by
Kayla Hazell
“They didn’t ask us why we are washing
cars. They didn’t ask us anything.”
This essay adopts the position
that formal human rights, such as those encoded in the Bill of Rights of the
Constitution of the Republic of South Africa, 1996 (hereafter, the
Constitution), are potentially emancipatory in the sense that they embody our
society’s commitments and aspirations with regard to the treatment of
individuals and groups. That said, it will be argued that a formal commitment
to human rights does not automatically translate into practice and that this
has largely been the South African experience. Human rights are subject to
constant balancing, particularly where interests conflict, and such balancing
occurs according to a particular rationality. It will be contended that, if
rights are to become a reality for all, the rationality governing our
commitment to human rights in South Africa, currently largely economistic, will
need to be renegotiated in light of the fact that our formal rights have stood
watch while extreme inequality continues.
Introduction:
It
appears that the lesson of an old childhood fable has been lost upon South
African society. The fable is that of the mouse and the mousetrap and the
message is one of collective individual responsibility. One morning, Mr Mouse
emerges from his crack in the wall to find a gleaming mousetrap upon the
kitchen floor. In a panic, he scurries quickly to Chicken to tell him of this
problem. Chicken listens carefully to mouse’s woes, but when he is done
explaining, clucks softly and says, “Mr
Mouse, I can tell this is a grave concern to you, but it is of no consequence
to me. I am afraid we do not have a
problem; you have a problem.” Not to
be put off, Mr Mouse hurries along to Pig and then to Cow to relay his awful
news, but the reaction from both is no different. That night, the farmer’s wife
hears the snap of the mouse trap going off and rushes to the kitchen to see
what has been caught. Sadly, she does not see that the ensnared is in fact a
dangerous snake and is bit. Though the farmer rushes her to hospital, she
returns home with a high fever. Desperate to make her more comfortable, the
farmer beheads Chicken and boils a foamy chicken soup, yet his recipe is
unsuccessful and her condition deteriorates. Over the next few days, as friends
flock to stand vigil at her bedside, the farmer decides to slaughter Pig in
order to feed the visitors. Alas, the people’s prayers are not enough and, upon
the death of his beloved wife, the farmer must butcher Cow to feed the funeral
guests. Watching sadly from his crack in the wall, Mr Mouse despairs at what he
has seen and the listener is forced to realise along with him that, truly, when
a community faces a challenge, it is everyone’s problem. This essay will
interrogate a current issue in Grahamstown, unpacked through the testimony of
various parties in the conflict, to conclude that this simple lesson is one
which urgently needs to be instilled in the rationality governing South African
politics and law. Failing this, our discourse of human rights will remain
insufficient as an emancipatory theoretical praxis; a formal commitment which
fails to translate into genuine rights for all.
The
conflict and what it means for human rights on the ground:
Some
weeks back, an unauthorised protest took place in Grahamstown during which car
washers and car guards dumped rubbish
they had collected along High Street and New Street, in an effort to attract
the attention of the mayor. According to a press statement released by the
Unemployed People’s movement (UPM), the protesters had been attempting for some
time to engage with the municipality over the posting of a sign proclaiming the
prohibition of car washing on public roads, in terms of a by-law created in
section 9(b) of Local Authority Notice 11 of 2007. The sanction for
contravention is a fine of R200 that both the washer and motor vehicle owner
may be liable to pay. Failure to pay can result in arrest (Govender, 2013). Although
the by-law has been in existence for a number of years already, it is only
within the past few months that the authorities have clamped down on
enforcement and this had had a significant impact on the young people that have
been washing cars in town to earn a living (Fandese, 2013). Two former car
washers on High Street, Siyabulela Ntano and Andile Fandese, explained that the
law results in their earning less than a fifth of what they used to be able to
make on a daily basis and said that this affects their ability to buy basics, such
as bread at the end of each day. Both young men live in Hlalani location with
their families and both say that the money they make is essential to their
families’ ability to survive. That the by-law materially affects the earning
capacity of these unemployed men as well as others is beyond question.
Municipalities
are empowered by the Constitution to create by-laws which regulate their areas
of jurisdiction with a view to facilitating social harmony and order (Report on
the Implementation of By-Laws, 2013). Xabiso[1] (2013), a director in the Grahamstown
municipality, explained:
“We
need to create an environment where people are able to live and work in a
manner that is orderly. In our view, a by-law is sort of a social contract
between us and the residents where we set certain regulations. Without by-laws
there would be a disorderly society.”
The
question which necessarily follows, of course, is: what significant social
harms are taken to attach to the feared proliferation of rampant car-washing on
public roads? The comments of Ntano and Fandese, as well as Director Xabiso; media
spokesperson for the South African Police Service (SAPS) in Grahamstown,
Captain Mali Govender; local businessman , Larry[2]; President of the Grahamstown
Business Forum, Eugene Repinz; and Assistant Director in the Traffic
Department, Mr CJ Hanekom, reveal the beliefs held by the various parties in
this regard. Their testimony, which
follows below and will largely be allowed to speak for itself, serves to tell
much of the story surrounding the prohibition on car washing in Grahamstown. It
is submitted that this story reflects the current disparities between South
Africa’s formal commitment to human rights and the experience of many of her
citizens.
Ntano (2013)
and Fandese (2013) agreed on the following:
“They
say that the water is breaking the tar, but I don’t know how if the rain
doesn’t do that. And they say that we are making a noise for their business so
their customers don’t come here.”
Director
Xabiso (2013) stated that:
“We
have to keep the town in good shape so we can be able to attract investment.
The town must be clean and there are regulations prohibiting certain
activities. You must also look at it from the point of view of security. Our
streets also have to be maintained and hence we introduce these kinds of by-laws.”
To
this, Hanekom (2013) added:
“A
public road is not a place to conduct a private business. Can you imagine what
the town would look like if we allowed everybody to do that?”
While Larry
(2013) expanded on his issues with the car washing:
“It is
just not a viable option for business in High Street. They are a nuisance, they
irritate people, they intimidate people, and they make the place dirty. Besides,
the reason car washing [on public roads] is illegal in this country is because
the soap damages the tar. So it’s not a personal thing, but we just can’t have
it here.”
And
Captain Govender (2013) explained the police’s position:
“The
car washers come there to wash; they watch, break in, and steal. It’s a very
general statement to make, but we have had instances and since they’ve been
stopped from washing cars on the streets we don’t have as many complaints.”
One intriguing
ostensible consequence was also alluded to by Govender (2013):
“It’s
actually a health hazard to just start washing cars on the street. If you are
walking in town with your slip slops on across High Street from Dulce’s or the
doctor’s surgery and just taking a walk down to maybe the Spur or Steers, you don’t
want to walk into puddles of water, maybe in summer, and you don’t know what’s
in them.”
The
horrors of soapy water aside, these comments cover a range of detrimental
effects taken to accompany the practice of washing cars on the town’s public
roads. Broadly, the complaints can be summarised as relating to crimes of theft
and drug dealing allegedly committed by or under the watch of car washers and
car guards; issues of purported harassment and intimidation; unsightliness or
untidiness in the public space; and the maintenance of public streets. The
common thread through all of these complaints was the injurious impact that the
car washers’ presence is taken to have on businesses in the town centre. It is
not surprising that it is the Grahamstown Business Forum – constituted for this
very purpose – that has been putting pressure on the municipality to enforce
by-law 9(b) (Repinz, 2013). Larry (2013) offered his views on this:
“It’s
gotten out of hand and we’ve got to get this shit sorted out. And, well, we’ve
got to do it because nobody else is going to do it. You can’t rely on anybody
in government to do anything in this country – if you want something done, get
up and do it yourself. Unfortunately that’s what happens when you live in a
third world country.”
Despite
Larry’s disparaging remarks, Director Xabiso (2013) similarly ascribes to the
imperative of getting car washers off the public streets:
“We
have taken a position as a municipality that we are going to enforce our
by-laws. We can’t have by-laws that are there in the books, but not enforced.
It is like having a dog without teeth. It has to bite, unfortunately. But we
are dealing with the livelihoods of other people so we have to be sensitive in
the manner we are tackling some of the challenges.”
Repinz (2013)
explained that the car washing is bad for business in Grahamstown because
customers do not wish to park on High Street. This negatively impacts turnover
which, he said, harms small business’s ability to employ staff and leads to
retrenchment:
“One
needs to think in terms of the bigger picture. We essentially have nine people
holding the entire town to ransom.”
This
seemed to be the view of all those who spoke in defence of the by-law’s strict
enforcement. According to Ayanda Kota (2013) of UPM, however, the picture is
far more complicated:
“They
[the car washers] are trying to live. They are raising some funds for living,
they do not have a stake in the society, they are socially excluded, and they
are in a way asserting their presence and humanity. In Grahamstown, the
unemployment rate is said to be hovering around 70%, there is an excessive
amount of poverty, and these ills push people to desperations: living through
washing cars and being car guards. Whose fault is it? They are trying to live;
harassing them off the streets is oppressive and is entrenching injustices that
we see all over Grahamstown.”
Ntano (2013)
and Fandese (2013) agree that the full context of their position has not been
acknowledged:
“They
don’t know our backgrounds and why we are here in town. They didn’t ask us why
we are washing cars. They didn’t ask us anything.”
The
picture presented by the above words is thus one of conflicting interests in a
deeply divided society. In any nation, competing interests must be balanced
against one another and this balancing, facilitated often by legislation,
policy, and judicial precedent, takes place according to a particular
rationality. A strictly positivist approach to legal questions was largely
abandoned post-Apartheid and so, in asking why the by-law must be enforced, the
answer “because it is the law” is wholly unsatisfactory. It seems far more
constructive to establish why the law is the way it is and this involves an
examination of the rationality which has balanced the conflicting rights in
this case. It is useful to set such an examination against the backdrop of the
Constitution of the Republic of South Africa, 1996 (hereafter, the
Constitution). Widely deemed to be among the most progressive constitutions in
the world and based on the foundational values of freedom, dignity, and
equality, this document guarantees both political and socio-economic rights to
all and is renowned particularly for the justiciability of the latter category
of rights. As a transformative document, the Constitution states that its aims
are to heal the divisions of the past and establish a society based on
democratic values, social justice, and fundamental human rights. The preamble
of the Constitution further sets the objectives of creating an open and
democratic society governed according to the will of the people in which every
citizen is equally protected by law. Moreover, the document commits the nation
to building a united society in which the quality of life of all citizens can
be improved and the potential of each individual can be freed (The
Constitution, 1996: Preamble).
Almost
twenty years from democracy, the hopes of the Constitution, though very real
for some, are yet to be fulfilled for all. South Africa exemplifies the
distinction drawn by Partha Chatterjee (2004: 38) between civil society and
political society, a distinction which Michael Neocosmos (2011: 359), from the
South African context, retitles civil and uncivil society. The term civil
society, though now generally used to denote bodies such as Non-Governmental
Organisations (NGOs), churches, businesses, and media houses, classically
refers to the space in which all citizens can act beyond the state (Chatterjee,
2004: 38). Part of the idea is that civil society is able to organise itself so
as to hold government to account. Civil society is theoretically the space from
which rights-based claims can emerge and be heard so that formal guarantees
translate into reality. The problem which Chatterjee (2004) and Neocosmos (2011)
highlight is that, in fact, civil society is not fully representative. Civil
society operates through the law in making claims based on rights and the
exclusion arises because the law tends to assume a middle-class subject of
sufficient means to function through and within it (Chatterjee, 2004: 38). For
those who are not bourgeois, rights or equal citizenship are less actualised. Uncivil
society is thus populated by the poor and marginalised. This description of a
space in which people are not fully recognised as citizens seems to be present
in South Africa as reflected by the sentiments of Kota (2013) above, as well as
in the following statement:
“We are
not treated as full-blown political subjects, full human beings, and
knowledgeable citizens. They think that everything must be left to them and we
are just ungrateful bastards who are troublesome. Therefore they can unlawfully
prohibit our demonstrations, because we are also a violent species” (Kota,
2013).
Kota’s
final words here demonstrate that those who have little choice but to live
outside of the law in order to survive (for example, by utilising water and
electricity illegally, living in illegal informal settlements, or washing cars
on public roads despite a prohibition) are criminalised (Chatterjee, 2004: 40).
Larry (2013) demonstrated that this is a commonly held view in South Africa,
through both of the following statements:
“Typical
South African reaction: they don’t get their own way and they feel that they
are entitled to something because they are previously disadvantaged so they are
allowed to break the law. Now all of a sudden they’re being stopped from
breaking the law so they go and throw a tantrum and throw stuff all over the
street and scream up and down.”
And:
“They
are criminals. Through and through they are criminals and I don’t care how
badly off you are, there is no reason to become a pain in my life because of it”.
Due to
this criminalisation, the actions of the car washers are seen as illegitimate
and it would seem as though this supposedly partially absolves the state of the
duty to engage with them. Chatterjee (2004: 38) argues that while a certain
relationship exists between the state and political society, mediated primarily
by elections and related campaigning, the relationship is far from that
envisioned by the Constitution. He says that those living in political society
“are only tenuously and even then ambiguously and contextually rights-bearing
citizens.” (Chatterjee, 2004: 38) Neocosmos (2011: 3745) adds to this idea by
saying that those in uncivil or political society do not have the “right to
have rights”. The population is not seen as one body of individuals possessing
equal rights, but as a collection of different groups of people who must be
dealt with differently in terms of policy and the law (Chatterjee, 2004: 36).
This is despite the constitutional guarantee of a common citizenship in which
all are equally entitled to the rights, privileges, and benefits of citizenship
and equally bound by all the attached duties and obligations (The Constitution,
1996: Section 3). The result of this division is that legal title grants
rights, while those without this can make claims based only on entitlements
that do not demand the same level of respect from government (Neocosmos, 2011:
375). Ntano (2013) revealed this in the statement:
“The
municipality has not recognised our rights because they just talk about the
law. They don’t tell us that, okay, the law says this and this, but you can do
this. They know that we need the money we get from this for our homes. They
must take us away from the streets and build us something stable”.
The
municipality has been careful to stress that, despite the initial issues around
non-engagement that led to the rubbish bin protest, the car washers have since
been involved in conversations relating to alternatives (Director Xabiso,
2013). In discussions about rights and entitlements, however, the insights of
the people at grassroots level may often be marginalised (Englund, 2006: 71). Harri
Englund (2006: 71) argues that human rights are exclusionary because of the
belief that they must be enforced by experts and professionals in the form of,
for example, NGO workers and lawyers. These people are deemed exclusively capable
of fulfilling this role, revealing that, in many instances, the starting point
of engagements around rights and entitlements is not in fact one of equality
(Englund, 2006: 72). This can be seen in the fact that initial talks around the
“problem” of car washing in Grahamstown were held between the municipality,
police, and businesses (Repinz, 2013). Though the car washers themselves have
subsequently been involved in meetings, their presence from the outset was not
sought and the process of consultation continues to be divided, with the
municipality meeting with businesses and police separately from the car washers
(Director Xabiso, 2013). Neocosmos (2011: 359) agrees with Englund, saying that
the poor are often not recognised as knowledgeable and rational authorities on
their own experiences. They are also not seen as capable of acting to claim
their own rights. Rather, they are viewed as victims who require saving by the
law and those that guard it, including the government and NGOs (Neocosmos,
2011: 363).
This
victimisation constitutes a process of depoliticisation in which formerly
radical subjects are sent like damsels in distress to wait in darkness until
their newly elected princes deign to slay the dragons breathing fire at their
doors. These damsels, confined to socially allotted places that in reality are
far from fairy tale castles, are constructed, according to Neocosmos (2011:
363), by the fact that legal recourse is seen as the only acceptable form of
struggle. Director Xabiso said that:
“We
cannot have a situation where entrepreneurial activities are not regulated.
There is rule of law in this country. Much as we sympathise with the people,
everything has to happen within the provisions and the prescriptions of the law”.
Those
who are unable to act within the law must simply wait or have their complaints
conveyed by agents who do have a voice in civil society (Neocosmos, 2011: 376).
Thus, while human rights may facilitate access to resources and opportunities
among those in civil society, for the excluded masses they amount to little
more than claims on government’s kindness (Neocosmos, 2011: 381). One could
argue that it is the people’s rights, and not Director Xabiso’s unenforced
laws, that are rendered the dogs, as it were, with no teeth.
The economistic rationality currently
governing our human rights discourse
Why
is this so? Lewis Gordon (2006: 42) argues that, even if they will not admit
it, rich people hold greater power in society due to the fact that they have
wide spheres of influence and the capital to back their claims. Negotiations
are never undertaken in conditions of equality between the parties (Englund,
2006: 70). Neocosmos (2011: 363) contends further that the interests of the
state are generally aligned with the interests of those who have a major stake
in civil society. This is revealed by Director Xabiso’s (2013) statements above
about the importance of attracting investment to Grahamstown. Resultantly, businesses
have a significant impact on legislation, policy, and regulatory frameworks and
Neocosmos goes as far as to say that the distinction between the state or
public interest and capital or private interest has collapsed (Neocosmos, 2011:
370). What he means to say is that the government, held in check by money
power, may not be fully accountable to the people. Their ability to dictate the
common good may not be entirely autonomous (Neocosmos, 2011: 370). Anna Selmeczi
(2009: 1) asks how it is that states formally committed to nurturing their
populations seem to continuously exclude large portions of society from their
care. Her answer is that such exclusion is in fact inscribed into the economistic
nature of states’ governing rationality and the practice of viewing citizens as
populations, which Chatterjee (2004: 41)) calls “governmentality”. Selmeczi (2009:
1) argues that this exclusion amounts to a decision between who will live and
who will die. This she terms “biopolitical abandonment” and it is a consequence
that she believes flows from governments’ treating people as populations to be
managed so as to allow for maximum economic benefit. In such a context, the
individual is superfluous if they are not an economic contributor (Selmeczi, 2009:
14). The unemployed, such as the car washers in the present case, fall outside
of any relevant group in the population in terms of their economic contribution
and so they are seen as beyond the count and thus of minimal value to the
achievement of the state’s overall goals (Selmeczi, 2009: 16). The comments
from the municipality and traffic department reveal that economic concerns are
certainly relevant to the authorities and this economistic mentality is
espoused by the business sector as well. Larry (2013) allows us to notice this
by his response to questioning in respect of possible alternatives for the
displaced car washers:
“That’s
not my problem. Go and speak to the government that they voted in power. All
I’m concerned about is protecting what’s mine and if they’re breaking the law
and jeopardising my business they must fuck off”.
That
said, it is not all business people who feel this way. Local beautician,
Jessica Delport, showed this by saying:
“I
don’t think there’s been a good engagement because they’ve now told them
they’re not allowed to wash the cars in High Street, but I feel the
Municipality should come up with a compromise to say, look, you’re not allowed
to wash your cars here, but let’s give you another designated area so there is
some kind of solution to the problem. They have taken their income in the end
and they should do something to help out”.
Nevertheless,
Selmeczi’s question is an excellent one. One wonders, for example, how it is
that the above statement by Larry could be understood as anything but entirely
unacceptable, yet, although some may think it fairly perverse, many would
consider it a legitimate view. Grant Farred (2004: 592) argues that the
transition to democracy in South Africa brought with it a formal equality that
in reality acts only to shift social hierarchy from the terrain of race to that
of economics, while failing to provide any tangible improvement in the quality
of life of the marginalised. This reflects the skewed economistic “rationality”
that this essay holds falls short of adequate reason. Using the term nomos to denote the common sense or
governing sensibility of society, Farred (2004: 595) suggests that domination
in a different mask has continued into the present regime as that between the
rich and the poor. This new form of domination is not recognised as such in the
same way that racist oppression came to be, however, because inequality between
the rich and the poor is still taken to be acceptable. Furthermore, the new
Constitution and supposed commitment to human rights by the state grants it a
legitimacy that hides continued oppression and makes it very difficult to
challenge (Farred, 2004: 595). The fact of our being a constitutional democracy
based in human rights gives the state legitimacy and often situates it beyond
criticism (Neocosmos, 2011: 361). Particularly being a liberation party, the African
National Congress (ANC) is able to construct themselves as beyond evil – a
feature attached solely to past regimes (Neocosmos, 2011: 369). This is
dangerous because it means that acts of oppression or illegitimate violence by
the state may be rationalised, rather than criticised and called to account. Conflict
in which the poor stand as a counter-partisan to the rich is not yet seen as
legitimate because we currently exist in what Farred (2004: 595) calls a “zone
of indistinction”, where this conflict is not considered a political one.
It
is thus argued that the rationality at work in the by-law under discussion,
deeply imbued with the alleged logic of modernity and development, is that of
the rich, still primarily white classes. It is essential to take seriously the
challenges posed to such laws by the experiences of those such as the car
washers, in order to note that this rationality may not necessarily be reasonable.
The assumptions upon which many of our theories, laws, and policies are based
may be so pervasive and seemingly natural that they appear unquestionably good
and are seldom criticised, but this can be dangerous (Neocosmos, 2011: 361).
Democratic freedom brought about a new political order, but the change did not
fundamentally alter the oppressive structures of South African society (Mbembe,
2002: 250).
Towards an inclusive rationality
According
to Michel-Rolph Trouillot (1995: 93): “White hegemony is natural and taken for
granted, any alternative is still seen in the domain of the unthinkable.” Similarly,
Gordon (2006: 8) argues that whiteness is commonly taken to be universal and
normal, while blackness is seen as representing the exceptional, abnormal, or
particular. This is so regardless of actual demographics. Citing W.E.B Du Bois,
Gordon (2006: 6) describes how black people have been seen as problematic using
the metaphor of theodicism. He explains how, in politics, society is taken to
fill the role of God in theodicy – the state is all-powerful and all-perfect
and evil experienced by people within it is explained either as being the
result of a failure by those people to fully understand the systems of that nation,
or as the result of flaws and weaknesses inherent to the people themselves. It
is largely black, poor people who experience the evils of modern society and it
is these people who are thus seen as problems in themselves (Gordon, 2006: 8).
The logic of the state, taken to be unquestionable, thus creates a distinction
between those that can live under it and those who cannot. The first class of
people live lives that are inherently justified due to their position within
the law, while the second class must live in a manner that the system can never
consider legitimate (Gordon, 2006: 8). This situation is untenable. According
to Gordon (2006: 43), it is only a fool who clings to theories which defy
existence and reality. He argues that “the black world realises that the domain
over which truth claims can appeal is much larger than the white world is
willing to admit.” (Gordon, 2006: 9) The truth represented by a white
perspective in South Africa is limited in racial misanthropy. Such limitation
may be revealed by black experience and contradictions to the system must be
taken seriously. We need to renegotiate reason so that it accounts for
everybody (Gordon, 2006: 47).
A
failure to rise to this challenge will result in the continuation of what
appears to be a mentality that is very much in Sartrean bad faith (Sartre, 1945:
13). Concern with the face that Grahamstown presents is, of course, explainable
by reference to an admittedly significant dependence on tourism (and would be
said to be justified by some trickle-down philosophy). However, the obsession
with aesthetics appears to go further than this, almost to the point of denying
the fact that, for the majority of citizens here, clean streets, quaint
Victorian buildings, and leafy suburbs are not the reality. There is a distinct
attitude that Grahamstown starts and ends with the Central Business District and
concerns do not appear to extend to fears that Raglan Road or any part of the
location might be rendered dirty or unsafe by the proliferation of unregulated
car washing. There can be no doubt that Grahamstown continues to display the colonial
divisions of space described by Fanon (1961) in terms of a Manichean contrast:
the wide, clean, well-lit streets of the oppressor standing starkly alongside
the dark, dirty lanes of the oppressed. When thinking in terms of the need to
attract business and investment, “Grahamstown” is clearly taken to be
Grahamstown West – that part of town mostly beyond the reach of poverty where
the middle-class, denying the facticity of their situation in the ‘Third World’
and the transcendence of those they still take to be somehow different from
themselves, can play the first class city. Though it is not overt, there seems
to be a desire to contain the effects of poverty and unemployment within
Grahamstown East. Those who are associated with this poverty are expected to
remain in their place, allowed into the wealthier parts of Grahamstown ‘proper’
only in so far as they leave the symptoms of their impoverishment behind them(Gordon,
2006: 23). Kota (2013) reflected this:
“They
(the car washers) are poor blacks, they are polluting the space of whites and
the black elite; therefore they must go and eat at the dumping site like others
have done. I think this was the message”.
Prioritising
the appearance of the town not only represents a questionable ranking of
concerns in line with a very limited rationality, but also constitutes a
failure to acknowledge that Grahamstown East and West are inseparable: concern
with the appearance of the town cannot be claimed unless that extends to the
town in its entirety.
What can practically be done?
A
return to the allegory of Mr Mouse is instructive at this point. If we are to
change the rationality which governs our legal and political frameworks, which
this essay claims we ought to do, the change will have to be widely accepted
and absorbed to be effective. Engaging with these issues forces one to realise
the value that lies in being able to convince – let us choose the most radical
position – Larry that his opinion is not beyond criticism. Theorising such
change must thus be done in conversations that are able to persuade even those
who would be loath to step beyond a system which entrenches their property
rights and privilege. How, then, do we convince the current elite that a refusal
to recognise the full agency of the marginalised as rational political subjects,
coupled with an unquestioned prioritisation of capital over basic human
interests, is not only inconsistent with our constitutional commitment to
dignity, freedom, and equality, but is also volatile and unsustainable?
One
answer, perhaps, is that the story of the mousetrap shows that any problem
which confronts a community inevitably confronts each of its individual members
as well, even if this appears not to be the case. The appeal need not be to
some communitarian conception of the good, which may appear threatening to
those concerned for their property interests (Chatterjee, 2004: 45). Rather, it
can be argued that we need a more holistic, human approach to the socio-economic
challenges which drive the unemployed to ‘illegal’ activities in order to
survive. The car washing conflict clearly demonstrates the limits of the lines
drawn between Grahamstown East and West. Recognising that they themselves will
be affected by the problems of poverty, depoliticisation, and oppression
encountered by Grahamstown’s poor may lead the Business Forum to the conclusion
that adopting a ‘do-it-yourself’ attitude may be better directed at pressuring
the municipality to conceptualise a suitable alternative for car washers,
rather than pushing for the strict enforcement of the letter of the law.
Similarly, a possible argument lies in asking Mr Repinz of the Business Forum
whether his trickle down theory cannot be understood in reverse as well: when
property and the interests of the rich trump all else, a detrimental
socio-economic impact on the poor, propertyless, and unemployed trickles round
through society and returns to the doors of the wealthy in the form of nine
desperate car washers attempting to make a living and apparently harming
business on the sidewalks of High Street. The question, perhaps, is not where
the metaphorical buck stops, but where it begins its journey and why it starts
walking. This is a question which can only be answered by deconstructing the
rationality which we currently take as given.
A
number of solutions present themselves in the current matter. The first, and
that which has been suggested by both the car washers as well as the municipality
and business, is for the municipality to organise a suitable alternative
location at which the car washers can conduct their business legally (Xabiso,
2013; Repinz, 2013; Ntano, 2013; Fandese, 2013). It is agreed by all that this
location would need to be sufficiently central and appropriate in order to
facilitate good business. Another solution, argued for above though apparently
not widely supported by those involved, is that businesses themselves could
take on some responsibility for the establishment of such a formal location.
Many businesses in Grahamstown East are already involved in mutually beneficial
partnerships with businesses in Grahamstown West (Repinz, 2013) and it is not
unthinkable that a similar partnership could be formed with the car washers. A
third alternative, reflective of measures that have been taken to regulate car
guarding in an attempt to decrease criminal activities (Govender. 2013), is
that the car washers could be regulated and granted permission to work on High
Street. The service they provide is certainly useful to many, particularly
students who may be unwilling to spend large sums of money to have their cars
professionally washed. Furthermore, registration would allow for the regulation
needed and inevitably reduce the likelihood of any criminal activity (if such
allegations are in fact justified) by introducing a degree of accountability.
This has been seen to be the case with the introduction of something of a
system for car guards – notably, also a technically illegal activity (Govender,
2013; Repinz, 2013; Director Xabiso, 2013). Such a formalisation of the system
could be adopted at the level of policy as was seen with Durban’s adoption of
an Informal Economy Policy to regulate informal trading in public spaces. It will
be important to ensure that the implementation as well as formulation of
whatever solution is chosen is conducive to fostering the experience of human
rights in practice.
Conclusion
All
these solution and others that are imaginable can only be effective if
considered and applied according to the sort of renegotiated rationality that
this essay considers necessary. The prohibition on car washing in Grahamstown
is but one example of the imbalanced way in which formally equal rights are
experienced in this nation. Analysis of the present socio-economic and
political conditions in South Africa necessitates the conclusion that the
rationality with which we apply and balance our constitutional rights presently
is skewed towards the already privileged and limited by this imbalance. Due to
this, our commitment to human rights, though potentially emancipatory, has been
insufficient as an emancipatory theoretical praxis. It is argued that the
contradictions posed by the marginalised in society should induce
reconsideration of our governing rationality such that it better reflects
reality for all South Africans. As per Farred, one way in which this can be
done is to recognise the massive division between rich and poor as
fundamentally illegitimate so that political conflict on this basis can occur.
Such conflict is necessary given that the problems related to poverty and
inequality inevitably affect all in this country, with the marginalised
unjustifiably bearing their fullest weight. Should the sort of shift in
rationality for which Farred argues not occur, the present generation may one
day find themselves answering for why they did not do something, when it became
clear that something needed to be done.
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the Implementation of By-Laws.
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City, Informal Economy Policy, accessed at http://www.durban.gov.za/City_Government/Administration/Area_Based_Management/South_Durban_Basin/Partnerships/Economic/Pages/Informal_Trade.aspx (Accessed on 19 May 2013).
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Source List
Interview
with Siyabulela Ntano, car guard (former car washer), 20 May 2013.
Interview
with Andile Fandese, car guard (former car washer), 20 May 2013. Cell number:
0742989312.
Interview
with Grahamstown businessman Larry*, 21 May 2013.
Interview
with Media Spokesperson for the Grahamstown South African Police Service
(SAPS), Captain Mali Govender, 21 May 2013.
Interview
with Jessica Delport, Beautician at Salon Gavroche, 21 May 2013. Cell number:
0846940984.
Interview
with Ayanda Kota, Unemployed People’s Movement, 22 May 2013. Cell number:
0786256462.
Interview
with Municipal Director Xabiso*, 22 May 2013.
Interview
with Assistant Director Traffic, Coenraad Hanekom, 22 May 2013. Email: coenraad.hanekom@makana.gov.za.
Interview
with Eugene Repinz, President of the Grahamstown Business Forum, 23 May 2013.
Cell number: 0827847685.
*These
individuals were only prepared to be interviewed on the assurance that their anonymity
could be maintained. Their names, contact details, and precise affiliations
have thus been excluded, but it is declared that all information and quotes
attributed to them is correct and that the interview recordings are available
if necessary.
