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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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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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