Our laws are still too seg­re­ga­tory

CityPress - - Voices - Sibu­siso Nyembe voices@city­press.co.za

Barely 25 years into our con­sti­tu­tional democ­racy, and in a com­plex econ­omy such as ours, it is un­der­stand­able that the so­ci­ety en­vi­sioned in our Con­sti­tu­tion and the tools needed to serve it would still be in de­vel­op­ment.

The pace with which such de­vel­op­ment has to hap­pen must be has­tened to en­sure so­cial sta­bil­ity.

The law and ju­rispru­dence is one set of tools to ef­fect this. Our cur­rent body of law, par­tic­u­larly the com­mon law – de­fined as the body of law de­vel­oped by judges, courts and sim­i­lar tri­bunals – re­flects Euro­pean cul­ture and cus­tom.

Fol­low­ing the dawn of democ­racy in 1994, a re­al­is­tic and jus­ti­fied ex­pec­ta­tion that our le­gal sys­tem would be trans­formed to in­clude all South Africans came into being.

That the just cause for re­form­ing our laws would em­anate from those sec­tors of our so­ci­ety whose cus­toms, cul­tures, tra­di­tional prac­tices and be­liefs were marginalised by apartheid colo­nial­ism is a func­tion of his­tory.

Part of the Con­sti­tu­tion reads: “The Con­sti­tu­tional Court, the Supreme Court of Ap­peal and the High Court of South Africa each has the in­her­ent power to pro­tect and reg­u­late their own process, and to de­velop the com­mon law, tak­ing into ac­count the interest of jus­tice.” And the Bill of Rights con­tains clauses such as these:

“A court, in or­der to give ef­fect to a right in the Bill, must ap­ply – or, if necessary, de­velop – the com­mon law to the ex­tent that leg­is­la­tion does not give ef­fect to that right”; and

“When in­ter­pret­ing any leg­is­la­tion, and when de­vel­op­ing the com­mon law or cus­tom­ary law, ev­ery court, tri­bunal or fo­rum must pro­mote the spirit, pur­port and ob­jects of the Bill of Rights.”

Given a fair chance, the de­vel­op­ment of the law, as en­vis­aged by the Con­sti­tu­tion, should largely be driven by black lawyers. As mem­bers of that part of our so­ci­ety emerg­ing from op­pres­sion, black lawyers are best placed to iden­tify in the body of law ar­eas of de­vel­op­ment – and ar­tic­u­late them.

Cul­ture and cus­toms are dy­namic. They per­me­ate all as­pects of life, in­clud­ing com­mer­cial ac­tiv­ity. They are in­flu­enced by global trade and not in­su­lated from cul­tural cross-pol­li­na­tion.

The con­tin­ued marginal­i­sa­tion of the ma­jor­ity of black lawyers, even by the demo­cratic gov­ern­ment, along with per­sis­tently skewed brief­ing pat­terns, is not only a hin­drance to le­gal de­vel­op­ment but also con­sti­tutes a threat to the suc­cess of rad­i­cal eco­nomic trans­for­ma­tion, cur­rently being mooted by the gov­ern­ing party.

Rad­i­cal eco­nomic trans­for­ma­tion en­tails the in­fu­sion into the main­stream econ­omy of ev­ery­thing associated with African cul­ture, as long as it pro­motes the spirit, pur­port and ob­jects of the Bill of Rights.

Eco­nomics and law are two sides of the same coin. There can never be suc­cess­ful trans­for­ma­tion of the econ­omy – the base struc­ture – with­out si­mul­ta­ne­ously and con­sciously sub­ject­ing the law to the su­per­struc­ture, in all its forms of ex­is­tence, to rad­i­cal trans­for­ma­tion.

The bulk of our cur­rent laws were de­vel­oped ex­clud­ing the ma­jor­ity, thereby defin­ing them on racial and class bases. So, it is un­der­stand­able when, each time court de­ci­sions re­garded as neg­a­tive by vic­tims and/or their fam­i­lies are an­nounced – which of­ten oc­cur in bail ap­pli­ca­tions – these peo­ple “dis­own” the le­gal sys­tem and its de­ci­sions by say­ing: “The law favours those with money.”

These com­ments do not merely de­cry how wealth en­ables peo­ple to “evade ret­ri­bu­tion”; they ques­tion the le­git­i­macy of the en­tire le­gal sys­tem and show that even or­di­nary peo­ple see within this sys­tem and its modus operandi a class and racial bias.

This re­jec­tion of the law and jus­tice sys­tem is likely to in­ten­sify as the sep­a­ra­tion of pow­ers be­tween the arms of gov­ern­ment be­come in­creas­ingly blurred, thanks to politi­cians fre­quently seek­ing court rul­ings to set­tle political scores. Or­di­nary folk may con­clude that the le­gal sys­tem – and the con­sti­tu­tional or­der it en­shrines – does not re­solve mass griev­ances but is de­signed to pro­tect vested mi­nor­ity in­ter­ests.

The con­tin­ued de­nial of the par­tic­i­pa­tion of most black lawyers in mean­ing­ful as­pects of the econ­omy can­not be jus­ti­fied on the grounds of skill, knowl­edge and bi­o­log­i­cal fac­tors. It is based on net­works which ex­clude black peo­ple and on eco­nomic own­er­ship and con­trol pat­terns. These have worked to en­sure that the de­vel­op­ment of our laws and young democ­racy has fol­lowed an ex­clu­sion­ary tra­jec­tory.

Black lawyers have played, and con­tinue to play, a piv­otal role in re­sist­ing seg­re­ga­tory laws. They sac­ri­ficed from the fore­front to bring about so­cial trans­for­ma­tion, yet all we hear lately are lamen­ta­tions by the chief jus­tice of racial in­jus­tices in the con­sti­tu­tion of le­gal teams ap­pear­ing in courts.

A new ap­proach, that dif­fers from the cur­rent laid­back pos­ture, is called for to en­able us to again take charge of de­vel­op­ing our con­sti­tu­tional democ­racy, giv­ing us a re­al­is­tic chance of re­solv­ing the im­passe.

Nyembe SC is a mem­ber of the group Lawyers for Rad­i­cal Eco­nomic Trans­for­ma­tion

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