Being a South African attorney in a conservative world

June 1st, 2017
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By Bouwer van Niekerk

We live in a weird world. A world where a man that has never previously held political office is now the commander-in-chief of the most powerful military on the planet. A world, where the once most powerful and educated country on earth has decided to leave the European Union, seemingly without fully understanding what such a bold decision will entail, and ostensibly without contemplating the dire economic repercussions that followed immediately on having taken that decision. A world where more and more European countries are being swept up by Nationalistic views, apparently being powered by the winds of change that blew across from the superpower on the eastern side of the Atlantic Ocean. A world where, notwithstanding the desperate outcries of refugees wanting, nay begging to find solace and peace outside the borders of their war torn countries where they are forced to behold and be subjected to horrifying atrocities and violations of human rights, countries are looking inwards to protect their own way of life. At the time of writing, we find ourselves in a country where the scourge of xenophobia has once again reared its ugly head, this time starting in the capital of Pretoria. In short, we are living in a world that is becoming more and more conservative and one where nationalism and self-preservation trumps empathy and compassion towards those who are different.

South Africa (SA) is self-evidently not immune hereto. On the contrary, the lack of empathy towards foreigners’ plight has spilled over into disturbingly violent clashes between South Africans and fellow citizens of this continent on more than one occasion in our recent history. We have heard calls from the so-called ‘populist’ that white South Africans should be forcibly removed from their land without any compensation, and even the thinly veiled threats that they should not be murdered ‘for now’. On the other side of the spectrum we have heard calls that a delegation consisting of some of the most racist elements of the far right-winged supposed ‘Afrikaners’ should meet with the President of the United States (US) to facilitate the creation of a ‘volkstaat’ for white people within the boundaries of (all of) our land.

A weird (and often scary) world indeed.

A liberal approach?

So how should we as South African attorneys react to this ever-changing world and country that we live in? Is it possible to keep the dream of Nelson Mandela’s rainbow nation alive?

A knee-jerk reaction would be to pick up the liberal torch. For liberals and liberal thinking made the rainbow nation possible, not so? Such thinking is governed by the most progressive Constitution in the western world, not so? By parity of this reasoning, liberal thinking is infallible, not so? Those that differ from such a way of thinking are incongruous, even indecorous, not so?

Not so, not these days anyway. Or at least, not the liberal thinking, and more importantly, the liberal approach adopted in recent times, which is far from the approach originally contemplated by the likes of John Locke and John Stuart Mill. I would argue that this kind of approach is what has brought this world to where it is today. Such arguments appear to have played a significant role in many people starting to empathise with nationalistic views, and even to openly support it. The notion of ‘if you do not think the way I think you are obviously a bigot, nay a troglodyte stuck in the Middle Ages’ clearly does not pass popular current day thinking muster.

Constitutionally thinking

So what to do? An old adage is if you want to change what they do, find out why they do it. Differently put, apply the audi alteram partem rule. Consider other people’s views, and (insofar as such views do not propagate violence, hate speech, unfair discrimination of any kind or other human rights abuses) engage with them. For we as attorneys are all sworn to protect the Constitution. This presupposes a respect of the right to life and dignity, rights that outweigh the right to retribution (S v Makwanyane and Another 1995 (3) SA 391 (CC)). It entails that we both obey the law of the land and our conscience (Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)). It dictates that we prevent gender-based discrimination and to protect dignity, freedom and security of women (Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)). It gives us the freedom to worship any deity we choose, but also teaches us that ancillary religious rights can also under certain circumstances be limited (Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC)). It commands that we respect the right to bodily integrity (Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another 2002 (4) SA 613 (CC)). It prohibits us from unfair discrimination on the grounds of sexual orientation and marital status (Satchwell v President of Republic of South Africa and Another 2002 (6) SA 1 (CC)), and it teaches us that everyone has the right to social security, permanent residents included (Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC)).

Conclusion

  • ‘The victor will never be asked if he told the truth.’
  • ‘I believe today that my conduct is the will of the almighty creator.’
  • ‘The broad masses of a population are more amenable to the appeal of rhetoric than to any other force.’
  • ‘The art of leadership consists in the consolidating of the attention of the people against a single adversary and taking care that nothing will split up that attention.’
  • ‘Struggle is the father of all things. It is not the principles of humanity that man lives or is able to preserve himself above the animal world, but solely by means of the most brutal struggle.’

Similar sentiments and approaches to political success have been echoed and followed by US President Donald Trump, France’s Marine Le Pen, Holland’s Geert Wilders and our very own Julius Malema and Steve Hofmeyr. However, it needs to be pointed out that the above quotes are all attributed to Adolf Hitler, whose relentless pursuit to power, fuelled by (among others) nationalism, gave rise to a state that started a war and concomitant unspeakable atrocities that should never be repeated.

We as attorneys are the first point of call for those who cannot defend themselves. And we are the last port of call to protect our Constitution. It is our responsibility to act accordingly.  Not only for the sake of those who need us to act thusly, but for all South Africans, and everyone else for that matter.

Bouwer van Niekerk BA (Law) LLB (SU) Post Grad Dip Labour Law (UJ) Cert Business Rescue Practice (UNISA & LEAD) is an attorney at Smit Sewgoolam Inc in Johannesburg.

This article was first published in De Rebus in 2017 (June) DR 59.