Public Protector calls on SA legal community to remove obstacles to
transformation, commends Nelson Mandela Bay Metro leadership for their
response to her findings
Sunday, 31 January 2016
Public Protector Adv. Thuli Madonsela has called on the South African
legal community to review professional rules that serve as barriers to
the freeing of the potential of women and black lawyers and particularly
limit their entry and advancement of the advocates' profession or bar.
During her address as guest speaker at the Annual General Meeting
Dinner of the Eastern Cape Society of Advocates in Grahamstown on
Friday night, the Public Protector said the South African constitution
was a bridge created by the architects of the country's constitutional
democracy to expedite the transformation of society from the divided one
characterised by racial, gender and other forms of social stratification
to one that was inclusive, social justice-centered and where every
person's potential was freed and their lives improved.
She said great strides have been made towards realising the South African
dream captured in the constitutional promise of an improved quality of
life. This, the Public Protector, said has been achieved by using the
constitution as a bridge to cross over, by dismantling the legacy of
apartheid one brick at a time. She cautioned that the legacy of many
years of apartheid and colonialism could not have been eradicated on
the signing of the constitution and that the architects of the country�s
democracy were aware of that and so was the Constitutional Court when
it referred to the constitution as a bridge in its certification judgment.
She reminded the gathering of the remarkable contribution of lawyers such
as Pixley Ka Seme, Oliver Tambo, Victoria and Griffiths Mxenge, George
Bizos, Sydney and Felicia Kentridge, Nelson Mandela, Joel Joffe, George
Bizos and Priscilla Jana, in dismantling apartheid. The Public Protector
applauded lawyers for continuing to use their professional skills to help
the people use the constitution as a bridge for crossing over to the
society envisaged in the constitutional promise.
She also mentioned Judge Pickering who was in the room, for his role
during his days at the Legal Resources Centre and particularly applauded
the Child Law Centre, which had just scored a remarkable victory for
socio-economic rights involving a court order to the Eastern Cape
provincial government to ensure every school has desks and other
specified infrastructure by April 2017.
The Public Protector, however, remarked that the legal profession
still had a long way to go regarding achieving full inclusiveness
within its own ranks. She said while South Africa has moved from
blatant exclusion of women and black professionals, these groups
were yet to experience substantive equality in the legal profession.
Comparing the experiences of women and black advocates to that of
Alice in Wonderland, the Public Protector opined that the reason
the achievement of inclusiveness has been slow is not necessarily
lack of good faith. She said many of the barriers experienced by
black and women lawyers in the legal profession were principally
due to the profession's failure to change some of the practices
and rules that were established by and for white affluent male
lawyers based on their experiences, which experiences were alien
to women and black people. Instead of adjusting and transforming
the operational environment, the new-comers have been expected to
find a way to fit in or ship out.
"Those of you that are familiar with Alice in Wonderland
will recall that when Alice was invited by the little Wonderland
animals to their tea party, she struggled without assistance
to open the door then she had to contend with small chairs and
tea cups that had been designed for the small animals and never
adjusted to accommodate her size. I believe the experiences of
black and women advocates and other legal professionals as they
try to conform to some of the rules is comparable to that of
Alice in Wonderland,� she said.
The Public Protector gave an example of a historically
disadvantaged, young, black, woman lawyer, who has been
accepted for pupilage but is not sure how to go forward
because she cannot comply with the rule prohibiting her
from taking up part-time work or earning an income given
that a pupil is not paid anything during pupilage. She
said the young legal professional would have to give up
an internship post she currently has or keep that job as
a volunteer earning nothing to comply with the bar rule.
The Public Protector went on to say that she believed
the rule in question worked well for white legal professionals
from affluent backgrounds but operated as a huge barrier for
many young black legal professionals who have no family fortunes
to draw on and are saddled with loans and family members they
are expected to support.
"The legal community should consider the purpose and usefulness
of these rules against their unintended consequences, with a
view making it easier for black and women lawyers to participate
optimally instead of being expected to conform or exit,� she said.
Continuing on the role of lawyers in helping the society use the
constitution as a bridge to the constitutionally envisaged inclusive
society, the Public Protector drew parallels between the role of
lawyers and her office. She said, working like the Venda Makhadzi, the
Public Protector helped government treat people properly and to
remedy its actions where improper state action has prejudiced
people or caused them to suffer injustice.
She emphasized, though, that this worked because in the majority
of cases there was partnership for good governance between her
office and organs of state characterised by mutual respect and
leadership in those organs of state accepting her office's constitutional
authority to supervise their conduct and help identify and correct their wrongs.
To illustrate how the partnership for good governance works, the
Public Protector lauded the Nelson Mandela Bay Metro's leadership
for the municipality's response to a provisional finding she sent
to them before finalising a report titled 'Cost of Deviation', which
she had released earlier on Friday.
The report followed an investigation into allegations of irregular
award of a tender and irregularities relating to payments for the
construction RDP houses in Area 9 and 10 Uitenhage in Port Elizabeth
that had been outstanding for five years.
"After studying a meticulous presentation of the evidence and law
uncovered in connections with the matter, the Municipality accepted
the findings and undertook to implement remedial action as soon as
the final report is presented to it," the Public Protector said.
The Municipality's conduct in this regard, she said, was exemplary
given the controversy regarding the powers of her office that, in
the last two years, "has threatened to derail the office's ability
to optimally support and strengthen constitutional democracy.
The Public Protector thanked the Mayor, the Municipal Manager and
the rest of the Metro's leadership for having the courage to change
their minds when confronted convincing evidence of the wrongfulness
of their initial decision.
The Public Protector will be receiving the FW de Klerk Foundation Goodwill Award in Cape Town on Monday night, where she indents to continue her narrative about the constitution as a bridge towards an inclusive, social justice based society. Previous recipients of the accolade include Dr Danny Jordaan and Mr. Patrice Motsepe.
For more information contact:
Oupa Segalwe
Senior Manager: Communications
Public Protector South Africa
012 366 7035
072 264 3273
[email protected]
www.publicprotector.org
@PublicProtector
Public Protector South Africa
|
