Category Archives: history of south africa

On embracing failure: the paradox of public interest lawyering

(This is an amended version of a brief presentation given at Progress 2015 Legal Drinks).

You have likely spent today talking about progress, campaigning, and changing the world.  So  what then, in your view, is the first step to making a more meaningful impact with your work? What is your first step to changing the world? A common response to this question is that in order to change the world, you first need to change yourself. I agree with this, wholeheartedly. And yet, what does it actually mean? It could  mean anything, and so risks meaning nothing. This leaves us with the same question: as a public interest lawyer, where do you start?

I am going to suggest a first step that may be, for some, controversial. I am going to suggest that the first step to being a more impactful public interest lawyer is to embrace risk, failure, and uncertainty. I want to talk about mistakes.

I don’t say this out of the blue, but on the basis of some research I have been working on for the last four months. My research focus is on best practice strategic lawyering: how are public interest lawyers doing their work, what works (and what doesn’t), and how can we do our work better, particularly around holding institutions to account? This  has meant that I have spent the last four months speaking to close to 100 lawyers, academics, and thinkers across Victoria, in Sydney, and Darwin, and in seven international locations, about these very questions.

One surprisingly bright thread that emerged from these discussions was that the lawyers who I perceived to be doing the most impactful work were also those that were most comfortable with talking about their mistakes. They were the lawyers who were most willing to run the cases that were not clear-cut, in which there was a real risk of not pleasing everyone, of having to make difficult decisions, and so, ultimately, of failing at any number of precarious junctures along a litigation path. When (what could be described by some as) mistakes were made, these lawyers chose to reflect on this meaningfully, humbly, and learn from it. They did not obfuscate, self-aggrandise, or deflect.

One example of this is the work of the Centre for Applied Legal Studies (CALS), in Johannesburg, in responding to the Mapungubwe mining project over the last five years. Mapunguwe is a listed World Heritage Site and national park in the very north of South Africa, just near Botswana and Zimbabwe. It is a broad, sweeping savannah, which once lay at the centre of the Mapungubwe kingdom between approximately 900 and 1300 AD. This was the first established modern African empire, labelled by archaeologists as one of the most complex societies in southern Africa at the time. The site contains numerous ruins from this era, as well as diverse fauna and flora. It is supported by a buffer zone.

In 2008, an Australian-based company called the Coal of Africa (CoA) applied to mine for coal steam less than 7km north east of the Mapungubwe boundary. This was predicted to have severe implications for the cultural and environmental value of the site. CALS, together with the community campaigning group Save Mapungubwe Coalition, has over the last five years worked to at first oppose, and then mitigate, the effects of the mine on the area. They have succeeded in stalling mining operations, decreasing CoA’s share price, ensuring that CoA bear a cost for non-compliance, brought CoA under a greater regulatory regime, shifted mining operations further away from the Mapungubwe boundary, and, eventually, played an ongoing and meaningful role in the mine’s governance and oversight through their seat on the Environment Committee.

But not everything has worked. Most evidently CALS didn’t, through its initial litigation strategy, stop the mining. CALS and the Coalition commenced negotiations with CoA in 2012, but this stalled shortly thereafter due to a revelation that the company had withheld critical information. CALS’s resources were massively drained by the up-front litigation effort. There were miscommunications not only between the Coalition and CALS and their opponents, but also between CALS and the Coalition. Yet, despite all of this, there is no doubt that the two organisations have played an integral role in ensuring corporate accountability in this case. Interestingly, CALS has chosen not hide its reflections on the Mapungubwe story, but to write about them instead, in a series of publications.

One of my favourite examples of this is its Community Engagement Policy, which sets out some CALS reflections on how to work with community groups, in light of its Mapungubwe experience. CALS has also extracted out of this experience the inadequacies of the environmental regulatory regime, and made recommendations for how the environmental governance system should be amended to make it simpler and easier to navigate for civil society. CALS’s explicitly reflective approach to its work is one factor that makes it good at what it does. Its willingness to talk about what could be characterised as mistakes means that we can all learn from them, of course.

But there is something more to mistakes than the way we relate them back to success. One wonderful and talented writer that I met on my travels, Eve Fairbanks, writes this:

 “I think failure has a special beauty to it. Like a piece of furniture that falls apart, a mistake reveals more of its construction – of the efforts and motivations of the mistake-maker – than a success does”.

I love this. Like patches on an overcoat, failure has its own unique qualities. And, as Kathryn Schulz suggests in her book Being Wrong: Adventures in the Margin of Error, by simply acknowledging failure’s distinct (and inevitable) essence we may actually open ourselves to a wider breadth of experience and emotions. Embracing failure can feed our imagination, give us cause to laugh, and ultimately make us less arrogant, more empathetic, says Fairbanks. Which, in the legal world, is always a valuable thing. And so, one step toward being a more impactful public interest lawyer, or social change campaigner, may well be to get comfortable with failure.

It is a wonderful paradox, that in the perfectionistic legal profession, we might actually be better at our work if we can only hold risk in our hands. And skate so close to failure that sometimes, inevitably, we tumble into icy waters. American entrepreneur and venture capitalist Auren Hoffman says that in order to grow, you should aim to fail 20% of the time. Less than this and you’re not growing, but more than this and you may get disheartened. In law, and particularly in litigation, you may not choose to give yourself that leeway. However, there is always room to move. I would suggest creating a space in which you can experiment in failure, and see where it takes you.

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South Africa: redefining, reimagining

Not only is another world possible, she is on her way. On a quiet day, I can hear her breathing.” – Arundhati Roy, quoted on the Black Sash website

The life of Jo’burg

IMG_4034Johannesburg, in South Africa, is an immense, contradictory city with a living history, much of it entangled with the law. Situated in the wealthy province of Gauteng (literally “place of gold”), named after its gold mines), it is the nation’s finance centre and one of the richest cities in Africa. It is also where Nelson (Madiba) Mandela studied at the University of the Witwatersrand, where he lived through much of the 1950s, and where he co-founded the first all-black law firm, Mandela and Tambo. He had briefly been imprisoned here at Johannesburg’s Fort Prison (where Ghandi had also been imprisoned in 1906), on what is now Constitution Hill, while awaiting the Rivonia Trial in 1962. Constitution Hill has since been reconstituted as a museum precinct and is also home to the IMG_0304Constitutional Court of South Africa, the nation’s highest appeal court. It is here that legal decisions which ended the death penalty in South Africa, and paved the way for gay marriage, were made. The South African Constitution (1996), negotiated over two long years, is heralded as one of the most progressive in the world.

Yet, from my outsider’s perspective, Johannesburg is still very much segmented by the legacy of apartheid. Downtown you can walk just two blocks and move from designer industrial redevelopment to a pot-holed street lined with half-closed liquor shops, pawn shops, and metal grate frontages. Along these streets diesel-exhaust buses careen around worn out men with street-darkened skin who move slowly under the weight of  enormous sacks of scrap. As I ride my bicycle along one of these streets to my first fellowship meeting, there is not another white person in sight. Change happens slowly, of course. But knowing this in the abstract is different to being in the thick of it. Perhaps Bryan Stevenson would call this proximity.

The Legal Resources Centre

My first interview in Johannesburg was with the quite remarkable Regional Director of the remarkable Legal Resources Centre (LRC): Naseema Fakir. Co-founded in 1979 by Arthur Chaskalson, one of the defence counsel in the Rivonia Trial, the LRC is one of South Africa’s oldest public interest law organisations. For varied oral histories of the LRC, see here. It is largely privately funded, and has a diverse mandate that has evolved with funding priorities and legal need. This includes environment law, housing rights (including illegal evictions and repossessions pursuant to mortgages), refugee law and legal assistance to not-for-profits. It runs a walk-in clinic, and also receives referrals from various organisations, including courts.

As Naseema tells me of the many interesting LRC cases, two challenges stand out: firstly, that of negotiating satisfactory early resolution of disputes with the state (particularly in meritorious cases), and secondly, that of effective enforcement of successful outcomes, again often against the state. For example, the LRC had, over many years, instigated urgent applications to release immigrants held in detention for over 120 days, which is prohibited under section 34 of the Immigration Act (2002). This work culminated in August of 2014, when the Centre successfully obtained a finding by the South Gauteng High Court that such conduct by the IMG_0305Minister of Home Affairs and others, ongoing since 2000, is unconstitutional (decision here). In this matter the LRC acted on behalf of the South African Human Rights Commission (SAHRC, a public oversight authority), two other institutional clients and 19 individuals. It is interesting to see how even with such clear technical breaches of law, state compliance cannot be assured, and to consider how legal organisations can best encourage good faith regulatory compliance and implementation. In that case, one of the orders that was sought and granted required two respondents to report to the SAHRC on compliance with the court order.  My impression was that even despite this clear outcome, enforcement would prove a challenge. This was confirmed by a further court order against the Minister for Home Affairs and others in relation to another unlawful detention matter on 1 April 2015.

We also discussed unintended consequences, particularly in the context of environmental law proceedings, which often hold in balance disparate competing interests. This is one challenge inherent in “litigating in complex factual circumstances where the terrain is constantly shifting underfoot“.[1] A case in point is Tudor Shaft. In 2012, a private entity endorsed by government departments sought to remove a toxic mine dump from near the informal Tudor Shaft settlement in the West Rand area. The LRC represented the Federation of Sustainable Environment (FSE) in opposing the process of the removal, as there had been no risk assessment or consultation in relation to the move. There was concern that the removal would liberate toxic dust that the community living nearby would inhale. Three years later, the matter is still ongoing, and has devolved into a multi-pronged legal battle involving numerous parties and a myriad of experts, who are necessary but also add further cost, delay and layers of complexity. While this goes on, the toxic mine dump continues to sit near Tudor Shaft, and a collaborative solution seems further and further off.

It is useful to contrast this with the work of the LRC in the area of responsible lending, where it opposes private entities. Carien van der Linde, Attorney at LRC, explained to me how she (together with only one administrative assistant and one articled clerk equivalent) is running about 60 files in relation to a fraudulent loan scheme administered by the now-liquidated Brusson Finance (Pty) Ltd.[2] The LRC successfully opposed foreclosure in many of these cases, and court orders have been successfully enforced (one example is here). These cases reminded me of the work of Consumer Action in relation to payday lending and responsible lending. It is interesting to consider how the sensitivity to costs and reputation risk exhibited by the pragmatic private sector may be encouraged in the case of the state.

Postscript: an arts conversationIMG_0326

On one of my first days in Jozi, I attended an art exhibition opening at the former Women’s Goal (now museum) at Constitution Hill titled “The New Now: Afrika Reimagined“. The proceedings started late, and wine bottles were left corked on the tables in the absence of bottle openers, and yet, the night entranced its audience. The conversation was between black artists and a largely black audience around “reimagining the past in order to move forward“. Poet Lefifi Tladi discussed the importance of language for freedom – how “one part of freedom is the ability to share ideas” – and yet, how few dictionaries there were between most of the 11 official South African languages, although they had all been translated into English. Artist Samson Mnis discussed religion and industry – creating, making, and buying, African. It was all said in a space itself lifted out of its history of violence, colonialism, and hatred. I wondered how this conversation could connect with that of the lawyers I would speak to.


Footnotes:

[1]Legal Resources Centre Annual Report 2012-13, p 24 , available online here.

[2] For those interested, in short, Brusson would offer credit to property-owning individuals with poor credit histories and unbeknownst to them transfer the property interest to a third-party investor, who would then obtain a bank loan using the prop­erty as surety, and provide the loan proceeds to the clients, with each company taking a cut. If a default occurred, the bank would fore­close on the prop­erty, result­ing in the orig­i­nal own­er los­ing their home, with little recourse to resist this.

Images:

[1] Johannesburg from up high. On one of the buildings hangs a banner that says: “Jozi, you’ve come a long way now let’s go even further.”

[2] Inside the Constitutional Court.

[3] A placard outside the Constitutional Court.

[4] A painting by Samson Mnsi.

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