Heeding to the call to decolonise higher education and the law, in this article, I embrace a decolonial lens to grapple with copyright law in South Africa, and specifically the subject of authorship. The central claim is that Abezimu/Badimo (ancestors) are an author in a decolonised notion of copyright law. Whilst this claim is supported by scholarly interventions, as regards the essence of a pluriversal author, the objective is to substantively authenticate the central claim by drawing from contemporary African literature. Specifically, the article engages two of Mphuthumi Ntabeni’s works, these are his debut novel, Broken River Tent, and as well as his subsequent novel, The Wanderers. As part of this authenticating exercise, I contend with Johan van der Walt’s insights in relation to what he calls “the literary exception”. The latter proffers an incisive critique of some approaches in the field of law and literature. I figure that van der Walt requires some engagement, especially if one is to succeed in relying on African literature to authenticate/qualify the central claim that Abezimu/Badimo (ancestors) are an author in a decolonial understanding of copyright law.
Johan van der Walt discusses key themes from his most recent book The Literary Exception and the Rule of Law Oxfordshire Routledge (2023) with Karin van Marle and Wessel le Roux. Van der Walt calls for a genre of law and literature scholarship that does not seek to soften or erase the differences between law and literature, as is typical in most law-as-literature scholarship, but that seeks to highlight the tensions between law and literature (represented by the avant garde poetry of Paul Celan and Paul Valéry). Van der Walt argues that the same event can give rise to a legal and a poetic response. Liberal society exists in the space that is opened up by these opposing trajectories. Liberal law must respect the non-poetic nature of its regulatory function and resist attempts, especially among nationalists and populists, to cure the existential inadequacy of law.
