The public interest still needs its heroes

2013-05-15 10:00

Practising public-interest law in the time of Victoria and Griffiths Mxenge was hard because the only law we had was the common law fortified by our organising capabilities. Today, we have the best pro-poor laws but weak organising capabilities, says Judge Dhaya Pillay.

Thank you for the singular privilege of delivering the 11th Victoria and Griffiths Mxenge memorial lecture.

Giants like former President Nelson Mandela, who inaugurated these lectures in 1992 and Public Protector Ms Thuli Madonsela who delivered the last lecture, set daunting precedents for a puisne judge to follow.

The honour of being invited to commemorate the life of Griffiths and Victoria, who both received the Order of Luthuli in Silver for their excellent contribution to the field of law and the sacrifices they made in the fight against apartheid is as humbling as it is challenging.

The Mxenges, like most activist lawyers, practised public-interest-law (PIL) with generosity, magnanimity and, above all, fearlessness.

Therefore, my topic PIL then – under apartheid – and now is relevant because of the ever-deepening levels of inequality in our society, despite our grand Constitution.

I define PIL as law that impacts on the interests of the public, particularly the poor and the disadvantaged.

Practising PIL in the time of the Mxenges was dangerous business, as the assassination of both Griffiths and Victoria proved.

As the struggle intensified, so too did repression.

As the gap narrowed for protest action, PIL opened doors to another terrain of legal struggle.

PIL, then, pulled and prodded, tweaked and twisted the common law to create space for political activism.

Thus the right to a hearing before adverse decisions to dismiss, retrench and refuse bail were taken was entrenched. The right to reasons for detention became the norm for detentions without trial.

The United Democratic Front trials in Pietermaritzburg and Delmas were important as PIL cases.

They became mobilising tools to rally public support for the political leadership who had been wrenched from the people.

Having provided a legal avenue to ventilate public anger, could it have lessons for the practice of PIL post-apartheid?

Civic structures like the Phoenix Working Committee (PWC) also helped to organise communities around bread-and-butter issues. The water fines case of Parvathi v The Durban City Council is such an example.

When the city imposed water fines, we as PWC activists had to gauge the mood of the people, what their levels of commitment were, and what their tolerance was for the risks of any protest action.

If we marched, people could get arrested. If we litigated, we could lose. Someone would have to pay legal costs. Litigation it was. Parvathi won.

Again, at a time of high repression, Parvathi v Durban City Council provided the legal space to continue organising activities.

In this instance, the gains were organisational and developmental for both the council and the community.

Today, each flat has its own meter.

What purpose would have been achieved if the community vented their frustration by resorting to violent protests and destroying the meters?

Today, we have a Constitution that is unmistakeably transformative, even though the words ‘transform’, ‘transformative’ or ‘transformation’ are not in the entire text of 47 672 words. Much of our achievements under the common law have now been entrenched in our Bill of Rights.

Our Constitution expressly embraces PIL and access to the courts. Our Constitutional Court prefers to allow disputes to be resolved through fair public hearings instead of ousting them to foment dangerously elsewhere, as was done under apartheid.

Turning to our health services, our minister of health, Aaron Motsoaledi, was in a heated radio debate with Leon Louw of the Free Market Foundation on the pros and cons of regulating alcohol usage and advertising.

This debate is a hard one for the courts to resolve without full and precise information for and against the minister’s proposal.

Furthermore, the debate is not linear between these two protagonists, but polycentric, having a ripple effect on other parties.

SAB is a multibillion-rand company with an international footprint in 75 countries.

It redistributes wealth firstly by employing a huge work force, reaching out to some of the most rural areas of South Africa. Secondly, it pays taxes to our government.

Thirdly, it pays much-needed dividends to pension funds and pensioners alike.

Pruning the sale of alcohol through regulation could impair SAB’s profits and its capacity to redistribute wealth.

At the same time, hardly a serious crime is committed without offenders drinking Dutch courage from the taverns which, disturbingly, have become more ubiquitous than soccer balls on a sandy township pitch.

Alcohol and its impact on proliferating crime would also attract the interests of social workers and crime fighting agencies.

Finding balanced and enduring solutions is also the theme in basic education.

Recently, Justice Malala facilitated a debate between representatives from the SA Democratic Teachers’ Union and the department of basic education.

The debate was triggered by Sadtu’s threat to go slow until the department reinstated a collective agreement providing a rural allowance.

Whether one describes the impasse as a crisis or a challenge, the real issue is that thousands of poor and vulnerable children depend on public education for a better life.

Should the constitutional right to strike and go slow trump the children’s countervailing constitutional right to have their best interests treated with paramount importance?

These are matters of such magnitude that to entrust a court with the task of making a decision without full participation of all stakeholders would be irresponsible.

We all have a responsibility to ensure that the balances the courts and other arms of government strike are the best.

Practising PIL law, then, was hard because the only law we had was the common law fortified by our organising capabilities.

Today, we have the best pro-poor laws, but weak organising capabilities.

There is no substitute for strong organisation to advance our democracy.

» The 11th Victoria and Griffiths Mxenge Memorial Lecture was delivered by Judge Dhaya Pillay of the KwaZulu-Natal High Court, in his personal capacity, on April 19 2013.

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