In her 1983 essay, ‘Living in the Interregnum’, Nadine Gordimer quotes Antonio Gramsci: ‘The old is dying, and the new cannot be born; in this interregnum there arises a great diversity of morbid symptoms’ (www.nybooks.com, accessed 2-10-2020).

Caught in the midst of these morbid symptoms, South Africa (SA) finds itself in a post-colonial malaise. Using the setting of William Shakespeare’s Hamlet would perhaps lament that ‘something is rotten in the state of [South Africa]’. The Ghost of the African spirit lingers restless … .

‘To be, or not to be, that is the question’ whether it is wise to shake off the shackles of our colonial past and embrace a truly African spirit and personality or whether we should hold on to our colonial legacy’s and build our nations on an inherited mind set? That is the South African existential dilemma.

As a result of this dilemma, the South African psyche is beset with restlessness at all its levels.

On the jurisprudential level, we find the voices of the constitutional optimists who seek to justify the death of the African king and see the new heir – the Constitution, as the vindicator of a new era filled with possibilities. The constitutional sceptics smell the rotten odour and abolitionists seek to avenge the death of the African king, by placing its rightful heir on the throne. Then there’s the constitutional abolitionists who see the Constitution as still continuing a post-colonial project, which will continue to perpetuate our inequalities and the fractures in our society rather than cement them.

On the executive level, we have a government that refuses to embrace the simple solution of empowering the masses as its number one priority. Corruption and greed defy the logic of the ‘caring and sharing’ ethos of ubuntu. Like a hungry lion, it devours its prey (the nation’s wealth and resources) without any qualms but to satiate its appetite. The latest unravelling of corruption of COVID-19 funds shows just how primitive the landscape has become. We are not in the land of The Lion King’s Mufasa. Simba has been banished and Scar and his hyena’s rule the wasteland that has now become our SA.

On the legislative level, we have laws that still need to be transformed and adapted to reflect our African ethos and commitment to social justice. Even the COVID-19 emergency regulations in their eagerness to protect ‘us’ seemed to ignore the plight of its poorest and most vulnerable citizens as it imposed a lockdown, which was impossible to enforce in the squatter camps and townships where most of the South African people reside. In Peddie in the Eastern Cape, children are eating wild plants to survive, as the COVID-19 pandemic and the lockdown take their toll. The number of households going hungry has doubled, according to new research (Justin Brown ‘COVID-19 lockdown: Children eat wild plants to survive as hunger explodes’ www.iol.co.za, accessed 2-10-2020). The rainbow is fading and the wasteland is now emerging.

This contested terrain lies fertile for the emergence or re-birth of a fresh discourse at all levels on an alternative model with a renewed vision. A new birth of an era of clarity and resolve set on a path of genuine decolonisation, not one that is artificial, overshadowed, and even controlled by the post-Apartheid colonialist agenda.

Our academics called ‘constitutional sceptics’ have been concerned about the post-Apartheid ideal and to what extent the current transformative constitutionalism is contributing to the lives of ordinary citizens in South Africa? (Karin van Marle ‘The spectacle of post-apartheid constitutionalism’ (2007) 16(2) Griffith Law Review 411 at 413). Some have wondered if post-Apartheid constitutionalism and human rights discourse is actually a continuation of violence and exclusion (van Marle (op cit) at 414).

Some academics have lamented whether there has been a colonial re-annexation because a liberalist philosophy rather than an African philosophy has been placed at the heart of a new constitution (Martin Chanock The Making of South African Legal Culture 1902 – 1936: Fear, Favour and Prejudice (Cambridge University Press 2001) at 515). As a result of this colonial re-annexation, they have predicted much instability in the legal future of the country. We see evidence of this instability continuing to unfold under the new dispensation.

The question of whether the post-Apartheid order is one that can be said to be decolonised? (MB Ramose ‘In Memoriam: Sovereignty and the “new” South Africa’ (2007) 16(2) Griffith Law Review 310.) The truth is that colonisation persists in the very structures of society, as well the cultural imperialism that continues to dominate the South African landscape.

As part of the process, Professor Ramose (op cit) calls for reinstating ubuntu as the ‘central epistemology and ontology of the Bantu speaking peoples of Southern Africa’ (Stewart Motha ‘Archiving colonial sovereignty: From ubuntu to a jurisprudence of sacrifice’ (2009) 24(2) SA Public Law 297 at 301) so that the seeds of decolonisation can be planted and bear fruit in the minds of intellectuals, judges and academics and be transported in the hearts of the politicians, economists and the masses of South Africa so that a truly decolonised South Africa can be reborn.

Current events in the form of the recent Azaan (call to prayer) judgment in Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another (KZD) (unreported case no 3848/2019, 21-8-2020) (Mngadi J), presented a momentous opportunity to infuse neighbour law with the spirit of ubuntu and give a post-Apartheid, post-colonial and indigenous interpretation to this important area of property law. Instead Mngadi J embraced a ‘“Christian, Kantian, and Millsian” respect for the individual’ in favour of an ‘“indigenous communitarian” one’ (Motha (op cit)). Mngadi J chose to impose on a restrictive view on the South African society that is almost reminiscent of the Apartheid mentality in its design and encourages intolerance, selfishness and arrogance.

This can also be clearly seen in the current mindset of the City of Cape Town’s policy towards the homeless and their stance on eviction. In the latest proposed amendments to the by-laws on the streets, public spaces and prevention of noise nuisances (in terms of s 17 of the Local Government: Municipal Systems Act 32 of 2000) poverty is criminalised in favour of maintaining the status quo for a few privileged individuals and discrimination on the basis of poverty is endorsed.

On a societal level the recent Clicks saga has shown that these structures are deeply embedded in the unconscious bias that has emerged unwittingly by a Black empowered entity. The Economic Freedom Fighter’s (EFF’s) outrage is justified, but over the top and its violence and mayhem reflects the nature of the Shakespearian and Disney drama at play.

The question is: Will Simba return to claim his rightful throne and will the King’s death in both the Shakespearian and Disney set be vindicated?

The irony of this article is that it uses western symbols to portray an African saga and that is the crises we face in the first place – a vicious cycle it seems.

Saadia Gani BA (Hons) LLB (Wits) is a legal practitioner at FG Attorneys and Conveyancers in Pretoria.

This article was first published in De Rebus in 2020 (Nov) DR 45.