Acceptance of the University Gold Medal

On acceptance of the University Gold Award for the Legal Resources Centre, presented by the University of the Witwatersrand, 23 March 2017

  • Speech by Janet Love, National Director

On behalf of the Legal Resources Centre, I would like to convey our appreciation to the Council of Wits University for the honour and distinction bestowed upon us through this Award.

Wits is the alma mater not only of Arthur Chaskalson and Felicia Kentridge – two of the founders of the LRC – but also of many others who have made the organisation what it is today – including stalwarts of our struggle like George Bizos, the LRC’s internal Senior Counsel, and Thandi Orleyn, the Chairperson of our Board of Trustees, who are here with us tonight. Wits is also the trusted custodian of some of the LRC’s archives and papers. In addition, our work has been enhanced through the partnerships and working relations we have forged with many components of the University including the Centre for Applied Legal Studies, the Wits Law Clinic, the former Wages Commission with its links to the Industrial Aid Society which served as one of the first Advice Offices supported by the LRC, the Sociology of Work Programme (SWOP), the Joburg Centre for Software Engineering (JCSE) and the Students for Law and Social Justice – to name just a few. So this Award and the recognition it embodies has special significance for us.

Thank you also for affording me this opportunity to make a few remarks at this graduation ceremony. Firstly, congratulations to the students! Whatever your individual or collective views are, or whatever the extent of your activism while on campus: you will look back at this period and know that you were part of the turbulence – a turbulence that may develop into the winds of change. Engagements with and within the #FeesMustFall movement have seen the emergence of the so-called ‘flat-line’ leadership structures rather than the channelling of discussion through traditional structures that were used when I was a student. In this different ‘flat-line’ formation may lie the seeds of much innovation in terms of engagement and organisation, and some of this may be enabled by innovations in the social media space.

However, currently there are multiple processes (the Fees Commission, the Higher Education Ministerial Task Team, the Mandela Foundation’s Higher Education National Convention) and I wonder how much students have been able to engage thus far amongst themselves about these issues or within all or any of these processes. The linkages from one campus to the next seem tenuous at best. These are the challenges of organisation: so although current organisation may be innovative and responsive to the current mood, it may simultaneously make the development of alternatives and finding the pathways forward additionally difficult. Discussions around decolonisation and critical race theory which also do not, in themselves, resolve the debate about free education for all versus free education for the poor and the related discussion about what thresholds or mechanisms could or should be used to determine poverty. And there are many other critical issues affecting students ranging from access to bandwidth and data to student living conditions.

Much as I believe that the values of our Constitution are a guide to action and include a clear imperative for fundamental transformation of our society, exactly what this transformation actually looks like – and how we get there – are issues that require organisation and leadership at all levels and in all spaces. It is our individual and our collective responsibility. There is no script. There is no single answer. There is no one path to bring about the Constitutional promise and to ensure that inequality is not exacerbated by the options we choose. This is as true for the right to water as it is for the right to education.

The travesty against justice that was colonialism and the crime against humanity that was apartheid are with us today in many ways. We can point to change and progress but this cannot disguise our failures. For example, we have failed to effect the land restitution and land reform programme. We cannot deny that we have failed to hold accountable those who treated the Truth and Reconciliation Commission with disdain – they have not been brought to justice and reparations have not been made. Inequality has grown and exclusion is something that is not openly, actively and constantly reckoned with as it needs to be.

The LRC seeks to advance inclusion and equality; to secure dignity and development for all; and to enable our democracy: through using the law to make our Constitutional framework deliver on its promise to all in South Africa. To this end, we provide free legal services for vulnerable people including: those who suffer discrimination by reason of race, class, gender, disability or through historical, social and economic circumstances; and those who stand up against abuse of power and corruption. To these ends, we use a range of strategies to bring about creative and effective solutions. The law and our use of it, is only one part of the picture. What we do cannot happen without the organisation of and the leadership and mobilisation by the clients we represent. And we too need to do more to transform. This includes the demographics within our own organisation and making more consistent progress towards transforming the legal sector including ensuring that there is a greater consciousness with regard to who from the members of the Bar are briefed in our matters. And it also involves being more creative about the way we engage in the broader public space.

The rule of law cannot exist in a media bubble; it needs the argument surrounding a case to be built in the public mind; it needs the solutions to be sought and articulated; it needs a dominant narrative to be developed in order to make the processes of the law and objectives of any particular case to be clearly understood and to have a real prospect of being meaningful in improving the day to day lives of ordinary people. The law needs to secure this influence to enable it to be a real check and balance on those with political and economic power. Yet, who dominates the narrative? Is there adequate transparency and information? Is there conscious effort to engage, persuade and convince? These issues and questions are as relevant to each and every one of our cases as they are to the debates around higher education.

We need to be conscious of the fact that all institutions are fragile. While we see political parties – and particularly those in power – cannibalise their own support, we watch as some seek to unravel the social compact we achieved at the dawn of our democracy without laying any ground for alternative ways to take forward people’s aspirations.

As there is repeated failure to hold those in authority accountable, we know that this is compounded by corruption, the manipulation of public institutions and the hollowing out of critical areas of governance. And in this way, the peoples’ trust in institutions – all institutions – begins to break down. And once broken, this trust is difficult to restore – regardless of who is in office.

We are not unique. There is a loss of credibility the world over in the ability of the State to deliver. This has led to the politics of negation, disruption and often to fragmentation. It is an unknown that stands before us as we let institutions break down without visualising what comes instead and this makes it both scary and dangerous: scary because building is a more painstaking process than destruction; and dangerous because into a vacuum can come the rhetorical noise of an empty drum which promises all but does not offer alternatives or deliver anything.

It is into this vortex that those who have just completed your studies are stepping. Impatience is not enough. Leadership, facts and figuring out how something can be achieved – these are vital.

“Facts matter,” said the former US Vice-President, Joe Biden. Yet without taking hold of the narrative and without doing more than confining our engagement to 144-character twittering exchanges, facts will continue to elude us and the public consciousness.

How do we locate the law in the context of fact? This is important for our work and for ensuring that the promise of our democracy is realised. For example, the Constitution is unambiguous about the need for land reform and land restitution and explicitly provides for the option of expropriation. The Constitution takes the view that any consideration of compensation – it does not say that compensation is a requirement – must reflect “an equitable balance between the public interest and the interests of [all] those affected” – including those who had their land forcibly removed and those who have occupied it in the period since. It requires all relevant circumstances to be taken into account, including the history of the acquisition, the use of the property over time and the extent of direct state investment and subsidy.

So what has gone wrong? Why has there been so little progress? Why has this, ‘the Property Clause’, been used to enrich a few at the expense of many? Why has it excluded rather than included? We should all ask. But there is simply no factual basis for blaming the Constitution and the wording of the clause itself. By doing so, we miss the point. We allow the real reasons that relate to the failures in implementation and often to corruption to be obscured thereby delaying the urgently needed correction.

The Constitutional structures and principles are there to serve people, and in particular poor people. We need to remember that the judiciary, too, is a fragile institution and cannot and should not bear the burden of failures of other organs of State; nor should it have to grapple with the failures of those who approach the Court without having given adequate thought to the practical challenges of implementation; to the challenges of oversight; to challenges that accompany the processes for enforcement – all these need to be crafted as options to be addressed as part of proposed remedy. Not just in Court but in our society and in debates and matters beyond.

Judicial independence needs independent lawyers who recognise that the legal profession is under an obligation to serve the public interest. Lawyers and all graduates and professionals cannot serve only the elite in our society and services have to be available to all who need them. This is part of what needs to become embedded in all of our missions and imaginings.

We have a Constitution which limits the power of the State from interfering with the rights of the individual and which also addresses the regulation of private power. In this, we really lead in the world. It is a Constitution which expressly empowers the state to address and redress the consequences of centuries of dispossession and discrimination. It requires inclusion. It is a Constitution which provides the basis and the imperative to make this our individual and collective responsibility. So let us get on with it – let us all move ahead with the business of using our Constitution to the fullest extent possible in everything we do.

Thank you.


Should fracking happen in South Africa?

Photo: No Fracking Signs at Prince Albert – by Danie van der Merwe (Flikr)

The threat of fracking has been imminent in South Africa for almost a decade. But South Africa is just not ready for fracking. There are many detrimental effects of this mining activity on communities and the environment.  The regulatory requirements to mediate these effects are also not present. Allowing fracking to take place in South Africa would simply be disastrous.

Fracking, or hydraulic fracturing, is a technique used to extract gas from deep underground, which involves digging wells up to four kilometres deep. A mixture of water, sand and chemicals is injected at high pressure to crack shale rock formations and release the gas, which is then brought to the surface.

History of Fracking in South Africa

Fracking is not a new practice and dates back to the 1860s in the United States but started being used commercially in 2009. Currently, almost 95 percent of US states use fracking techniques. In South Africa, formal interest in fracking began in 2008; the potential areas of interest being in the Karoo and parts of KwaZulu-Natal (KZN). Since then, there have been a number of applications for exploration rights from companies such as Bundu Oil and Gas, Shell SA and Falcon Gas and Oil.

The threat of litigation around the imperfections of this process, and around the absolute lack of investigation into the technology and its impacts, resulted in the Minister of Mineral Resources, Susan Shabangu, declaring a moratorium on the issue of exploration licences in April 2011. The Department of Minerals and Resources (DMR) was instructed to set up a task team to explore the implications of fracking, the feasibility of the gas extraction, as well as its impact on the environment.

At that time, no timeline was given for when research would be conducted. The Minister commissioned a report from a group of different government agencies to inform her about whether fracking should go ahead or not. The problem with the task team responsible for the report was that it excluded representatives from key government departments. Only certain voices were heard in the report. This omission does not reflect administrative justice, a right to which we are entitled under the Constitution.

In September 2012, a little over a year later, the moratorium was lifted. Cabinet endorsed recommendations of the report on the lifting of the moratorium and mandated the Minister of the DMR to hold a series of public consultations with interested and affected stakeholders to provide further details.

Possible pollution events associated with fracking

Fracking typically requires 1000-2000 large truckloads of water, which means thousands of wells will require truckloads of water to be transported to the fracking site at significant environmental cost. Most of South Africa’s surface fresh water (98%) has already been allocated to existing users. This raises the question of how the fracking industry will source the millions of litres of water it will need to undertake its operations.

Fracking entails the pumping of toxic chemicals at high pressure, with water and sand, into underground shale rock formations. Some of the fracking liquid returns to the surface after use, and has to be disposed of without causing harm to the environment. The fracking liquid often consists of both toxic and radioactive sludge, which must be transported to hazardous waste management sites.

The most serious environmental concern related to fracking is that of ground water contamination. The potential risk to ground water comes from two sources: the injected water (water and chemicals) and the released natural gas. The water used in drilling shale gas is fused with sand and chemicals (corrosive inhibitors, surfactants, iron control chemicals, biocides, friction reducers and scale inhibitors). When these are injected down the well, there is a strong possibility of polluting underground water. Freshwater reserves can also be contaminated when the fluid is spilt at the site of the wells or in other accidental spills.

Fracking can release gas and / or vapour into the atmosphere. These emissions are either of original additive chemicals, entrained contaminants from the shale formation or the methane released by the fracking process. There is an ongoing debate about the relative leakage of methane into the atmosphere from the exploitation of shale gas in comparison to the emission rate from conventional gas. This is potentially important because a high leakage rate might mean that methane released into the atmosphere from shale gas extraction could have a higher net greenhouse gas footprint, than, for example, coal. Fracking operations should, therefore, seek to minimize all emissions into the atmosphere and monitoring processes need to be actively enforced.

Lastly, shale gas development involves continuous activity conducted over a sustained period of time (this can vary considerably, but is often several years) over the entire course of a day, seven days a week. The noise of compressors, generators and drilling, extensive truck movements, intrusive un-natural lighting overnight and the release of bad smelling chemicals can have significant negative health and well-being impacts on nearby communities, especially in the context of quiet rural and semi-rural areas that also relatively densely populated.

Do we have the regulatory requirements to undertake fracking?

What are the regulatory conditions that currently exist that would affect fracking? The Mineral and Petroleum Resources Development Act (MPRDA) is the central statute that governs applications for and the granting of rights and permits to conduct shale gas extraction. The requirement for the submission and approval of an Environmental Management Plan (EMP) for an exploration and production right allows for the potential environmental impacts of shale gas extraction to be investigated prior to such activities being conducted.

If waste will be generated by any activity, an assessment as to whether the National Environmental Management Water Act (NEMWA) applies to the activity will need to be made and, if required, any requisite waste management licenses applied for and obtained prior to starting any activity requiring the management of the waste.

Should any company succeed with exploration, a water use license in terms of the National Water Act is to be secured through applications for individual or integrated water use licenses. Various factors will have to be considered for the granting of the licence – one of which is the availability of resources.

How effective are these measures to mitigate the impacts of fracking?

Should the South African government decide to issue exploration and production rights for shale gas fracking, the least we can expect is an appropriate regulatory regime that is implemented, monitored and enforced. The current fracking regulations and the current pollution control laws do not achieve this.

We do not have the capacity or will at local – and national government level to do the basics of waste management, such as collecting solid waste, preventing dumping, closing down illegal mining operations and controlling sewage and industrial pollution. We simply will not be able to handle the extra burden of fracking waste once fracking activities begin.

Fracking can be extremely water-intensive, depending on the precise techniques used. This may pose risks in the KZN Midlands, and other parts of the country which are currently experiencing drought conditions.

In theory, it seems that South Africa’s pollution control laws do allow for mining; however, due to the nature of fracking, the current pollution control laws may not be sufficient to deal with the detrimental and long-term effects of fracking.

The environmental impacts of conventional mining in South Africa have never been regulated effectively. To the extent that appropriate regulations do exist, their implementation has been ineffective. As a result, mining has had, and continues to have, significant negative impacts on the environment. Many of these impacts, such as acid mine drainage, cannot be easily remedied and will continue to impose heavy financial, health and environmental costs on society for the foreseeable future.

I would argue then, that with the current regulatory environment, as well as the potential harm caused by fracking, the government will need to rethink its regulatory regime before allowing fracking to happen.

by: Shaun Bergover, candidate attorney

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Arthur Chaskalson fellowship launched

In a recent low-key event, the Legal Resources Centre launched the prestigious Arthur Chaskalson Pupillage Fellowship which will provide financial support and training to one or more young candidates, coming from historically disadvantaged backgrounds, who have been admitted for pupillage.

The LRC’s counsel or associates will provide the requisite training for one year, after which the pupil will take up a position as junior counsel in the LRC’s Constitutional Litigation Unit, subject to the availability of a position and funds, for a period of at least two years.

The Fellowship honours the late Arthur Chaskalson, who was one of the founding members of the LRC and later became the first Chief Justice of the Constitutional Court.

During the event, friends and family of the late Chief Justice, as well as LRC staff and supporters, were introduced to the first two fellows, Phumzile Mdakane and Yanela Ntloko. Phumzile will be based in the Cape Town office under Adv. Michael Bishop. Yanela will be in Johannesburg under the Constitutional Litigation Unit and CLU associate, Advo. Tembeka Ngcukaitobi.

Legal Resources Centre Director, Janet Love, with one of the first Arthur Chaskalson fellows, Yanela Ntloko

LRC Director, Janet Love, gave a warm welcome to the new fellows and gave a brief history of their respective (academic and personal?) backgrounds. Advocate Lunga Siyo, on behalf of the CLU, also welcomed the fellows, offering the support of the organisation as a whole.

Craig Watt-Pringle from the General Council of the Bar spoke of the progress and challenges related to transformation in the advocates profession. While the Bar is seeing an increase in black and female membership, challenges remain.

The high number of white men as senior counsel, and skewed briefing patterns for commercial matters, indicate that more needs to be done to enable transformation at the Bar.*

“Clearly the Bar cannot afford to simply wait for briefing patterns and the composition of the bar to change through the effluxion of time.”

Advocate Watt-Pringle also quoted the late Chief Justice’s own feelings on and commitment to transformation.

Matthew Chaskalson, the son of the late Chief Justice, gave a very moving speech where he indicated that his father would have been proud to support a project between two of the three most important places for him – the LRC and the Bar (the Constitutional Court being the third). He noted that it was the fourth anniversary of his father’s passing. He wished the fellows all the best and also offered his support to them, should they need it.

Janet Love with Phumzile Mdakane, the second fellow

Those attending the event were then invited to a screening of Shepherds and Butchers, a 2016 South African drama directed by Oliver Schmitz and produced by Anant Singh. The film is based on a book by Chris Marnewick, which is in turn based on real events that took place in 1980s South Africa during the time when the country still had the death penalty.

The LRC would like to thank everyone who attended the launch, the Chaskalson family, LRC supporters, as well as Anant Singh and Sterkinekor.


*Remarks by Advocate Watt-Pringle

1. Good evening ladies and gentlemen. Thank you Janet Love and the LRC for this invitation and congratulations on the launch of the Arthur Chaskalson Pupillage Fellowship Programme; a worthwhile initiative.

2. Unfortunately, the GCB chairman, Vuyani Ngalwana SC is unable to attend and he has requested me to do so in his stead.

3. My topic is transformation of the legal profession in general and the bar in particular.

4. This is an enormous topic and so I will not begin to do justice to it in the time allowed. I will focus on placing some of the current challenges in historical perspective and then deal briefly with current transformation initiatives.

5. As a member of the bar who only spent one year as an articled clerk in the mid-80s, I’m really not qualified to speak about transformation in the attorneys’ profession and so forgive me if I alter my brief slightly by confining my remarks to transformation at the bar, with particular reference to the Johannesburg Bar.

6.  I hope to add interest to this challenging topic by reference to some statistics. These statistics also provide some insight into the nature and extent of the overwhelming need for transformation.

7. The Johannesburg bar is – by some distance – the largest bar and currently comprises 1096 members, more than one third of the total GCB membership of 2826. The next biggest bar is Pretoria with 652, Cape Town with 478 and KwaZulu Natal with 311. The other bars make up the balance and are very small by comparison.

8. The increasingly urgent demand and need for transformation must be understood in historical perspective.

9. In his foreword to the book published in 2002 by the Johannesburg bar to celebrate its hundred years of existence, the late Chief Justice Arthur Chaskalson wrote the following:

With few exceptions, for they were few exceptions, the story of the people of the Johannesburg bar for most of the past 100 years is a story of white advocates; for the same reason it is also, with few exceptions, the story of white men – a group of highly skilled professionals including many great advocates who had an important influence on the way law is practiced in South Africa and the high professional standards to which the bar aspires. They were, as we all are, people of their times, influenced by the social and political order in which they lived.

Some of the stories, though shameful, should therefore come as no surprise. The internal quarrels of the admission of black advocates, the initial exclusion from the common room of those black advocates who are admitted as members, the striking off of Bram Fischer and, in general, the passive acceptance by most of the members of the bar of the way our society was structured and privilege dispensed, are part of the history of, and reflect the attitudes common within, the institutions of the legal profession in colonial times and underreported.

10. Elsewhere in the book it is recorded that in 1983 only five of the 278 members of the Johannesburg bar were members of colour. They comprised less than 2% of the bar.

11. Nearly two decades later, in 2002, that figure had risen to 148 out of 604, which is 24.5%. In the same period the percentage of woman doubled from 6% to 15%, whereas the increase in the membership of members of colour had increased 13.6 times.

12. Since then, the picture has altered markedly. In Johannesburg, of the 1096 members less than half are white males. As an indication of the rapidly changing demographic of the bar, of the 259 members of less than five years seniority, only 65 are white men. That tells us that by effluxion of time the bar will, at least as far as its demographic composition is concerned, transform across the board.

13. Women too have become far more prominent at the bar than they were in 2002. In Johannesburg there are now 334 women out of the total of 1096, just less than one third. More than a third of all members under 5 years’ seniority are women; that is 94 out of 259.

14. Perhaps more startling, however, are the statistics relating to senior counsel, which are largely attributable to the virtual exclusion of black and women members until relatively recently.

15. Of a total of 198 silks at the Johannesburg bar, 149 or approximately 75% are white and male. Only 63 are black and 30 are woman. So black silks comprise approximately 30% and women approximately 15% of silks in Johannesburg.

16. This tells us that while the overall demographic of the Johannesburg bar is increasingly black and female, that statistic is largely accounted for by the relatively recent influx of black and female juniors to the bar.

17. At the national level approximately half of the bar is white and male and white males make up 414 of 527 silks, a figure in excess of 80%. However, less than a third of all members of the bar under five years’ seniority are white men.

18. So much for statistics.

19. The author of the book which has been turned into the movie which we will see this evening is Chris Marnewick SC. More than a decade ago he compiled a detailed training manual for pupils and he was to a significant degree responsible for the vast improvement in the quality and extent of training received by pupils, when pupillage was increased from less than six months to the current 12 month programme. Effective training is, of course, an essential component of transformation.

20. White men now deliberately form a small percentage of the yearly pupillage intake at the Johannesburg Bar, but this may not be the case nationally, to the same extent.

21. A more selective approach to admission to pupillage and the one year pupillage program have resulted in a much lower failure rate and a very low attrition rate amongst junior entrants to the bar. That is the reason why black and woman entrants to the bar have so radically impacted on the overall demographic from what it was 20 or 30 years ago.

22. However, the fact that so many silks and senior juniors of experience are white and male, particularly in commercial matters, accounts for briefing patterns which tend to exclude black and women advocates from the bigger commercial matters.

23. Senior attorneys, who themselves are usually white men, and who deal with commercial matters of substance have grown up in the profession with their white male counterparts at the bar. That is amongst the reasons given why briefing patterns are so difficult to change.

24. From the bar’s perspective, the emphasis is on training, including advocacy training which continues after the pupillage program, mentorship within the group structure and the inclusion of junior black and women members in matters with seniors, with the aim of providing them with the necessary experience and exposure to briefing attorneys, so that they can show what they’re capable of and hopefully be briefed alone in the future.

25. Many of the bar’s transformation initiatives are conducted at a group or Chambers level where, for example, there is cross subsidisation of overhead costs incurred by junior members regardless of race or gender and junior funds to which senior members contribute and which can be used to involve junior members in matters at no cost to the client, again with the intention of giving them experience and exposure.

26. Turning to the governance of the bar, the GCB has been in a 50-50 partnership with Advocates for Transformation, AFT. Although AFT is a non-racial organisation, it is generally acknowledged as the body which represents the interests and aspirations of previously disadvantaged members of the bar.

27. This means that 50% of the GCB’s Exco comprises nominees of AFT and the chairmanship of the GCB alternates between an AFT and a non-AFT member every two years.

28. Thus transformation of the legal profession is currently a combination of:

28.1 evolutionary change as more and more black and women law graduates enter the legal profession –  to some extent engineered through the pupillage intake; and

28.2 more proactive measures which have, to be frank, enjoyed limited success.

29. Clearly the Bar cannot afford to simply wait for briefing patterns and the composition of the bar to change through the effluxion of time.

30. There does, however, appear to be new impetus on the part of government to look at briefing patterns by state departments and state owned enterprises. And from time to time, various law firms have initiatives to brief greater numbers of women and black members.

31. An issue like transformation can best be tackled when the nature and extent of the problem, or challenge, is well understood. The Judge President of North and South Gauteng High Court is gathering statistics on briefing patterns in the High Court. This is a very welcome initiative.

32. I thank you.



1 December 2016

Peoples’ Right to Development

African Regional and International Legal Perspectives

In a context where corporate investment is commonly justified in the name of “development,” the question of what exactly “development” is, is central to the design of a binding instrument on transnational corporations and other business enterprises with respect to human rights (Treaty).

On Wednesday 26 October 2016, 30 members of civil society, state representatives and academia met at the Palais du Nationes in Geneva to discuss and debate the evolution of the “right to development.” In particular, this was considered in the context of African regional perspectives on the peoples’ right to development, including an extension of the right to free, prior and informed consent (FPIC) beyond a narrow conception of indigenous peoples.

Moderated by Dominic Renfrey of ESCR-Net, the roundtable discussion benefited from interventions from Akhona Mehlo of the Legal Resources Centre (LRC), Susan Mathews of the Office of the United Nations High Commissioner for Human Rights, Caroline Ntaopane from Womin (African Women United Against Destructive Resource Extraction), Nomonde Nyembe of the Centre for Applied Legal Studies of the University of Witwatersrand, and Roberto Bissio of Social Watch. Through a series of questions, these interventionists guided a stimulating and through-provoking discussion.


What is development?

Caroline Ntaopane opened the discussion by affirming that everyone has a right to development, including the right to say what type of development they want; especially women. Caroline, who has nine years of experience working with women in rural communities in remote South Africa, explained some of the problems that women in rural areas face, including illiteracy, oppression by men, violence and sexual violence, and significant household burdens. Women face discrimination in land tenure and customary laws, which are typically patriarchal. It is common for women to only be able to exercise control over their land through their husbands or brothers, and they lack decision-making power, which is often taken advantage of by businesses and government in cahoots with chiefs or other male authority figures.

Nomonde Nyembe addressed the fallacy of “economic development” and pursued the idea of the nature of true development. Nomonde explained that it is a misconception that gross domestic product (GDP) growth leads to real development. Even the World Bank acknowledges that it is widely recognised now that development is more than this, and other indicators like UNDP’s Human Development Index include life expectancy and literacy. World Bank statistics indicate that 46.8% of sub-Saharan Africans live in a state of poverty. Nomonde argued that the current favoured model of development perpetuates cycles of poverty through supplying survival, rather than living, wages, denying people access to their land, and denying people agency and self-determination.

Poverty is an amalgamation of human rights violations, including water, education and food. As such, when talking about development, Nomonde explained that we need to reframe the discourse to include social and cultural factors; development that facilitates self-determination and serves the most impoverished. Development can have economic outcomes but not be prioritised over other relevant components such as social and environmental concerns, for example, housing and water infrastructure. Development should seek to achieve these goals and be sustainable in the long-term – not harming the environment or people’s livelihoods. In order for this to occur, we need genuine engagement with communities and planning that incorporates all parties. The right to development is a peoples’ rights; one that is held by both individuals and held by peoples as a collective. Development should give effect to this.

Akhona Mehlo of the Legal Resources Centre discussed the procedural and substantive elements of the right to development under the African Charter. Within this framework, Akhona emphasised the need to recognise the customary rights to land and natural resources of affected communities as property rights, whether documented or not. Rural communities across Africa have, for generations, utilised land, forests, marine and other resources in terms of their customary laws, making them owners or rights’ holders of the land and resources. The community’s relationship to the land and resources commonly developed as an integral part of their identity and cultural existence. Customary law refers to the system of rules and principles that the communities use to govern themselves and their access to shared resources. The term “customary communities” refers to communities who regulate their lives and tenure rights in terms of such customary law.

Akhona argued that pursuant to the peoples’ right to development, the free, prior and informed consent (FPIC) of all communities with customary rights to the affected land and resources is required for development projects to go ahead. FPIC is in itself a procedural and substantive right that includes the protection of peoples’ right to full and timely disclosure of all relevant information prior to the approval of the project, the recognition of and respect for the customary decision-making processes of the affected communities and, ultimately, the right to say “no” to a project. The need for investors to recognise this is demonstrated by the ability for communities to halt or delay projects through activism.

To what degree is law and policy helping? Where can we bridge divides in progress we see with law?

Roberto Bissio acknowledged the realities of and the struggles faced by women in Africa. He emphasised that the notion of rebalancing power is key. Robert argued that transnational corporations have been granted rights under international investment agreements that ordinary citizens do not have; for example, the right to sue the host government in an international arbitration panel.

Further, courts in the US and the UK recognise corporations as “people” and are granting them “human rights”, such as the right to privacy in the UK (therefore keeping their tax declarations secret) or the right to contribute to political campaigns in the US, where issuing a cheque in support of a candidate has been constructed as protected under freedom of speech. The result of the increasingly unequal bargaining power between transnational corporations and people is concentration of power and increasing inequalities. He emphasised the adage that people have rights and corporations have privilege. Whereas rights are inalienable, privilege is conditional and revocable – a social value that can be taken away.

Roberto then provided an international perspective on the right to development and highlighted certain key provisions in the United Nations Declaration on the Right to Development. For example, article 8 provides that people should have equality of opportunities (such as health and education) and a right to a fair distribution of income. He emphasised that the right to development explicitly includes the right of women to have an active role in development and the duty of governments to encourage popular participation. In this respect, Roberto referenced that other human rights instruments, such as the International Convention on Economic Social and Cultural Rights require international cooperation through inter-state obligations. The right to development, he added, also imposes obligations on governments towards their own citizens, that is, intra-state rights.

Susan Mathews showed how “development” was historically conceived of as an ordering of the world in postcolonial times, by quoting the 1951 United Nations, Department of Social and Economic Affairs, Measures for the Economic Development of Underdeveloped Countries:

There is a sense in which rapid economic progress is impossible without painful adjustments. Ancient philosophies have to be scrapped, old social institutions have to disintegrate, bonds of caste, creed and race have to burst, and large numbers of persons who cannot keep up with progress have to have their expectations of a comfortable life frustrated. Very few communities are willing to pay the full price of economic progress.

Susan referred to Arturo Escobar’s 1995 book “Encountering development: The making and unmaking of the Third World,” explaining Escobar’s view about development as a dream and imaginary; a siren call to societies emerging from their postcolonial histories. Susan pointed out the continued relevance of Escobar’s critique, including that “[p]erhaps no other idea has been so insidious, no other idea gone so unchallenged.” Her perspective on development is that it is captivating, but also holds us captive as an end or goal. In Africa, as in Asia, development representations continue to dominate our thinking, our governance and the paths we take in the name of development. Instead, the idea of right to development should be turned on its head and taken out of its political trappings to reimagine it as peoples’ agency and resistance to dominant development models. Such rethinking is a necessity given the contemporary environmental challenges we face. Transitioning out of carbon-dependent paths is no longer a luxury, it is crucial. In spite of this, Africa’s mega regional Continental Free Trade Area (CFTA) agreement is presently being designed to focus on industrialization’s past, not its future.

She referenced Susan Sontag who wrote that our privileges fall on the same map as our suffering, arguing that with the idea or dream of development, this could not be truer. “Development” gives and it takes away. In order for us to break or challenge that vicious cycle, peoples’ agency and resistance must come to the fore.

How can the peoples’ right to development be made operational for overcoming power differentials on the ground? How does a distinctly African understanding of the peoples’ right to development and FPIC make it into a UN Treaty discussion where the elements might be understood more strictly?

Caroline explained that there is a distinct gap between what is talked about in international forums such as this second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, and what actually occurs on the ground. For example, at the United Nations, a country might present good people who talk about positive things such as the need to for a legally binding instrument to make sure corporate investment-related abuse stops, but this good will and intent is not seen in-country and  on the ground. Caroline emphasised that the peoples’ right to development can only be realised if the right to environment is protected, including healthy soil for food production, clean water and clean air. In terms of practicalities, transparency is key and, given the cost of lawyers for communities to prove they have been affected by an investment, a reversal of the burden of proof would go some way to rebalancing power dynamics.

Nomonde talked about the gap between instruments and actions in the context of the Amadiba community in Xolobeni, Eastern Cape. The people there do not want extractives as their form of development and are opposing it by all means possible. Earlier in the year, one of their leaders, Sikhosiphi “Bazooka” Rhadebe, was murdered as a result of state and investor resistance to this community opposition. Nomonde discussed the importance of the informed element of FPIC, and highlighted the differences in community members’ conception of development, such as ecotourism and local business initiatives, as compared to the state and mining companies.

The LRC has been representing this community in a number of cases. CALS has intervened in one of the cases wherein it contends that self-determination (which is even wider than FPIC) aligns with FPIC and that, accordingly, people can decide for themselves how they live their lives and make their own decisions. Importantly, these rights are not limited to indigenous peoples, as communities such as those in Xolobeni might not satisfy requirements of indigeneity, but to communities that govern themselves by their own systems of customary laws and are considered customary communities.

At this point in the discussion, a number of fascinating statements and questions were posed by audience members:

  • It is implied in the word “consent” that such consent can be withheld at any stage in the process. Is this understanding shared by those with great power, that is, states and TNCs?
  • Communities are pluralist with inequalities and different views – how is this dealt with in practice?
  • The manner in which development is talked about is a major constraint for Africa. Too many members of civil society buy into the extractives paradigm as the only route for development in Africa and so seek to help negotiations, but will that work? Is that the way out of poverty for Africans? So far it has not proven to be. Robust debate about development in Africa is needed. Instead of top-down economic development, people want protection of rural small scale farmers, prevention of land acquisition for commodity exports instead of staple foods, and protection of the environment.
  • It must be recognised that there is always going to be some degree of hostility within communities, but so too must it be recognised that there is a legacy of colonialism that companies take advantage of. How can this dynamic be reflected in law? Can it?
  • How does the consent principle really operate in practice within a community? For example, how do gender dynamics play out, and how can a person external to the community determine if consent is real? How can corporations ensure the consent is genuine, and how can the law hold them to this?
  • Corporations have different motives when considering what “development” is, in particular, profit motives. How can we ensure that corporations contribute to real development while still harnessing their goals?
  • How can the term “communities” be defined and how can conflict inter- and intra- community conflict be adjudicated? Under the consent element of FPIC, should the right be an absolute veto or some kind of mechanism for balancing? How can compensation be determined if people have to leave their land?

Roberto picked up on the environmental points raised and explained that the heart of the dilemma that developing countries face at the international level is that they need to conserve the environment and biodiversity on the one hand, but also secure funds to deliver antipoverty measures such as health services and education. He referred to the example of Ecuador and the oil reserves of Yasuní in the Amazon. If the Yasuní resource is exploited, indigenous peoples and biodiversity – that is, all of humanity – suffer. On the other hand, Ecuador is a poor country and needs the income. Ecuador proposed that in order to leave the oil in the ground, the international community should compensate for global benefits, suggesting that half of what Ecuador would have earned for exploiting that oil (USD6bn) be paid by the international community. USD200m was pledged, of which only USD13m was delivered. Ecuador announced that oil exploration might eventually be resumed. The Yasuní example, Roberto concluded, warns against voluntary guidelines and pledges in the international setting. He contended that these non-binding statements are nice but cannot be brought to the bank to solve real problems.

Akhona took on some of the questions relating to the nuance of the term “community.” She explained that extending the peoples’ right to development and FPIC beyond indigenous communities to customary communities is necessary in Africa. In terms of the broader term of affected communities, that is more of a political issue and should be considered on a case-by-case basis. Akhona recognised the inequalities and intersectionalities within communities and referenced some of the issues faced where chiefs (sometimes legitimate in title, sometimes illegitimate) claim community compensation that is not necessarily then fairly distributed. Concerns that customary law can exclude women are legitimate, but it is important to understand that the South African Constitution provides that customary law needs to be infused with the values and rights enshrined therein, such as equality and dignity. Akhona emphasised the importance of site-specific determination of community structures and values, in order to apply the broader rights and principles.


At this point, Dom highlighted that there are similarities between customary communities in Africa and Mexican “Ejido” – lands held communally in the traditional system of land tenure – flagging the potential cross over for inter-regional discussion. Dom further emphasised that FPIC is not a tick box exercise that can be checked off at the start of a project; it refers to both conduct and result. Critique of the UNGPs helps us outline conduct, but we need to go a step further and recognise that the peoples’ right to development is not fulfilled unless shown in the results. Dom also suggested that not only are we dealing with collective rights, but we must also think about collective obligations. These concepts must be extended to questions of corporate liability.

Caroline pointed out that air pollution knows no boundaries. She also emphasised the importance of development processes being proactive and not just reactive, as remedy is sometimes inadequate. The example given was of an Eskom power station that local peoples did not want to be built, as the selected site was a sacred location where graves of ancestors lay. In spite of this, the graves were relocated. Sometimes compensation can never be adequate, as their ancestry was literally dug up and removed.

Susan posed Cooke and Kothari’s notion of participation as tyranny, where people participate in “development” and yet became disempowered when they cannot change the status quo. In this sense, participation also brings into play questions of representation, who speaks and on whose behalf, as benefits are distributed in quite complex ways. Consent has a legal definition but it is not a neutral concept. It is mediated through knowledge and power. Asymmetries in terms of information and temporal components of FPIC must be addressed in order for the basis of any consent to remain viable.

Nomonde argued that there is an obligation on corporations to do no harm, that is, to respect human rights. On the topic of positive obligations (taking action that enables realisation of human rights) and negative obligations (refraining from action that harms), she believes that corporations have both positive and negative obligations. For example, if a mining company uses migrant labour and new communities are established near the mine for those workers but are without services, the company should provide those services.

What now?

There remain many questions to be answered. What this event and the ensuing discussion showed is that “development” and the peoples’ right to development are central concepts when talking about corporate and state investment and projects. Only if those who are directly affected by a proposed project are able to genuinely engage in the process, and only if customary and indigenous communities can choose what path they – as a community – take, can “development” be truly said to occur.

As Dom forewarned, it is incumbent upon civil society working on these issues to find answers to these difficult questions. If gaps are left, then such gaps could be filled by others with different intent.

*featured picture shows Xolobeni in the Eastern Cape

Article by: Anna Bulman, Research Fellow at the Legal Resources Centre

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