South Africa: litigation, and beyond

‘”Litigation is warfare. And there is this thing called the “fog of war”.’ – David Mossop QC, Community Legal Assistance Society (Vancouver)

Litigation is often threadbare with risk and uncertainty. And the longer one marches forward along its path, the more certainly life gets in the way. This is particularly so in the area of public interest and community law, where clients often have multiple crises occurring, and few supports. So much legal work is done in the lead up to, after, or around the heat of the courtroom. Yet it is rarely celebrated, collated, or scrutinised.

The South African lawyers I met with were inspiring not only for their litigation work, but also the thinking they did beyond and outside of the courtroom. Much of this was in the areas of compliance, enforcement, and coordination of misaligned regulatory agents and systems. Below, in this final installment of the travel component of the blog, I set out a few examples of this work. Mapungubwe_hill_limpopo

Monitoring and reporting on institutional arrangements. Since 2010, the Centre for Applied Legal Studies (CALS) has been working with the Save Mapungubwe Coalition on responding to the Coal of Africa (CoAL) (listed on the ASX) mining project on land adjacent to the Mapungubwe Cultural Landscape World Heritage Site (Mapungubwe). I spoke to Louis Snyman, Attorney in the CALS Environment Programme, about his work on this matter. He talked me through CALS’s “experimental, multi-pronged” litigation strategy in this case, which is also set out in its research report titled Changing Corporate Behaviour: the Mapungubwe Case Study (Feb 2014), at p 20-21:

“Although often painted as hardened opponents of all mining, Coalition members tried to adopt a position that was always nuanced. It advocated a considered approach to where and how much mining would be conducted, while being opposed to mining near sites of the highest heritage value and ecological sensitivity. However, since the outcomes of litigation are always uncertain, the Coalition was prepared for the possibility that it would not be able to stop the development. Under this scenario, the Coalition resolved that it would take all necessary steps to ensure that CoAL operated with all the required licenses and that license conditions adequately minimised and addressed environmental impacts, and that CoAL would be held accountable for any non-compliance. Litigation, even if unable to stop the mine, could convince the company to revisit its environmental practices and apply for amendments to licenses that failed sufficiently to protect heritage, biodiversity and water resources.”

And so it did. The Coalition, with the legal assistance of CALS, launched numerous appeals against licenses and approvals granted to CoAL, and made an application for an interdict (an injunction) to prevent environmental harm while these processes were underway. Yet in October 2011, CALS and the Coalition resolved that the “strategic calculus” shifted in favour of negotiations with CoAL, and so commenced these negotiations. Despite stalling in 2012 due to a revelation that CoAL had withheld information from the Coalition, this process resulted in the Coalition being granted a seat on the Environmental Management Committee for the project. Since that time, the Coalition has managed to play a vital role in ensuring CoAL’s compliance to the governance scheme. The Changing Corporate Behaviour report sets out a series of useful lessons learnt along this path.

CALS also found that its extensive work on the Mapungubwe case presented a unique opportunity to scrutinise the efficacy of the state’s regulatory and institutional framework for environmental governance. It therefore compiled a further report titled Structures of Governance: Enhancing or Impeding Environmental Justice? (August 2014) that sets out its findings and recommendations in this area, and which it intends to use as an advocacy tool.

A taxonomy of (non)compliance. Lawyers for Human Rights is “an independent human rights organisation with a 35-year track record of human rights activism and public interest litigation in South Africa“. During my visit there, the Head of its Strategic Litigation Unit, David Cote, helpfully introduced me to the established categories of legal (non)compliance. image

This language provides a useful framework through which to assess the likely impact of available legal strategies. For example, one projected response to a court order may be incompetent noncompliance: where an institution will be practically unable to comply with the order. For example, a municipality may simply lack both the engineering skills, and financial resources, to provide its citizens with safe drinking water. In such cases, consideration may most usefully be directed to what action, and at what intervention point, would most effectively redirect resources in order to effect compliance.

Then there is traditional bad-faith noncompliance, vis-a-vis, for example, malicious compliance. The latter is where an institution complies with the words, but not the spirit, of a court order. Bad-faith noncompliance may require further enforcement litigation; however, a grudging form of compliance may be shifted by a more cooperative approach. Where there is an uncooperative old guard within a department with a new forward-thinking minister, for example, there may be more value in cooperating with the minister and encouraging robust departmental human resources practises, than in further litigation.

Interestingly, on further reading, this legal discussion seems to draw on the human resources literature of change management that deals in rule-related behaviour and responses to organisational reform. For example, one scale maps the movement from apathy and non-compliance, through various shades of compliance, to commitment. Other literature focuses on different forms of resistance to organisational change. This may be relevant to further expanding consideration of legal noncompliance.

For those in South Africa, the Public Interest Law Gathering to be held at Wits University in Johannesburg this 22-24 July 2015 is likely to feature a roundtable exploring these issues.

imageRemaining client-focused. I also met with Tashwill Esterhuizen, Litigation Attorney at the Social and Economic Research Institute (SERI). SERI undertakes legal and research work in order to advance the attainment of socio-economic rights of individuals, communities and social movements in South Africa. Tashwill and I discussed many of the unlawful eviction cases SERI has run, and in particular the Blue Moonlight, Dladla (currently on appeal) and Abahlali cases. SERI prioritises responding to the needs of the community, and so most of its cases come out of established relationships with clients and community groups. Tashwill warned me of the risk of having a case selection criteria without flexibility, which unduly restricts the ability to properly service the legal needs of a target client group. While being merely reactive is not ideal, nor is pursing strategic objectives oblivious to the very people that they intend serve. I, in turn, shared how Consumer Action tries to meet this dilemma. Consumer Action does set annual policy objectives, and these do inform its weekly legal case selection process. However, flexibility is inbuilt by way of an area of policy work called “hot issues“, which is informed by systemic issues emerging out of the legal, and Moneyhelp’s financial counseling, casework.

Playing a coordination role. Probono.Org in Johannesburg operates much like Justice Connect: it is a clearing house for pro bono work undertaken by the private law sector. Its office is also nestled in the Constitution Hill complex, one of my favourite places in the city. Here I met with its Head Staff Attorney, Annelie de Plessis, who told me about Probono.Org’s recently launched “One Child a Year Campaign“. The project calls on lawyers to take up a “watching brief” in child protection matters, providing at least one year’s commitment to monitor and oversee the child protection process.  IMG_0102This is in response to a series of incidents in which, despite court orders, the poor coordination of state agents has resulted in children, at worst, being forgotten in hospitals or abused within the child protection system.

The importance of a healthy workplace. Finally, I met with Patrick Hundermark, Chief Legal Executive of Legal Aid South Africa. Through our discussion, I was particularly struck by the pride with which Patrick discussed Legal Aid SA’s recent certification as a “Top Employer“. I got the impression that this had been achieved on the back of a concerted reform effort targeted at revitalising the organisation’s governance practices and systems, and informed by private sector best practice. In particular, he referred to how the organisation had sought to establish a compelling “employee value proposition” (EVP). This is, to quote Wikipedia, “the balance of the rewards and benefits that are received by employees in return for their performance at the workplace“. While the composition of an EVP is specific to an organisation, and will no doubt differ markedly between private, public, and not-for-profit sectors, it is an important organisational consideration across the board.

We also discussed the operation of Legal Aid SA’s impact litigation arm, which is guided by a publicly available Impact Services Policy (set out in its Legal Aid Guide). Through this mechanism, Legal Aid SA funds internally, externally and collaboratively run impact litigation. One interesting example of this is the current and controversial Marikana appeal to the Supreme Court of Appeal. On August 16 2012, 34 people, mostly employed by Lonmin platinum mines, were killed after police opened fire on striking miners. Many more were injured and arrested following this shooting. This tragedy has been compared to the 1960 Sharpeville massacre, and a Commission of Inquiry was called to investigate the incident. In 2013, Legal Aid was ordered by the High Court to fund the legal representation of the injured and arrested Marikana miners before that Commission. In 2014, Legal Aid sought leave to appeal that order to the Supreme Court of Appeal. Its chief executive, Vidhu Vedalankar, is reported as saying that the High Court had trespassed on the separation of powers, in that it “has not only changed the priorities set by Legal Aid SA but fundamentally interfered with its budget, thereby impacting on its ability to provide representation”’.

What’s next?

I have begun the report-writing, and you can look forward to a few short blog posts over the next few months as this work unfolds. Again, I welcome all feedback, suggestions, or clarifications on any of the points or questions raised in this blog to date.


Images:

[1] Picture of Mapungubwe Hill. Source: http://upload.wikimedia.org/wikipedia/commons/5/53/Mapungubwe_hill_limpopo.jpg

[2] Lawyers for Human Rights entrance.

[3] SERI sign.

[4] Probono.Org doorway.

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#Collaboration (and what was said at the IRSPM Conference 2015)

“Real collaboration…requires really going for it.” This post questions what it means to research collaboration, and to collaborate.

The Power To Persuade

Defining collaborative working and partnerships is a challenge, and was a central topic for discussion at the recent International PaulaResearch Society for Public Management (IRSPM)Conference held in Birmingham on 30 March 2014. In this post, Paula Karlsson from  Glasgow Caledonian University shares her reflections on understanding collaboration and what it means in practice. While it is a challenge, it is one that many across sectors are grappling with. 

Paula Karlsson a Finnish PhD student, living and studying in Scotland. She has a BA (Hons) degree and a MSc degree in Risk Management. Paula is currently doing her PhD at Glasgow Caledonian University titled: Co-governance of risk in new partnership models for public service provision: Comparative study between Scotland, Finland and Sweden.


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Campaigning and framing

There is an array of problem-solving approaches, frameworks and campaigning tools that may be useful in the community law space. While in London (and yes, this post is a short return to the UK) I had the pleasure of being introduced to many of these by the very knowledgeable Dan Vockins, Lead Organiser at the New Economics Foundation (NEF). Dan works primarily on the New Economic Organisers Network (NEON), which is “a network of individuals across grassroots groups, trade unions, faith groups, NGOs, politics and the media working to replace neoliberalism with an ecimageonomics of the common good. By connecting individuals and building their economics knowledge and organising capacity, NEON catalyses joined-up campaigns that tackle the economic root causes of social and environmental problems.” You can apply to become a member of NEON here.

Dan referred me to three pieces of work that will be of interest to many social change organisations:

  • Looking to reframe an issue but not sure where to start? The NEF guide “Framing the economy: the austerity story” is a wonderfully succinct reading of how the economy is framed in the UK, what alternatives there may be to that narrative, and suggestions on how to deploy these.
  • Want to build networks and promote creative problem solving on an issue? Consider using an action learning methodology. Action learning aims to promote open consideration of complex problems within a group through a process of curious questioning and reflection. It is intended to facilitate participants’ understanding of both their areas of knowledge and ignorance. Action learning often involves a structured group discussion among peers, in which the group works through a problem of one participant at a time. For guides on the practice of action learning, see here and here.
  • Why is it that a legal strategy is effective to address one particular issue, but not another? One approach may be to step back and map the system you are working within, including the relevant  players, power structures, and their interests and values in relation to a particular issue. From there, it may be easier to consider at what intervention point, or leverage point, a strategy operates. It may be that your strategy is directed at an issue but does not effectively respond to particular public values that validate an unjust policy, for example. Relevant tools in relation to this are the Common Cause discussion on values, and Donella Meadows’s work on systems analysis and leverage points.

Dan also offered the following useful words of advice:

  • Relationships precede action. Consider forming relationships to enable you to respond more effectively in coalition when crises arise.
  • Consider values. Consider whether the way you campaign, and tell stories through advocacy work, is exercising the values that ultimately reinforce your centre’s overall objective and vision of justice.

Values are like muscles. The more society exercises a particular value, the stronger it is.”

  • Be clear about your target audience. If possible, continually test your messaging on focus groups.
  • Don’t try and do too much at once. Consider the Manifesto for Agile Software Development. This Manifesto provides, in short, that you create the minimum structure for a program (or campaign), test it, and, only once it has been shown to be useful and operational, build upon it in collaboration with users. This ensures that the program is most tailored for, and responsive to, users’ needs.
  • Don’t be afraid to iterate. Build time in for evaluation, and through that, for fine-tuning a campaign.

I had two further thought-provoking encounters, a little outside of the legal space, while in London. Firstly, I met with Susie Steed, who is currently completing her PhD on performance measurement in the not-for-profit sector (and who previously worked as an economist for the NEF). I asked Susie about her views on the use of Social Return on Investment (SROI) evaluation for community lawyering, and left with the impression that SROI may be more resource-intensive and bureacratic than useful in this context. Rather, she drew my attention to other evaluation possibilities. Our conversation touched on John Seddon‘s systems thinking, a method by which service delivery is analysed, and evaluated, as a “flow” system rather than in terms of measurable outcomes. We also discussed Daniel Kaheman‘s holistic idea of wellbeing, through which he argues that wellbeing cannot be understood by way of a single measurement.

I also very briefly met Luke Bacon, who works with the Open Australia Foundation, a civic-tech organisation that tracks and makes accessible the parliamentary voting patterns of members of Parliament. Luke is also co-founder of Detention Logs, which publishes data, documents and investigations about Australia’s immigration detention network. Civic-tech is a space that may have great potential for better connecting the community law sector with its target client groups.

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Community health workers on trial

It was 6am on a Sunday morning, and I was in a car with three Section27 workers, rapidly awakening as we hurtled down the highway away from Johannesburg, and toward Bloemfontein in the Free State province. Section27 is a legal advocacy organisation that aims to use the law to advance the achievement of the rights to healthcare, food, water and social security enshrined in section 27 of the South African Constitution. It had IMG_6136kindly invited me to observe the trial of approximately 120 of its (black) community health worker clients at the Bloemfontein Magistrates’ Court the next day, Monday 30 March 2015. The workers had initially been charged with “prohibited gathering”, and associated charges, under the Regulation of Gatherings Act 1993. I was told these charges related to a peaceful vigil the workers had held at the Free State Department of Health on 10 July 2014, after they had been laid off with no reasons given. I was also told that the only evidence the prosecution had against the clients was six affidavits of police who had attended the scene, all of which confirmed that the gathering had been peaceful.

This case was devastating for many reasons. There was the workers’ ignominious dismissal, for one thing, and how it demonstrated a dismal lack of labour rights protections. That the workers had been charged under an apartheid-era law was another, and how this sat uncomfortably with the Constitutional right to peaceful protest. Many of the dismissed workers were older women who had been in their roles for many years, and so through their dismissal the health sector had not only lost a wealth of experience; it had also caused many workers to lose what may have been their last opportunity at gainful employment. And, perhaps most importantly, the health sector was down 120 health workers to assist South African HIV and/or tuberculosis sufferers. Something I had not previously known about South Africa was the extent of its HIV epidemic. It is said to have the largest HIV positive population in the world: 6.1 million people in 2012, of a population of about 53 million, with only a small amount of those people receiving access to antiretroviral medication.IMG_6132

As we drove along, I was told about how this case was part of a broader campaign to improve the South African health system and support community health workers, in which Section27 collaborated closely with the Treatment Action Campaign (TAC), a 17-year old campaigning organisation that worked to assist those providing access to AIDS treatment. After four hours we arrived at our destination, and the others went to attend to a TAC National Conference, while I awaited that evening’s night vigil. Many health workers had traveled to attend the hearing from all around the country, and they were going to stay together in a church hall on the outskirts of town. To prepare for the trial, they would hold a vigil there that would last much of that night.

We arrived at the night vigil at about 6.00pm to a circle of hundreds of dancing, singing bodies in a garishly lit hall full of plastic chairs and an immensity of spirit. Many of those dancing proudly wore HIV Positive t-shirts, or LGBTQIA Rights are Human Rights t-shirts. We expecting matters to be delayed, so I went outside to help cut carrots in the dark, part of a meal that would later feed the approximately 500 people in attendance. At image8.30pm, the singing mounted, and we all stood from our chairs. The songs that were being sung, Violet of Section27 told me, were the “songs of the struggle“.”Amandla“, the crowd roared. “It means power“, Violet told me. And “awethu” meant “to the people“.

As time passed, I wondered whether the core business would begin shortly. And then, when it didn’t, I sat quietly, humbly, alongside that somewhat pleasant growing pain of stretching patience. Close to 9.00pm, Mark Heywood, Executive Director of Section27, rose to address the crowd on what to expect of the trial tomorrow, and to arrange to confirm instructions with the clients on how to proceed. The logistical complications of seeking instructions from such a large group were evident as the clients huddled together in a caucus. It was eventually decided that, if possible, the clients would seek to proceed to trial tomorrow. The chants and singing then began again. “Amandla“. “Awethu“. “Viva for community workers“. Jobs“. Strength“. “Justice“. We left close to 1.00am, after Violet had addressed the crowd on the national campaign of health workers she was coordinating. While many conversations looked like they would continue into the night, as we walked out many were starting to wrap themselves in blankets, or fall asleep on the floor.


We awoke at 6.30am to meet the group at 7.00am outside the Pelonomi Private Hospital, and march to the Magistrates’ Court. We walked slowly, escorted by police, dancing and singing: community health workers, their supporters, TAC, Section27, all marching together. Of the four white people present, all but one was aIMG_6195 foreigner. We arrived at the Magistrates’ Court at about 9.00am, to an update from Mark of Section27 that the prosecutor had not arrived as he had double-booked himself, and that the Magistrate had said that the matter was listed for an appearance, not trial, despite court papers to the contrary. It all seemed Kafkesque, surreal. There was nothing to do then but wait. We were a group of a few hundred strong standing in the sun outside a courthouse, singing in small groups, with a little more trepidation now. Then, a few hours later, another update – the prosecutor was ready to proceed. But now the Magistrate had other matters to attend to, and this would take last priority.

Time passed, and I chatted with whomever would have me about the campaign and the state of the health system in South Africa. I was told many stories about a health system in crisis. HIV positive patients who were turned away from health services; a public hospital that had no operations for a week, because the roof had collapsed on an elevator going to Intensive Care Unit on the fourth floor; rats scampering through the hallways of some hospitals, disastrous surgery stuff ups in others. When asked about where the opportunities lay for advocacy work in this area, one campaigner answered with another question: “but…where do you start biting an elephant?” Would he enter politics?, I asked. It makes people too corrupt, he responded.

At about 1.30pm, we were told the trial would commence at 2.00pm. And so a little before 2.00pm, 118 community health workers (two, it later emerged, were absent), their counsel and lawyers, a journalist, and me, crammed into a room perhaps 10 by 5 meters. There was no room for spectators. There was no room to breath. IMG_4059Eventually the prosecutor and Magistrate arrived and we were ready to begin. Shortly afterwards one of the accused fainted from the heat, and had to be taken outside. Upon recommencement, counsel for the accused made an application to have the charges quashed on a technical basis: that the charge sheet had been amended twice, but, despite numerous requests from the accused’s representatives for particulars, continued to lack sufficient specificity to satisfy the requirements of the Criminal Procedure Act. He also argued that the Act itself was inconsistent with article 17 of the Constitution.

The Magistrate did not seem to accept either submission, more concerned with the absurdity of trying 120 accused simultaneously in a room equipped for a maximum of four. Eventually, Her Honour ordered that the matter be set down for a five-day trial commencing 6 July 2015, and stated on the record (although curiously did not make any case management orders, given the prosecutor’s contumacious history) that the prosecutor was not to double book himself, and was to consider how the matter was to proceed given the impracticality of the status quo. The court did not seem to regard itself as having a role to play in making these arrangements, although I imagined it knew best the capacity of its own facilities.

The crowd emerged from the courtroom a little after 3.00pm to a final debrief by Mark on what would happen next. There was more singing before we disbanded, but it had been a long day, and people were starting to look tired. I got the sense that to return here again for a five-day trial would be burdensome for many, particularly mothers, the elderly, and those who were unemployed and/or lived in remote areas. Having IMG_4062worked in the Supreme Court in Victoria many years ago, I now saw its case management processes (including the use of directions hearings, and procedural orders), its technological facilities (including video conferencing), and its competent Registry in an entirely new light. The experience affirmed the importance of both good court administration and prosecutorial conduct, not just for its own sake, but also for the sense of justice being done.

And as the sun started to set on the day, we prepared for the long drive back to Johannesburg.

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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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On meaningful community engagement

Perhaps unfairly, the language of “community engagement” evokes within me a wary scepticism. Will it be empty tokenism? Meaningless jargon? Mere platitudes? Yet the Centre for Applied Legal Studies (CALS), in Johannesburg, has recently published a Community Engagement Policy (2014) that preempts and placates these concerns. It is a practical and insightful document that works to broaden “the traditional matrix of legal ethics of lawyer, client, and legal CALS CEPactivity… [to] include indigence, power differentials between client and lawyers, collective rather than individual clients, and non-traditional lawyering tactics” (p 11). It seeks to set some ground rules for respectful, ethical and effective communication between the lawyer and client in a non-private-sector context, in other words. In the Victorian (Australian) context, it harks back to a recurring discussion among community lawyers about the inadequacy of the mainstream legal ethics framework for community law work.

The principles of the policy (and some overlap) are as follows:

1. Mutual Respect and Co-operation

2. Overlapping Consensus of Justice

3. Non-Discrimination and the Pursuit of Equality

4. Security and Dignity of Clients

5. Clarity regarding roles, responsibilities and mandate

6. Clarity regarding intended outcomes and managing expectations

7. Representative, Participatory, and Responsive Leadership Structures, and Individual Agency, within Communities

8. Clear Instructions based on informed decision-making

9. Professionalism

10. Honesty and Integrity

11. Regular and Accessible Communication

12. Confidentiality and Anonymity

13. Transparency and Sharing of Information

14. Enhancing Legal and Specialised Knowledge of our Clients and Partners

15. Inter-Disciplinary Enriched Problem Solving Collaboration

16. Pursuit of Cross-Cultural Competency

17. Avoiding Conflicts of Interest

18. Continuity and Longevity

19. Maintain Objectivity and Independence

20. Self-Reflection

21. Accountability

22. Compliance with Rules of the Profession

There are three further parts of the policy I found particularly interesting:

  • an initial and explicit reference to reflection as a critical aspect of CALS’s work;
  • the statement of benefits for lawyers of effective community engagement; and
  • the discussion of the international and domestic law foundations of the “right to participate”.

Firstly, CALS explicitly incorporates critical reflection as an integral component of its work. See, in the introduction to the policy at page 9:

“CALS approaches its work through rigorous research, client engagement, advocacy, and creative lawyering. Increasingly, CALS has identified a fourth component of our work, namely, critical self-reflection to ensure that we are doing the ‘right work’ and that we are doing the ‘work right’.”

The implication is that this policy has emerged out of this reflective approach to legal practice. The policy goes on to state that while many of its principles are intuited and practised by lawyers, there have been few attempts to articulate them as a whole.

Secondly, the benefits of effective engagement are listed as (pp 12-13):

  • responsiveness: if you engage effectively with your client(s), you are more likely to be responding to their actual needs;
  • legitimacy: similarly, your strategy will likely have greater legitimacy with the clients that you work with, as well as among the public at large;
  • leadership (capacity building): by effective engagement with your clients, there is the possibility of building leadership capacity within the community to drive further social change.

Thirdly, CALS steps through the international and domestic legal foundations for why effective engagement and participation of clients in the legal process is important to human rights legal practice. The discussion of the South African Supreme Court’s comments in the Doctors for Life International v Speaker of the National Assembly et al. (2006) case captures this well in the South African context:

‘Ngcobo J. underscored the historical origins of ‘people’s power’ as an alternative to the undemocratic system of apartheid, and that those processes became the foundation for a constitutional obligation of participatory democracy – not just ‘legislative etiquette or good governmental manners.’16 The Court suggested multiple ways through which to meet this obligation: through: public education that builds capacity for people’s participation; access to information; access to law-making structures and processes; and the facilitation of learning and understanding in order to achieve meaningful involvement. Sachs J. identified the importance of public participation for people who had been the victims of processes of ‘historical silencing,’ noting the importance of their voices being heard, and for those who lack higher education, access to resources and strong political connections.17’

An interesting document, well worth a look.

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The London legal discussions (London, part 2)

My conversations in London started with the wonderful Julie Bishop of the Law Centres Network, who briefed me on the devastating effects of the legal aid cuts, the state of the sector, and linked me with key organisations. I then met with Professor Roger Smith, a freelance writer and expert on legal aid and access to justice issues within the UK but also internationally. Together we attended an All Party Parliamentary Group (APPG) meeting of the House of Commons, where community and law organisation representatives spoke to what I assume was meant to be a room full of parliamentarians (but may have been mostly interested parties) about the effects of the legal aid cuts. This was followed by a launch of the Legal Aid Practitioners Group (LAPG) Legal Aid Manifesto, a detailed text setting out the legal aid reforms proposed by the LAPG.IMG_0055

That evening caused me to again reflect on how community (and here legal aid) lawyers frame the narrative of why their work is important, and of how we can best work to foster conversations with government that allow for what Fran Peavey calls ‘movement’. These are discussions that avoid predictable patterns, and generate new ideas and possibilities. Fran, for example, writes about how strategic questioning is one tool with which such movement can be encouraged. There are of course many others in the toolbox.

Later in the week I met with, among others, representatives of the Hackney Community Law Centre, and Islignton Law Centre. My impression was that while continuing to provide a good service to those in need, both generalist centres were feeling the constricting effects of the legal aid cuts. At Islington, I was also lucky to meet with Baljeet Sandhu, who coordinates its specialist Migrant & Refugee Children’s Legal Unit (MCLU). She spoke passionately, and hopefully, of her work bringing children’s rights language into the practice of immigration law with respect to children in the UK.

IMG_3982In particular, she referred me to a landmark case brought by the MCLU’s predecessor project, ZH (Tanzania) v Secretary State of the Home Department (2011), in which the Court relied on children’s rights principles in allowing a mother of two British citizen children, aged 9 and 12, to remain in the country despite her “appalling immigration history”. The case set a valuable precedent in which two young children were not effectively punished, through the immigration system, for their mother’s acts. Baljeet spoke also of her efforts to unite lawyers working on these issues by establishing a Children’s Rights Network, and of working with funders to fund not only casework, but also the time required for reflection and planning of effective strategic litigation.

Finally, I also spoke to representatives from a series of varied public interest law organisations – the Public Law Project, Liberty, and Just for Kids Law – as well as with Damon Gibbons of the Centre for Responsible Credit, a policy research organisation. For reasons of brevity, a snapshot of the matters we discussed is as follows:

  • One current campaign focus for Liberty (UK) is human rights, and the retention of the Human Rights Act in particular, which provides many key civil rights protections. Liberty’s Legal Director, James Welch, talked me through the 2013 case of Verna Bryant, in which the right to life enshrined in article 2 of the Human Rights Act was relied upon successfully by Liberty to secure a proper inquest in relation to Verna’s daughter’s death. Through the inquest process, a series of institutional failings were found to have contributed to the murder. This at the same time worked to dispel the misconception that the Act had led to the undue release of her daughter’s murderer. The case is a powerful example of how litigation can be effective in reframing a political issue of contention.
  • Public Law Project strategically focuses on promoting access to public law remedies, such as judicial review, for disadvantaged communities. In March 2015, it successfully challenged new regulations limiting the provision of legal aid in judicial review cases. It is also currently running a project to monitor the operation of “exceptional funding” legal aid provisions that provide for applications for legal aid in areas not normally covered in defined categories of “exceptional” cases. See here for more details.
  • Out of Just for Kids Law, a children’s advocacy and rights organisation, has emerged a quite interesting youth-led campaign called Let us Learn, which aims to help young people from migrant backgrounds in the UK access university educations on equal funding conditions.
  • With Damon Gibbons of the Centre for Responsible Credit, I discussed the UK campaign for an interest rate cap, and tales of innovative consumer credit action in other places. In Germany, for example, he told me of how Udo Reifner, Professor at Hamburg University organised for consumer agencies to submit court complaints on the same day regarding an excessive interest rate charge. Through this coordinated approach, they were successful in compelling the court to rule that no lender should be permitted to charge more than twice the market average.  In the 1990s in Japan, there was a huge expansion of high cost lending – with loans available from automated booths in the major cities.  The expansion stemmed from a confusion concerning the interest rate legislation, which was only clarified after a lengthy campaign led by lawyers in the Japanese Federation of Bar Associations and with the support of the Japanese labour movement.  In 2006, the Supreme Court ruled that lenders were retrospectively liable for excessive interest charges and many were subsequently bankrupted by legal claims against them.  For further details of the Japanese experience see the CfRC report ‘Taking on the moneylenders: lessons from Japan’.  For an analysis of personal debt in the UK, see Damon’s book, “Solving Britain’s Personal Debt Crisis”.
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