Throughout history, the law has been limiting and limited. It has failed to solve and respond to the total sum of problems that people face, black people in particular.
Of course, the law never claimed to have a response to every problem we encounter as a society but what I want to highlight is that it often fails even within its domain.
Where it is not silent it does not resonate with the aspirations of the people or move towards creating conditions that will reflect what society wants or needs.
This is not a farfetched statement, it is perhaps what the Marxists had recognized when they said the law always serves the interests of the ruling class and never the people.
There are many examples of this, slavery was once legal and not so long ago apartheid was the law. See how this instrument is always vulnerable and open to arbitrary use.
What do we do under these circumstances? Do we continue to use the framework of the law to deal with our issues or do we find alternatives?
It is not just the Mkhwebane case, the Sjava case and my case, there are many other instances of court decisions or the contradictions within the law have left us at an impasse as a society.
If the law and the Constitution as the highest recourse of the land leaves us naked who will clothe us?
It cannot be the politicians we have because they have consistently proven to only have their interests and not those of the people. It cannot be the NGO’s they pose as neutral and empty but often their ideology is of those who fund them.
Perhaps our only option is to then reimagine what the law might look like outside of what we have been given and what it has been presented it to be.
This is to say the people must stretch, bend and if needs be work against it in order to find answers that they seek.
Consider what Ndumiso Dladla says: "The primary problem in South Africa is encapsulated in its Constitution".
What this means is that the document that is so hailed by the white community is a contradiction precisely because it does not speak or articulate our own idea of justice, the black idea of justice.
In that, it continues to protect the interests of those who conquered while black people continue to be left outside of the discourse.
If it did not protect these interests, how then do we explain the gaping gap of inequality where blacks are extremely poor and whites are rich?
The emptiness of our law extends itself to criminal law, delict and other branches of law.
The outlook is not a pan-African one or one that considers that we are a country in Africa. It does not reflect this reality and we see it in how we struggle with issues such as xenophobia and in how customary law continues to be a by-the-way source of law.
Professor Tshepo Madlingozi properly characterizes this time and place we are in as neo-apartheid colonialism by stating that the post-1994 constitutional re-arrangements are only affecting society in a way that does not engender a fundamental rapture with an inherited structure where the black majority remain in a ‘zone-of-non-being’.
This is a zone where the law offers a promise but is unable to deliver on it.
Where the law is evasive, elusive and at the most crucial times disappears when black people are in need. These observations are based on the lived experiences of black people, in the unchanging conditions that black people continue to find themselves in.
This critique is undoubtedly inspired by the ways in which I was found guilty and sentenced for participating in the fees must fall moment.
The idea that I and many other students have been denied certain futures because we fought for what the entire country in principle agreed that is a noble cause. The invitation here is therefore that we need to think about how we deal with this exclusionary/failing to resonate and relate the nature of the law as it stands.
Where do we turn to when consistently and without fail, our cries fall on deaf ears.
* Mcebo Dlamini is a student activist who took part in the Fees Must Fall protests.
** The views expressed herein are not necessarily those of Independent Media