21 June 2024

Introduction

A month ago, News24 ran a story headed ‘“True or False”: UCT Law Academic Accused of Islamophobia over Controversial Exam Paper’ (see here). The story concerned a petition, put out by an organisation calling itself ‘UCT4Palestine’, about a section of an examination on the law of delict that I had set for students in the pre-final year of their LLB degrees at UCT. The section – section A of the examination – provided an imaginary set of facts and an imaginary set of judicial findings, and then went on to ask thirty true/false questions about them. According to the petition, the facts in section A:

portrayed vile and deeply offensive Islamophobic stereotypes

fabricated racist lies painting Palestinians as terrorists and Israelis as noble victims

had discriminatory content

promoted racist conspiracy theories used to justify violence and ethnic cleansing

contained racist vitriol and were injected with racist Zionist fantasies

indulged personal hateful beliefs and proliferated racist hate speech

were symptomatic of a systemic issue of white supremacist ideology

traumatised students

were rife with anti-Palestinian and Islamophobic propaganda

disseminated genocidal propaganda

unconscionably exploited my institutional authority

A few days after UCT4Palestine launched its petition, the Law Students’ Council (LSC) made an ‘Official Complaint’ about section A to the Dean of UCT’s Faculty of Law. According to the complaint, the set of facts in section A, or my drafting of that set of facts, was:

deeply offensive

deeply and highly inappropriate

disturbing

extremely distressing

highly triggering

profoundly insensitive

capable of evoking trauma, fear, and significant emotional distress

the cause of a severe psychological impact on many students

intended as political propaganda

intended to push a specific political agenda

a gross violation of my professorial responsibilities

an abuse of my professorial power.

Soon after the delict examination was written, the LSC prompted everyone in the delict class to complete a questionnaire with one question: ‘What are your thoughts on section A of the Law of Delict exam?’

Out of the 213 members of the class who wrote the examination, thirty-two responded. They made similar claims to those in the petition and the complaint: the facts in section A were triggering, insensitive, disturbing, or traumatic; by setting the facts in section A as I did, I was pushing, advancing, or showcasing my own political agenda, political views, or Zionist beliefs, or was engaging in political propaganda (and this was an abuse of power); the facts in section A were Islamophobic; the facts in section A employed racist stereotypes.

The claims made in UCT4Palestine’s petition, the LSC’s complaint, and the survey conducted by the LSC are defamatory of me. Were they true, I would hang my head in shame. However, subject to a few possible and inconsequential qualifications, none of them is true.

Three kinds of claim

The claims in the complaint, the petition, and the survey are many and varied. However, it is possible to arrange them into three groups, according to their nature:

Claims asserting that the set of facts in section A expressed, implied, presupposed, or reflected a negative view of, or attitude towards, Muslims (in general) and Palestinians (in particular): it was Islamophobic; it was racist; it employed Islamophobic and racist stereotypes; it contained discriminatory content; it depicted Palestinians as terrorists.

Claims asserting that the set of facts in section A had a negative emotional impact on students writing the delict examination: it caused them to be triggered, to be disturbed, to be traumatised, to be distressed, and to experience fear.

Claims asserting that the set of facts in section A was intended by me to advance my own view about the war in Gaza (in particular) and the conflict between Israeli Jews and Palestinians (more generally): it was intended to push a specific (Zionist) agenda; it was intended as (anti-Palestinian, Islamophobic and/or genocidal) propaganda. And, closely related to this, claims that my drafting the set of facts in section A with this intention was improper: it abused my (professorial) power, grossly violated my professorial duties, and exploited my institutional authority.

Why the claims in group (1) are untrue

Whether the claims in group (1) are true or not depends on the content of the set of facts in section A: on what the facts in section A are. Here is a summary of what seem to me (and seemed to the LSC, the authors of the petition, and the respondents to the survey) to be the most important of those facts:

Fifteen children and parents, a grandparent, and a security guard, who were all outside a Jewish school in Cape Town, were shot and killed, or shot and injured, by a man named Hamish Hector Robert MacDuff who: was born in Scotland; grew up and attended Catholic schools in Cape Town; studied at UCT; was schizophrenic and psychotic; threatened to kill his mother because he thought she was trying to poison him; was admitted to, but subsequently released from, Valkenberg; was a Neo-Nazi and Holocaust denialist; was arrested for assaulting someone at a pro-Israel march, but released on bail; had sent threatening emails to the school.

The names of the children, the parents, the grandparent, and the security guard who were killed or injured by MacDuff were: Antjie and Mientjie Vermaak; Indira and Asanda Naidoo-Cohen; Hannah Zwarenstein; Max Benjamin; Xolisa and Lillian Hlophe; Adam and Linda Levy; Saartjie Bierman; Vikram Naidoo; Ace Mabusa; Ada Kazanski; Hersh Lieberman; Catherine Kaplan; and Ms Goldblum.

MacDuff was shot and killed, not by the four security guards employed by Bull’s-I Security Services (BISS), which in turn had been employed by the school because of the threats it had received since the IDF invaded Gaza, but by a man who: is an uncle of one of the children; was visiting from Israel; had served in the IDF as a sharpshooter.

Hoping to deceive witnesses at the shooting, and ultimately the SAPS, as to his identity, MacDuff carried out his attack: while wearing a black-and-white chequered keffiyeh wrapped around his head; after twice shouting the words ‘Allahu Akbar’.

Do these facts express, imply, presuppose, or reflect a negative view of, or attitude towards, Muslims and Palestinians? Are they Islamophobic or racist? Do they employ Islamophobic or racist stereotypes? Do they contain discriminatory content? Do they depict Palestinians as terrorists?

Clearly not. The man who shot the children, the parents, the grandparent, and the security guard – in other words, MacDuff – was neither Muslim nor Palestinian. Nor did his reasons for carrying out the shooting have anything to do with Islam, the war in Gaza, or the conflict between Israeli Jews and Palestinians. The reason that he carried out the shooting, as the facts make quite clear, is that he was a neo-Nazi nutcase. As Mark Oppenheimer – an alumnus of UCT Law Faculty, an advocate at the Johannesburg Bar, and an incoming member of UCT Council – pointed out to South African Jewish Report: ‘No-one mentioned in the exam is … Muslim.’ (See here, my emphasis)

It is true that, according to the set of facts, MacDuff believed that his wearing a black-and-white chequered keffiyeh around his head and shouting the words ‘Allahu Akbar’ would cause onlookers to believe that he was Muslim. And it may (though need not) be that MacDuff believed this because he believed one or more Islamophobic stereotypes. However, the set of facts makes it clear that MacDuff was evil. He was, after all, a neo-Nazi who carried out a school massacre.

The facts also make it clear that he was insane. He was convinced that his mother was trying to poison him and, given that he was a neo-Nazi, almost certainly believed the kind of nonsense found in The Protocols of the Elders of Zion (as apparently does Hamas – see its Covenant of 1988 article 32). So, really. what MacDuff believed is neither here nor there.

Imagine that the only character in a book, play, or movie to hold certain negative views or prejudices about a particular religious or ethnic group is both: (a) as mad as a hatter (he is, for example, both schizophrenic and psychotic) and (b) as bad as bad can be (he is, for example, a neo-Nazi mass-murderer).

No reasonable person would conclude that the book, play, or movie somehow reflected or endorsed those negative views or prejudices about that religious or ethnic group. Quite the opposite, in fact. Considering that, of the many people inhabiting the fictional world presented by section A, it is only MacDuff – a person whose madness and badness is beyond doubt – who could plausibly be said to have believed and acted upon Islamophobic stereotypes, the claims in group (1) are therefore more than a little puzzling.

According to UCT4Palestine’s petition: ‘Fagan chose to fabricate racist lies painting … Israelis as noble victims.’ Certain aspects of this claim are obviously wrong, and foolishly so. The story told by the set of facts in section A is imaginary. It is therefore correct that I ‘fabricated’ it. However, precisely for that reason, the facts that constitute it can be neither true nor false. Since they cannot be false, they cannot be lies.

Nor could I possibly have been lying by stating them: just as JK Rowling could not possibly have been lying when, in The Philosopher’s Stone, she stated that Albus Dumbledore’s silver hair and beard ‘were both long enough to tuck into his belt,’ that Ron Weasley had ‘flaming red hair’, and that Rubeus Hagrid ‘was almost twice as tall as a normal man and at least five times as wide.’

It is also correct that the story told in section A presented certain people as victims. Among them were the seventeen people shot by MacDuff. The petition has them down as ‘Israelis’. But the set of facts provides no reason to believe that they are or were. Why then does the petition identify them as Israelis? Presumably because the petitioners see no difference between being Israeli and being Jewish.

In other words, in the petitioners’ eyes, a wrong committed by Israel is a wrong committed by Jews everywhere, anything for which Israel can be blamed is something for which Jews everywhere can be blamed, and any sanction deserved by Israel is a sanction deserved by Jews in general. This is absurd: no less so than it would be to hold Muslims in Cape Town responsible for the atrocities committed by Hamas and its accomplices on 7 October.

The petitioners’ assumption that MacDuff’s victims were ‘Israelis’ is even more absurd than this. The facts provide no reason to believe that most, let alone all, of MacDuff’s victims are or were Jewish. I do not know for certain whether any of them is or was or is or was not. Like the petitioners, I can only venture a guess in respect of each of the victims, based on his or her name and surname, and on the fact that it was a Jewish school.

Thus, I think it probable that the following victims are or were Jewish: Hannah Zwarenstein; Max Benjamin; Adam and Linda Levy; Ada Kazanski; Hersh Lieberman; Catherine Kaplan; and Ms Goldblum. And I think it probable that the following victims are or were not: Antjie and Mientjie Vermaak; Xolisa and Lillian Hlophe; Saartjie Bierman; Vikram Naidoo; and Ace Mabusa. As for Indira and Asanda Naidoo-Cohen, who knows? (And, quite honestly, who cares?)

However, let us put these quibbles aside, and accept that the set of facts in section A did present at least some Jews (not Israelis) as victims. The petitioners label this ‘racist’ and see it as evidence of Islamophobia on my part. But why? Perhaps the petitioners believe that, since the set of facts presented some Jews as victims but did not present any Muslims or Palestinians as victims, it was implied by the set of facts, and by me as the author of the set of facts, that no Muslims or Palestinians could be, have been, or are victims.

But that is a non sequitur. I believe that everyone, Jewish or otherwise, who was murdered, raped, mutilated, or taken hostage by Hamas and its accomplices during the barbaric attack of 7 October is or was a victim. But that does not preclude me from also believing, as I do, that the many Palestinian civilians who have died or been injured since then because of Hamas’s barbaric utilisation of them as human shields also are or were victims.

It could be that the petitioners’ gripe is not so much that the set of facts in section A presented Jews, but not Muslims and Palestinians, as victims, but rather that it presented Jews as victims, full stop. I very much hope that this is not the case. To deny the possibility of victimhood to a group of people, whether defined by religion, ethnicity, language, or some other trait, is to deny that the members of the group are fully human.

The dehumanisation of Jews has a long and terrible history, which sadly has not been concluded. It played its part in the pogroms and the Holocaust. It had a role in the murders, rapes, and mutilations carried out by Hamas and its accomplices on 7 October. And it may be a factor contributing to the recent worldwide rise in antisemitism. Was it also one of the reasons that the petitioners objected to the fact that the set of facts in section A presented a handful of Jews (who, I should remind you, are fictitious characters rather than real people) as victims? Though I hope not, I am not so sure.

The petition claims that, because the ‘hero’ of the set of facts in section A is an Israeli and a former member of the IDF, the set of facts ‘glorifies’ and ‘idolises’ the IDF. The LSC’s complaint raises a similar concern, though only by implication. The set of facts nowhere describes the man who shoots and kills MacDuff as a ‘hero’. But let us accept the view of the petitioners and the LSC, that he indeed is one. Does it follow that the set of facts necessarily valorises, or that I as the author of that set of facts necessarily valorise, the IDF? Of course not.

Even if I thought the IDF a bunch of genocidal villains (which, for the record, I do not), I could still acknowledge or recognise that some of its members have performed heroic deeds: Arnon Zmora, an officer in the Yamam counter-terrorism unit, who was shot and killed by Hamas during the IDF’s operation to rescue four hostages from captivity in central Gaza, comes immediately to mind. There is nothing strange, or contradictory, about this.

The German Wehrmacht were undoubtedly the villains of the Second World War. But that does not preclude the possibility that some Wehrmacht members acted heroically, and that their heroism could be acknowledged even by the Allies. Likewise, even if I thought Hamas a bunch of genocidal villains (which, for the record, I do), I could acknowledge or recognise that some of its members have performed heroic deeds: though, to be honest, I struggle to see anything heroic in Hamas’s raping and mutilation of women on 7 October.

In other words, it is possible for a person to perform heroic acts in pursuit of an unjust war – just as it is possible for a person to perform cowardly acts in pursuit of a just war. Life is complex. A person need not be either comprehensively virtuous or devoid of all virtue. A person can possess and exhibit one virtue, or some virtues, while lacking all, or some, others. Our concept of heroism and, consequently, also our designation of someone as a hero reflect this complexity.

For the reasons set out above, the claim that the set of facts in section A expressed, implied, presupposed, or reflected a negative view of, or attitude towards, Muslims and Palestinians is not justified. The set of facts was neither Islamophobic nor racist.

It did not employ Islamophobic and racist stereotypes. It did not contain discriminatory content. And it did not depict Muslims or Palestinians as terrorists. So why do the authors of the petition, the respondents to the LSC’s survey, and the LSC believe the contrary? That is not clear. However, the repeated references to the views that I expressed in four pieces published in Politicsweb (the most recent of which can be seen here) suggest that the petitioners, the respondents, and the LSC may have been beguiled by the following fallacious line of reasoning:

The views that Fagan expressed in his Politicsweb pieces are Islamophobic and racist, and seek to justify or excuse the IDF’s genocide of Palestinians in Gaza.

The set of facts in section A reflects, presupposes, or entails the views that Fagan expressed in his Politicsweb pieces.

Therefore, the set of facts in section A likewise is Islamophobic and racist, and seeks to justify or excuse the IDF’s genocide of Palestinians in Gaza.

Premise (1) in the argument above is untrue, and patently so. But I will not argue that point here. Instead, I will restrict myself to showing that, regardless of whether premise (1) is true or not, premise (2) is false, with the result that conclusion (3) is false too. Consider again the facts which were extracted from the full set of facts in section A and listed in the paragraphs numbered (1), (2), (3), and (4) at the beginning of this section. Now add a further fact, one that is viewed as true by many (though not by me):

The IDF is committing genocide against the Palestinians in Gaza.

Then ask yourself whether there is anything about the facts in paragraphs (1), (2), (3), and (4), on the one hand, and fact (5) above, on the other, which entails that, if the former were true, the latter would have to be false. Obviously not. It is at least possible that it could be true both that the IDF is committing genocide in Gaza and that a neo-Nazi lunatic called Hamish Hector Robert MacDuff (who had been born in Scotland but raised in South Africa) was shot and killed by a former member of the IDF after he (MacDuff) had carried out a massacre at a Jewish school in Cape Town (while wearing a keffiyeh around his head and after twice shouting ‘Allahu Akbar’). That being so, it is false that the set of facts in section A reflects, presupposes, or entails the view that the IDF is not committing genocide in Gaza. On the question whether the IDF is committing genocide in Gaza, the set of facts in section A is entirely neutral.

This has the following implication. Even if my Politicsweb pieces had expressed the view that the IDF is not committing genocide in Gaza, that view would not be reflected, presupposed, or entailed by the set of facts in section A. Likewise if my Politicsweb pieces had expressed views that are Islamophobic or racist: the facts in section A would neither reflect, nor presuppose, nor entail those views.

(In passing I should perhaps note that my Politicsweb pieces did not express the view that the IDF is not committing genocide in Gaza, but a couple of considerably weaker views, such as that distant observers like ourselves cannot know whether or not the IDF is committing genocide in Gaza and that, for this reason and several others, neither UCT Senate nor UCT Council should express any views about, or take any actions in respect of, the war in Gaza.)

The focus thus far has been on the set of facts in section A of the delict examination. I need to say something also about the set of findings in section A. The first of those findings reads as follows:

‘Given the well-documented and -publicised rise of antisemitism in Cape Town, and more specifically the threats which the school had received, since 7 October 2023, a reasonable governing body in the position of the school’s governing body … would have foreseen a reasonable possibility that, if the school did not provide a high level of security, children attending the school and/or those who came to collect them from the school would be injured and/or killed in an attack like the one carried out by MacDuff.’

The second and third findings are similar, except that they deal with what would have been reasonably foreseeable by a reasonable security company in the position of BISS and a reasonable person in the position of the fourth security guard.

The petitioners and the LSC appear to see these findings as further evidence of Islamophobia on my part. For, so seems to be their reasoning, the fact that section A included these findings means that I, as the author of section A, hold the views which they express, namely (a) that antisemitism in Cape Town has increased and (b) that, given this and the threats received by the school, it was reasonably foreseeable that a massacre like the one carried out by MacDuff could occur.

Views (a) and (b) were taken to be Islamophobic, I think, on the grounds that ‘there is no “increase” of [sic] antisemitism … only a desperate attempt to silence opposition to racist policies through conflating it with anti-Jewish bigotry’ and that a massacre like the one carried out by MacDuff would be foreseeable only by one who accepted certain negative stereotypes about Muslims.

Whether views (a) and (b) really are Islamophobic is a question I will leave to one side (so as not to leave you guessing, I believe not). Instead, I want to raise another, and more obvious, difficulty for the line of reasoning above. Imagine that Jameelah says that Waheeda said that Rasheeda was caught shoplifting a bottle of Lagavulin at Dubai International Airport. Does this mean that Jameelah is also saying what Waheeda said, namely that Rasheeda was caught shoplifting a bottle of Lagavulin at Dubai International Airport? No, it does not – which is why Jameelah would not be contradicting herself were she to go on to say: ‘But I do not believe what Waheeda said, for I know Rasheeda to be a person of impeccable integrity.’

It is no different with the findings in section A. The fact that a person (be he or she a law professor, law student, advocate, attorney, or judge) reports certain findings reached by a court does not mean that he or she agrees with those findings.

It is therefore a mistake to infer, from the findings in section A, that I hold views (a) and (b). This is not the kind of mistake one would expect members of UCT’s delict class to make, given that, by this stage in their LLB studies, they should have worked their way through hundreds of court judgments. If, as seems to be the case, the LSC and the petitioners did in fact make this mistake, they should be more than a little embarrassed by it.

Why the claims in group (2) are almost certainly untrue

The claims in group (2) assert that the set of facts in section A had a negative emotional impact on students writing the delict examination: it caused them to be triggered, to be disturbed, to be traumatised, to be distressed, to feel uncomfortable, and to experience fear. These claims raise both a factual and a normative question.

The factual question is whether the claims are true. Did the set of facts in section A really have these emotional effects on students writing the delict examination? The normative question is whether the claims matter. Even if the set of facts in section A really did produce these emotional effects, was I under an obligation to avoid setting section A in such a way that it risked producing them?

Let me start with the factual question. What evidence is there that the set of facts in section A caused students writing the delict examination to be triggered, disturbed, traumatised, distressed, and so on? UCT4Palestine’s petition does not provide any. Nor does the LSC’s complaint. The complaint does, however, have attached to it the results of the survey sent to the class not long after the delict examination was written. Do these results provide evidence that the set of facts in section A produced the alleged emotional effects? Hardly.

Out of the 213 students who wrote the examination, only thirty-two took the trouble to complete the survey, even though it only asked one question. Moreover, of the thirty-two students who bothered to complete the survey, only eleven claimed that it had been triggering or disturbing. A twelfth claimed that it had been traumatic; a thirteenth that it had provoked pain; a fourteenth that it had caused discomfort; a fifteenth that it had been ‘kind of’ jarring; and a sixteenth that it had caused students to feel horrified. That is the sum of it: sixteen out of 213 students, or seven-and-a-half per cent of the class.

These are not what anyone would call overwhelming figures. If the LSC’s claim that the set of facts in section A had a severe psychological impact on many students were true, one would have expected many students to have taken the opportunity to say so in the survey. But they did not. To be more specific, 197 students out of 213, or 92.5 % of the class, did not say that the set of facts in section A was triggering, disturbing, traumatic, distressing, pain-provoking, discomforting, horrifying, ‘kind of’ jarring, or anything else of this kind.

In fact, the evidence provided by the survey is even less compelling than the above figures would suggest. Of the sixteen students who claimed that the set of facts in section A had had a negative emotional impact, only six indicated that it had had a negative emotional impact on them – by framing their claims in the first person singular or plural:

‘[W]e were suffering from the triggering facts we were compelled to read’

‘I … found it triggering’

‘I am not Jewish but [the fact set] made me uncomfortable’

‘I thought the fact set was kind of jarring’ (my emphasis throughout)

As for the remaining ten of the sixteen students who claimed that the set of facts in section A had had a negative emotional impact, most indicated only that it had had a negative emotional impact on others:

‘[T]he substance of the exam was evidently triggering to a large number of students’

‘The fact set was particularly traumatic for muslim [sic], Palestinian, and jewish [sic] students’

‘Though I am not jewish [sic], I can … imagine how triggering that fact set would be for jewish [sic] students’

‘[The fact set] has made both jewish [sic] and muslim [sic] (as well as secular) students feel uncomfortable’

In so far as the students who responded to the LSC’s survey made claims about the emotional effects that the set of facts in section A had on others, rather than on themselves, the survey adds nothing to the LSC’s own claims in this regard. The evidence provided by the survey therefore falls way short of justifying the claim, made in the LSC’s complaint, that the set of facts in section A ‘had a severe psychological impact on many students.’

As Carl Sagan famously said, ‘Absence of Evidence is not Evidence of Absence.’ So the argument above does not completely rule out the possibility that some, even many, students writing the delict examination had a negative emotional response to the set of facts in section A. However, though I am speculating here, I wonder whether, if that is the case, what those students were experiencing is aptly described by saying that they were ‘traumatised’, as the LSC’s complaint and the petition do. Is it not rather the case that those students were outraged and affronted – by the fact that, by giving the set of facts in section A the content I did, I had dared to engage with the war in Gaza in a manner other than by joining in the general condemnation of Israel?

In other words, I wonder whether, if it is indeed the case that some students experienced negative emotions upon reading the set of facts in section A, the reason for that may not have been a rather unfortunate mindset according to which ‘if you are not with us, and do not show that you are with us, you are against us’ and according to which ‘for anyone to be against us is completely unbearable.’ The emotions evoked by a mindset such as this can be very intense. They can drive those who have them to distraction. However, it is doubtful that those who have these emotions – emotions grounded in their inability to tolerate views different from their own – have a right that others avoid saying things or acting in ways that cause them to have those emotions.

The LLB programme of which the delict course is a core component does not run for free. It runs only because there are parents who pay their children’s fees, donors who found and support scholarships and bursaries, and taxpayers who fund NSFAS and the government subsidies the Law Faculty earns for every student registered for, and every student graduating with, an LLB degree. These parents and donors, and the tax-paying public, should very much hope that the doubts I have raised about the claims in group (2) are not misplaced.

To see why, imagine for a moment that they were misplaced. Imagine, that is, that it really were the case that many, most, or even all, of the 213 students who wrote the delict examination were ‘traumatised’ by, or experienced a ‘severe psychological impact’ because of, the set of facts in section A. The Law Faculty’s fee-paying parents, its donors, and the tax-paying public presumably expect – and are surely entitled to expect – UCT’s LLB graduates to be capable of filling a variety of legal roles. In other words, UCT’s LLB graduates should have the ability to work as corporate lawyers, conveyancers, and tax consultants. But they should also be able to work as prosecutors, magistrates, criminal defence lawyers, and (in time) judges.

The LSC, the authors of the petition, and some of the respondents to the LSC’s survey would have us believe that UCT’s LLB students are so sensitive, so fragile, so delicate, that they cannot cope with an examination question containing a hypothetical situation set, not in, but merely against the backdrop of, a war taking place more than 7000 km away. Would someone so sensitive be able to prosecute (let alone defend) a serial rapist, a drug dealer, or the members of a paedophile ring? Would someone so fragile be able to serve as evidence leader in a commission of enquiry into a massacre like the one at Marikana? Would someone so delicate be able to adjudicate a case involving a gang or prison murder? Undoubtedly not.

If UCT’s LLB students were as easily ‘triggered’ and ‘traumatised’ as the LSC, the petitioners, and the survey’s respondents say they are, they would have equal difficulty with certain civil cases. They would, for example, struggle to represent a woman seeking to hold the Minister of Safety and Security liable for the fact that she was raped by three policemen (as in the case of K) or a woman seeking to hold her ex-husband liable for the injuries she sustained while trying to escape from him after he had assaulted and threatened to murder her (as in Groenewald v Groenewald). And there is no way that they would be able to represent the parents of a small boy who drowned in a pit latrine at a school who are seeking to hold the Minister of Basic Education liable for their resultant emotional shock and grief (as in the Komape case).

Does this mean that UCT’s Law Faculty is producing LLB graduates who cannot fulfil these vital, but in fact quite ordinary, legal roles? It would, if the LSC, the petitioners, and the respondents to the survey were to be believed, and the claims in group (2) were true. However, as explained, the claims in group (2) almost certainly are not true. This should come as a relief to the Law Faculty’s fee-paying parents, its donors, and the taxpaying public.

Though they may not realise this, it should also come as a relief to the students who wrote the delict examination. The Law Faculty is increasingly being told that its LLB graduates are so lacking in resilience as to be close to unemployable. I do not know whether there is any basis for this complaint. After all, every generation believes that it had it tougher, and is made of sterner stuff, than the next. However, I do know that anything that feeds this narrative – as do the LSC’s complaint, the LSC’s survey, and the petition – will worsen, rather than improve, the employment prospects of UCT’s LLB graduates.

(In passing, I should mention that I was slightly bemused, and amused, by the fact that a couple of the students who completed the LSC’s survey seemed to be incensed by the fact that I had given the imaginary victims of the imaginary killer in the imaginary set of events at the imaginary school in section A ‘real’ names and surnames. Do these students think that, when they are in practice one day, their clients will come to them ready-labelled as ‘the plaintiff’, ‘the defendant’, ‘the second defendant’, ‘the applicant’, ‘the respondent’, or, in textbook style, as persons ‘A’, ‘B’, ‘C’ and ‘D’?)

I turn now to the normative question raised by the claims in group (2). Let it be assumed for a moment that – contrary to what most probably was the case – the set of facts in section A actually did produce the emotional effects that the LSC, the authors of the petition, and the respondents to the LSC’s survey said it did. Would it follow that I was under an obligation to avoid setting section A in such a way that it risked producing those effects? I believe not.

Everyone (so also every student who wrote the delict examination) has a right that no one physically injure him or her: this right is protected (even if imperfectly) by criminal law and the law of delict. Everyone has a more limited and weaker right that no one traumatise him or her by physically injuring a third party: this right is protected by the law of delict in so far as it imposes liability on those who cause emotional shock to others. It is possible (but by no means certain) that everyone has a right that no one upset him or her (or hurt his or her feelings) by assaulting, defaming, or insulting him or her, or by invading his or her privacy: it may be that this right is protected by the law of delict, in so far as it imposes liability for assault, defamation, insult, and invasion of privacy, but this is a controversial and unsettled matter.

However, no one (so also none of the students who wrote the delict examination) has a right that no one else traumatise or upset him or her (or hurt his or her feelings) by saying or doing things that fall short of physical injury to a third party, assault, defamation, insult, or invasion of privacy. My giving the set of facts in section A of the examination the content I did, clearly did fall short of this. The students who wrote the examination consequently had no right that I not give the set of facts in section A the content I did. Since the students who wrote the examination had no right that I not give the set of facts in section A the content I did, I committed no wrong against them by doing so.

It may be said that, while it is true that the students who wrote the delict examination did not have a right of this kind against the world at large, they did have such a right against me. Why? Because I was their lecturer. And because lecturers owe their students (role- and relationship-specific) duties that are not owed to them by others. This is not altogether wrong. Lecturers do owe their students duties that are not owed to them by others. But do those duties include the duty not to traumatise or upset their students (or hurt their students’ feelings) by saying or doing things that fall short of physical injury to a third party, assault, defamation, insult, or invasion of privacy? I do not believe that they do – because I do not believe any of the following:

that a history lecturer might owe his students a duty not to upset or traumatise them by requiring them to do archival research on the Holocaust, the Rwandan genocide, or the Armenian one;

that a lecturer in film and media might owe her students a duty not to upset or traumatise them by requiring them to watch and write essays on Klimov’s Come and See, Joffé’s The Killing Fields, Cimino’s The Deer Hunter, and Coppola’s Apocalypse Now;

that a professor of literature might owe his students a duty not to upset or traumatise them by requiring them to read and write tests on Tolstoy’s War and Peace, Remarque’s All Quiet on the Western Front, and Alexievich’s The Unwomanly Face of War;  

that a professor of law might owe her students a duty not to upset or traumatise them by requiring them to study and write an examination on the cases of K v Minister of Safety and Security and F v Minister of Safety and Security, even though she knows that it is probable that a fair number of her students have themselves been raped.

Life can be, has been, and for many people still is, terribly harsh. It can involve, has involved, and for many people still involves, terrible suffering. Lecturers do not owe it to their students to pretend otherwise.

Why the claims in group (3) are untrue

UCT4Palestine’s petition claims that, by giving the set of facts in section A the content I did, I was ‘push[ing a] discriminatory ideological agenda’ and ‘inject[ing my] racist Zionist fantasies and Islamophobic propaganda into an actual exam environment’, and that this was ‘an appalling and violent abuse of power’ and an ‘unconscionable exploitation of institutional authority’. The LSC’s complaint similarly states that ‘the inclusion [of the set of facts in section A] was not an innocent choice but a decision to push a specific agenda’, that ‘[t]he inclusion of propaganda in an exam environment is entirely unacceptable’, and that ‘[t]his represents a gross violation of a professor’s responsibilities and an abuse of power’. Around half of the thirty-two students who responded to the LSC’s survey made similar claims.

These claims – which fall into group (3) – are troubling, no less so than the claims in group (1), and probably more so than the claims in group (2). It is therefore fortunate that, like the claims in group (1), and almost certainly like the claims in group (2), they are not true.

In its complaint, the LSC, though accusing me of giving the set of facts in section A the content I did to ‘push a specific agenda’ and use the examination for the purpose of ‘propaganda’, is somewhat coy about what agenda I was pushing or what point of view I was propagandizing for. The authors of the petition are less coy in this regard. According to them, the agenda that I was pushing or point of view that I was propagandizing for was Islamophobic, anti-Palestinian, Zionist, and genocidal. Some of the students who responded to the LSC’s survey said the same. At first glance, this looks promising. On closer investigation, however, it disappoints. It does not get us any nearer to understanding what agenda I was (supposedly) pushing, or what point of view I was (supposedly) propagandizing for.

To know what agenda I was (supposed to be) pushing and what point of view I was (supposed to be) propagandizing for, one needs to know what the content of that agenda and that point of view was. To be told that the agenda and point of view were Islamophobic, anti-Palestinian, Zionist, and genocidal is not to be told what their content was. It is rather to be told that, given their content, the agenda and point of view possessed certain qualities or properties, namely the qualities or properties of being Islamophobic, anti-Palestinian, Zionist, and genocidal.

An analogous example may help to clarify the difficulty here. Imagine that I ask you the following question: ‘What is the IDF’s policy in respect of the provision of aid to Palestinian civilians in Gaza?’ You answer: ‘The IDF’s policy in respect of the provision of aid to Palestinian civilians in Gaza is Islamophobic, anti-Palestinian, Zionist, and genocidal.’ Even if your statement were true, it would not answer my question. Because of that, I would probably ask a follow-up question along the following lines: ‘Okay, fair enough, but what about the policy makes you believe that it is Islamophobic, anti-Palestinian, Zionist, and genocidal? What does it prohibit? What does it permit? What does it enable or facilitate? Who does it empower to do what?’ And so on.

Given my detractors’ failure to say what agenda (they believe) I was pushing and what point of view (they believe) I was propagandizing for, I can only hazard a guess. My guess is that what they had in mind are the views I expressed in the four Politicsweb pieces mentioned earlier. Those views do not come close to being Islamophobic, anti-Palestinian, or genocidal. Are they Zionist? I would not have applied this epithet to them. But I do believe that Israel has a right to exist and, consequently, a right to defend itself against jihadist organisations hell-bent on its destruction, like Hamas and Hezbollah. I do not recall expressing this belief in my Politicsweb pieces. But maybe I did. If so, and if this belief necessarily is Zionist (which I doubt), then I suppose it is true that the views expressed in my Politicsweb pieces were Zionist. So be it.

For argument’s sake, let it be assumed that the views expressed in my Politicsweb pieces were Zionist (which they might have been). Let it also be assumed that they were Islamophobic, anti-Palestinian, and genocidal (which they most definitely were not). Would it in that event follow that, by giving the set of facts in section A the content I did, I was pushing an agenda or propagandizing for a point of view that was Islamophobic, anti-Palestinian, genocidal, and Zionist? No, it would not.

It would have, had the set of facts repeated, endorsed, presupposed, or in some way reflected, those views. But that is not the case. If, in order correctly to answer the questions in section A, one had to accept (or at least act as if one accepted) the views expressed in my Politicsweb pieces, then it probably would have followed that, by giving the set of facts and the questions in section A the content I did, I was pushing an agenda, or propagandizing for a point of view, that was Islamophobic, anti-Palestinian, genocidal, and Zionist. But this also is not the case.      

Why, then, did the LSC, the petitioners, and the respondents to the LSC’s survey claim that my reason for giving the set of facts in section A the content I did was to push a specific agenda or propagandize for a specific point of view – an agenda and point of view which the petitioners and respondents described as Islamophobic, anti-Palestinian, genocidal, and Zionist? That is hard to say (it is often hard to explain the flawed reasoning that led to a false conclusion – the possibilities are endless). But perhaps the following thought experiment will assist:

Imagine that the students who wrote the delict examination wrote an international law examination the following week. This examination included a section drafted by one of their international law lecturers, Dr P. Since 7 October last year, Dr P has given many television and radio interviews on the war in Gaza. In these interviews, she has made it clear that, in her view, Israel (or the IDF) was and is committing both genocide and war crimes in Gaza.

In her section of the examination, Dr P set out a fictional scenario, taking place in Gaza, and involving the IDF, Hamas, and a large number of Palestinian civilians (mainly women and children). The questions Dr P wanted the students writing the examination to answer were whether, in this fictional scenario, the IDF (a) was committing genocide and (b) was committing war crimes.

However, quite correctly, Dr P did not want the students to feel it obligatory, or prudent, to follow her publicised views on the war in Gaza, and specifically on the question whether Israel (or the IDF) was or is committing genocide and war crimes in the war. She had therefore added, to the fictional scenario, two fictional sets of findings, one by the ICJ and one by the ICC. And she had started the questions to be answered as follows: ‘Given the set of facts and the findings of the ICJ, above, was the IDF committing genocide …’ and ‘Given the set of facts and the findings of the ICC, above, was the IDF committing war crimes …’

Imagine further that, given the facts and findings which Dr P had provided in her section of the examination, the students writing the examination had no difficulty either working out that the answers to these questions were an obvious ‘yes’ in both cases, or providing the required explanations of why that was so. So they left the examination venue feeling pretty confident that they had ‘aced’ Dr P’s section of the examination.

Now ask yourself: How likely is it that the LSC would have lodged an ‘official complaint’ to the effect that Dr P, by including the set of facts she did in her section of the examination, had been pushing a specific agenda and propagandizing a specific point of view? How likely is it that, in an online petition and an LSC survey concerning the examination, it would have been alleged that Dr P, by including these facts in her section of the examination, had been pushing an agenda and propagandizing a point of view that was antisemitic, anti-Israeli, and – because it wholly ignored the attack on 7 October – genocidal? How likely is it that the LSC, the petitioners, and the respondents to the survey would have accused Dr P of violating her responsibilities, abusing her power, and exploiting her institutional authority?

I do not think it necessary for me to answer these questions for you. Nor do I think it necessary for me to spell out, for you, the implications of those answers.

Conclusion

The claims made by the LSC, the anonymous authors of UCT4Palestine’s petition, and the respondents to the LSC’s survey fall into three groups. There are those asserting that the set of facts in section A expressed, implied, presupposed, or reflected a negative view of, or attitude towards, Muslims and Palestinians. There are those asserting that the set of facts in section A had a negative emotional impact on students writing the delict examination. And there are those asserting that the set of facts in section A was intended to advance my view about the war in Gaza and the conflict between Israeli Jews and Palestinians and that it was an abuse of power for me to draft the set of facts with this intention.

I have shown that the claims in the first and third of these groups are untrue. And I have shown that the claims in the second group not only are almost certainly untrue, but also are normatively inert, meaning that, even if they were true, it would not follow that I ought not to have given the set of facts in section A the content I did. The LSC, the petitioners, and the respondents to the LSC’s survey mentioned a few more reasons why, in their view, it was improper of me to have given the set of facts in section A the content I did. In this conclusion, I briefly deal with three of them:

It was contrary to the South African government’s view of the war in Gaza.

It stoked hatred between Jews and Muslims.

It was provocative.

During my teenage years, my family and I used to derive some grim amusement from the fact that members and supporters of the ruling party, when pushed into a corner about the iniquity of the apartheid regime, would sometimes splutter: ‘Maar die Minister het gesê …’ We saw this vacuous appeal to authority as a sign of just how indefensible apartheid was. Reason (1) above, which makes its appearance both in UCT4Palestine’s petition and in the LSC’s complaint, is no less risible. Have the LSC and the petition’s authors never heard of the TAC? The thought that one or more of those who advanced reason (1) may someday adjudicate cases involving the South African government is alarming.

I was a little puzzled by reason (2). Surely everyone, no matter what religion (if any) he or she belongs to or what views he or she has about the conflict between Jewish Israelis and Palestinians and the war in Gaza, would agree that it was a good thing that Hamish Hector Robert MacDuff was shot and killed by the uncle from Israel. Do the students who advanced reason (2) perhaps believe that it was not a good thing? Or do they perhaps believe that Muslims would believe that it was not a good thing? I very much hope not: for I struggle to see how it would not be antisemitic to believe the former, and not be Islamophobic to believe the latter.

As for reason (3), it may well be true that the set of facts in section A was, in a certain sense of the word, provocative. But the fact (if it is one) that this is true cuts no normative ice. A young man gets into a coach full to the brim with supporters of a certain football team, on their way to a match. He takes off his coat, thereby revealing that he is wearing the opposing team’s scarf and jersey, and starts singing the opposing team’s song. He gets beaten up as a result. A young woman takes a short cut across a building site crawling with overalled and hard-hatted workmen. She is wearing a cropped top and a miniskirt. She gets wolf whistled as a result.

Some would say that the young man provoked the assault upon him. Some might say that the young woman got wolf whistled because she was provocatively dressed. However, no one, or (at any rate) no reasonable person, would deny that the young man and the young woman each had a right to behave as he or she did. The same applies to my giving the set of facts in section A the content I did. If it was provocative, then it was so in the same sense that the young man’s behaviour was, and the young woman’s behaviour might have been, provocative. It was provocative in a sense that has no normative consequences. More specifically, it was provocative in a sense that does not entail that I ought not to have done it.

Postscript

I was alerted to UCT4Palestine’s petition on Friday afternoon 24 May. That evening, I posted a message for the class, offering a response. At around one o’clock on the Monday, I posted a second message, providing a further response. Seconds before I posted it, I received the LSC’s ‘Official Complaint’. I recently learned that some of my UCT colleagues, who somehow had sight of these messages, thought them inappropriate and bullying, and my posting of them an abuse of power. This surprised me.

I have tried always to treat my students as adults rather than children. So, when they have behaved like children (by, for example, selfishly prioritising their own interests over the public good, or foolishly prioritising their short-term interests over their long-term ones), I have treated them as adults who have behaved like children (which they ought not to have done) rather than as children who have behaved like children (which would have been unobjectionable).

I have always thought that to treat my students as children would be condescending and patronizing. By contrast, to treat them as adults (even when they have behaved like children) is, I thought, to treat them with respect. But treating them with this kind of respect required me to deal with childlike behaviour on their parts, when it occurred, with the disrespect it deserved.

So, when, as happened at times over the past three decades, I received a wrongheaded complaint from my students, I would engage with it pretty much as I would with the wrongheaded idea of a fellow academic. I would offer a robust and detailed defence. I would set out the reasons that my conduct was justified and the reasons that the complaint was not. And, if my students replied to my defence, I would offer a robust and detailed rejoinder to their reply, and so on. I would never give up hope that, ultimately, my students would see reason. For, to have given that up would have been to treat my students as lacking the capacity to be rational, rather than simply as failing to exercise that capacity.

Many years ago, a colleague (since departed from UCT) introduced me to the concept of a ‘teachable moment’. This can be defined as a specific situation which was unplanned, but which provides an opportunity that can be used to teach people something more general. I have always treated my students’ complaints as teachable moments. As a member of the Law Faculty, I have mainly tried to teach my students about the law. But I have also tried to teach them how to reason well and dispassionately. Their complaints, and the drawn-out exchanges they sometimes gave rise to, offered perfect opportunities to teach these skills.

I fail to see how any of the above amounted to bullying or an abuse of power. The only power I was exercising, throughout, was the power of reason – a power the exercise of which, so I would have thought, should never be limited in a university. It may be said that I made students feel uncomfortable and unsafe. If so, I make no apology for it. I have always believed that, intellectually (though of course not physically), universities should be dangerous places, where no belief is safe from being interrogated, challenged, and overturned.