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