‘The Legal Forum is committed to fostering the Rule of Law in BRICS countries, while supporting the development and growth of our collective societies, which are built on the foundation of fairness, equality, and an inclusive worldview. Our vision and purpose are to enhance collaboration with the legal institutions in BRICS countries with a long-term view on developing the Global South.’ These words were captured as the opening statement in the eighth BRICS declaration, that was drafted in Johannesburg in South Africa (SA).
The Law Society of South Africa (LSSA) hosted the eighth BRICS Legal Forum in Kempton Park, in December 2023. The conference was attended by delegates from SA, Russia, India, China, and Brazil. The theme of the conference was ‘Building local capacity to support the agenda of the Global South’. ‘This support by the legal profession is more than capacity; it is the legal profession’s role in promoting and enhancing the rule of law through equitable and inclusive social, economic, political, and cultural development,’ said the President of the LSSA, Eunice Masipa, during her welcome and opening address. She added that the theme of the summit’s values underpin democracy, and everyone in society is accountable to civil, political, and institutional entities, including businesses.
Ms Masipa added that the eighth Legal Forum conference was held at a time when BRICS accepted other countries to form BRICS Plus (BRICS+). Ms Masipa said that for SA, this means that the development of the Global South is to have a more equitable and representative role in the world’s economic and political structures, including the United Nations (UN) and other international agencies. Ms Masipa pointed out that SA, therefore, represents the African continent to ensure the developing world has a meaningful voice on many issues, from profit shifting, stripping of mineral wealth, destabilising countries on the continent, climate justice and more. Climate change and the disastrous effects thereof on the poor and developing world are addressed in climate justice.
Ms Masipa said that the BRICS Legal Forum encompasses cooperating member states’ cultural, economic, social, political, and legal diversity. She added that this fundamental purpose is sustained by unity, diversity, and the constant development of adjusted cooperation. She pointed out that the purpose is to drive the collaboration forward for the benefit of our common societies in the Global South, with the key outcome being non-negotiable; that is, the economic and other benefits must positively impact and develop communities and societies.
President of the LSSA, Eunice Masipa, during her welcome and opening address at the eight BRICS Legal Forum held in South Africa.
Ms Masipa said that having different legal systems, traditions and practices, the BRICS countries still need generalised rules and regulations to sustain joint projects. ‘The advent of BRICS+ calls on the BRICS Legal Forum to fast-track development and agreements. BRICS+ requires increased urgency for a systematised and coherent legal framework for effective coordination in different areas of cooperation. Law underpinned this to guarantee stability and efficient and sustainable development of BRICS. The Global South must ensure that the countries, institutions, businesses, or [state-owned enterprises] SOE improve and professionalise our governance systems to be the beacon of the new Global South agenda, where we are all our brothers’ keepers,’ Ms Masipa added.
Ms Masipa pointed out that the BRICS Dispute Resolution centres have been established in most countries including SA. ‘We are committed to uniting legal practitioners to nominate a centre in South Africa to ensure the work of BRICS is not hindered,’ she said. She pointed out that an inevitable part of creating a fundamental basis for BRICS cooperation is a harmonised legal education system. With such a system, the differences between the BRICS countries can be effectively and successfully managed.
Ms Masipa added that in SA, we are disappointed that BRICS-related legal research and education has lagged behind other BRICS member countries, and engagement with universities must be urgently undertaken as these institutions of excellence drive this forward.
Chairman of the Association of Lawyers of Russia, Sergey Stepashin, in his speech said: ‘We are witnessing the historic BRICS expansion and changing global geopolitical situation. Thus, the alliance has entered the new phase of its development. We certainly stand for the formation of the multipolar order, based on the principles of justice, diversity, mutual respect and balance of interests, as well as the international law in line with the cornerstone principles of the UN Charter, including the respect for each other’s sovereignty and the right of each nation to its own model of development. After all, our countries are basically multinational and multiconfessional.’
In his speech, President of the Bar Association of India, Prashant Kumar, said that even though the BRICS countries are different, together they have the same tapestry that represent a variety of legal systems of the entire world. These coming from the common law system, civil law jurisdictions, and both laws are hybrid. He added that when the new BRICS+ countries join there will be a wider variety, as true representatives of the legal global scenario in terms of legal systems, and legal traditions and values. He pointed out that the journey of the BRICS Legal Forum started in 2012 when the Bar associations were invited to draft a few ideas on how to service the world. He said that it has been a pleasure to work on taking the forum forward and to come to a common understanding.
Mr Kumar said that not once in the forum have there been frictions and each year, there is a single common ground. A ground all members can agree to, and that is the hope not only for BRICS countries, but for the entire world to break boundaries of artificial differences in terms of systems of governance, in terms of legal systems that should be followed and one common stand which unites BRICS and in the core of the legal endeavour, which is equality, equal opportunity under the rule of law, and that comes from the performance of the BRICS countries.
The Chief Justice of South Africa, Raymond Zondo, joined the summit via an online link. He said that the rule of law was one of the common law constitutional principles that courts in SA use to regulate the exercise of public power. He added that the Constitutional Court in Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) held that under the common law, the rule of law had a substantive, as well as a procedural content that gave rise to fundamental rights. However, prior to 1994, fundamental rights were eroded and excluded by legislation. The rule of law is another principle of great importance as it acts as a constraint upon the exercise of all power. The scope of the rule of law is broad, Chief Justice Zondo added.
Chief Justice Zondo pointed out that, additionally, the rule of law embraces some internal qualities of all public law that it should be certain that it is ascertainable in advance so as to be predictable and not retrospective in its operation, and that it be applied equally without unjustifiable differentiation. He said that courts will use their power of judicial review to declare unconstitutionally or unlawful anything done by any official or government where its conduct is in breach of the rule of law in SA. ‘Our courts do not hesitate where ministers have acted in breach of the rule of law, to declare such conduct unconstitutional,’ he said. ‘One of the components of the rule of law, is certainty in the law,’ Chief Justice Zondo added.
Chief Justice Zondo added that another incident of the rule of law is that there must be independent courts and tribunals, which resolve disputes. He added that this is very important to business people all over the world because they need to know that if they have disputes either with the government or government agencies or with other business people in the country in which they do business or invest, they will have recourse to courts that are independent and impartial. He said that this speaks to the independence of the judiciary. He spoke about the theme of the 2023 Judges’ Conference that was taking place at Sun City, parallel to the BRICS Summit. The theme of the judge’s conference was ‘Towards a single, effective and fully independent judiciary’.
Chief Justice Zondo noted that the theme emphasises the importance of an effective and fully independent judiciary, which every business person or investor wants to find in any country in which he or she does business or invests. He pointed out that s 165(1) of the Constitution of South Africa provides that the judicial authority of the Republic is vested in the courts. He added that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour, or prejudice.
Chief Justice Zondo said that in SA, there is no doubt that the judiciary has personal independence. He added that personal independence is the independence that enables a judge or judicial officer to make his or her decision on the matter without any pressure or in undue influence from anybody. He said that nevertheless, in SA, the judiciary continues to exercise personal independence in making the decisions that they make.
Chief Justice Zondo said: ‘With regard to institutional independence, we do not have full institutional independence and continue to fight as the judiciary for full independence for the institutions of the judiciary of the courts. There is an indication that the President is now ready to give this matter priority after the executive had not returned to the judiciary on proposals made by the judiciary about 12 years ago for a court administration model that the judiciary believes is consistent with the requirements of our Constitution. Every investor, every business person, wishes that in whatever country they invest or do business, the judiciary is effective and independent.’
Chief Justice Zondo pointed out that the last thing that any investor or business person would want to experience in any country where they do business is what happened to the Southern African Development Community (SADC) Tribunal some years ago.
The SADC established a tribunal whose mandate included adjudicating complaints about violations of human rights by government against their own citizens but then various treaties were enacted to ensure that the Tribunal became dysfunctional.
The signing of the Declaration at the eighth BRICS Legal Forum. From left to right: President of the Law Society of South Africa, Eunice Masipa; Chairperson of the Association of Lawyers of Russia, Sergey Stepashin; President of the Bar Association of India, Prashant Kumar; Vice President and Secretary-General of China Law Society, Zhang Mingqi; Representative of the Federal Council of the Brazilian Bar Association, Bruno Barata; and Lecturer at the Institute of BRICS Legal Studies of the East China University of Political Science and Law, Dr Xiuyan Fei signing on behalf of President of the East China University of Political Science and Law, Ye Qing.
The BRICS Declaration
At the closing of the forum, Ms Masipa read to delegates the declaration that BRICS members worked on. Together in the presence of delegates BRICS members signed the declaration, which states as follows:
We the members of the legal fraternity at this eighth BRICS Legal Forum held at Johannesburg, South Africa on the 8 and 9 December 2023 hereby make the following declarations:
‘We declare that:
Signed at Johannesburg on this 9th day of December 2023.
Bruno Barata, Federal Council of the Brazilian Bar Association.
Prashant Kumar, Bar Association of India.
Ye Qing, President of the East China University of Political Science and Law through Fei Xiuyan.
Sergey Stepashin, Association of Lawyers of Russia.
Zhang Mingqi, China Law Society.
Eunice Masipa, Law Society of South Africa.
Additional information
To view the photo gallery and the presentations of the eighth BRICS Legal Forum, visit the De Rebus website at www.derebus.org.za.
Click here to see the gallery of photos from the eighth BRICS Legal Forum.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2024 (March) DR 5.
