The keynote address of the Public Interest Law Gathering at Wits University on Thursday, 24 July 2014 was delivered by Judge Jody Kollapen of the North Gauteng High Court.
It was titled: “How, and to what extent, has public interest litigation unlocked the promise of the Constitution?”
Kollapen highlighted four areas in which public interest law work has made a significant contribution, including ensuring the lawful exercise of power, through strategic litigation and intervening in the law making process. “There should be a justification for the exercise of every power,” he said.
Secondly, in many areas, such as the rights of women, children and asylum seekers, public interest law workers have taken the broad promise of rights in the Constitution and transformed it into real and meaningful guarantees. “We have seen remarkable work done in this area,” said Kollapen.
Thirdly, according to Kollapen, public interest law workers have succeeded in empowering citizens and non-citizens by increasing public awareness and knowledge about what it means to live in a constitutional democracy.
Finally, they have shown that the Constitution can and does work. “When our constitution was adopted many years ago, people were sceptical about its ability to convert promises into reality,” said Kollapen. He said that the work of the last few years had proven that through passion and commitment it was possible.
However, he said, if the question was have we done enough to transform our society, the answer would have to be decisively no.
Kollapen cautioned against the judicialisation of politics, saying there was a critical role for public interest lawyers, but also a need for the awareness of the limits of that role. He said that despite their best intentions, public interest lawyers should be strategic about the kinds of cases they took up.
“With that background, that considerable level of achievement, what is the state of the society in which we live today? To what extent have we achieved equality – the cornerstone of what we fought for in the pre-94 era, and the outcome that we should be measured against?” asked Kollapen.
“In this regard, the diagnostic report of the NPC reminds us that we remain a substantially unequal society. This is a far cry from the constitutional imperative that South Africa belongs to all who live in it.”
Kollapen said that just as this generation ponders how it was possible for any society to justify and maintain apartheid for so long, so future generations will wonder how this society, with all its abundance, allowed such manifest inequality. “The democracy that we’ve put in place faces its biggest challenge form the ongoing inequality that still persists,” he said.
Kollapen also spent some time discussing the role of Chapter 9 Institutions, saying that in a rule-based society, knowledge of the rules and how to use them was paramount. He said that in the context of our society, access to justice existed in criminal but not civil cases. “People regularly face the loss of a home or loss of employment and there’s no automatic right to legal assistance.”
Fortunately, Kollapen is in discussions to establish advice offices at the North and South High Courts to deal with matters such as evictions and foreclosures on mortgages. “I think this is important if we are serious about advancing socioeconomic rights,” he said.
He encouraged those present to think about how they could contribute to socioeconomic and other forms of justice, saying that an hour of one’s time could make a huge difference to putting someone on the right path.
In closing, Kollapen said that the challenges the country faced going forward were formidable but not insurmountable. He said that the Constitution had provided the means to address inequality, but that South Africa hadn’t done as well as it should have. “That must be at the centre of our deliberations going forward.”