Programme director
I will not regard all protocol as observed because it gives me great pleasure to recognise so many friends and former colleagues gathered here today.
National Director of Lawyers for Human Rights, Mr Jacob van Garderen
Former Chairperson of the South African Human Rights Commission (and former National Director of Lawyers for Human Rights), Mr Jody Kollapen
Former Chairperson of the National Council of Lawyers for Human Rights, Justice Johan Kriegler
Former National Directors of Lawyers for Human Rights, Dr Vinodh Jaichand and Advocate Rudolph Jansen
Honourable judges and magistrates here present
Representatives of chapter nine institutions
Executive Director of the Foundation for Human Rights, Ms Yasmin Sooka
Representatives of Legal Aid South Africa
Representatives of the legal profession
International donor organisations such as the Ford Foundation and Atlantic Philanthropies and Sigrid Rausing Trust, government departments in particular, Justice and Constitutional Development, the National Prosecuting Authority, State Attorney.
Representatives of the Legal Resources Centre, AIDS Law Project, Community Law Centre, Womens’ Legal Centre, Centre for Applied Legal Studies, Centre for Child Law, Freedom of Expression Institute, Tshwarang, Black Sash and other organisations engaged in public interest litigation.
Distinguished guests
Ladies and gentlemen
Comrades and friends, in our ongoing struggle for the realisation of the vision contained in our Constitution.
It is good to be home!
Allow me to convey the very warm greetings and good wishes of the Minister of Justice and Constitutional Development, Mr Jeff Radebe, to this very important conference and to Lawyers for Human Rights on the celebration of 30 years of struggle for human rights and justice.
Let me also extend a special word of welcome to those who have travelled from other countries on our continent such as Ghana, Nigeria, Botswana, Zimbabwe to share with us their experiences and knowledge, Australia.
This conference brings together representatives from the judiciary, civil society, legal profession, chapter nine institutions, donor agencies and various government departments to reflect on the role and impact public interest litigation in promoting and enforcing human rights in South Africa.
We share the hope of the organisers of this conference that it will create the space for all stakeholders to debate these important issues and set an agenda to advance public interest law, thereby assisting in the realisation of the vision contained in our Constitution.
In making a contribution to this discussion I would like to begin by telling the story of Lawyers for Human Rights and highlighting some of the lessons we can learn from this story.
I tell this story knowing very well that there are many in this room who are much better qualified to do so than I am. This story was written with their dedication, commitment and sacrifice.
But maybe we should pause for a moment and reflect on where were we thirty years ago, in 1979, when lawyers for human rights’ story begin.
In 1979 16 June uprisings had taken place three years before in 1976. Steven Bantu Biko had been tortured to death in detention two years earlier and the inquest into his death demonstrated much of what was wrong with our legal system. The partitioning of South Africa and the exclusion of the majority of our citizens by the apartheid regime continued unabated as Venda followed Bophuthatswana and Transkei on the road to being so-called "independent homelands." PW Botha had gone from being Minister of Defence to becoming Prime Minister and Minister of Defence the year before and BJ Vorster was followed by Marais Viljoen as State President in the wake of the information scandal.
Across the Limpopo Bishop Abel Muzerewa became the transitional Prime Minister of Zimbabwe-Rhodesia. Further afield Margaret Thatcher had taken up residence in 10 Downing Street and Ronald Reagan was measuring curtains for the White House.
But there were also signs of heightened resistance to apartheid. Following the June 16 uprisings thousands of young people fled the country and swelled the ranks of Umkhonto we Sizwe. This led to an escalation of military activity including the attack on the Sasol refinery in 1979. Six years before the progressive trade union movement began to re-emerge after the 1973 Durban strikes, the Congress of South African Students was formed in 1979 as was LHR's sister organisation the legal resources centre.
It was in this context, at the height of apartheid oppression, that the First International Conference on Human Rights took place in Cape Town in 1979. The opening address was delivered by the late Chief Justice Michael Corbett, an Appeal Court Judge at the time. The idea of establishing an organisation of legal professionals committed to human rights emerged at the conference and a year later the organisation was launched with Judge Johan Kriegler as the first chairperson of its National Council.
Soon lawyers for human rights established regional committees in many centres in South Africa. At that stage the organisation was a volunteer organisation consisting of professionals with limited time. Nonetheless, despite these limitations, the organisation did make an impact by highlighting and voicing opposition to the many human rights abuses perpetrated by government, issuing regular publications, holding meetings and seminars and embarking on human rights education.
In 1987 the organisation established a national directorate to address the limitations inherent in a volunteer based organisation. Brian Currin was appointed the national director and was joined soon thereafter by Peter Mothle co-director and director responsible for research and training. Core staff was appointed but the numbers soon grew to well over a hundred.
In the first year of the directorate, the organization’s commitment to abolition of the death penalty which became a central part of a penal reform project saw the organisation monitoring death row, visiting prisoners and offering assistance wherever they could. LHR was already at this point petitioning the state president to declare a moratorium on executions. A litigation trust fund was established and pro bono legal services launched.
Because it was critical to reach out to the general public in offering services and making the organisation relevant to underprivileged communities, LHR set about establishing a network of regional offices. These offices were staffed by regional organizers, many of whom came from an activist tradition.
LHR expanded very rapidly. Soon there were a number of projects: para-legal training project, human rights education project, law reform project, penal reform project, children’s rights, disability rights, socio-economic rights and later the political prisoner release programme.
In 1989, ten years after its formation, LHR once again held a landmark conference, “Human rights in a diverse and divided society”. Many of the contentious issues that would emerge in the next few years during multiparty negotiations and the drawing up of a new Constitution were aired including group and minority rights.
But 1989 was a period of great expectations of a democratic breakthrough but also one of the most difficult and violent periods of our struggle for democracy. The existence of state-sponsored hit squads was confirmed when Almond Nofomela revealed details of his participation in the murders of a number of activists in and outside the country to LHR on the eve of his execution.
In the next few years, the unbanning of the liberation movements and multi-party talks about the future dispensation, did not mean that repression and human rights abuses were less. State security apparatus continued to oppress the majority (deaths in police custody, harassment of activists, curtailment of freedom of expression) and this was accompanied by internecine violence fermented by those in power. Through its violence monitoring desk LHR helped collect and present evidence to the McNally, Harms, and Goldstone Commissions appointed to investigate the violence as well as to the committees at the multi-party negotiations on inter alia the Constitution and bill of rights
In the run up to our first democratic elections in 1994 LHR made an important contribution to voter education by drawing on the experience of its human rights education programme. Staff from LHR was seconded to assist the Independent Electoral and Independent Media Commissions. Many were also nominated as candidates for national and provincial legislatures.
The post-election period saw the resignation of Brian Currin and the appointment of Jody Kollapen as National director. Soon thereafter he was appointed to the newly established South African Human Rights Commission.
In August 1997 legal academic Dr Vinodh Jaichand became the national director. This was difficult period for the organisation as it was forced to confront the challenges of reduced funding and the need to redefine its role in changed political and constitutional circumstances. According to Jaichand, the focus of the organisation shifted to, “making rights real” in this new era since “justice for all”, its previous motto, was guaranteed by the new constitution. The thrust of the work therefore of LHR was the realisation of the rights of the indigent, marginalised and the vulnerable, mainly at the courts of first instance. Public interest litigation was to be undertaken with the legal resources centre.”
The work of LHR continued under Advocate Rudoph Jansen, who steered the organisation through a particularly difficult time with aplomb. Today the baton has been passed to Jacob van Garderen.
It is this proud history that exemplifies what President Jacob Zuma refers to in his address to the Second Judicial Conference in July 2009 when he says that, "The legal fraternity has a special place in the hearts of many, especially the previously oppressed. Many progressive lawyers, some of whom are now on the bench, worked tirelessly during our struggle for freedom to save freedom fighters from the gallows and to improve the conditions of those who were incarcerated. They fought endless battles and became victims of the apartheid security infrastructure themselves. They remain the unsung heroes of the struggle against apartheid.
We extend our gratitude as the people of South Africa to all the men and women in the legal professions, who used their skills to defend and save others and to fight for a better life for all. The Chief Justice, the Deputy Chief Justice, Judge Arthur Chaskalson, Advocate George Bizos, and many others have an impeccable record in the fight for justice, freedom and human rights in our country. The reason there is so much interest in the transformation of the judiciary is because South Africans know what this fraternity is capable of!"
In his very interesting paper, "Public Interest Law: The South African Experience", Geoff Budlender argues, based mainly main on the experience of the Legal Resouces Centre, that we can learn the following lessons from public interest litigation conducted under apartheid and democracy:
* There is a need to create institutions which are dedicated to this work, and which can undertake it in a systematic and strategic manner. There is a need to plan the work strategically, select the right lawyer, select appropriate cases, select the proper forum, and select the right defendant. The institution needs to work with other institutions to maximise the impact of a single case and to celebrate partial victories.
* There is a need to build public interest law institutions which are sturdy and sustainable financially, politically, structurally
* ‘Routine’ casework can be very important in identifying important issues to litigate, finding the right client, and ensuring that favourable court decisions are implemented in practice. The casework can be done by either the litigating organization or by an associated organisation, with the two co-operating closely in sharing information and strategies
* The effect of the legal work is greatly strengthened by links with community organisations. The lawyers can provide valuable organisational support to those movements
* Effective legal activism needs to be linked with lobbying and work through the media, parliament and other institutions which can inform and change public and government behaviour
* The impact of the work of the public interest lawyers can be greatly multiplied if they cooperate with sympathetic lawyers in private practice."
These are important lessons which no doubt will be discussed in greater detail during the course of this conference. I would add to these the need to build partnerships between civil society organisations, government and other state institutions to ensure access to justice, to realise the vision contained in our Constitution and to implement the mandate given to government by the people.
Our Constitution has created a legal environment that is very favourable to the protection and enforcement of human rights. The Constitution has a justifiable Bill of Rights, makes provision for independent institutions supporting democracy and contains an innovative clause to widen locus stand in courts. Parliament has also passed numerous acts designed to provide wider access to socio-economic rights.
Unlike 30 years ago in 1979, when LHR was formed, we have a government that is absolutely committed to the Constitution, human rights, the independence of the judiciary, the rule of law and to ensuring access to justice.
Its is a government that is self-critical, sometimes brutally so, about its shortcomings and the constraints under which it is trying to implement the mandate that it has received from the overwhelming majority of South Africans who are eager to see their lives change for the better.
It is a government that is often frustrated by the inadequacy of the machinery at its disposal to implement its mandate and therefore welcomes the efforts of organised civil society to help un-block what needs to be un-blocked.
It is a government that is seeking to build a developmental state and to reconfigure itself so as to work in a more efficient, coordinated and accountable manner.
It is a government that believes firmly that working together as citizens of our country we can do more, faster and with less resources and is therefore continuously seeking to engage society and to build partnerships. We believe that it is not an accident that the priority areas that President Zuma highlighted in his State of the Nation Address, namely, (1) fighting crime and corruption, (2) ensuring access to quality education, (3) rural development and food security, (4) ensuring access to quality health care and (5) creating work coincide to such a large extent with the areas that have been prioritised by organisations engaged in public interest litigation. We believe that there is a common recognition of the importance of these issues and that this can constitute the basis for strong partnerships.
All these developments have created an enabling environment. How to we make full use of these possibilities?
We would like to emphasis the importance of vibrant organisations in civil society in strengthening and deepening our democracy. Government, including the Department of Justice and Constitutional Development, is eager to promote ongoing engagement and partnerships with civil society organisations on issues relating to the advancement, enforcement and promotion of human rights and access to justice.
We appreciate that civil society organisations will from time to time engage in public interest ligitigation and that often this litigation will be directed at the state. We do not see this as necessarily antagonistic. We appreciate that it is entirely possible to for government to be supported by civil society in the implementation of its policies and programmes whilst at the same time it is being cited as a respondent by the very same civil society. However, I am sure that we would all agree that it would be far preferable for the relationship between government and civil society organisations to be such that litigation is a measure of last resort.
I am also sure that, whilst we agree on the importance of public interest litigation, we are also acutely aware of the limitations of litigation as a means to ensure the fundamental transformation necessary in a society such as ours, especially when used in isolation from other means.
We would also be interest to hear the views of this conference on the scope for public interest litigation against very powerful non-state parties who frustrate transformation or violate the human rights of our citizens, especially the poor.
Government has prioritised making access to justice for all a reality. We believe that rights without access to the means to enforce such rights are meaningless. In his address to the Second Judicial Conference President Zuma emphasised the importance of access to justice and stated that, "When we talk of judicial transformation and access to justice, we are talking about three issues in particular. We want to ensure that even the poorest of the poor do enjoy access to justice. Secondly, that the justice that people access is of a high standard and thirdly, that justice is attained without undue delay."
We believe that civil society organisations, including those focussed on public interest ligitigation have a vital contribution to make in ensuring access to justice.
Therefore we would like to call for continued support from the donor community to organisations that promote access to justice. We are acutely aware of the vacuum left by the once vibrant para-legal and advice office movement and would appreciate proposals from this conference in this regard.
We would like to call upon universities to play a role in developing a culture of public interest law amongst their students and to use the substantial human resources at their disposal to assist in ensuring access to justice.
We also call upon private practitioners to make available the material and intellectual resources at their disposal. We commend the initiatives taken by the Bar and the Law Society regarding pro bono work but we believe that these can be expanded. We also commend those firms who have established public interest law units.
As we celebrate the 30 years of Lawyers for Human Rights let us also celebrate the lives and the contribution of those of its dedicated members who are no longer with us: Shucks Sefanyetso, Praline Reddy, Rose Motsepe, Shadrack Mahlangu and Benny Makena. Let us honour their memory by continuing the struggle for justice and human rights.
We wish lawyers for human rights well in the coming decade of its existence and look forward to its next conference in 2019. We would like to assure all organisations engaged in realising the vision of our Constitution of our continued support. We look forward to further engagement flowing out of this conference.
Thank you very much.
Issued by: Department of Justice and Constitutional Development
20 November 2009
Source: Department of Justice and Constitutional Development (http://www.justice.gov.za/)
