It was an unfortunate decision by the Marikana Commission of Inquiry to exclude an investigation of the extent to which emolument orders contributed to the unrest at the mine, said Mohamed Ameermia, of the South African Human Rights Commission.
“What the … inquiry did not do, the SAHRC and others had to do through the back door through the Cape high court,” he said.
The Legal Resources Centre and the University of Stellenbosch’s Legal Aid Clinic — with the SAHRC joined as amicus curiae — have challenged the constitutional validity of the legislative provisions regulating emolument attachment orders.
In terms of the Magistrate’s Court Act, the orders make it possible for employers to deduct amounts owed to debt collectors directly from the wages of its employees, often leaving them penniless at the end of the month. The organisations are representing 15 farmworkers in the Western Cape affected by this legislation.
Ameermia, the commissioner for human rights, access to justice and housing at the SAHRC, said there was evidence that many of the miners at Lonmin’s Marikana mine had large emolument orders on their salaries.
The plight of those workers and their limited ability to challenge the orders because of ignorance of their rights and prohibitive financial costs are some of the reasons the SAHRC chose to make access to justice one of its key focus areas.
Ameermia said regulations to govern the credit industry had to be put in place if human dignity was to be promoted. “We will have a country that becomes ungovernable, if people cannot work even to put food on the table.”
There needed to be a short-term solution while the government reviewed relevant legislation, such as the National Credit Act, he said.
“Everyone loves this Constitution of ours. It is hailed as the best Constitution in the world, taking into account injustices and imbalances of the past and addressing it in a holistic way. But it is hopelessly optimistic that the Constitution alone would give the downtrodden and the marginalised a better life.
“There cannot be dignity without access to social rights as enshrined in the Constitution and the Bill of Rights, and without social rights, civil and political rights are meaningless.
“If the right to justice is not implemented in a meaningful way, it will not help the people on the street.”
The SAHRC is celebrating its 20th anniversary and, Ameermia said, although the government had tried to bridge the gap between the poor and other sectors of society since 1994, there were still many challenges to be overcome to ensure that “dignity is finally given to those who have waited 200 years for it”.
He said chapter nine institutions were still as relevant today as they were 20 years ago.
Access to justice was generally seen as increasing physical access to the court, when, in fact, it constituted access to social, economic and environmental justice, Ameermia said.
“Access to justice is important because it’s an enabler though which the marginalised, vulnerable and poor have access to the Bill of Rights and, by association, their socioeconomic rights.
“The law says a member of the public is entitled to go to a magistrate’s court and file a case, but an NGO [nongovernmental organisation] told me recently that, when they approached a court to lodge a case, they were told to go to [the Constitutional Court in] Braamfontein.
“If court clerks behave like this, it is bound to discourage the public from pursuing justice.”
Ameermia, who has held executive positions in the Limpopo provincial government and the Makhado municipality during his career, said the government needed to take an approach to issues that was centred on human rights, rather than the current “us and them” approach.
“It puzzles me when a court gives a judgment in favour of the poor and they [government] use lawyers to challenge it instead of addressing the issue.”
The commission is holding workshops with relevant representatives, such as the state, civil society, related sectors of the legal fraternity and the higher institutes of learning to explore ways to increase access to justice for citizens.
An advisory committee, made up of the relevant stakeholders, has been established to identify critical issues and gaps that prevent access to justice, and to propose solutions.
“This year the millennium develop-ment goals will lapse and a successor framework has to be crafted to replace it,” Ameermia said. “It’s important that government not fail in this.”
He praised the original recon-struction and development pro-gramme. “The programme did a wonderful job … seeing three million people getting housing.”
The country could not depend only on the national development plan to “narrow the gap between rich and poor. We cannot wait until 2030 to do something.”
Also, for the principles of human rights to be entrenched, a strategy that included the youth should be introduced, such as teaching the Bill of Rights at school.
Ameermia, who has two sons, said: “Never underestimate how much children grasp or their interest in debating these issues.”
As part of the fight to reduce racism at university level, students, when registering, could be required to sign a pledge in which they would undertake to abide by the principles of the Constitution, he suggested.
“If they don’t abide by the agreement, universities would be entitled to ask them to leave.”
With six years of his term ahead of him, Ameermia, who rejected private practice, said: “In private practice, I would never have been given this opportunity to ensure the rights [of the] downtrodden are recognised and protected.”
For him, this includes the provision of housing, and an end to forced evictions and police brutality.
He said the government had a key role to play in halting police brutality. “Unfortunately, people get frustrated when they come to complain and they do not get the mayor or a councillor coming out to accept notice of their agreements. Instead, they get a clerk.
“The police are brought in and the unintended consequence is that people are teargassed or injured.”
His hope was that his work would “leave the world a slightly better place”, Ameermia said.
Memorable legal retorts from Judge James Fitzpatrick
Judge James Fitzpatrick had a reputation for his witty comments while on the Bench (mid- to late 1800s), with the stories below reflecting some of his memorable retorts.
• While sitting in the Supreme Court, counsel having moved for provisional judgment with interest at the rate of 60%, Fitzpatrick said: “Call the defendant; I would like to see that man.” While the defendant’s name was being called, counsel informed the judge he would withdraw the case, as he had just been instructed to say that since the issue of summons the defendant had died. “I don’t wonder at it,” was the reply from the Bench.
• Once, on a provisional day in the Supreme Court, a certain case was called for provisional judgment. Counsel, having several briefs to confess judgment, was not sure whether he appeared in the particular case called. He rose and in a halting manner said: “My lords, I appear to confess.” Upon which Fitzpatrick remarked: “I would advise you to be very careful. It is quite true that some confessions bring about absolution, but a confession of this kind brings a judgment absolute upon you at once.”
• On one occasion, an action was being tried concerning the boundary between two farms. In the original grant the boundary was described as a “direct line” between two points: the diagram attached to the grant showed a meandering stream. It was near one o’clock when the attorney general and counsel for the plaintiff bent down and from underneath the Bar table produced a whole armful of ponderous volumes. “And what are those books for, Mr Attorney?” asked Fitzpatrick in an inquisitive frame of mind. “Those, M’Lud,” came the bland tone of counsel, who was weak on principles but very strong on precedent, “are dictionaries.” “But what for?” persisted the judge in his inimitable brogue.
“I am going to quote them on the question of what is a direct line.”
“Well Mr Attorney,” said the judge, “if it’s the naming of a direct loine that ye want, just ye look at me, for I’m going in a direct loine to me lunch!” – and he went.
Edited extracts from Law, Life and Laughter, by Professor Ellison Kahn (Juta & Co, 1991)