Our latest report – this time focusing on the role of legal practitioners in the struggle for equality and justice in South Africa – is available to download here.
The report was prepared by Ms Venitia Govender and Dr Rachel Killean and draws on a series of interviews conducted in South Africa (with legal academics, ‘struggle’ lawyers, state lawyers, judges and human rights activists) as part of the wider Lawyers, Conflict and Transition project.
The first section of this paper explores the role of lawyers during Apartheid, examining their role in bolstering the regime, in challenging the Apartheid legal order in the courts, and in protecting those subjected to detention and repression. It also explores the rise of the Black Consciousness movement, and highlights the importance of the rise of civil society, and the support received from abroad, in making legal resistance to oppression possible.
The paper then turns to the process of transition in South Africa. In analysing the negotiations and transition period, the paper examines the drafting of South Africa’s post-Apartheid constitution, and in particular the creation of a Bill of Rights. It highlights the role of lawyers in the negotiations and drafting process, and the role of human rights discourse in the post-Apartheid polity. This section also explores the work of the Truth and Reconciliation Commission (TRC).
The final section of this paper explores the challenges that persist in the post-transition period and the role law and lawyers continue to play in defending human rights. The 1996 Constitution of South Africa Act is regarded by many as a masterpiece of post-conflict constitutional engineering. However, its ability to transform the lives of the most vulnerable South Africans remains highly debated, with significant levels of disillusionment at continued social injustice, manifest problems of political corruption, police brutality and a resistance within government to judicial oversight. In such a context, public interest law and lawyering remains a key vehicle for delivering post-Apartheid promises on the ground. The final section also assesses the ways in which the legal profession has changed in recent years, and in particular the attempts that have been made to ensure that the profile of the profession becomes more diverse. It finds that while there has been some significant progress, there is still much to be done – especially regarding the gender imbalance in the upper echelons of the judiciary.
The paper concludes by noting the historic contribution of some legal professionals in helping to bring an end to Apartheid. It finds that courts continue to be a ‘site of struggle’ in the quest for social justice in South Africa, and that access to justice remains uneven. It highlights lessons that can be learned by lawyers seeking to ‘make a difference’ in other contexts, namely, that it is the combination of complementary social mobilisation with litigation strategies that has the greatest potential to alter laws and policies and thus effect social change.