Twenty years of democracy: NADEL’s commitment to democratic debate and socio-economic justice 

The National Association of Democratic Lawyers (NADEL) held its annual general meeting (AGM) in Durban in February. The theme for the conference was ‘Twenty years of democracy – NADEL’s commitment to democratic debate and socio-economic justice’. Speakers debated issues around the theme. 

Opening the conference, Chairperson of the Durban Branch, Raj Badal, asked delegates to observe a moment of silence in remembrance of all of those who passed away in 2013, including former President Nelson Mandela and former Chief Justice Pius Langa. 

Socio-economic justice

Welcoming delegates, NADEL President, Max Boqwana, said that it was the organisation’s first gathering since the passing of the first President of NADEL, Pius Langa and the first President of democratic South Africa, Nelson Mandela from whom members drew inspiration and commitment to do what is just. Quoting Mr Mandela he said: ‘There is nothing I fear more than waking up without a programme that will help me bring a little happiness to those with no resources, those who are poor, illiterate, and ridden with terminal disease.’ He further said that a meeting of this nature forces delegates to pause and reflect on where the organisation stands on the statement made by former President Nelson Mandela. 

Mr Boqwana drew attendees’ attention to what was happening in the world and in the country. He said that the meeting was taking place during a time of ‘growing international capitalists’ crises; unemployment is sky rocketing and salaries are plummeting in the developing world, while astronomical food prices and starvation ravage the Third World. The human rights abuses remain unabated in countries like Sri Lanka, Ukraine … [and] Palestine. The post-Arab Spring society in parts of our continent remains unstable and directionless as reflected in what is happening in Egypt and Libya. The Central African Republic, Sudan and the Democratic Republic of the Congo continue to reflect badly on any probability of African renewal. The economies of many other countries in our continent are hardly benefiting their citizens but continue to be the appendages of their former colonial countries ...’. He added that the continent continues to rely on China for resources, which stifles the likelihood of the continent being self-sufficient and taking care of its own people.

Mr Boqwana said that to draw attention to the issues he had spoken about, NADEL had invited Raji Souran from the Palestinian Centre for Human Rights to share his experience as a lawyer operating in a war zone. He said that Mr Souran would have reflected on the bully tactics of the United States, other Western countries and Israel and the failure of international fora such as the International Criminal Court and the United Nations to deal with the crisis in Palestine. He said that Mr Souran would have spoken about ‘many countries’ lack of moral courage, including our own, to stand up to bullies’. He added that Mr Souran could not attend the conference as the airport he was due to depart from was bombed. 

Disconnect between the Constitution and the public

Delivering the keynote address, former Constitutional Court Justice, Zak Yacoob, said that the African National Congress (ANC) remained two things at the moment, namely – ‘a party in power and that it is still in many senses the only positive force in our country as a movement … . It is the only organisation which embraces the values of the Constitution … which is committed to achieving true democracy in our country … towards achieving a fair society and towards achieving the eradication of poverty’. He added: ‘I would suspect that as the National Association of Democratic Lawyers we align ourselves completely with this direction, with this movement, with this change, which our society needs. And we must understand that these two parts of the ANC can sometimes be in conflict with each other, because the power exercise and the way in which the power exercise is conducted may not properly sit with the movement ... . And we must make sure that we remain true to the cause of the movement aimed at achieving a better order in the world and in South Africa and ensure that we make the difference between that and the day-to-day exercise of political power and ensure that somehow in the future we make a contribution to how these two sides, these two elements of the ANC come closer and closer together.’

Justice Yacoob commented on the disconnect between the values of the Constitution and the values of many South Africans. ‘Our Constitution talks about equality before the law … and yet we know that our society is the most unequal one and it is our duty to ensure that society does become more equal. The difficulty is that 95% of the middle and the upper classes do not believe in the values of true economic equality and it is there that we have to make the changes. Our society says women and men are equal, yet 90% of the men in our society … operate on the basis that women are there to be our chattel and our slaves at one level or another … . Our Constitution states that gay and lesbian people are equal to everyone else, yet 80 to 90% of people would strongly believe that gay and lesbian people are sinners.’

Justice Yacoob said that the issue of corruption in South Africa should be looked at closely as the country is about to go through elections, which will give citizens an opportunity to make a contribution towards the choice of appropriate leadership. He reminded delegates that one is innocent until proven guilty and that nobody can be convicted of a crime unless there is proof beyond reasonable doubt. He added that voters have to ensure that even if a person has not been convicted of a crime, that they are morally right to run for office. 

Tribute to former Chief Justice Pius Langa

Paying tribute to former Chief Justice Pius Langa, Publicity Secretary of NADEL, Gcina Malindi, said that the organisation was honored to have members of the Langa family present at the conference. Mr Malindi spoke about former Chief Justice Langa’s contribution to guarding the institution of the judiciary and ‘his commitment to ensuring that the judiciary is what the Constitution tells us it should be, that the judicial authority of the republic is vested in the courts and that they are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice’. 

Mr Malindi quoted former Chief Justice Ismail Mohamed who said judges are given the most formidable power, which they enjoy to use for the benefit of society and the Constitution but which they can also abuse. He said that delegates should be constantly aware of the context that judges are elevated to occupy one of the three branches of government and are therefore tasked with the function of ensuring that the state functions well in a constitutional state where the foundation of democracy is an elected parliament. 

Mr Malindi said that judges take an oath that reads: ‘I swear or solemnly affirm that as a judge of the Constitutional Court, Supreme Court of Appeal, High Court or any other court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law.’ He said that Justice Langa recited the oath in isiZulu, his mother tongue, when he was appointed judge of the Constitutional Court to show that he meant every word. 

‘Comrade Pius started working as an interpreter messenger, proceeded to be a magistrate, and practised as an advocate. In all these offices he had experienced how judicial officers in the criminal justice system had not adhered to the principles of upholding and protecting human rights; they were faithful to the protection of the apartheid regime and entrenching discrimination. Comrade Pius worked very hard for the entrenchment of the human rights that are in our Constitution and the principles that are contained in the oath or solemn affirmation that judicial officers have to take,’ Mr Malindi said. 

After Mr Malindi’s speech, a DVD presented by the Langa family was screened for delegates. 

Legal Practice Bill update

JB Sibanyoni, a member of the Portfolio Committee for Justice and Constitutional Development, gave a brief update on the status of the Legal Practice Bill. He said that the current situation is that legislation pertaining to advocates and attorneys was fragmented and the two were regulated by different laws. Mr Sibanyoni also pointed out the disparities between the attorneys’ and advocates’ profession highlighting the difference in the way in which both professions qualify through articles and pupilage. 

Mr Sibanyoni said that the legal profession was not representative of the demographics of the country and access to justice by the poor was limited. ‘This Bill seeks to correct these shortcomings by uniting the legal profession and regulating it by means of a single statute under a single umbrella regulatory body, the South African Legal Practice Council. … It recognises the independence of the legal profession and endeavors to strengthen this independence. The Bill is, inter alia, a measure to democratise the structures governing the profession, which in turn will lead to greater transformation,’ he said. 

Johannesburg Advocate Nokukhanya Jele, former Publicity Secretary of NADEL, said that the Bar seemed to be of the view that independence of the profession means that it should remain separate and that nothing remotely resembling a unified profession can exist, lest such independence was obtained. She said that NADEL has been in favour of a unified profession since its inception as an organisation. Referring to the composition of the Legal Practice Council she said: ‘The critics of the Bill suggest any slight participation of any state entity will make this a completely state-controlled body. How exactly is it that three persons chosen by the Minister for their knowledge and experience in the legal field out of 21 members of a body, makes it a state-controlled profession?’ 

Dullah Omar Memorial Lecture

Deputy Minister John Jeffery delivered the Dullah Omar Memorial Lecture. Speaking on the recent criticism of the appointment of judges, he said the process of appointing judges by the Judicial Service Commission (JSC) was outlined in the Constitution in an open, transparent and consultative system. ‘As for the composition and structure of the JSC, these provisions are also outlined in the Constitution, in section 178 thereof. So when people criticise the JSC, they would be well advised to remember that these provisions were part and parcel of the constitutional text which certified by the constitutional court in the certification judgments. So, to accuse the ANC of “chipping away at the foundations of our constitutional democracy” when it follows the procedure as set out in section 178 of the Constitution is simply absurd. How can it be unconstitutional to follow the Constitution?’ he asked.

Mr Jeffery agreed that the judiciary was not yet fully transformed and more was needed to be done with regards to its transformation, but added that significant progress had been made. ‘We no longer have magistrates who are part and parcel of the public service and therefore under the control of the Minister or Director-General. We no longer have presiding officers who uphold apartheid laws while knowing them to be unjust and inhumane,’ he said. 

Speaking on the Legal Practice Bill, Deputy Minister Jeffery said that even when the Bill is assented to, the establishment of the Legal Practice Council cannot take place for a while. He added ‘The Bill as you may know, provides for a consultative forum to resolve some outstanding issues regarding matters such as the powers of provincial structures and the manner of election of the representatives of attorneys and advocates on the Legal Practice Council.’

The NADEL national executive council:

President: Max Boqwana                              
Vice President: Mvuzo Notyesi                                                     
General Secretary: Patrick Jaji                                    
Assistant General Secretary: Xolile Ntshulana                     
Treasurer: Tony Thobane                            
Assistant Treasurer: Poobie Govindasamy                  
Publicity Secretary: Gcina Malindi                             
Projects Officer: Ashraf Mahomed                    
Fundraising Officer: Willy Phalatsi                             
Gender Desk: Harshna Munglee                   

Mapula Thebe mapula@derebus.org.za