The belief that courts are there to prevent injustice may be one of the most valuable products of our history
Geoff Budlender
This year the Legal Resources Centre celebrates 21 years of existence. It is a good time to look back, and look forward. It is already difficult to remember where we come from. The past is a different country.
The past is a country in which, in the Komani case, the state went to the Appellate Division to assert its power to prevent married couples from living together in Cape Town. In the Rikhoto case the state fought bitterly for the principle that someone who had worked for a Germiston company for 10 years was an annual migrant labourer, and had no right to live with his family in Germiston. In the Dube case the state asserted that someone who was unemployed was therefore idle and undesirable and could be banished from Durban.
The past is a country in which the government tried to remove people from land on which they had lived for decades, because they were black Driefontein, Lawaaikamp, Mgwali, Mathopestad, Oukasie and many more.
The past is a country in which the state routinely detained its opponents without trial, and tortured them. In cases such as the Cradock Four, it murdered them. It is a country in which the state conspired with and armed its allies to enable them to murder its opponents and destroy their property at KTC in the Western Cape, in KwaZulu-Natal.
The past is a country in which the full might of the state was brought to prosecute people because they lived in the wrong area, because their skin colour was wrong.
These cases were all fought by the centre in the courts. More importantly, they were fought in the daily confrontations of courageous people with the officials who ruled their lives.
Today’s court cases truly are different. In the Grootboom case homeless people assert that they are in crisis and that the government must provide for them and the Constitutional Court agrees. The death penalty an instrument of systematic injustice, cruelty and racial oppression in the past is declared unconstitutional. Poor people can no longer be imprisoned for failing to pay their debts.
People who lost their land now start recovering it. The Makuleke become owners of part of the Kruger National Park. About 840 Port Elizabeth families, victims of the Group Areas Act, settle their land restitution claims and unlock R42-million in state funds for new homes on their former land, as part of a process of reunifying the apartheid city. Prisoners have a right to vote like everyone else. South African Airways is ordered to hire a man whom it rejected simply because he is HIV-positive.
The present is a different country, and the law has played a part in making it so. What does that mean for our future?
One of the most valuable products of our history is the belief, based on practical experience, that the courts are there to protect people who are vulnerable or abused. That is a lesson which one can learn from philosophy books, but it is much better learned in practice. In South Africa, recourse to courts to challenge injustice has become part of our political culture.
That may be the most lasting and important contribution of lawyers who have fought these cases. Now the courts have effective tools to make this much more effective.
The rule of law is fundamental to sustainable national development.
Unconstrained executive power, a compliant judiciary and land grabs provide short-term solutions to all sorts of problems. In the end they are destructive of any attempt to build accountable government which serves all of its people. We know this in South Africa because that is part of our experience.
We also have experience, even in the worst days, of the value of a legal system which holds government to its promises, which restrains abuse of power.
We know the value of an independent judiciary, and a legal profession which vigorously challenges the authorities in the courts. We also know that unless poor people have access to lawyers, all of this is pretty worthless.
Ours is an unusual Constitution. It contains social and economic rights which require that special attention be given to those who are poor, marginalised and vulnerable. It makes rights a source of power for the poor. It enables them to organise around those rights and to assert them effectively.
Our Constitution makes possible a rights-based approach to addressing poverty. The use of these rights can achieve the transfer of resources to the poor, as in the case of land claims and in the huge class action to compel the Eastern Cape government to pay life-sustaining grants to disabled people. This can change power relations between the poor and the powerful, so that local councils can no longer casually evict people and render them homeless. This can open up processes of government to the poor. And this can ensure that all parts of government meet the obligation to provide decent education for all.
All of this is part of building a truly transformed country, in which the needs of the poor and marginalised move to the centre of the nation’s attention and energy.
This does not happen automatically. Last year, in the Bram Fischer Memorial Lecture, Judge Arthur Chaskalson said that we seem temporarily to have lost our way: “Too many of us are concerned about what we can get from the new society, too few with what is needed for the realisation of the goals of the Constitution,” he said.
We have seen too much greed and arrogance, too much desire to build and retain the fruits of privilege, and too little concern with sharing and community.
The Constitution points in the other direction. All we have to do is make its promise real. The future, too, could be a different country. The lawyers have a new and equally important task on their hands.
Geoff Budlender is the director of the Constitutional Litigation Unit at the Legal Resources Centre. He has worked at the centre for 17 of the past 21 years