Our laws are still too segregatory
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