courts. …. Among other things, it can undermine other forms of political action.

   … ordinary differences over public policy, over elections, over rights and interests were ever more likely to find their ways into the courts.

   Neoliberal governance in the postcolonial context requires that states create complex legal systems as part of its bureaucratic functions to manage the population and adjudication and other legal measures often become the ‘default mode of resolving disagreements, defending interests, attacking others, claiming rights’. Comaroff argues that ‘postcolonies seems to make a fetish with the rule of law’ effectually turning the politics of everyday engagement into a complex legal organisation.

   One of the consequences of this complicated legal system (which is also inherently part of neoliberal capitalism) is the escalating incidence of social protests in South Africa also referred to as the ‘rebellion of the poor’ (Alexander, 2012; SA Social Protest Observatory; De Visser & Powell, Bangstad, Eriksen, & Comaroff, 2012, p. 127, 128). Organised and spontaneous movements turn to social protest when threatened with eviction, evicted by forceful measures to express their continued struggle to access basic needs such as water, sanitation and energy and their discontent with poor service delivery, structural living conditions, inaccessible bureaucratic systems and complicated, often prejudicial political networks (Bangstad, Eriksen, & Comaroff, 2012, p. 133; Pithouse, 2012, p. 12; Alexander, 2010, pp. 25-40; Handmaker & Berkhout, 2010, p. 5).

   Jean Comaroff (Bangstad, Eriksen, & Comaroff, 2012, p. 133) argues, that these movements ‘in the wake of the growing spectre of [human] disposability’ signifies a struggle for ‘the basic right to exist’ although it is often expressed differently in terms of a demand to basic services, resistance against displacement and disconnection from water or electricity. In other words, what I’m trying to say is that the processes in which bodies engage in their struggle to avoid suffering also include non-verbal expressions by collective bodies for example the occupation of public spaces in the form of social protests which may sometimes be very dangerous but they still do it. Furthermore this type of public decent is often a prerequisite before public interest litigation NGO does consider pursuing a specific case.

   When collectivities express their anxiety with the material conditions threatening their existence they are often met with direct state resistance, political confrontation and conflict with the law and it may also involve interference of the growing private security sector (McMichael, 2012). They describe it as a ‘war against the poor’ directed to ‘drive the poor out of the cities’ to contain them in ‘the human dumping grounds and repress’ their ‘struggles’.

   A recent report by the Department of the Presidency, the National Planning Commission (2010, pp. 16-17) diagnoses the growing instability in state citizen relations, the complex nature of legal and political organisation and the obstacles faced by impoverished collectivities to participate in decisions affecting their needs and living conditions. The National Planning Commission proposes to address these paucities by creating advisory councils to bring together policy-orientated academics and activist to advise government on anti-poverty measures, pro-poor agenda’s and pro-poor policies. It redirects engagement to be facilitated through formal processes while perceiving the ‘poor’ as a predefined and fixed category denying them the ability to participate in their needs. As such it assigns attributes to ‘impoverished’ individual/collective bodies without inquiring otherwise’ (Ross, 1991; Stewart, 2012; Brand, 2009). It presumes that poverty is somehow built into the basic structure of society and law systems and suggests that ‘poor’ people are somehow immoral, deviant and helpless. Ross (1991, p. 1499) argues that ‘[b]y focusing on the single variable of economic wealth and then drawing a line on the wealth continuum, we create a class of people who are them, not us’.

   I do feel that I have more questions than answers again I am going to give you my (highly subjective) observations on the current state of law and the discourse around human rights: (this might sound harsh)

   Formalised civil society organisations are currently helping the ANC government to stay in charge.
   1. The political debate is moved from the political arena and replaced with a continued human rights battles playing of in South African media.
   2. I gate crashed a meeting last year organised by “civil society” where the main organiser said he is still a member of the ANC. During that same meeting all these NGO’s working on poverty related matters accepted the National Development Plan without any substantial concerns. The NDP is tainted with neoliberalism and there is a clear shift away from social welfare function of the state.
   3. These NGO’s are funded by the Ford foundation, European Union etc. and they are restricted by their funders – as such NGO’s focussing on Pan Africanism, Black consciousness or grass-root African concerns get no substantial funding.
   4. And I must add that some of these NGO’s are doing good work but in the long term they might harm these people they are serving.

   I ask myself if I look at the rising number of social protests why are nothing changing? I wished I had more concrete answers.

8. via Linda: