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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Launch of the Investment Policy Framework for Sustainable Development

The latest Africa Economic Outlook has recently been released and shows growth trends in Africa to be encouraging. South Africa is certainly running with the pack in this regard. That South Africa is both a destination for investment, as well as a source of investment, formed part of the discussion about international investment trends during the Launch of the Investment Policy Framework for Sustainable Development, which took place at the Chalsty Centre, at the University of the Witwatersrand, on the 26 July 2012. Speakers were James Zhan from the United Nations Conference on Trade and Development (UNCTAD), Stephen Gelb, Professor of Economics at the University of Johannesburg and the South African Minister of Trade and Industry, Dr Rob Davies.

The fact that developing countries are now entering the investment sphere as potential investors, and the fact that sub-Saharan Africa is now a significant investment destination, shows that the South and East are becoming noteworthy economic players. What was most interesting about the discussion was the “new” role of government (which favours regulation and protectionism) and that fact that not all investment is good for a country. The example of Wallmart entering South Africa was briefly mentioned here. This suggests that if a government is given more of a role in regulating investment, then government has some responsibility in insuring that growth in a country is not contrary to the laws and principles, as well as other policies, which already exist in the respective country. In South Africa, the Constitution should play a central role in guiding the principles of investment, whilst economic targets like skills development, technological transfer and enterprise development, as suggested by Stephen Gelb, can be factored into any investment treaties.

But what is the role of the Investment Policy Framework for Sustainable Development? As Stephen Gelb noted, investment inputs and outputs in South Africa have always been measured within a short-term framework and have focussed too heavily on quantitative values, leading to unwarranted worries; some of which recently sparked debates about nationalisation. He was talking of the 2010 slump which saw our Foreign Direct Investment (FDI) drop by 70%. As he points out, we have recovered sufficiently now to understand that South Africa was not in the sort of danger which was predicted. For this reason, he feels that the Framework is necessary to guide our thinking, ensure that we understand long-term trends and locate our debates within the international sphere.

I was impressed by a number of aspects of the Framework. Firstly, the Framework contains a number of values and principles for investors and host countries; suggesting regulation, cooperation, fairness and inclusive growth and so on. Furthermore, the Framework introduces sustainable development thinking into policy. While a definition of sustainable development is not given, it does suggest that social and environmental concerns are flagged. The Framework is considered a guide, to be used voluntarily by governments when framing their investment policies, using the expertise and experience from a number of well-respected specialists; including Dr Rob Davies. Most importantly, the Framework is a living document for those who use it, inviting commentary and suggestions.

Going back to the Africa Economic Outlook, it is suggested that youth unemployment will lead to more instability in Africa; with poor quality education to blame for excluding the youth from economic opportunities. While education has the greatest share of our national budget, South African’s are well aware of its continued failings. Should it be then that Government looks at new ways to invest in education, youth development and employment – all of which is crucial for future generations.
What are your thoughts on the Investment Policy Framework for Sustainable Development? Do you agree that the state should play a more active role in the investment flows? What do you think should be the focus areas for investment?