Attorneys’ profession puts its money where its mouth is on Xenophobia

June 1st, 2015

By Barbara Whittle

The Co-chairpersons of the Law Society of South Africa (LSSA), Richard Scott and Busani Mabunda, made a R 50 000 donation to the Gift of the Givers Foundation towards assistance for the victims of the xenophobic violence that marred our country in the weeks preceding the celebration of 21 years of democracy in April this year. In addition, the KwaZulu-Natal Law Society (KZNLS) and the Law Society of the Northern Provinces – representing the attorneys in the areas most hit by the violence – offered the services of attorneys to assist victims – both foreign and local – on a pro bono basis.

In a press release, the Co-chairpersons noted that in April, 21 years ago, South Africa had been held up as a shining example of how different cultures could strive together to live in a peaceful, democratic and prosperous country. Yet this April, the local and international media had shown a very different picture, one that we were all ashamed of and distressed by.

‘We need to take our country back to a peaceful place. Next year we will celebrate 20 years of our Constitution. In order to do so proudly and meaningfully, we need to guarantee the rights enshrined in the Constitution for all people who live in our country,’ said Mr Scott and Mr Mabunda.

KZNLS President, Manette Strauss, said in a press release: ‘The KZNLS unashamedly and unequivocally condemns these acts of violence and flagrant disregard for human rights which fly in the face of all that the Constitution of our country, our very own benchmark, seeks to promote and uphold in respect of all people. … It is a dark day in the history of our country when all that we have fought to achieve in the name of human rights and dignity manifests itself in such abhorrent behaviour.’

National Association of Democratic Lawyers (NADEL) Secretary General, Ndumiso Jaji, said the perception that foreigners take jobs reserved for locals is misplaced and anti-African. ‘This perception is fuelled by those that demonstrate hatred for foreigners of African descent. In any event the Freedom Charter stipulates that the country belong to all that live in it. The Constitution too, entrenches protections for all in South Africa. NADEL calls on all political parties, religious organisations to work collectively in an effort to restore peace in the affected areas. We remind ourselves that in the dark days of apartheid, many of the countries that these nationals come from gave refuge to our political exiles. Now is not the time to apportion blame: NADEL supports a collective approach for all political, religious, moral leaders to speak with one voice – a voice which reaffirms value for all human lives in South Africa.’

Black Lawyers Association (BLA) President, Busani Mabunda, called on South Africans to refrain from acts of xenophobia and isolate the criminal elements that appear to have taken advantage of the genuine frustrations of people relating to social conditions. He noted: ‘We echo the calls by his Majesty, King Goodwill Zwelithini kaBhekuzulu to protect our African brothers and sisters from these unprovoked attacks. The President of the Republic has called on all our people to work together to protect foreign nationals some of whom came into our country to escape persecutions in their own countries. The call by the President of the Republic should be heeded by all South Africans and work together with the law enforcement agencies to isolate the criminals that instigate this kind of violence.’ The BLA also called on the legal fraternity to contribute to the efforts to prevent further attacks and also to help reintegrate foreign nationals into the communities in which they lived prior to these attacks.

Cape Law Society (CLS) President, Ashraf Mahomed, called on the government to end the violent attacks and bring the perpetrators to book. ‘South African leaders, lawyers, politicians, priests, etcetera are called upon to do all that they can to ensure peace, security and stability in their communities. We have a constitutional duty to ensure that everyone is treated equally before the law, regardless of their nationality, language, race, gender and status. Everyone has the right to be treated with dignity and respect,’ he said.

The CLS called on all sectors of society, including business, labour, legal practitioners, civil society, to defend the rights of non-nationals and to protect them against violence or threats of violence, and to address the needs of non-nationals that have been displaced and rendered homeless.

At regional level, President of the Southern Africa Development Community Lawyers Association (SADC LA), Gilberto Correia said: ‘The violent actions by South Africans against fellow Africans go against the tenets provided for in African and SADC regional legal instruments. One of the objectives of the African Union as provided for in the Constitutive Act of the Union is to achieve greater unity and solidarity between the African countries and the people of Africa, while the Treaty establishing SADC recognises solidarity, peace and security as some of the principles that the governments and peoples of the region are expected to observe.’

Mr Correia urged: ‘We call upon the government of South Africa to step up efforts to protect all foreigners living and working in South Africa with a realisation that this is an obligation that is placed upon the state by international law. The 1993 Vienna Declaration and Programme of Action calls upon governments to take measures and to develop strong policies to prevent and combat all forms and manifestations of xenophobia and related intolerance.’

The Pan African Lawyers Union (PALU) urged strong and sustained action from the central and local governments, to ensure safety, law and order; to hold accountable both those who incited and perpetrated the attacks; to make reparations to those who lost lives, limbs and property; and to engage in civic education and a wider dialogue with those sections of South African society that may be tempted to continue such attacks. PALU President, Elijah Banda SC, urged a measure of understanding and pragmatism from other Africans and the international community when deliberating or making decisions regarding the recent recurrence of xenophobic attacks on South African soil.

PALU noted that the only long-term and sustainable solution to the xenophobic attacks implicates not only South Africa, but also all other African Union member states, especially those from Southern African Development Community. This solution requires that all member states’ governments and peoples strive to build strong, viable states that provide adequate security, public services and developmental imperatives to their citizens, in accordance with the African Charter on Democracy, Elections and Governance, the African Governance Architecture and the instruments underpinning the African Peer Review Mechanism. ‘This must go beyond rhetoric and political statements into humble, honest and pragmatic dialogue, and action, between the governed and those that govern us. The time for this is now,’ said Mr Banda.

PALU called on the Special Mechanisms of the African Commission on Human and Peoples’ Rights to undertake a joint mission to South Africa.

Barbara Whittle, communication manager, Law Society of South Africa,

This article was first published in De Rebus in 2015 (June) DR 12.