Letters to the editor, September 17

A name change, but what else?

The Constitutional Court has made a ground-breaking ruling on the South African matrimonial act and has dealt a blow to the age old patriarchal naming tradition.

It has ruled that a man can adopt his wife’s surname, ending the age-old tradition of a woman renouncing her maiden surname and taking on her husband’s name. It was the same court that granted recognition to customary marriages, giving them the same legal status as civil unions. Now it strikes a blow at customs and traditions.

Women’s rights groups will welcome the ruling and will celebrate their victory against a male dominated world. Another big chunk has been removed from the thick male armour plate. But how much will really change?

South Africa prides itself as having one of the most advanced, modern and enlightened constitutions in the world. But it’s just on paper. Nothing is done little to improve the quality of life of the masses and make sure the weaker sex is protected from the male predator.

The reality of life on the ground is so different from the court room. Women and children are not safe even in their own homes. As I sit here, writing, a helpless woman, child and even a little baby is screaming in some part of the country as it is sexually assaulted, often brutally, not by a stranger but some one known to the victim. It is not only one of the most dangerous countries in the world but also the most unequal nation in the world.

So will there be any meaningful change after the Constitutional Court ruling? Many will see it merely as a facade, like the changing of the school curriculum and road names.

While there is some change among the enlightened younger generation where the male partner is, in some ways, unlike his old fashioned, dominant father and is now seen helping out with household chores, there is still a long way to go before we see equality of the sexes. | T Markandan Kloof

Smoking is a vice, not a crime

All crimes are vices, yet not all vices are crimes.

This concept is most clearly illustrated by the new Tobacco Products and Electronic Delivery Systems Bill. In its effort to curb the vice of smoking, or more precisely, its harmful effects, this bill has effectively criminalised smoking even within the home.

Crimes should be understood as actions that harm others: Actions that infringe upon the rights of another. In the absence of harm to others, is there any justification for an action to be considered a crime?

A prevailing perspective is that state violence – manifested through criminalisation and its associated measures – is justified against certain actions that do not cause harm to others. Actions that attract criminal sanctions without directly harming others are considered vices. Vices are actions, habits, or practices regarded as sinful (subject to sin taxes), harmful, or socially unacceptable.

Drug criminalisation is the clearest example of how a vice is criminalised.

Within the context of rights, the consumption of substances that harm the consumer does not violate the rights of others. No justice is served to anyone else when a person is found in possession of a certain amount of a banned substance and prosecuted. The presumption of criminalising vices assumes that the state has the right to act in the best interests of its citizens, even if its actions contradict the citizens’ wishes as expressed through their behaviour.

This presumption views the state as a moral guide and enforcer for its people. This presumption is both dangerous and unjust. It is not because drug consumption, for example, is harmless – the evidence of the detrimental effects of drug abuse is clear. Rather, it is dangerously unjust because it is based on subjective criteria. The subjectivity lies in the fact that what constitutes a vice for person A is often not considered a vice for person B.

In the absence of a violation of rights by the said vice, there is no objective basis for the state to classify certain actions as criminal. Beyond the moral inclinations of legislators or voters, there is no objective – and therefore just – basis for such criminalisation. This unjust presumption, which has been accepted as part of the justice system, has led to proposed legislative provisions such as Section 2(1)(f) of the Tobacco Bill.

This section criminalises smoking inside your private dwelling, including your home, if you also use that dwelling as a workplace. Section 21 (1)(f) effectively criminalises smoking on private property for anyone who works from home in any capacity. In its attempt to curb the vice of smoking, the state has intruded into your home and is dictating what you can do within it. This section is unjust because smoking in one’s own home – which serves as an office during work hours – harms no one except the smoker’s lungs and possibly their linens.

The state has no objective basis to sanction this behaviour, aside from the near impossibility of enforcing such a law. This raises the question: if the law is difficult to enforce and unjust, why maintain it on the statute books? Legislation such as the Tobacco Bill is based on the idea of eliminating vices by criminalizing them, as described above. Therefore, beyond this specific section, the Bill – or rather its underlying logic – is unjust because a just society is not one in which everyone follows the same moral prescripts or code.

Instead, it is a society that allows individuals to follow as many different moral codes as they wish, provided they do not infringe on the rights of others to do the same. When vices are policed broadly or criminalised even within the privacy of one’s home, as the Tobacco Bill does, the ideal of a just society is compromised – regardless of the legislators’ intent.

Let us strive for a just society where, although we punish criminal vices, we do not criminalise every vice. | Zakhele Mthembu Free Market Foundation

Through the right lens

Adverts like “Fun, friends and cold Castle. This is the life and this is the Beer!” and “You can stay as you are for the rest of your life. Or you can change to Mainstay... Mainstay!” used to blast from loudspeakers at the old New Kingsmead Stadium while we, brainwashed Indians, excitedly watched apartheid football. '

We had little sense then, and though we foolishly abetted segregated soccer, at least some of us ignored the loud lenses of these adverts. We did have some choice.

Lenses focus attention, shift our gaze. All writing, adverts, broadcasts, whether by radio, television, or news are lenses. But we are born with choices.

As readers of the endless drama unfolding in world theatres, we are bombarded by writers, psychologists, governments, and talk-show presenters. Yet it is still our choice to focus on the lens of Narendra Modi or Mahatma Gandhi, Amit Shah or Dr BR Ambedkar – the drafter of India’s Constitution. We can listen to everyone and then make our choice.

Do we follow Booker Prize winner Arundhati Roy, internationally respected for her views on justice, or lend our ears to BJP ranters? Closer to home, do we focus on the vision of Nelson Mandela or Julius Malema? Would you rather share space with an original JFK – or with a Donald Trump?Choices, choices.

Time is running out, but there is still hope for Palestine, and for India.

Which side of history will readers fall on? It depends on faith in human rights – and on choosing the correct lens.Good luck. | Ebrahim Essa Durban

DAILY NEWS