By Mapula Thebe
The National Association of Democratic Lawyers (NADEL) held its elective annual general meeting (AGM) and conference on 27 and 28 February in Margate, KwaZulu-Natal. The AGM was held under the theme: ‘Racial prejudice is a fundamental impediment to socio-economic transformation and social cohesion.’
President of the National Association of Democratic Lawyers (NADEL) and Co-chairperson of the Law Society of South Africa, Mvuso Notyesi, opened the conference by saying that NADEL, as an organisation, was founded on democratic values and the Constitution.
On the first day of the conference, incoming President of NADEL and Co-chairperson of the Law Society of South Africa, Mvuso Notyesi, opened the conference by saying that NADEL, as an organisation, was founded on democratic values and the Constitution. Commenting on the racial attacks on social media at the time, Mr Notyesi said that the racial issues rub salt into the wounds of South Africans and go against the principles of the Constitution. He added that the aim of the theme of the AGM was to seek a radical response from the delegates on the issues raised by the spate of racial attacks.
One of the most important discussions in the country
Member of the Executive Council (MEC) for Economic Development Tourism and Environmental Affairs, Mike Mabuyakhulu, addressing the delegates, thanked the leadership of NADEL for inviting him to share his thoughts on issues surrounding racial prejudice. MEC Mabuyakhulu noted that South Africa is indebted to NADEL for being a positive force that brought about the democratic dispensation in the country and that the organisation is still going forward with this mandate.
MEC Mabuyakhulu added: ‘We are participating in one of the most important discussions in the country; a nation that does not have internal dialogue will suffer internal fatigue. We are delighted that central to the deliberations is racism and its adverse impact on socio-economic transformation. What is so important for socio-economic transformation and social cohesion? As a country that comes from the tragedy of Apartheid … a system that believed in the subjugating of the majority by the minority. While Apartheid was not pure slavery or colonialism, it built on imperialistic tendencies. … During Apartheid there was exclusion of the majority in the economy of the country. … The critical task for democracy was to put in place measures to grow the economy and level the playing field for a prosperous society. While we move away from Apartheid we need to ensure that we also build a society that is united in its diversity.’
Commenting on the recent spate of racist utterances MEC Mabuyakhulu said he condemns the statement made by Penny Sparrow on social media as it brought up the simmering tensions on issues surrounding race in the country. ‘There are some who defend [Ms Sparrow] using the right to freedom of speech as a defence. We have to condemn all acts of racism as they are a danger to the public and have divisive and destructive tendencies. … Sparrow was lamenting the loss of exclusive privilege she enjoyed during Apartheid. We should expect that the scramble for resources will take many forms. Despite what Sparrow said, we should guard against the dangerous notion that all whites are racists,’ he added.
Member of the Executive Council for Economic Development Tourism and Environmental Affairs, Mike Mabuyakhulu, spoke about racism and its adverse impact on socio-economic transformation.
Speaking about the role NADEL plays in society, MEC Mabuyakhulu said: ‘NADEL still has a big role to play, providing courageous leadership to the challenges of the nation. … There is a little number of the profession that is writing on issues from their own views. The profession has to be constructively critical. … The [media] space is dominated almost by the views of the minorities in the country. What is the profession discussing. … Who comments on legal cases? … Previously disadvantaged legal professionals deserve to be heard and government is prepared to listen. If the government and the legal profession complement one another, we can build a better country.’
Answering a question from the floor, MEC Mabuyakhulu said that, currently there is no legislation against racism. He added: ‘Our political settlement is a negotiated settlement that resulted in our Constitution. We have removed racism linked statutes in our legislation, we have to go a step further and legislate against racism so that we can prosecute racists. In my view, it would have been very difficult, at a time when we were seeking to build a society that must work together, to legislate against racism. There were interventions, in a sense, to ensure that we accept our diversity while building a unified country. … Nations are formed during difficult times.’
Race issues not a surprise
Deputy Minister of Justice and Constitutional Development, John Jeffery, opened his address by saying that before Ms Sparrow expressed her views, there were a number of racial incidents in the country. He added that it was not surprising that there are race issues in the country and that government was in the process of making laws surrounding racial issues more refined.
‘Twenty-two years after the dawn of democracy we still have a long way to go in terms of race. The country’s economy still rests with the minority. In terms of statistics, the racial composition of top management in companies still needs to be addressed to ensure that it reflects the demographics of the country. When it comes to the legal profession the figures are worse. The majority of law students are women and black, but as you go higher within the ranks, the legal profession goes whiter and male. … We have a lot to do until the profession is transformed; we also have to take a closer look into transformation in terms of gender.’
Commenting on briefing patterns, Mr Jeffery said that the state is accused of not ensuring transformed briefs. ‘All government departments have to ensure that 70% of their briefs are in line with transformation, and that figure is met. We have to consider what the private sector is doing in terms of briefing patterns,’ Mr Jeffery said.
Vice President of the National Association of Democratic Lawyers, Xolile Ntshulana (left), seated with Deputy Minister of Justice and Constitutional Development, John Jeffery.
Resistance to the transformation agenda
Judge of the Constitutional Court, Justice Mbuyiseli Madlanga presented the keynote address at the gala dinner held on the night of 27 February. Justice Madlanga’s speech was based on South Africa’s resistance to the transformation agenda. Justice Madlanga began his address by pointing out the difficulties he experienced when he attended school, he further noted that these difficulties were not unique to the area he schooled and were evident in other rural areas in the country. He went on further to point out that to this day, scholars in rural and township school still face the same difficulties he faced years ago.
Justice Madlanga added: ‘The current state of affairs in black schools is a result of a deliberate and sustained programme calculated to keep blacks at the lowest rung of human gradation, as if human beings had to be graded. It is the legacy of Apartheid, the legacy of exclusion, the legacy of marginalisation to the fringes, the legacy of deliberately crafted disadvantage. I should not be misunderstood; it would be simplistic to suggest that Apartheid was about education only. I single out disadvantage in education because education is a spring board onto virtually all facets of life. Otherwise the essence of the pre-democracy era was apartness, hence the Afrikaans [word] Apartheid. Its tentacles reached every facet of human existence; at its core was racial segregation in terms of which white equalled superior and black equalled inferior.
Fast forward to 27 April 1994, it does not require rocket science to realise that at the dawn of our constitutional democracy virtually all facets of human activity would be dominated by whites, … the reason why whites were and continue to be better qualified is not far to seek. … It is for this reason that there is a fundamental conceptual if not jurisprudential difference between our Constitution and some constitutions of western countries … . Our Constitution is transformative; it proceeds from a recognition of the reality that because of the legacy of Apartheid, inequalities are bounds. It seeks to transform our society in order to achieve equality. Unsurprisingly even though section 9(1) of the Constitution declares that: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Section 9(2) provides that: “To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”’
Judge of the Constitutional Court, Justice Mbuyiseli Madlanga, presented the keynote address at the gala dinner held on the night of 27 February.
Speaking about the transformative agenda of the Constitution, Justice Madlanga noted: ‘A number of Acts have been passed to address injustices and inequality brought by colonialisation and Apartheid a few examples are the Employment Equity Act [55 of 1998] and the Broad-Based Black Economic Empowerment Act [53 of 2003], which were enacted pursuant to section 9(2) of the Constitution. We also have the Restitution of Land Rights Act [22 of 1994], which gives effect to section 25(7) of the Constitution. We now find ourselves in the center of a new debate, a debate at the heart of which is race. Some within the white group, which for centuries has been the beneficiary of privilege and advantage claim that the Constitutional transformative agenda is tantamount to racism in reverse. Inexplicably, there is a sprinkling of blacks who share this view. Well our Constitution guarantees freedom of expression; they too are entitled to express their view. This group of whites and sprinkling of blacks maintain that it is unjust to apply the transformative instruments given that young whites who were neither guilty of Apartheid atrocities nor direct beneficiaries of the Apartheid system [are subjected to these instruments]. The claim continues that 21 years is too long a time for the effects of Apartheid not to have been reversed. …
Black schools in South Africa continue to be under-resourced and have significant numbers of poorly qualified teachers. Our economy is in the hands of a white minority, the senior management in the private sector is predominantly white. For some to suggest that our nation’s transformative agenda must now come to an end, defies logic.’
Executive Committee
The following are the newly elected National Executive Committee members –
Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) editor of De Rebus.
This article was first published in De Rebus in 2016 (June) DR 7.
