Threats to a constitutional democracy focus of Nadel AGM

April 1st, 2012

By Nomfundo Manyathi

The National Association of Democratic Lawyers (Nadel) held its national conference and annual general meeting from 24 to 26 February in Mthatha. The theme of the conference was ‘Threats to a constitutional democracy: Perspectives and lessons for Nadel’. Speakers included Public Protector Thuli Madonsela; general secretary of the Congress of South African Trade Unions (Cosatu), Zwelinzima Vavi; the Justice Department’s deputy chief state law adviser responsible for policy development and coordination, JB Skosana; the University of KwaZulu-Natal’s Professor Patrick Bond and Cuban ambassador to South Africa, Angel Hernández.

Mr Vavi, the keynote speaker, said that to understand what the threats to democracy were, one first needed to understand what democracy was in the current South African context.

Mr Vavi said that many lawyers viewed democracy as –

  • the separation of powers;
  • the rule of law;
  • constitutional sovereignty; and
  • civil and political rights in the Constitution.

He said that income inequality in South Africa was the highest in the world, adding that: ‘Even if we were to establish the best judicial, legal and governance systems in the world, none of these would be capable of delivering democracy without us addressing the massive rates of unemployment, poverty and inequality. If equality, as a right protected in the Constitution, is considered to be a cornerstone of our constitutional democracy, it cannot be correct for us to say that we have a functioning democracy in the true and broadest sense when in 18 years we rapidly moved from being one of the most unequal societies in the world to be the most unequal society in the world.’

Mr Vavi said that the cornerstone of democracy was accountability and participation, adding that a perfect democracy meant that the leadership ‘was on their toes’ and respected and feared the masses and not the other way round.

On transformation of the legal profession and the judiciary, Mr Vavi said that it was an ongoing process that many in the profession resisted. He said that judges had not welcomed the principles of judicial accountability, evidenced by the difficulty in introducing judicial education initiatives and a judicial complaints mechanism.

Mr Vavi said that more opportunities needed to be created for black legal practitioners, especially women, to enter all sectors of the legal profession. He urged Nadel to ensure that the transformation process was accelerated. Mr Vavi added that court rolls were often dominated by those with financial resources, while the majority of people were often forced to abandon their cases unless they obtained legal aid. He said: ‘Within this context, it is difficult to believe that the legal profession is doing enough to promote access to legal assistance for the poor and public interest law in general.’

Mr Vavi said that, in its current form, the Protection of State Information Bill (B6 of 2010) could impose constraints on whistle-blowing and exposure of corruption in the media when state information is classified, adding that the Bill was an ‘attack on democracy’.

Ms Madonsela spoke about corruption in the public sector, with a focus on corruption relating to reconstruction and development programme (RDP) housing. She said that ‘corruption was one of the main thieves that have robbed disadvantaged people of South Africa of the services by organs of state that were meant to ensure that they enjoy the dignified lives promised by the Constitution’.

Ms Madonsela said that a paradigm shift was needed that acknowledged the role of oversight bodies such as her office as additional avenues for justice and public accountability mechanisms because at the moment people continued to think of democracy pillars in terms of parliament, the executive and the courts, adding that this was the case before the new constitutional dispensation.

Ms Madonsela said that democracy was a dialogue and that Nadel was in a unique position to facilitate a meaningful dialogue between the state and the public, adding that Nadel could provide a united front against maladministration and corruption.

Ms Madonsela emphasised the fact that South Africa was not a corrupt country, and that there were stronger forces for good governance than there were for corruption. ‘However, we have a serious problem in corruption and it is growing. According to [corruption fighting civil society organisation] Transparency International, we were number 54 [out of 178] in 2010 and 64 [out of 183] in 2011 [in the Corruption Perceptions Index]. We also fell slightly in other global indicators. Our own indicators show mixed fortunes with improvements in some areas and worsening in others. The volume of corruption cases in my office has definitely grown. I am not sure if it is due to increased visibility of and confidence in office or escalation of corruption. Whatever the case, if we ignore the problem of corruption it will undermine democracy,’ she said.

Ms Madonsela said that Nadel could help in the fight against corruption by ‘giving people a meaningful voice to hold government accountable and by also giving government a conscience’. She said that this would ensure that the public did not view protests as their only option for getting the state to hear them and respond to their needs.

She concluded by saying that corruption was a threat to democracy and that ‘if [left] unattended, corruption will, among other things, deplete resources, leading to major discontent [about] service delivery, which could lead to instability. She added: ‘If we work together we can strengthen the forces against maladministration and corruption and thus ensure that our democracy delivers according to the constitutional specifications.’


In his report, Nadel outgoing general secretary Max Boqwana spoke about problems such as ‘continued disability’ in law enforcement, the benefits of freedom were not ‘trickling down’ to the people who needed them the most and how ongoing disputes on the Protection of State Information Bill were depicting South Africa in a bad light. He said that the classification of information provided for in the Bill was dangerous as it could conceal fraud and that the constraints brought about by the Bill were unnecessary.

Mr Boqwana said that Nadel lawyers must make their voices heard and become more involved in human rights work. The ‘crisis’ in the judiciary in Swaziland could not be ignored, for example, and Nadel should assist in remedying the situation. He said that lawyers in Swaziland had been on strike since last year because of the removal of Swazi Judge Thomas Masuku from the Bench. He was removed from office for allegedly insulting the country’s King Mswati III. Mr Boqwana said that the king had called on South African attorneys to assist in the courts in Swaziland and that some attorneys had crossed the borders to assist. He urged South African attorneys not to work in the courts in Swaziland but to stand together with the attorneys in that country in boycotting the courts until Judge Masuku was reinstated.

In his address, Mr Boqwana also said that Nadel was an ageing organisation and that fresh, new, younger people needed to take over.

The chief executive officer of the Law Society South Africa (LSSA), Nic Swart, gave a report on progress made by the LSSA with regard to Competition Commission matters. He said that the LSSA had applied for exemption for certain professional rules relating to advertising, multidisciplinary practices, fee determination and reserved work. However, the application was rejected and, since May 2011, the LSSA has been actively engaging with the commission on how the matter should be taken forward, inter alia by making a comprehensive comparative submission. However, in a letter received from the Competition Commission, the LSSA was advised that the matter was ‘closed’ and that the formulation of new rules and a moratorium on relevant disciplinary matters by statutory law societies were required.

The chief director and secretary to the Rules Board, Raj Daya, gave a short update on the Legal Practice Bill. He said that the Justice Department would not delay the process in implementing the Bill intentionally, adding that public hearings on the Bill should take place near May this year.

Some of the resolutions adopted at the AGM included Nadel –

  • committing itself to campaign against the passing of legislation that limits freedom of expression and allows for arbitrary suppression of information;
  • calling on the Justice Minister not to consent to any further South African judges being appointed to act in Swazi courts;
  • calling on all judges president to engage with legal organisations, including Nadel, when deciding on acting appointments in their courts; and
  • amending its constitution to allow for its national executive committee to be elected for a two-year term to allow for better continuity in its work and a more adequate period for the implementation of programmes.

Nadel’s Dullah Omar Memorial Lecture and gala dinner were held on the night of 25 February in honour of Silas Nkanunu, who helped found Nadel. Mr Nkanunu is the chairperson of the Attorneys Fidelity Fund and was admitted as an attorney in 1977.

At the dinner Mr Nkanunu explained how Nadel was formed in 1986 and how he and the late Justice Minister Omar met. He said that Minister Omar was an ‘active, quiet man who ensured that attorneys were united’.

The new Nadel National Executive Council:

President – Gcina Malindi

Vice-president – Max Boqwana

General secretary – Faathima Mahomed

Assistant general secretary – Ilan Lax

Treasurer – Asif Essa

Assistant treasurer – Tony Thobane

Publicity secretary – Nokukhanya Jele

Projects officer – Patrick Jaji

Fundraising officer – Mvuzo Notyesi

Gender desk – Sheila Mphahlele


Nomfundo Manyathi,

This article was first published in De Rebus in 2012 (April) DR 9.

De Rebus