(featured photo of Lunga Siyo, LRC, and Mandisa Shandu, Ndifuna Ukwazi)
I am black-African, young and female, and working in the public interest sector. This is what it means to me:
It means that some of us are first generation graduates; we work with the added pressure of making money in order to financially support our families.
It means that sometimes we do not earn enough to sustain ourselves and our families and so many young, black-African lawyers end up leaving the public interest sector for jobs that they do not necessarily love, but that will make sure that they fulfil their obligations each month.
It means that we work in a sector that is not transformed enough: we see black-African lawyers within our organisations but they are not occupying senior positions.
It means that there has to be policies put in place, such as briefing policies, in order to hold organisations “accountable” for who they brief, or their failure to brief black counsel.
It means forming institutions such as the Black Workers Forum to “police” organisations when it comes to transformation….. 33 years after Democracy.
It means that there is a belief that young black lawyers are incapable of competently handling complicated matters or matters seen as falling within specialised areas of law.
It means that other black-African lawyers are afraid of putting their jobs on the line by briefing other black-African counsel because black-African counsel are “inexperienced and can’t take on matters probono”.
And on the burden of being both black-African and female: it means that your male counterparts are taken more seriously than you and that some clients will be more comfortable with their matters being handled by your male colleague.
But let us not forget the beauty of being a black-African lawyer:
As public interest organisations, the majority of our clients are black-Africans. This means that the majority of the work that we do is for our own people and for the betterment of our own people.
We are multi-lingual; we are able to communicate with our clients in a language that is their own. We understand the cultures and traditions of our clients.
We are a point of reference for clients. I have lost count of how many times I have been at court – going about my duties as a Candidate Attorney – and have been approached by members of the public, querying how to find a particular section of the court or how to fill in a domestic violence form. Our black skin means that we will understand better.
As a black-African child, we are taught that every elder is your mother/father or grandparent. For me this has meant that at every workshop or community consultations, I run to the aid of elderly people, making sure that they can get around with ease. My work as a black lawyer comes with a personal touch.
Lawyering whilst black…means that we have challenges; but we do our work anyway and we can understand the plight of our clients in a way that connects us to them.
Sindisiwe Mfeka – 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/
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.
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.
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.
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.
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.
Photo: LRC attorney Mandira Subramony with the Eastern Cape learners in their long walk to access education facilities in the province
The LRC have been granted leave to intervene at the European Court of Human Rights, in a matter against the government of Hungary. The case of Amanda Kosa v Hungary challenges a possible infringement of the right to education in the European Convention on Human Rights.
What’s the case about?
Huszar telep is a settlement in the Nyiregyhaza region of Hungary. It is made of up mostly Romani people. The Roma or Romani people are a nomadic ethic minority group, living in a number of countries in Europe – including Bulgaria, Slovakia, Romania, Serbia and Hungary. They are one of the largest ethnic minorities on the continent.
In 2011, the Greek Catholic Church in Nyiregyhaza opened a segregated school, near Huszar telep, serving only Roma children from the settlement. Prior to this, the Roma children had been attending an integrated school, 2.3 kilometres away from the settlement. The mayor and town council of Nyiregyhaza had been providing a bus to take the children to the integrated school. At the same time as the establishment of the Greek Catholic school, the children’s bus was stopped by the town council.
Amanda Kosa, the applicant before the ECtHR, is one of the pupils attending the segregated school.
The Chance for Children Foundation (a foundation representing rights of children from disadvantaged backgrounds in Hungary) took the case to court in 2011, suing the Greek Catholic Church for illegal segregation.
The case made its way through the Hungarian legal system, ending at the Kuria – the highest court in Hungary. The Kuria ruled in favour of the Greek Catholic Church, on the basis that the free choice of religion at school supersedes the prohibition of segregation. However, those in favour of integrated schooling do not believe that the school was being chosen because it was being run by Greek Catholics, but rather because it was close to the settlement and parents could not afford the necessary city bus transport after the subsidised bus had been cancelled.
The European Court of Human Rights will be asking three questions:
Have Hungarian domestic remedies been exhausted?
Has there been a breach of the applicant’s right to an education free from discrimination?
Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?
So why are we getting involved?
Question (3) is where the LRC’s input will be important.
In 2015, the LRC won an important case in the Grahamstown High Court. See Tripartite Steering Committee and another v Minister of Basic Education and others Case no 1830/2015 (26 June 2015). In it, Plasket J, finding in our favour, stated unequivocally that, “where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its obligations in terms of s 7(2) of the Constitution, to promote and fulfil the right to basic education” (paragraph 19).
In light of our work on scholar transport in the Eastern Cape, we can play an important part in demonstrating to the ECtHR how and why the provision of transport to scholars impacts on the fulfilment of the right to education.
The ECtHR is not able to overturn the decision of the Kuria. It will decide only whether there has been a violation of the Convention or the Protocols, and may award “just satisfaction” (i.e reparations) if the internal law of Hungary has allowed only partial reparation to be made.
Our written submissions are due on 20 October 2016.