The beginning of this conference, which seems a very long time ago, we were told by an anchor from I always listen to that the the at the end of this,
we should focus on strategies for mitigation, priorities for litigation.
So I will do that. But I'm going to say something first about two issues, which I think emerge.
Common themes which emerged from the discussion we've had and we should do or should inform the strategy which we adopt.
The first two things I want to talk about are the use of litigation based strategies for dealing with these problems.
And the second is the comparison between the customary law and the common law,
what we call the common law, which really we mean common law and statute law.
So it's start with the use of litigation based strategies.
I think it is right to draw attention at the outset, suspended to the potential limitations and problems of litigation based strategies.
The problems we've been discussing during the course of the last couple of days dispossession,
inequality, marginalisation are at the heart of political problems.
The political problems are underpinned by caused by, reinforced by the law.
But they are political problems,
and that means that we need to be alert to political solutions to those problems when it comes to litigation on political issues,
I think there are two core truths which we need to bear in mind.
The first core truth is that the most effective litigation on political issues is litigation,
which is connected with and part of a broader political and social mobilisation.
And that's so for two reasons.
Firstly, because when there's mobilisation and visible and noisy mobilisation around the issue, that does affect the judges.
Judges are also at once. It also Chaskalson say in the Constitutional Court to who was saying, Well, this is what you are.
What are we hearing about is outside the courts? And the authors said, Well, you know, we judges do actually live in the real world.
We read newspapers, we watch the television, we live in the world and that's where we are.
Courts are not temples. They are all in the real world.
The second, second core truth about using litigation as a thought for the and broadly political ends,
and I'm sure we all understand what I mean by political is not about the Capitol, few with a small P. What's it called?
Who gets what, when and how I think is the correct definition.
There is a risk that litigation can become a form of substitution ism and can result in demobilisation of a struggle on the ground because
it can result in the belief on the part of those affected that the problem will be solved by the lawyers in the courts and the courts.
The clients can then simply hand the problem over to the courts, and that does happen.
Let's be frank about that frank with each other. The problem was well stated by a great American radical American Gary Bellow, who did his work.
The famous work with the in the 1960s and the 1970s was an organisation called California Rural Legal Assistance,
organising farmworkers in California with Cesar Chavez so effectively that in the end,
Ronald Reagan, who was governor of California, closed them down. And what Gary Bellows said was the following That's a quote.
The worst thing a lawyer can do from my perspective is to take an issue that could be won by political organisation and when it's in the courts now,
like most epigrams, that contains the truth but doesn't reflect the subtleties of what happens.
And I think Gary Bellow, whom I knew would agree some issues are best dealt with in the courts,
particularly the issues which for much of majoritarian issues like the death penalty.
For example, if you were to build up a head of steam to look to get the death penalty versus the death penalty.
But political organisation, you may wait a while. Meanwhile, people are hanged, but of course.
The courts and the politics and politics, so so the the the.
Below epigram is not quite the whole truth, because the courts and politics are not isolated from what happens but from each other,
what happens outside the courts affects what happens inside the courts and vice versa.
But it's an important reminder that the there is a real danger, particularly on issues such as this.
I believe that it all gets handed over to the lawyers and nothing happens on the ground.
And it's important in this context because we have to remember that assuming that a court victory is won, it's not self-executing.
When the Constitutional Court handed down a judgement and says this is how it must be done.
That doesn't mean that that's what's going to be done in each community around the country.
It's a mobilisation is important not only because of the impact it has on the case itself,
but also on the impact it has on the consequences of the case. If you get a success.
And that was the strategy, that was what I learnt the most important lesson I learnt from the struggles against forced removals in the 1980s.
It's not seem a very long time ago is is was was that in that instance we had there was virtually no room,
very little wiggle room for the lawyers and for legal strategies. The law was against us.
Section five of the black administration that made that quite clear.
But the legal work could open up the space for the political work within the communities and in and outside the communities could support it.
And in the end, could leave open legal spaces, which the lawyers could use and the best.
The best results come when there is a connexion between political struggle on the ground and the legal work,
each supporting and reinforcing and strengthening the other.
So that's that's for the first preliminary, for the second preliminary point, the customary law and the common law.
We have had quite a lot of discussion about the difficulty of finding out what the common law the customary law is,
and particularly the living customary law which changes the law.
And he told us about the question her students ask her, Is this really at all?
And I think there are two answers to that question. I should say, let's learn, I've learnt them in practise.
I've had no systematic training and customary law.
I find myself appearing in courts and pronouncing on matter with great confidence hopes for both our sons.
What I hope sounds like confidence, but it doesn't really feel like confidence.
The first answer I've learnt from experience is what happened in the of there should have been a case was a case, and there were some who should have.
Bona asserted that she was entitled to be the chief of the community in which she lived,
and the contest was between her and her cousin, Mr. Mitchell, who said, No, no, the rule always has been.
Only men can succeed to two this position. And I think and I went off to see Ms.
Schiller badly and she gave us we said, no, why is that?
I said, playing the lawyer, why is it that you say the law requires that you should be the chief?
And she expounded on a string of rules of customary law of succession, most of which I didn't really understand.
It was all sorts of very complicated rules, and it all ended up triumphantly saying, You see, so therefore I should be the chief.
I'm bewildered by the stage. I said, Well, she was very it wasn't is a very substantial woman.
She was a school inspector, school headmistress, the person of great authority and and and competence.
Her cousin, Mr. Strong Kessel, when I see him being recorded, was alleged to be a drunkard.
And and as I said to her, Well, that's very interesting.
Now tell me what the position would be if you were a drunkard and he was a school principal and a very responsible person.
Would you be the chief? And she looked at me as though I was mad and said, of course not to panic.
And the reason was when we then discussed it was that what was really going on,
it was that that there was a repertoire of possible rules amongst customary law, and that really was demonstrated by the famous comer of Article.
There are many different rules, and they lead to very different results, in particular cases.
And what happens is you select the appropriate rule for the circumstances, which gives you then the result.
And to that extent, it's teleological, it's outcome based.
You look to see where it takes you. That's not such an odd thing to do.
We deny it. But the truth is that that's also what happens in what we call common law litigation to a greater extent than we are willing to.
We often concede what happens in the typical call, and I use this common law word to distinguish it because common litigation involves firstly,
you characterise what the issue is in the case and then that enables you to select the appropriate rules apply in the case.
And there's a selection of often competing rules, which could lead to different outcomes.
And to that extent. And so and increasingly in the constitutional era, what you're doing involves a teleological process.
You're saying what is just an equitable? What is it that promotes the achievement of the object's purpose and objects of the constitution?
And you say that's through which we select because that's what gives us the outcome,
which fits with our view of the legal world, which is that it must comport with the Constitution and promote the Constitution.
And there's nothing funny about that.
And we're often finds that one finds, in fact, if one goes back to the cases that to the cases in the apartheid era,
John Douglas famously wrote in the 1970s about what he called in particular the premise of judges in making decisions,
and he showed taking a serious string of political cases.
There was each case, each time underlying a judgement favourable to the government was a series of premises about what,
how the world is and what's important in the world and how the world should be.
And they were inarticulate premises which were. Free white domination.
They were credible authority. They were anti liberty, and they led to a series of results.
So it's always been part of our lives and it's part of our lives, of what we do every day.
When you think of the interpretation of statutes, we have to interpret statutes.
Sometimes we go to the books and say, What are the rules of the what are the rules of interpretation or what are the presumptions of interpretation?
Usually they contradict each other. You can get any result you want depending on which result you want,
but you can get different results depending on which rules you think dominates in a particular case, which rule dominates?
Well, the rule which dominates is the one which is appropriate for the case, for the facts of the case.
And very often it's outcome based. So I I think we need to be very careful about saying, Well, how can we have an outcome based?
How can it be law?
How can customary law be the law if it involves selecting the appropriate route of succession, which gives you the outcome you really want?
That's not so far from what happens in the court, in the common law, and particularly in, oddly enough, in the constitutional era.
So when you ask in a customary law dispute, what law prevails?
The answer is often it depends. And that's not so different in truth from the common law method.
It's not identical. One shouldn't get over the differences, but it's not so different.
The second listen I've learnt about the customary law is this that there is a very important difference between the common law and the customary law.
It's not about indeterminacy, it's not about those questions. The really.
The real difference is this, I think common law is that it's a rules based system.
In the end, the rules rule the maximum, the maximum beloved of common lawyers.
You read it when you start becoming a law student, as you read in the English cases to start with, hard cases make bad law.
What that really means is that if a case results in an injustice, that's just bad luck because that's what the law requires.
Hard, hard cases make bad law. You mustn't adjust the rules in order to come up with a just solution.
And if even if it creates a particularly unjust result in an extreme case,
now that's that's the sort of traditional traditional approach of rules based systems.
But what Roberts and Komarov have shown is that customary law isn't in the first instance, not a rules based system.
It's a process based system. It's a pragmatic. It's pragmatic in its nature, its procedural, they say in the way it takes place.
It's allows for and in fact encourages debates and solutions which are fitted at the local level, which are suited to a particular problem at issue.
It's not a rule based system in the same way as the common laws, and that doesn't give rise to that's a significant difference.
And as I see it, that's really the underlying reason for the problem, which is fundamental identifiers in place before us because we have a statute.
The Recognition of Customary Marriages Act,
which creates rules for enforcing or governing a customary institution of customary marriage, and the two don't fit altogether neatly.
And it seems to me that's what creates the paradox, because the customary solution is to sit down at the local level debates and argue
and find a pragmatic solution which is accepted by everybody as fair or reasonable.
It's not so easy to do that when it's no longer so clear who is the community
when the issue is dealt with by a court which stands outside the community, and when one party says, I don't care what you say, this is the statute.
These are the rules implied by the statute.
And if you don't, if you don't have the right cuts of meat or if you don't have the animal killed by the right with the right knife,
then this isn't a customary marriage, and that's the end of the matter.
And I think the answer to that may be to distinguish between those rules, which are custom rather than customary law.
It's one thing to say the custom is to do things in a particular way. It's another thing to say.
If it's not done in that way, then there's no marriage at all.
But there is difficult in indeterminacy that we have to accept that that emerges from the cases, which is tantamount to explained.
People do need some, some predictability in their lives.
But it seems to me that it has been the pragmatism of the customary law, which has resulted in its strength and its survival across centuries.
I don't think we should be embarrassed or afraid of that.
It's a matter of how how the processes of customary law can be fitted into the into as part of the legal process.
I don't think that's impossible. Okay. Let me get to the priority areas, an agenda for litigation against that background.
And I've got a series of 10 suggestions of areas we we should be looking at going forward are by and large excluded litigation,
which is running at the moment where that's what has been consistent about that.
But in no particular order remembering always the benefit of selecting just cases in advance so that we get the right facts on the ground.
It's it's very unsatisfactory to be driven into test case litigation by the other
side because then you're defending on their territory better to find the right,
find the best facts and then bring the case. It was again one of us, the Chaskalson listeners.
He remember him saying, I've told a story a thousand times, I must say, but I tell us each time I remember him saying to me.
I was the attorney, he was the advocate of saying, don't worry about the law,
just get the facts right, and if you get the facts right, the rule will follow. And there's a fundamental truth to that.
It was a good teacher. So what are the issues we want to what are the 10 items on my agenda?
The first item on my agenda is and I say in no particular order that this is probably the most important.
The first one is the question of succession to traditional leadership.
And we'll all remember Peter Diaz as a compelling account yesterday of how it works in
reality and how there is a misfit between that and the theory that it's all about genealogy.
And you put in the information and the an answer pops up like an ATM machine.
That argument has been raised once in the Constitutional Court in the Lebanon case, the Constitutional Court said it found the argument attractive,
but in the end it didn't have to deal with that because it decided to meet all the different grounds.
Now the metric, now the cases coming before the court.
The issues coming before the court in this so-called case, which is being heard in Pretoria in August 20th of August.
It's actually probably not the best case on the facts,
but sometimes you have to take deal with the hand because when you come in the facts of the case, you do it.
It's not the best case facts, but you can play the hand that you've been dealt.
And it will almost certainly end up in the Constitutional Court, and we will have some sort of decision from the court.
I think on this fundamental issue arising from that second major issue, which we need to deal with,
which is taking on increasing importance, is Typekit levies increasingly levies being imposed by chiefs all over the countryside.
And the question is whether the chiefs actually have the power to do that.
Well, there is a case pending on the courts. Michael and I know about.
But it has. It has, I shouldn't say, come to a halt,
but it needs resuscitation and it's a matter of matter of high priority to resuscitate it because that's the case,
which is good on the facts and we shouldn't wait for some for a bad case to arrive.
That seems to me as a matter of high priority is not a simple and proper port,
which is not the most favourable, favourable place to be, but it will go elsewhere.
The third issue, which which struck me listening to the debates was the issue of commercial contracts, which were never properly.
Concluded chief signed the contract,
and it wasn't validly done because either because it was done through a traditional council which which approved it or rubber stamped it,
but the council itself wasn't properly constituted in terms of the act or it wasn't properly done because the consent of those affected wasn't,
it wasn't wasn't obtained. And this seems to me that this rich ground floor for attacking contracts of that kind, the bill,
as I understand it, is going to retrospectively validate some of these, some of these contracts, particularly.
But that itself raises questions because if people have been deprived of their rights retrospectively by a piece of legislation that
raises all sorts of interesting questions about whether there's an arbitrary deprivation of property contrary to the Constitution.
And so the I know there've been some failed attempts to look at some of these deals,
and part of the problem is time passes and time cures all in a way.
But I think in an appropriate case, it would be worth a shot to say, actually, this deal, which was completed, wasn't validly conceived, concluded.
And there's a question of how far back you can unwind.
What was what has taken place since the deal was completed, which is really a logistical issue, became a difficult issue in the Buffalo case.
But it's a very it's a very it's a it's a very important question perhaps linked to that.
I come with another point. OK, then then the next issue is accountability. All of the issues which emerged from the presentation.
And I think there are three things which we need to. Three issues which we need to pursue under the hint of accountability.
One is access to information. The second is standing in both of those things that we know are thrown up by the northwest fortress with gay abandon.
And with those cases, really, if it's too late not to challenge those cases, but when there is a case like that of the North West, Port says no.
The time is to move on to another court. The issues of access to information and standing are at the heart of accountability.
And thirdly, there is the underlying principle of accountability to the community and there I think there is a lot of work to be done.
We need the assistance of the historians who can explain to us how how we can derive.
A 21st century rule of accountability in respect of commercial transactions from different systems,
of accountability for different issues at a different time. It's not so easy to find.
I was involved in a matter where we thought it was going to be easy and we struggled again.
The court never reached the question. But we need to do a lot more with like more legal work and a lot more historical work on what does
accountability mean in a way that gives some some strength to the members of the community to hold their.
Governing bodies accountable. It may have something to do with the traditional authorities being organs of state,
which I think I was hoping Kate was going to speak about that, but she stuck to it.
But I think they are organs of state. And anyway, there's an argument about that which can be advanced.
And I can't resist saying that while I'm on the subject,
that's less of one of the best ideas that came out was opposed to having people declared as delinquent directors instead of, you know, being declared.
A delinquent director doesn't put the person in jail and doesn't bring the money back.
But if the key mover in the entity is declared a delinquent director, that must have political consequences of of a significant cut.
So that's what I want to say about accountability. Firstly,
the we need to investigate and be ready to deal with the question of compensation for the expropriation of customary rights because the
consequence of of the case successful cases which have been run in the past 12 months may well be the cases of expropriation started arising.
And there we need to do. I know that some research has been done by some social scientists on how you measure compensation for people who
are deprived of customary rights to land because the compensation is not just the market value of the land,
whatever that may be, but it differently is a loss which people suffer when their land,
which they've occupied for generations has taken from them is not the market value of the land.
It's something much, much different. And so we need to look at questions of compensation seventh.
The seventh issue is the term specifically dealt with in section 211 or three of the Constitution,
which Michael think spoke about and Michael Bishop spoke about.
Initially, I share what I read to be his anxiety about whether this.
Marvellous judgement in the SCA will be sustained in the long term. I wouldn't be in a hurry to tinker with it.
I think it's a very favourable. It's not the most favourable judgement conference hopeful and it's an extraordinary achievement.
I have to say, I want to say the people who are involved in this litigation should be very proud of themselves, this extraordinary achievement.
And I would hold on tightly to that judgement,
and I wouldn't rock the boat too much if I were making that call Italy a puzzling thing which occurred to me,
which relates to the accountability question and deals. What is the meaning of consent for deals which are done when they result in dispossession?
It seems to me there's a very substantial argument which can be made along the following lines,
and this is the issue which arose in the quickest rises in the heart of a failure case.
Those may be water under the bridge, I don't know, but we need to find a way of getting a getting to getting a court to say firstly,
it can't dispossess people without their consent, but that seems to be quite easy to persuade a court to do.
Secondly, consent means informed consent. That's not a terribly difficult thing to persuade a court to do.
It goes back a long way, you know, in our law. Thirdly, and here's the kicker when the informed consent requires.
Skilled technical and commercial advice. Then there's no consent until the two party consent has had skilled commercial or technical advice,
otherwise what is the point of what is the meaning of consent?
It seems to me that flows logically and that leads logically to a conclusion that any third party the counterparty,
the mining company who comes in and once the deal has to say to itself.
But if I want to get consent, I've got to make sure these people are in a position to provide consent,
and I've got to put up some money to enable them to get proper advice. And that's not a precedent, I think, for that in other parts of the world.
And it's time that lessons that we learnt because that would really change the whole game fundamentally,
if there is the mining companies and I never knew that the people, their counterparty is now getting good advice and what's more, at their expense.
So I think there's a big case to be run around that. And it's probably it's probably we should probably have done it a long time ago.
Finding the knife, the knife issue, the bills.
Firstly, there's the TKL V. We had a very an excellent analysis by Michael Bakuba this morning.
I'm not going to repeat what he said. Clearly, our grounds for taking it on and taking on various parts of it, it'll have to be done sincerely.
The traditional possible, which looks very vulnerable indeed, I think, can be pushed over quite quickly.
So there isn't an agenda for issues for us.
I must stress because Tim Becker, who's the judge is looking at, I don't mess with judges, Michael incidents you and others.
So let me to two closing thoughts. The first thing is that we need to find a way, as of which is a first one, a very practical question.
All of this this one is not going to work unless we find ways of laundering,
broadening access to the enforcement of rights which exist and which we will find to exist under customary law.
It's no use having one case in the whole country and hoping the rest of the country will follow.
It's just not going to happen. There has to be some enforcement.
There has to be you have to be willing to follow through.
And what we all know from working with rural communities is that the judgement is not the end of the case.
It goes on and on and on because the problems follow and you're once you're in, you're in for life.
So there needs to be some, some facility, a specific specialist,
institutional or specialist institutions created to focus on these issues and to see that we
broaden the scope of our litigation and we're able to do the follow through in the litigation.
And I think without that,
we will have a series of splendid victories with very little impact on the lives of most people that look good in the law books,
but won't change very much. That's the first thing I want to say, and the final one is final thing I want to say is it's really an optimistic thing.
It occurred to me that when we finished yesterday that really.
There is an amazingly talented and energetic new generation which has arisen of people who are interested in and engaged in this work,
and a lot of them are in this room. There are the lawyers that are the researchers, there are people who are who.
Are a new generation of lawyers committed to and passionate about this?
And for myself, at my rock old age,
it's the most encouraging thing that I have seen for a long time because you look at you do something and you look back and you say,
nobody else seems to be interested.
Yeah, you see a whole phalanx of people who are interested and engaged when there are more out there who are available to do this work,
if they are, if the space is created and the opportunities are created.
So I don't end on a note of despite the difficulty of the tasks and the challenges we have at it,
ends on a note of pessimism and ends on a note of this that the army is there and people are there to do the work.
And I think this is a very. For me, this is a very uplifting experience.
Thank you. Thank you. Thank you, Jeff.
Your attempt at securing a favourable judgement is not going to work.
So the invitation that I received specifically referred to the three cases of managed to Condoleezza and my name.
So I want to start there and look at the context in which those cases arose.
So firstly, it is the commercial and economic contexts. My lead was a dispute primarily about a platinum mine in the northwest.
It came to court as a dispute about an eviction,
but then is a dispute about a titanium mine in the Eastern Cape also came to court as a case about consent.
And conversely, it is a case about an entitlement of local communities to exploit.
The fishing resources in a river that passes through the village came to court as a criminal conviction for the commission of a criminal offence.
But as you can see, there were strong commercial interests at play in all of those three cases.
But they were political contexts too fast and strong community resistance,
particularly in the case of Ballard, which is the in the case and in the case of the mandate.
If you are in court in the alleged case, you would have been struck by the sense of community solidarity in support of the claims.
And secondly, there were also weak local government structures.
The governmental structures were very weak. But thirdly, there was an aggressive business interests.
The capitalist class that had been sitting around had consolidated.
And then fourthly, there was a captured chiefly a it.
And the combined effects of this was that it was not possible for the communities acting alone to resist in safeguarding their own local interests.
So it is not clear to me that the ideas about customary law that pervades the cases of Malay do Canosa and Berlin would have arisen or did not allow.
Right. Or whether these ideas are themselves ideas that are contextual.
They arise because there is an underlying commerce and political context.
But what we know as a matter of fact, is that these customary law responses were responses that came because of the presence from above.
So this is context, the commercial context and the political context obviously carry a huge significance about the future of customary law.
How are we going to litigate customary law and what are we going to litigate in customary law?
What they do is to shine a spotlight on the underlying contestation for the sources.
Over time. The nature of the resources that are exploited in black and African communities
has changed the 70s and the 80s where the era of the exploitation of labour.
Mining companies routinely asked troops to send the most able bodied young men to the mining areas,
effectively, chiefs sometimes functioned as labour brokers. Now, minerals are in vogue.
In the future, someone will say to me during the break, perhaps the oxygen would be invoked.
Perhaps water would invoke the nature of the resource will change, but the idea of a commercial exploitation seems to be a permanent idea.
And so how do we, in that context, think about customary law in a way that enables us to protect the interests of the communities on the ground?
Of course, in South Africa, there is a new current, which is about land, land use and land management and of course, the ownership of land.
What is striking for most of us is the idea that although we talk about land very fuel in those days,
discourses situate the debate about land in customary law terms.
It is as if we have in parallel conversations.
The only time customary law is invoked is in relation to also to.
And so it was simple,
it seems to me we have to think of customary law and situated in the context of a contestation about resources and think about what it means.
To use customary law, not only to protect the existing meagre resources that were left as a consequence of colonialism and apartheid,
but also to advance. The interests of the subaltern, so we have to imagine customary law differently.
And so not only did the cases take place in a commercial and political context, they also took place in a legal context.
And that legal context has several characteristics that I just want to outline.
The first is a point that was made repeatedly during the course of these two days, the absence of a legal framework.
We are operating under with the Constitution and nothing else. All right.
We are operating only with the framework in section two, one, one and two and two, but no more than that.
And the second, of course, is the question of the legislative ambiguities.
Even those laws that have been passed, presumably to give effect to customary law, contain gaps and ambiguities.
I know Professor Cousins takes the view that ambiguities are not always a bad thing,
but the difficulty is that ambiguity is always open up the scope for contestation.
The owners open up the scope for the rule of law to be displaced by the rule of the strong.
So how does customary law even out the contest where we know that we have the Constitution
and nothing else where we know that the legislation that has been passed contains gaps,
whether those are deliberate gaffes or inadvertent gaffes?
The fact is that the legislation that we are operating under is incomplete,
and the third legal feature is the question of an absence of an administrative and the regulatory system.
Nobody knows when we talk about admittance will surely be invited. What notice must be given push to consult it?
What is the nature of the consultation? Should women attend the meeting?
Should young people attend the meetings?
That's because we are operating in an administrative vacuum system that is what customary law has developed to be like.
So we have the Constitution and no more. We've got statutes which contain gaps.
We do not have a system of administrative and regulatory control.
Again, I come back to the. Some have positive view of Professor Cousins that these are not necessarily bad things, but I think the problem, of course,
with the absence of an administrative system is that we are unable to hold still accountable
using the well-accepted rules of administrative law because they are neither fish,
no foul in between. And it is the absolute ability of that ambiguity that concerns us.
And so all of these have brought us to where we are customary.
Law is an impossible thing to prove, almost impossible thing to prove.
And not only Michael Bishop, well, Jason Blair proved it's Michael Bishop persuaded the charge as it has been proven.
Jason was unable to persuade the judge, although he did all of the speed with You need a historian unit and acted.
Sometimes you need an advocate and sometimes you need an anthropologist.
African people do not have those resources. Sometimes with supplement, but we can only run one case at a time.
That's customary law also is not suitable to the adjudication of system, the adversarial adjudicating system.
Dogs Skate Oregon was a professor at Oregon, pointed out to the problems of adjudication in the customary law context,
the kind of rigmarole that one goes through, it reminds me of my role in the Land Claims Court.
It is almost impossible to prove that I was here before. But customary law is exactly like that.
So not only do we have these legislative gaps, but we also have a judicial shortcoming because if we want to prove that we have a proud
claim to a particular piece of land that we have pursued as a consequence of customary law,
that is a fact intensive exercise. And that is not an easy thing.
And so when I think about litigation, I think of litigation in this context.
And I think it's not easy to think of litigation outside of these contexts.
So how should we then think of litigating here?
So perhaps. We can think first about building.
Clear structures, and perhaps the difficulty is not so much on the substantive side.
And perhaps it is easier to call Professor Beinart and to call Professor Cousins and to ask them to prove to us a rule of land allocation in Poland.
But the problem is a structural what is how should that rule haven't been established?
How should it be protected? And so what this shows us is context that I have drawn is that perhaps litigating for
the establishment of robust structures of customary law is a priority on its own,
rather than litigating for particular outcomes.
This, of course, does not mean we must choose.
It started out based litigation model over its substantive outcomes based litigation model, but it means we must factor in.
The establishment of robust customer no structures, we're doing it, of course,
being fully aware that we are dealing with communities that are deprived of resources.
It's people who are hungry that we are dealing with and it's people who have no access to education material and we come in ourselves as athletes.
And so even if the focus is to print is to build robust customer no structures.
We have to understand our own limitations.
What we do not want is to do what's just putting the ones, which is to displace the local concerns with our own prejudices.
And so the recognition is not only a question of humility, the recognition of our own limitations is not a question only of humility.
It is also a question of the democratisation of customary law, democratising it from ourselves and recognising that the power truly lies.
Amongst the people, I do not know what is a litigation model or litigation strategy that will lead towards the strengthening of community structures.
But what seems clear to me is that we have to be thinking about a model that focuses on the establishment of these structures.
But we should also be looking at litigation that focuses on rules, the establishment of rules,
litigation that makes it clear who is entitled to come to a meeting when they are at the meeting.
What rights do they have to speak when they exercise those rights?
How decisions ought to be made? I know this sounds like an administrative model.
But I don't think we should be ashamed of deliberately building.
A model that is akin to an administrative state.
Our country has a very strong administrative system and a very strong administrative culture.
But the reality is that without litigation, most of the three cases that we have spoken about would probably not have seen the light of day.
But the difficulty is that judges are not able to apply a standard to chips.
No one is able to say you are accountable because you didn't follow the rules of ultram party.
No one is able to say you are accountable because particular people who should have been at a meeting were not invited.
And so in one case that we I think it was the case.
I think when men discovered this policy, that was draughted.
I think about 20 years ago and no one, in fact, I think everyone forgot about someone else that you draughted the policy as the Office of LED.
But the defence is that it contained my details about what a community meeting actually means.
And so customer no itself needs to be moved along.
We can no longer ask Oxford professors to go to Solomon every time we're trying to establish a rule of customary law.
Those rules have to be migrated and formalised, and this are only procedural rules.
Professor Cousins, these are not substantive rules I'm talking about.
These are the ways of making decisions and the ways of encouraging accountability.
So quite apart from litigating over the establishment of robust customary law structures,
we have to be litigating about the establishment of rules so that it is clear to the people living on the ground what rules are applicable,
but also so that we will use litigation for accountability purposes.
We know what is the standard to be applied.
And again, I do not suggest the fossilisation of customary law, but I suggest an instrument for democratic accountability.
The sad thing about how to think about litigation relates back to where I started, which is the.
Resource. Question.
The two cases managed to end by learning about mining.
No doubt there would be several other cases which are also about mining, I've proved that I've not really done much about the case,
but anyway, the different issue I prefer to focus on KZN, which also concerns mine.
But these three cases, we all proceed on the assumption that mining is accepted as, quote unquote, an unqualified human good or public good.
But why should we? Because the evidence we have in the Ballina case is that mining always produces bad outcomes for communities.
It is not as if mining is sometimes good for communities, but it is not as bad for communities.
So how do we litigate in a way that does not only hold the state accountable,
but also holds mining companies with big commercial interests accountable?
I have suggested in the past. Not to I think Michael resisted such as that,
we should ask whether or not it is reasonable for the state in each and every mining application to approve it.
When the evidence clearly shows that mining owners produces bad outcomes for communities, right?
Because ultimately, if you ask the people of colour, what would they rather do with the alleged?
The answer is unequivocal. They would rather do tourism. They would rather put water, they would rather put schools.
No one in India wants mining. But why should we, as the lawyers who assist the people of Columbine,
accept the false premise that mining will produce the right outcomes for that community?
And the only time that we have this mining is the consultation and the procedures.
Why should we not challenge mining at heart?
And ask whether or not mining is a good thing for the communities and that goes across all of the other resources.
So we have to start using. Administrative law, questions of reasonableness, those are questions that fall and squarely, of course,
within the real challenges of public power and mining deals are orders approved by the state,
and the courts are quite clear that the decisions to approve mining applications constitute
administrative action and therefore susceptible to reviews under the Administrative Justice Act.
So the third area, I would rather.
And again, it is not a substantive area of challenge, but it is a question that looks at the way in which decisions are made.
And if we want to extract greater accountability for the government to achieve particular outcomes,
I suggest that we have to start asking is the presence of so many environmentally sustainable options?
Why is the state eager to provide to always approve mining deals?
Thursday's episode of Fourthly, Jeff, I agree with the point about consent because it comes.
In line with the view I have about litigation, which is essentially administrative law writ large,
which is what I am trying to persuade to the people listening.
But I think that there are two points to be said about consent.
The one is the domestication of an international law principle, free prior and informed consent.
I knew nothing about this principle until talked to me about. That principle, if applied in the local context, covers for the most part.
What we would need for what we call an informed consent is should not only be informed,
but it must be free and it must be private, and most importantly, it's the question of who consents.
We have been asked the question yesterday about community vessels, family or individual.
That question is left open in my lead. It is another area that should be taken forward,
and it sits uncomfortably with the provisions of the pillar because theoretically
unpopular 50 plus one percent is enough constitute an acceptable basis for a deprivation.
And yet we do that appeal at the time to resist the encroachment.
But beyond Epira,
if we are to engage with this notion of a free prior and informed consent and the other question that was posed by William Bennett of who consents,
we need new instruments to think about how to localise the consent to feminine level.
And what happens when ultimately, because the government has been against intensive political action in Colombia,
when ultimately they get the 51 percent? What happens to the 49 that still resists?
And then finally, this is the last point about litigation, this is the substance of the on the substantive, such as an eye make up of litigation.
Is that a cover of the IS? That means says a lot of money that has been stolen.
The assumption is that we are trying to recover in the state capture commission.
It's unclear to me why communities such as the Hudson should not litigate for the recovery of the moneys that they know.
Who took them? They know where they are. And so it seems that this focus on the recovery of these miners is crucial, not so much.
It because it will return the money to the communities if we theoretically get it.
But it's crucial also for purposes of accountability. At some point, there must be consequences to this kind of looting.
Today, likely the judgement came down in the Eskom case.
The Guptas must now pay another half a billion dollars if they have.
So these are my five areas,
and you can see that I try to think more of litigation through the eyes of administrative law and try to bid to build administrative law.
And then I want to finally make one more comment. About the third.
Jeff, I accept the point that they are young, energetic lawyers, young, energetic academics,
historians who are but who are looking at the web and thinking creatively.
But overall, the centre is in the best shape. That is just the reality.
The legal resources centre that has been the premier institution on this kind of work
is facing probably one of the most financially challenging phases of its history.
Many, many other NGOs are not focussed on the work of land and customary law.
They are focussed on things like housing, education, health, no doubt very important societal concerns.
So we cannot think about litigation strategies outside the context of how we strengthen the existing non-governmental organisations that do the web.
So the Centre is in need of a radical reorganisation, but it's in need of resources.
It's as basic as does certain needs resources in order for us to sustain the work.
And we need these resources in the context of I have just described of an aggressive state and an aggressive private sector.
We cannot match them with what we have. So instead of diminishing the role of lawyers, we need to be multiplied.
We need more and more lawyers need more and more lawyers who do human rights work, and this is not only the problem about.
This particular type of litigation, but human rights litigation as a whole.
Requires the multiplication of the resources currently available to it.
So I also must want to end on a point of optimism.
Yesterday, I made the point about this trilogy of cases as being a big moment.
We obviously need to lift our eyes and see what is going on around us.
So it is an exciting phase because there is positivity around judgements.
But of course, it is a phase that can easily be taken away from us, so we have to think about protecting it,
I like your suggestion about protecting the conclusive judgement and not trying
to do too much about it and instead using it for opening up of new avenues.
I do want to challenge us to think about customary law.
Of course, it's useful as an instrument of resistance we've seen from these cases because all these three cases and assistance cases.
But it should also be an instrument of decolonisation.
To think about law, as did the decolonising project or impulse of the Constitution, is something sometimes we're embarrassed to talk about.
But I see the Constitution and its promises as ultimately a liberating project.
So Customer No provides us the end to point towards this liberating impulse because it's truly decolonise.
But that obviously means a lot more work, a lot more historical work.
So woke historians look totally focussed on it, but not the other.
So finally. No, no, no, the other guys are also okay with that, it's OK, OK.
Just in case people think, think, think, think otherwise, but you have to take the whole cast.
So Frantz Fanon reminds us this generation has a duty to discover its mission, and thereafter it must either fulfil its own property.
Thank you.