The official opening launch of the Isivivana Centre in Khayelitsha

The official opening launch of the Isivivana Centre in Khayelitsha

On Thursday, 13 October 2016, ProBono.Org Cape Town attended the official opening launch of the Isivivana Centre in Khayelitsha.
The centre is like none before, and aims to make access to social justice realisable and accessable to marginalised communities.

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It will house a total of 9 NGO’s, such as the new ProBono.Org Cape Town office opening late October 2016, Social Justice Coalition, Treatment Action Campaign, and Equal Education Law Centre, but to name a few.
The launch was well attended by relevant stakeholders, donors, media, and the legendary Zakes Mda, major literary award winner.

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Address by Justice Ponnan of the Supreme Court of Appeal∗ at the launch by the Centre for Child Law of the Guidelines for Legal Representation of Children in Civil Matters

When I was informed by the Registrar of my court that I had been invited to speak about my judgment[1] in Centre for Child Law v Hoërskool Fochville & another 2016 (2) SA 121; [2015] 4 All SA 571 (SCA), my response was that Judges are supposed to speak through their judgments.[2] I also reminded him that Lord Denning is reported to have once famously said – I have been concurred in and dissented from but I have never suffered the indignity of having one of my judgments explained. I have since been re-assured that I have been spared the indignity to which Lord Denning referred and that my remit extends beyond having to explain one of my judgments.

Like toilet paper, children do not come with instructions. It is quite fallacious though to assume that getting a handle on the former naturally qualifies you to manage the latter, because children are far more complex than a series of perforated paper squares. Most adults believe that they know everything – children are nature’s way of reminding them that that is not so. As a parent, I sometimes wish that children did come with instructions. More importantly, if they did come with instructions I wonder what those would be. Aside from the usual such as ‘fragile – handle with care’ or ‘this side up’, I imagine they would be, as our Constitution dictates, that in all matters concerning this child, its best interests shall be paramount. As Professor Julia Sloth-Nielsen pointed out with prophetic foresight, [zRPz]the inclusion of a general standard such as that for the protection of children’s rights in the Constitution can become a benchmark for the review of all proceedings in which decisions are taken regarding children.[3]

I say prophetic because as I shall endeavour to illustrate, first with reference to three other perhaps lesser known judgments of the SCA penned by me, and thereafter Hoërskool Fochville, that that overarching constitutional principle has had – as well it should – a profound effect on the development of our jurisprudence in relation to children.
The first in the trilogy is Brandt v S [2005] 2 All SA 1 (SCA),[4] which concerned the application of the minimum sentence legislation[5] to offenders under 18 – in terms of which a court was obliged to impose a statutorily prescribed minimum sentence (in that case a sentence of life imprisonment) unless substantial and compelling circumstances were found to be present. That enquiry was approached by us on the basis that the minimum sentencing legislation must be read in the light of the values enshrined in the Constitution and that the general principle, namely ‘the best interests of the child’ is the clearest indication that child offenders are deserving of special attention. Historically, so we noted in the judgment, our justice system has never had a separate, self-contained and compartmentalised system for dealing with child offenders. Instead, child offenders have generally been treated as smaller versions of adult offenders. Accordingly, it was necessary for the traditional aims of punishment in respect of child offenders to be reappraised and developed to accord with the spirit and purport of the Constitution. Thus, a child charged with an offence had to be dealt with in a manner which takes into account his/her age, circumstances, maturity as well as intellectual and emotional capacity. After referring to several international instruments, the judgment emphasised that in sentencing a young offender, the sentencing officer must be guided by certain principles: including the principle of proportionality; the best interests of the child; and, the least possible restrictive deprivation of the child’s liberty, which should be a measure of last resort and be restricted to the shortest possible period of time.

The second is Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA). The facts are: the appellant school sued the respondent for payment of outstanding school fees in respect of one of its minor learners. It relied for its cause of action on s 40(1) of the South African Schools Act 84 of 1996, which provides that ‘A parent is liable to pay school fees’. The respondent asserted that whilst he was the biological father of the learner, he was not liable for the payment of the school fees, but that the custodian parent was. Both the Magistrates’ Court and the Cape High Court (on appeal to it) agreed with him. The High Court held that only a custodian parent is a parent as envisaged by the Act. It thus concluded that ‘parent’ in s 40(1) means ‘the [custodian by operation of law] parent or guardian’. We disagreed with the Cape High Court. Our judgment held:

‘An interpretation that burdens both parents with responsibility for school fees is consistent with the injunction in s 28(2) of the Constitution that “a child’s best interests are of paramount importance in every matter concerning the child”’.

The judgment continued that:

‘it unquestionably is in the best interests of a child that a non-custodian parent, who is unwilling, yet has the means, to pay his child’s school fees, should be made to do so, if necessary by the injunction of an order of a competent court. Were that not to be so, the custodian parent would solely be saddled with that responsibility. The sad truth is that many custodian parents are simply unable to pay or have been exempt from paying due to poverty. Were the school not to have the right to recover school fees from the non-custodian parent in those circumstances, it will either have to shoulder that loss or mulct other parents with additional charges. In either event it would be acting to the detriment of other learners’.

The judgment recognised that:

‘Historically, mothers have been the primary care-givers of children in this country.  That continues to be so. It is almost always mothers who become custodial parents and have to care for children on the breakdown of their marriage or other significant relationships. That places an additional financial burden on them and the sad reality is that they then become overburdened in terms of responsibilities and under-resourced in terms of means. Despite our constitutional promise of equality, the division of parenting roles continues to remain largely gender-based. . . . Courts should be acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts often can and does constitute unfair gender discrimination. After all, the achievement of gender equality is a founding value of our Constitution. To interpret the section in such a way as to exclude the non-custodian parent from its operation, as the High Court has done, serves to frustrate the realisation of that goal’.

The third in the trilogy is the fairly recent judgment of Du Toit v Ntshinghila & others [2016] 2 All SA 328 (SCA), which was delivered on 11 March 2016. The home of the appellant had been searched and various items were seized. He was subsequently charged with possession of child pornography. He sought an order from the presiding Magistrate that the prosecution be directed to furnish him with copies of the images said to constitute the offence charged. He contended that he was entitled, without more, to be provided with copies of the images which are alleged to constitute child pornography. The prosecutor, who had objected to reproducing the images and furnishing copies to the defence, offered to put arrangements in place for him, his legal representatives and any expert for the defence to view the images. The Magistrate ruled that the arrangement proposed by the prosecution was adequate and dismissed his application. His appeal succeeded before the high court. The high court took the view that there was no warrant to limit his constitutional rights as an accused person and accordingly ordered the prosecutor to discover the images. The DPP then appealed to the SCA, which succeeded. We emphasised that in a matter such as this adequate weight must be accorded to the best interests of the children. We reasoned:

‘There exists in this case the reasonable privacy interests of the children who are depicted in the images. There is also a significant public interest in ensuring that no duplication or distribution occurs in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what is reasonably necessary to give effect to his constitutional rights’.

And that:

‘A child compromised by a pornographer’s camera has to go through life knowing that the image is probably circulating within the mass distribution network for child pornography.’

Moreover, the distribution of child pornography further abused children by creating a permanent record of the child’s participation. This record, in turn permitted the harm to the child to be exacerbated each time the material was circulated and led to the creation of distribution networks that fostered further exploitation.

Turning then to the Hoërskool Fochville matter: the school, which since its inception had been an Afrikaans-medium school, had gone to the high court to challenge a directive by the Department of Education that it had to admit certain English-speaking learners. The Department launched a counter-application seeking to change the School’s language policy from Afrikaans to dual-medium. Although the parents of the learners in question had been cited as respondents in the main application, the Centre for Child Law (the Centre) applied to intervene in the matter. In support of the intervention application the Centre stated that the children who were enthusiastic about the idea of being given a chance to have their own views and wishes heard by the court, had been divided into groups of approximately six to eight learners. And that each child had been asked to complete a questionnaire without affixing their names thereto. The questionnaire had listed specific questions but the children could also write additional comments. The School gave notice that it was opposing the Centre’s intervention application, but, before filing an answering affidavit, it first served a notice in terms of Uniform Rule 35(12) on the Centre’s attorneys requiring the Centre to produce for inspection, all questionnaires completed by the learners. When the Centre refused, the School applied under rule 30A to court for an order compelling it to do so. In opposing that application the Centre stated:

‘There are 37 children actively involved in the litigation who wanted to express their views and participate in the litigation. This means that there are nuanced and varied views from each of the children. By allowing them to fill-in the questionnaires individually and consulting with them in small groups we could collate the children’s views and experiences in one affidavit. This would allow the court to get a full range of views without having to read through thirty seven affidavits’.

The high court ordered the Centre to deliver up for inspection and copying the original questionnaires and to pay the School’s costs. Unlike the high court, we approached the enquiry on the basis that in striking the appropriate balance in a case of this nature, adequate weight had to be accorded to the interests of the children. In that regard, so we held,

‘a useful starting point is an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. That is a right which is widely recognised in international law and forms part of South African law. . . .

The child’s right to have separate legal representation during legal proceedings in a matter such as this is thus clearly contemplated by those provisions.’[6]

The judgment reasoned:

‘Here the [Centre], in consultation with the children, elected to act in the interests of a group of children (including other similarly situated children) and in the public interest for inter alia the following reasons: The children expressed clear and strong views and opinions in respect of the case — independent of the views and opinions of their parents — and communicated some information that they were reluctant to share with their parents. They requested that their experiences of being at the [school] be placed before the court. Those parents who met with the [Centre] supported the idea of the children being separately represented in the matter. . . . Allowing [the children] to complete the questionnaires individually and consulting with them in small groups ensured that the children’s views and experiences were properly collated and articulated in one affidavit, thus allowing the court to get a full range of views without having to read some 37 affidavits. This approach appears to be more protective of the children. The children described victimisation within the school, especially by other children, and if cited individually and deposing to their own affidavits, they ran the potential risk of being vulnerable to reprisals or further victimisation. The 37 children directly affected expressed concern about siblings and neighbours who may need to attend the School in the future. The interests of children similarly placed as the children currently affected therefore may also require safeguarding. The [Centre’s] approach in this regard is consistent with that advocated by Professor Noel Zaal & Ann Skelton that —

“(i)t is necessary to promote a children’s rights culture in . . . court proceedings, and therefore the representative would ideally wish to be  supporting the wishes and instructions of the child. The child must, if possible, be convinced that the legal representative is his or her very own who will see that his or her views and hopes gain priority at the hearing.”’[7]

 

Accordingly, so continued the judgment,

‘in every weighing of rights and interests and any value judgment relating to whether the questionnaires should be produced, the best interests of the children would have to be the paramount consideration. Thus, even if the questionnaires were not protected by privilege or if the privilege had been waived, it may not have been appropriate for the court a quo to have ordered their disclosure on the basis that it would not have been in the children’s best interests to do so.’[8]

 

The judgment emphasised that the ‘best interests’ principle is but a starting point for any balancing of rights. As the School did not require to know the precise details of each incident in order to respond to the Centre’s application to intervene, there was no justifiable basis for holding that the interests of the School in investigating the identities of the children in order to answer the allegations outweighed the interests of the children in not having their identities disclosed, especially in the light of the fact that the children had disclosed the information (which they otherwise may not have done) on condition of, and in the  expectation of, their identities not being disclosed. The judgment accordingly concluded that the School could oppose the intervention application without the benefit of the questionnaires.

 

What these four cases demonstrate is the normative force of the yardstick – the best interests of children. In Brandt, like Fish Hoek Primary School, the principle was invoked to interpret legislation. Approaching the enquiry on the strength of that principle, Brandt concluded that where an offender was under 18, the sentencing court had an automatic discretion to depart from the prescribed minimum sentence and that such offenders did not have to establish substantial and compelling circumstances. Importantly, Fish Hoek Primary School favoured an interpretation that was not just protective of the interests of children, but also another vulnerable group – mothers. It bears noting that in both Du Toit and Hoërskool Fochville the children were not the primary litigants before the court. In the former, the children were no more than potential witnesses in the contemplated criminal trial. That notwithstanding, we concluded that protecting the interests of the children, would not, without more, result in an unfair trial for the accused. In effect, in undertaking the balancing exercise, the rights of those children were permitted to trump the rights of the accused. Hoërskool Fochville was concerned with an interpretation of the Uniform Rules of the High Court. Much of the credit in this case must go to the Centre, who, to borrow from Star Trek, decided to go where no attorney has gone before. The Centre significantly challenged the traditional way in which evidence is adduced before a court and recognised that implicit in the notion of according adequate weight to the interests of the children, was an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. Informed by that approach we were able to place an interpretation on the relevant rules of court to the effect that the children’s interests in non-production of the questionnaires outweighed the School’s interests in demanding production.

[1] By ‘my judgment’, I really mean, as Corbett CJ referred to a judgment of the SCA (on the conferment of an LLD honoris causa by Rhodes University on 6 April 1990), as one that ‘represents an amalgam of the ideas, ingenuity, legal knowledge and expertise, humanity and wisdom of every member of the panel’. See Ellison Kahn ‘Michael McGregor Corbett – Gamaliel Redux’ in Ellison Kahn (ed) The quest for justice: Essays in honour of Michael McGregor Corbett Chief Justice of the Supreme Court of South Africa (1995) at 39.

[2] See, for instance, Power & others v Canada (Attorney General) [2003] 105 CRR (2d) 277 para 170.

[3] Cited with approval in S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 15. See Julia Sloth-Nielsen ‘The child’s right to social services, the right to social security, and primary prevention of child abuse: Some conclusions in the aftermath of Grootboom’ (2001) 17 SAJHR 210 at 211.

[4] Also reported sub nom S v B 2006 (1) SACR 311 (SCA). For a discussion of the judgment see Professor Julia Sloth-Nielsen: ‘Juvenile sentencing comes of age’ (2005) 16 Stell LR 98.

[5] Criminal Law Amendment Act 105 of 1997 (more commonly referred to as the ‘Minimum Sentence Act’). Following upon this judgment, s 51(3)(b) of the Act was amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The constitutional validity of that amendment was challenged by the Centre in Centre for Child Law v Minister of Justice and Constitutional Development & others (NICRO, as Amicus Curiae) 2009 (2) SACR 477 (CC).

[6] Hoërskool Fochville paras 19 and 20.

[7] Paragraph 25. (Footnotes omitted.)

[8] Paragraph 26.

SAVE THE DATE!!!!!

SAVE THE DATE!!!!!

For the Sixth Annual

Public Interest Law Gathering*

(PILG)

August 29 – 31, 2016

Venue: University of the Witwatersrand, School of Law

More Details to Follow!

 

www.publicinterestlawgathering.com

 

*PILG 2016 is organized by the Centre for Applied Legal Studies (CALS), Lawyers for Human Rights (LHR), the Legal Resources Centre (LRC), ProBono.Org, Section27, the Socio-economic Rights Institute of South Africa (SERI), the Southern Africa Litigation Centre (SALC), Students for Law and Social Justice (SLSJ) and the University of the Witwatersrand, School of Law.

The 2nd Annual Pro Bono Awards Ceremony: Awards Finalists & Winners

The 2nd Annual Pro Bono Awards Ceremony: Awards Finalists & Winners

The award finalists were:

1. Most Impactful case
Norton Rose Fulbright – Transkei land claim case
Cliffe Dekker Hofmeyr Inc. – Access to information – National Key Points
Webber Wentzel – Emolument Attachment Orders case
And the winner was Webber Wentzel

2. Individual Attorney
Egon Oswald – St Albans prison torture case
Sushila Dhever – Fasken Martineau – setting up domestic violence legal clinics in Soweto and Lenasia
Moray Hathorn, Webber Wentzel – 16 years of pro bono work
Congratulations to the winner, Moray Hathorn

3. Children’s Rights Defender
Hogan Lovells – Teddy Bear Clinic project – court preparation training
Webber Wentzel Pro Bono Practice Group – law reform in relation to children with mental illness
Bowman Gilfillan – work with ProBono.Org’s One Child a Year campaign
This was won by Hogan Lovells

4. Student at a university law clinic
Mxolisi Ngubane – Wits University Law Clinic
Kyle Lupke – KZN University Law Clinic
Danelle Prinsloo – Pretoria University Law Clinic
Danelle Prinsloo was the winner

5. Human Rights Champion
Centre for Environmental Rights – Vaal area environmental degradation
Rural Women’s Action Research Programme (RWAR) – opposing the Traditional Courts Bill
Southern Africa Litigation Centre – 4 cases in 2014, including Zimbabwean torture case
Congratulations to the winner, the Southern Africa Litigation Centre

6. Advocate award
This was won by Steven Budlender for his work with Corruption Watch and others

7. National Director’s Special Mentions
Albert Makwela – Community Advice Office work
Norman Moabi – work with Funanani Centre law project
Lesley Maman – work with the ProBono.Org Master’s Office help desks
Peter Jordi – Wits Law Clinic torture cases against the SAPS

Please view Our Finalists Newsletter Below:

Probono-Awards-Finaists-AProbono-Awards-Finaists-BProbono-Awards-Finaists-CProbono-Awards-Finaists-DProbono-Awards-Finaists-E

 

 

The 2nd Annual Pro Bono Awards Ceremony: 17 September2015

The 2nd Annual Pro Bono Awards Ceremony was held at the Constitutional Hill in Johannesburg on 17 September 2015.

 

We were honoured to have the Public Protector, Thuli Madonsela as our Keynote speaker.

Below is her keynote speech:

Programme Director David Lewis

Leadership of ProBono.org

Esteemed guests

Ladies and gentlemen

 

Greetings from the Public Protector South Africa Team!

It is indeed a singular honour and privilege to join this esteemed gathering of our country’s legal minds and to say a few words on the importance of access to justice. I thank ProBono.org for involving me and my office and for bringing us together tonight to pay tribute to the champions of legal empowerment of the poor or disadvantaged persons.

Congratulations to all the winners. As you already know, through lifting others we lift ourselves. Congratulations are also due to all the nominees and others providing legal services to those who cannot afford. Just for doing the work you are doing advancing social justice by lifting others you too are winners. Your work is important.

I believe that to ensure that we have that inclusive, people centred and participatory democracy envisioned in our Constitution, we need to see more like you. We also need to see an improvement in the quality of legal advice dispensed to the poor. I’d also like to invite you to extend the reach of the legal advice and

assistance to the increasing diversity of dispute resolution forums in our landscape, which include my office, the Public Protector.

The timing of today’s celebration of champions of probono legal work as a vehicle for legal empowerment of the disadvantaged among us, neatly coincides with Access to Justice Week. When we initiated access to Justice Week as SAWLA and the Department of Justice in 2007, we did so like you, in recognition of the importance of extending legal services to the disadvantaged as part of broader access to justice.

Your role as providers of free legal advice and representation to those who cannot afford can never be overestimated. Access to justice, incorporating access to legal advice and or representation, is one of the essentials of the rule of law.

The Link Between Access to Justice and Legal Assistance

Our forward thinking Constitution promises everyone “the right to have their dispute resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. (Section 34)

I hope you will agree with me that the essence of access to justice is the opportunity for a victim of injustice or person involved in a dispute to readily access a forum that can listen to his or her grievance and/or resolve their dispute in a fair and expeditious manner that leads to redress where deserved.

I hope you will also agree with me that without a chance to understand or to be understood at whatever forum that deals with your grievance or dispute, there is no access to justice.

That is where probono legal services come in. In an utopically just world, none of us would ever be judged on the basis of laws we’ve never heard of or do not understand and in proceedings we do not understand. But it happens. When I was still working at Wits University, I remember a widow who related her story to us. She outlined how after the death of her customary law husband she was hauled to court in Benoni where she was told her marriage was invalid. She was

told to vacate a home she had shared for nearly two decades and personally renovated. She lost furniture she had paid for and a taxi and other cars she had paid for and had receipts to show. All she knew was the court number where everything happened. She did not know the capacity of the people who had dealt with her. Thanks to our Constitution and the Recognition of Customary Marriages Act, such horror stories are rare today. But are they behind us?

What are the Implications of Lack of Access to Justice for Democracy, Development and the Rule of Law?

Even during the darkest days of apartheid, access to justice opportunities minimised the sting of oppression. It was probono legal activities that helped the oppressed black majority challenge racial discrimination, forced removals and exclusion from democratic processes, among others. Some of the outcomes eased the suffering of the affected majority and pushed back the oppressive claws of apartheid. Examples in this regard include administrative justice, human rights and employment rights. In this regard, we recall the work of institutions such as the Legal Resources Centre, Lawyers for Human Rights and The Transvaal Rural Action Committee (TRAC), among others. We also remember the work of individual lawyers such as Cissie Gool, Braam Fischer, Sydney & Felicia Kentridge, Griffiths & Victoria Mxenge, Ismail Mahomed, George Bozos, Priscilla Jana, John Campbell and the recently departed Justices Pius Langa and Lewis Skweyiya, among many.

Why is it important that all experience access to justice?

The World Justice Forum, which places the rule of law at the centre of societal peace and progress, regards access to justice, incorporating legal empowerment of the poor, as an essential part of the rule of law. Part of it relates to the legitimacy of the state. I prefer to see it as our collective insurance for peace and stability. At the core of it is accountability. You will agree with me that democracy, progress and sustainable peace to be experienced by any society, its citizens should have mechanisms to have their grievances resolved fairly and wrongs redressed.

If people don’t think there are fair outlets for their grievances or disputes, they are likely to take the law into their hands. They may not do it today or tomorrow but they will eventually do it. The requirement of credible justice avenues also applies to people feeling that those who exercise entrusted public power are not treated as individuals or collectives unfairly. Where people believe they’ve been wronged, there must be a readily available independent platform to resolve the grievance or dispute fairly.

It’s not enough that the system is fair it must be manifestly or experienced as fair. This is another entry point for probono legal services. Free legal advice can and has over the years assisted by enhancing the right to understand and to be understood. In this regard ensuring legal empowerment of the poor, transcends legal advice/representation and includes legal education. The area of legal education though is one where we need improvement. Although there have always been services such as Street Law, I believe law students could be mobilised more meaningfully to make laws, particularly new laws, accessible to the public. Legal education also has the added dimension of preventing or reducing infringement.

Knowing the law and related regulatory frameworks empowers all to participate meaningfully in democracy, development and other societal processes. It further fosters respect for the rule of law.

The Public Protector as Part of our Access to Justice Architecture

We all understand that crime hurts and that both victims and accused persons deserve access to justice. Over the years we’ve also come to accept the importance of access to justice in civil matters. Regarding civil matters we’ve also invested a lot of resources in small claims courts to ensure that the average person, whom in my office we refer to as Gogo Dlamini, has a no frills forum to resolve his or her small but to him/her important civil disputes. The budget and number of small claims courts have rightly increased exponentially since the dawn or democracy.

But what about a Gogo Dlamini who is facing the state with its Goliath like bureaucratic power and resources? As you know disputes involving the state are excluded from the remit of the small claims court. In other words a Gogo Dlamini can take her neighbour to a small claims court for a small civil matter (R15 000.00) but if it’s the state she cannot do the same with government.

In my 6 years as Public Protector, I’ve come to realise that we underestimate the harm or injustice caused by maladministration and abuse of power in state affairs.

Fortunately the architects of our democracy knew that the state may harm people whether benevolently or maliciously. It was for this reason that innovative structures such as the Public Protector and other Institutions Supporting Constitutional Democracy, including the South African Human Rights Commission, Commission for Gender Equality, Electoral Commission, Commission on the Protection and Promotion of the Rights of Cultural, Religious and Linguistic Communities and the Auditor General, were given a special place in chapter 9 of our visionary Constitution.

Initially established in 1979 (In terms of the Advocate General Act 118 of 1979) as a graft buster, the office I head has undergone a metamorphosis over the years. A statutory body in the Department of Justice with no executive authority of its own, the Public Protector’s powers then were similar to the Auditor General’s and a commission of inquiry being to investigate, report and advise or recommend to those with power to execute, principally the Executive.

By 1991, the law-makers saw it fit to extend the office’s powers to include Ombudsman related violations such as maladministration, abuse of power, undue delay, etc. When the Interim Constitution was passed in 1993, it changed the name but not the functions of the office and so did the Public Protector Act of 1994.

It is worth noting that when the current Constitution was passed in 1996, the powers of the Public Protector were drastically changed to the following:

(1)The Public Protector has the power, as regulated by legislation-

  • To investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
  • To report on that conduct; and
  • To take appropriate remedial action.

(2) The Public Protector has additional powers and functions prescribed by national legislation.

(3) The Public Protector may not investigate court decisions.

(4) The Public Protector must be accessible to all persons and communities.

(5) Any report of the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that report to be kept confidential”

From an access to justice point of view, my take is that the Constitution gives a Gogo Dlamini who chooses the Public Protector as an avenue to mediate power between her and the mighty bureaucratic state, a similar opportunity to the Gogo Dlamini who approaches to a small claims court to have her grievance or dispute resolved. I believe that access to justice for both Gogo Dlamini’s includes with redress or remedial action where deserved or injustice confirmed. I further believe that section 182(4) gives Gogo Dlamini the right to have the Public Protector properly funded and accessible like a small claims court, in proximity to all government service delivery centres. I am interested in your views.

Partnership Between the Public Protector and the Probono Legal Community

Although no legal assistance is required in approaching or dealing with my office, we’ve had a few occasions where disadvantaged persons have been assisted by lawyers. In some of the cases we all benefited immensely from the added insights. One case that comes to mind is one where the De Klerk Foundation provided probono assistance to a whistle-blower and another where Lawyers for Human Rights assisted a group of foreign nationals. I must indicate though, that the innovative nature of this office includes ability to frame the issues, find the

facts and establish the law or regulatory standard that should have been complied with by the state on our own. I must also hasten to indicate that in our case legality is not enough where state conduct results in patently unfair treatment or prejudice.

A word of caution for all of us

During one stakeholder hearing an MEC who deals with RDP housing and related service delivery injustices said “it is wrong to treat the poor poorly”. Often believe that because we are giving a gift, a gift horse is not to be looked in the mouth. But we may cause harm through giving an inappropriate gift or delivering it inappropriately. In this regard some of the cases that come to my office are not pro bono matters but simple cases of poor treatment of the disadvantaged who have paid for legal services. Key among the trends we have picked up, is violation of people’s agency, mostly through the lawyer proceeding to approach a case without input from the client and even settling it without consent. It is important to remember that just because a person is not a lawyer, it does not mean they are not smart, insightful nor have a view on a matter that involves their lives.

We should also be concerned about lawyers that feed the crocodile by defending the indefensible thus promoting maladministration and other forms of improper conduct, including corruption in state affairs. Apart from the fact that as a lawyer you are an officer of the court who must not mislead or allow the court to be misled, we are in the same boat. If you poke holes on my side of the boat, we’re both going to sink eventually, I may go first but you will follow.

Together taking constitutional democracy and the rule of law forward

It has been said that an engaged people is least likely to resort to violence in disputes with those that are entrusted with state power. It is also true that for people to be engaged they must know. Legal assistance in all its forms, including legal education, is accordingly a meaningful contributor to an engaged civil society and the rule of law.

Thank you again for involving me in this great occasion. More importantly, thank you for your contribution to an inclusive, socially just and fairer society. I’m

certain your work is taking us in the direction of the South Africa we want, the Africa we want and the world we all yearn for. That is the state affairs where everyone’s quality of life is improved and potential freed. That is the Constitutional dream. Our collective efforts are also contributing to a society where there is accountability, integrity and responsiveness.

Congratulations to the winners again. As a society we are grateful for your efforts in lifting others.

Thank You

 

Public Protector Thuli Madonsela

17 September 2015