By Nomfundo Manyathi-Jele
The National Association of Democratic Lawyers (NADEL) held its national conference and annual general meeting (AGM) at the end of February. The AGM was held in Cape Town from 27 February to 1 March.
Delegates at the AGM included chairperson of the portfolio committee on Justice and Correctional Services, Doctor Mathole Motshekga, retired Justice of the Constitutional Court, Zak Yacoob, Judge in the Western Cape High Court, Vincent Saldanha, Cuban Ambassador to South Africa, Carlos Cossio and NADEL honorary member, Silas Nkanunu, who has only missed one NADEL conference since 1988 to date.
The theme for this year’s AGM was ‘NADEL being part of civil society is separate from state and business institutions – A crisis of conscience within its ranks’. The ninth annual Dullah Omar Memorial Lecture Dinner was also held on 28 February.
In his opening address NADEL President, Max Boqwana, spoke about NADEL’s relationship with Cuba. He also made a special call to the Swaziland courts and government on the matter involving the arrests of human rights lawyer, Thulani Maseko, and the editor of monthly publication, The Nation magazine, Bheki Makhubu, for articles published in the February and March 2014 editions of the magazine (see 2014 (May) DR 15; 2014 (Aug) DR 16; and 2014 (Sept) DR 15).
The two were arrested after the magazine published a report questioning the detention of a government vehicle inspector, Bhantshana Gwebu, who was detained for nine days without being charged. The articles criticised the arrest as an abuse of authority and a lack of impartiality of the Swazi judicial system. The article written by Mr Makhubu appeared in the February issue of The Nation, which did not receive much attention, and the one by Mr Maseko, which dealt with the same issue but provided a breakdown of the legal issues involved and was published in March.
Mr Maseko and Mr Makhubu are still in jail, their matter will go on appeal soon.
Mr Boqwana noted that South Africa has achieved much to be proud of. He added that the legal constitutional system was stable, but that the country had become more divided. ‘There is a great divide between the haves and the have-nots,’ he said. He asked what needed to be done and said that NADEL’s immediate tasks were many but that one of them was to renew and build the organisation.
‘What has become our mission as lawyers and NADEL today and what has become our immediate task?’ asked Mr Boqwana. He said that as lawyers, the first answer to this question stems from the preamble of the Constitution, which states that our duty is to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; improve the quality of life of all citizens and free the potential of each person; and build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
According to Mr Boqwana, NADEL needed to renew and rebuild itself. He said that at age 27, Nadel was wobbly and was not sure whether or not it had come of age.
Mr Boqwana said that there was a need to engage with government. He said that the Legal Practice Act 28 of 2014 (LPA) has been promulgated adding that the LPA still had more questions than answers. ‘It has more issues that are not so clear than where we are supposed to be going. It is one of those issues where we have not been provided with leadership from government. We have been tethering alone as the legal profession and being confused amongst ourselves and there has not been proper direction as to where this country is going in terms of the legal profession,’ he said.
According to Mr Boqwana, 90 years later South Africa is still operating purely on the Peace Treaty of Vereeniging of 1902 adding that the current Constitution was being ignored. This treaty was the peace treaty, signed on 31 May 1902. The treaty ended the Second Boer War between the South African Republic and the Republic of the Orange Free State, on the one side, and the British Empire on the other.
This settlement provided for the end of hostilities and eventual self-government to the Transvaal (South African Republic) and the Orange Free State as colonies of the British Empire. The Boer republics agreed to come under the sovereignty of the British Crown and the British government agreed on various details. ‘It is a horrible indictment to us as South Africans and it is urgent that we must take this matter forward,’ he said.
Mr Boqwana said that NADEL understands the complaint of the lack of pool of black and women lawyers. He said NADEL must do something radical about that. He suggested that NADEL should identify eight women lawyers and every Saturday it avails judges to train them. ‘We have done this in the past and it is amazing that from that core, four of them are now justices of the Supreme Court of Appeal. We need to keep this project and progress because there is no longer an excuse why we do not have a pool of black and women lawyers. It is our responsibility as NADEL, together with judge presidents to do this. The training of young lawyers is also important that is why it is inexcusable that we do not have a training coordinator but have training funds,’ he said.
Mr Boqwana concluded by saying that the Attorneys Development Fund (ADF) is there to assist young lawyers to start up their practice. He added that failure of them to not contact the ADF to start up their practices is purely because of their own lack of will. He added that lawyers should work side by side and not against one another.
Doctor Motshekga, who is one of the founding members of NADEL, said that while there is NADEL, that South Africa still had unfinished business as it had to create a national democratic lawyers movement that incorporates all lawyers in the country regardless of race. He added that there were many great Afrikaners that were part of our struggle and made an example of Bram Fischer, adding that there were some progressive, enlightened Afrikaner lawyers that NADEL should identify and form a new lawyer’s movement with. ‘The type of society we want to see is not a different society there is call for the creation of a united democratic nonracial, nonsexist democratic society that represents every citizen of the country,’ he said.
Dr Motshekga said that the Constitution recognises common law, Roman Dutch law, indigenous African law/customary law but that when one goes to the universities, one finds that all lawyers are taught on Roman Dutch law, English common law and are not taught in African law. He added that this did not make sense as most of the people to whom the law apprise are indigenous African people. ‘The judges that handle the cases will have information on Roman Dutch law but will not take into account the living law of the majority of African people. There is something wrong with the legal education in the country,’ he said.
Dr Motshekga concluded by saying that lawyers cannot act alone in fighting racism, and inequality. He said that NADEL was too quiet where its voice is required.
Retired state attorney and national executive committee member of NADEL, Krish Govender, spoke on the route of NADEL to this point. He said that lawyers cannot say that society has to abide by the rule of law and leave it like that and think the rule of law is going to guide attorneys in doing the right thing.
He added that the rule of law is something that attorneys must subscribe to. ‘If we live it in all the things that we do, then it will be easy to follow,’ he said.
There was a common view from Doctor Motshekga, Mr Boqwana and Mr Mabunda that there is no need for NADEL and the BLA to continue to operate as two distinct organisations.
Mr Govender noted that when we say we should make changes to the Constitution that we should do it and feel free to do so. ‘I know it is not easy to amend the Constitution and no one is saying we should amend the Constitution according to whichever president is in power but the Constitution is a document that we can mould out and make a living document when there are problems experienced and mistakes that we see happen. If under one president nothing seriously goes wrong we will not know how the Constitution can work for or against us but it takes another person who could be abusing the Constitution and then we will say no hold up, let us change the Constitution,’ he said.
Mr Govender said that where there is the ability to manipulate a Constitution or exploit a situation against what is best for the country then the Constitution needed to be looked at. ‘The issue of land is a classic example. The land clause in the Bill of Rights was a compromise of the worse kind. It was a compromise to accommodate the economic status quo after 1994,’ he said.
Mr Govender said that a true and honest lawyer who acts ethically should never have a relationship with any minister, Member of the Executive Council or the President. ‘You cannot have any lawyer who is in business with their family members, or someone in government or the president and at the sametime want to give them advice. How are they going to be pleasing their so called client when they have a relationship with them? It is not unusual to see so many wrong decisions being taken. Cases are being lost. Government officials usually just tell you okay bye bye, I will get me the lawyer who will tell me what I want to hear. That is the culture that is plaguing institutions of government and I speak as a former state attorney,’ he said.
Mr Govender said that there were many times that his office, through his actions, was fired as state attorneys and replaced by private lawyers. He added that all the person in power wants is to run a case the way that they want to and probably reduce someone to poverty. He concluded by saying that it was the lawyer’s duty to stop this practice.
Justice Yacoob gave a tribute to lawyers and anti-apartheid activists Bram Fischer and Archie Gumede. In his tribute, he reflected on the lessons that NADEL can learn from the two. Justice Yacoob said that both teach that one cannot be a lawyer in a vacuum and that lawyers cannot live by law alone.
Justice Yacoob said that their story tells us that both advocates and attorneys can work together. It tells us that the separation of the bar and side bar is not necessarily a very good thing and that all legal practitioners can be united and should always work together. ‘Nadel in a sense of having advocates and attorneys in it and all legal practitioners in a sense embraces what Bram Fischer and Archie Gumede stood for,’ he said.
Justice Yacoob said that they both believed that the law was not necessarily about making money but more importantly about the reality of the relatively poor people in society today.
Justice Yacoob said that both teach that the law can be used for proper purposes and that laws which are not right should not be obeyed. He added that both would have valued the South African Constitution, and that both of them thrived, not as lawyers but thrived in making a contribution to the political arena. They teach us that lawyers cannot live by law alone.
Justice Yacoob said that there is political reality out there and unless lawyers are prepared to get their hands dirty and are prepared to make their contribution in changing that political reality lawyers in the country are not going to go anywhere.
Mr Saldanha reflected on national discourse that NADEL should be dealing with. He recited a poem about being a Somalian and asked why NADEL was not vocal about condemning xenophobia.
Ambassador Cossio gave the latest developments in Cuba. He said that the release of all of the Cuban Five was a victory for justice and for international solidarity.
The Cuban Five will be visiting South Africa on 26 June 2015. Their itinerary will be finalised in the next month. Before going to print, all arrangements for the visit were due to be finalised by the end of March.
Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.
This article was first published in De Rebus in 2015 (April) DR 6.
