Reflections on Fellowship and Contesting the Constitution

Photo: Tshepo Madlingozi 

The fast pace of legal practice and constant demand on your faculties and capacity in the public interest sector is often a distraction from gaining perspective about our growth as young social justice lawyers. The Bertha convenings serve as important periods for pausing and stretching our minds.

The first year of the fellowship is a wonderful time of terror and optimism. A time of learning the ropes and mastering the tone of the profession. During your second year you are given the opportunity to take on more responsibility in a practice, and this added freedom is an essential part of understanding your own abilities, potential ethics and limitations. As the conclusion of the fellowship approaches and we make the transition to alumni, many of us grapple with the reality of legal practice, the lure of social justice by academia and reinventing our role in the social justice arena.

As young social justice lawyers we are in a unique position to begin to experiment with hybrid careers and opportunities. There is an overwhelming sense that a new path must be forged and exciting long-lost entrepreneurial inklings must be called upon going forward to continue to effect change. The South African Bertha convenings serve as an important pool of ideas from which the fellows can draw from in order to advance new ideas about social justice and our roles within this sector.

We were particularly challenged at this year’s convening titled, “Contesting Power, Privilege and the Constitution” as it was an opportunity to hear the voices we tend to usurp or minimise in the course of litigation. The convening also galvanised fellows and alumni to question the paradigms in which we operate as public interest lawyers in the pursuit of social justice.

We work in a context where South Africa’s dehumanising history still presents itself in our thinking around development and notions of social justice. When Tshepo Madlingozi, a jurisprudence lecturer at the University of Pretoria, asked us about our use of emancipatory tools, many of us came to realise that we had accepted many imposed norms as unassailable purely because we were in the business of doing good.

Madlingozi’s argument was that human rights and, necessarily, social justice are concepts rooted in ‘coloniality of being’. That is, “South Africa’s contemporary social justice sector’s ahistorical and colour-blind fetishisation of human rights, as part and parcel of the economy of recognition – incorporation – distribution, both conceals and entrenches this teleological whiteness.”[1]

This begs the question for us public interest lawyers, operating under the banner of social justice, of whether we are truly effecting change in a post-apartheid South Africa, or whether we unwittingly perpetuate the notion of dehumanising “othering”. In essence, what the convening required of us was to recognise the real struggle of those we purport to represent. It asked us to understand what it was to be poor, black, female identifying, LGBTIQ+, migrant, marginalised, landless, silenced and forgotten.

In as much as Madlingozi encouraged a shift toward the recognition and appropriation of a liberation project, our claim on the advancement of human rights is still framed by a colonial understanding of humanity and law. Thus, if we remain impervious to the paucity of human rights “speak”, we may lose legitimacy in the eyes of those who continue to suffer “dehumanisation and social death”[2]

What about the Constitution? As mentioned above, the theme of the convening envisioned contesting the Constitution. One of the issues that we grapple with in the South African context debate, is our unquestioning defence of the Constitution. On the ground, the lofty ideals in the Constitution scarcely equates to the rectification of injustice. The protection of ill-gotten gains (property) daily reminds the dispossessed, our clients, of their social deaths and social injustice.

What’s more is that civil society in South Africa, of which we are part of and partner with, has been venerated beyond reproach – thus the “liberation project”, as Madlingozi puts it, cannot take form in the face of ahistorical disarming discourse that it deems social justice. As we graduate from the fellowship we will continue to debate and challenge social justice which constitutes temporary relief for those with insecure title and “developing the normative an remedial apparatus for imposing duties on organs of State.”[3] We will also continue to question whether we, as public interest lawyers, can attain the humanising project within the framework of our Constitution.

Mpho Raboeane and Christine Grobler – ­2017 Bertha Justice Fellows

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/

[1] T Madlingozi “Social Justice and Neo-Apartheid Constitutionalism”(2017) 28 Stell LR 137.

[2] Ibid at 139.

[3] S Liebenberg “Socio-economic rights beyond the public private law divide” in M Langford, J Dugard, B Cousins and T Madlingozi (eds) Socio-economic Rights in South Africa: Symbols or Substance?(2014) 63 64 as in T Madlingnozi “Social Justice and Neo-Apartheid Constitutionalism” 145.

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Bertha Convening: A Synergy for Change

Transfixed in my seat, feeling the energy of a collective striving for change and human rights – this is how I felt at the 2017 Bertha Convening, where I sat amongst peers championing for human rights.

In reflection, the Convening truly provided a rare opportunity for legal peers and community representatives from different platforms around the country to come together, shed light on, and interrogate current and deeply entrenched issues plaguing the vulnerable and marginalised in our country.  Some of the issues that were raised were of violence against transgender persons, and of mining companies overriding the consent of rural communities by mining on their land. We listened to the plight of farm workers who continue to live on farms where they experience oppression not dissimilar to the Apartheid regime.

Bertha convening 2017

Community representatives reminded us young lawyers that we do not need to be lawyers to fight against injustice, as the very essence of a human rights violation is that it encroaches upon one’s humanity. However, they also reminded us of the importance of our role as lawyers in hacking at the chains that still bind so many to oppression of some form. Further, how valuable it is for lawyers and communities to partner if we want to create the change we envision.

Bertha convening 2017_Marikana

The law remains a fundamental tool to challenge the status quo, and help realise the promises made in the Constitution. Lawyers cannot do this without truly getting the perspective of the communities we represent, and whose lives ultimately will be improved by the cases we pursue. The Convening created a supportive space to nurture such a collaboration, and to gain from and learn the different perspectives on these challenging issues.

I will end off by saying that this was my first Bertha Convening and I cannot wait for the next one.

Naushina Rahim – 2017 Bertha Justice Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/ 

Bertha convening 2017_Group