1 00:00:14,490 --> 00:00:27,920 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, 2 00:00:27,920 --> 00:00:31,820 we should focus on strategies for mitigation, priorities for litigation. 3 00:00:31,820 --> 00:00:38,780 So I will do that. But I'm going to say something first about two issues, which I think emerge. 4 00:00:38,780 --> 00:00:46,340 Common themes which emerged from the discussion we've had and we should do or should inform the strategy which we adopt. 5 00:00:46,340 --> 00:00:53,720 The first two things I want to talk about are the use of litigation based strategies for dealing with these problems. 6 00:00:53,720 --> 00:00:59,150 And the second is the comparison between the customary law and the common law, 7 00:00:59,150 --> 00:01:04,700 what we call the common law, which really we mean common law and statute law. 8 00:01:04,700 --> 00:01:07,700 So it's start with the use of litigation based strategies. 9 00:01:07,700 --> 00:01:18,920 I think it is right to draw attention at the outset, suspended to the potential limitations and problems of litigation based strategies. 10 00:01:18,920 --> 00:01:24,170 The problems we've been discussing during the course of the last couple of days dispossession, 11 00:01:24,170 --> 00:01:29,990 inequality, marginalisation are at the heart of political problems. 12 00:01:29,990 --> 00:01:35,510 The political problems are underpinned by caused by, reinforced by the law. 13 00:01:35,510 --> 00:01:37,730 But they are political problems, 14 00:01:37,730 --> 00:01:47,390 and that means that we need to be alert to political solutions to those problems when it comes to litigation on political issues, 15 00:01:47,390 --> 00:01:51,950 I think there are two core truths which we need to bear in mind. 16 00:01:51,950 --> 00:01:59,000 The first core truth is that the most effective litigation on political issues is litigation, 17 00:01:59,000 --> 00:02:04,670 which is connected with and part of a broader political and social mobilisation. 18 00:02:04,670 --> 00:02:05,930 And that's so for two reasons. 19 00:02:05,930 --> 00:02:14,070 Firstly, because when there's mobilisation and visible and noisy mobilisation around the issue, that does affect the judges. 20 00:02:14,070 --> 00:02:20,690 Judges are also at once. It also Chaskalson say in the Constitutional Court to who was saying, Well, this is what you are. 21 00:02:20,690 --> 00:02:26,600 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. 22 00:02:26,600 --> 00:02:32,210 We read newspapers, we watch the television, we live in the world and that's where we are. 23 00:02:32,210 --> 00:02:35,330 Courts are not temples. They are all in the real world. 24 00:02:35,330 --> 00:02:42,680 The second, second core truth about using litigation as a thought for the and broadly political ends, 25 00:02:42,680 --> 00:02:48,890 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? 26 00:02:48,890 --> 00:02:53,180 Who gets what, when and how I think is the correct definition. 27 00:02:53,180 --> 00:03:02,390 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 28 00:03:02,390 --> 00:03:11,330 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. 29 00:03:11,330 --> 00:03:15,170 The clients can then simply hand the problem over to the courts, and that does happen. 30 00:03:15,170 --> 00:03:26,570 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. 31 00:03:26,570 --> 00:03:34,490 The famous work with the in the 1960s and the 1970s was an organisation called California Rural Legal Assistance, 32 00:03:34,490 --> 00:03:40,370 organising farmworkers in California with Cesar Chavez so effectively that in the end, 33 00:03:40,370 --> 00:03:47,360 Ronald Reagan, who was governor of California, closed them down. And what Gary Bellows said was the following That's a quote. 34 00:03:47,360 --> 00:03:56,540 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, 35 00:03:56,540 --> 00:04:03,650 like most epigrams, that contains the truth but doesn't reflect the subtleties of what happens. 36 00:04:03,650 --> 00:04:08,900 And I think Gary Bellow, whom I knew would agree some issues are best dealt with in the courts, 37 00:04:08,900 --> 00:04:13,010 particularly the issues which for much of majoritarian issues like the death penalty. 38 00:04:13,010 --> 00:04:19,100 For example, if you were to build up a head of steam to look to get the death penalty versus the death penalty. 39 00:04:19,100 --> 00:04:26,100 But political organisation, you may wait a while. Meanwhile, people are hanged, but of course. 40 00:04:26,100 --> 00:04:33,730 The courts and the politics and politics, so so the the the. 41 00:04:33,730 --> 00:04:41,710 Below epigram is not quite the whole truth, because the courts and politics are not isolated from what happens but from each other, 42 00:04:41,710 --> 00:04:46,390 what happens outside the courts affects what happens inside the courts and vice versa. 43 00:04:46,390 --> 00:04:53,350 But it's an important reminder that the there is a real danger, particularly on issues such as this. 44 00:04:53,350 --> 00:04:59,920 I believe that it all gets handed over to the lawyers and nothing happens on the ground. 45 00:04:59,920 --> 00:05:07,060 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. 46 00:05:07,060 --> 00:05:11,500 When the Constitutional Court handed down a judgement and says this is how it must be done. 47 00:05:11,500 --> 00:05:15,490 That doesn't mean that that's what's going to be done in each community around the country. 48 00:05:15,490 --> 00:05:21,400 It's a mobilisation is important not only because of the impact it has on the case itself, 49 00:05:21,400 --> 00:05:26,900 but also on the impact it has on the consequences of the case. If you get a success. 50 00:05:26,900 --> 00:05:34,700 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. 51 00:05:34,700 --> 00:05:41,660 It's not seem a very long time ago is is was was that in that instance we had there was virtually no room, 52 00:05:41,660 --> 00:05:46,130 very little wiggle room for the lawyers and for legal strategies. The law was against us. 53 00:05:46,130 --> 00:05:49,910 Section five of the black administration that made that quite clear. 54 00:05:49,910 --> 00:05:58,490 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. 55 00:05:58,490 --> 00:06:03,890 And in the end, could leave open legal spaces, which the lawyers could use and the best. 56 00:06:03,890 --> 00:06:10,040 The best results come when there is a connexion between political struggle on the ground and the legal work, 57 00:06:10,040 --> 00:06:15,110 each supporting and reinforcing and strengthening the other. 58 00:06:15,110 --> 00:06:21,500 So that's that's for the first preliminary, for the second preliminary point, the customary law and the common law. 59 00:06:21,500 --> 00:06:27,050 We have had quite a lot of discussion about the difficulty of finding out what the common law the customary law is, 60 00:06:27,050 --> 00:06:31,790 and particularly the living customary law which changes the law. 61 00:06:31,790 --> 00:06:36,600 And he told us about the question her students ask her, Is this really at all? 62 00:06:36,600 --> 00:06:43,200 And I think there are two answers to that question. I should say, let's learn, I've learnt them in practise. 63 00:06:43,200 --> 00:06:45,930 I've had no systematic training and customary law. 64 00:06:45,930 --> 00:06:53,490 I find myself appearing in courts and pronouncing on matter with great confidence hopes for both our sons. 65 00:06:53,490 --> 00:06:58,290 What I hope sounds like confidence, but it doesn't really feel like confidence. 66 00:06:58,290 --> 00:07:04,320 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. 67 00:07:04,320 --> 00:07:09,510 Bona asserted that she was entitled to be the chief of the community in which she lived, 68 00:07:09,510 --> 00:07:17,310 and the contest was between her and her cousin, Mr. Mitchell, who said, No, no, the rule always has been. 69 00:07:17,310 --> 00:07:23,340 Only men can succeed to two this position. And I think and I went off to see Ms. 70 00:07:23,340 --> 00:07:27,480 Schiller badly and she gave us we said, no, why is that? 71 00:07:27,480 --> 00:07:34,350 I said, playing the lawyer, why is it that you say the law requires that you should be the chief? 72 00:07:34,350 --> 00:07:42,980 And she expounded on a string of rules of customary law of succession, most of which I didn't really understand. 73 00:07:42,980 --> 00:07:50,040 It was all sorts of very complicated rules, and it all ended up triumphantly saying, You see, so therefore I should be the chief. 74 00:07:50,040 --> 00:07:57,630 I'm bewildered by the stage. I said, Well, she was very it wasn't is a very substantial woman. 75 00:07:57,630 --> 00:08:06,270 She was a school inspector, school headmistress, the person of great authority and and and competence. 76 00:08:06,270 --> 00:08:13,110 Her cousin, Mr. Strong Kessel, when I see him being recorded, was alleged to be a drunkard. 77 00:08:13,110 --> 00:08:18,450 And and as I said to her, Well, that's very interesting. 78 00:08:18,450 --> 00:08:26,490 Now tell me what the position would be if you were a drunkard and he was a school principal and a very responsible person. 79 00:08:26,490 --> 00:08:31,650 Would you be the chief? And she looked at me as though I was mad and said, of course not to panic. 80 00:08:31,650 --> 00:08:36,960 And the reason was when we then discussed it was that what was really going on, 81 00:08:36,960 --> 00:08:46,140 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. 82 00:08:46,140 --> 00:08:51,390 There are many different rules, and they lead to very different results, in particular cases. 83 00:08:51,390 --> 00:08:57,510 And what happens is you select the appropriate rule for the circumstances, which gives you then the result. 84 00:08:57,510 --> 00:09:00,930 And to that extent, it's teleological, it's outcome based. 85 00:09:00,930 --> 00:09:06,390 You look to see where it takes you. That's not such an odd thing to do. 86 00:09:06,390 --> 00:09:13,020 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. 87 00:09:13,020 --> 00:09:21,300 We often concede what happens in the typical call, and I use this common law word to distinguish it because common litigation involves firstly, 88 00:09:21,300 --> 00:09:27,840 you characterise what the issue is in the case and then that enables you to select the appropriate rules apply in the case. 89 00:09:27,840 --> 00:09:33,690 And there's a selection of often competing rules, which could lead to different outcomes. 90 00:09:33,690 --> 00:09:41,280 And to that extent. And so and increasingly in the constitutional era, what you're doing involves a teleological process. 91 00:09:41,280 --> 00:09:48,930 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? 92 00:09:48,930 --> 00:09:52,650 And you say that's through which we select because that's what gives us the outcome, 93 00:09:52,650 --> 00:09:58,810 which fits with our view of the legal world, which is that it must comport with the Constitution and promote the Constitution. 94 00:09:58,810 --> 00:10:02,070 And there's nothing funny about that. 95 00:10:02,070 --> 00:10:11,310 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, 96 00:10:11,310 --> 00:10:17,880 John Douglas famously wrote in the 1970s about what he called in particular the premise of judges in making decisions, 97 00:10:17,880 --> 00:10:21,750 and he showed taking a serious string of political cases. 98 00:10:21,750 --> 00:10:30,420 There was each case, each time underlying a judgement favourable to the government was a series of premises about what, 99 00:10:30,420 --> 00:10:34,590 how the world is and what's important in the world and how the world should be. 100 00:10:34,590 --> 00:10:39,830 And they were inarticulate premises which were. Free white domination. 101 00:10:39,830 --> 00:10:44,570 They were credible authority. They were anti liberty, and they led to a series of results. 102 00:10:44,570 --> 00:10:48,890 So it's always been part of our lives and it's part of our lives, of what we do every day. 103 00:10:48,890 --> 00:10:52,910 When you think of the interpretation of statutes, we have to interpret statutes. 104 00:10:52,910 --> 00:11:01,550 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? 105 00:11:01,550 --> 00:11:07,160 Usually they contradict each other. You can get any result you want depending on which result you want, 106 00:11:07,160 --> 00:11:13,400 but you can get different results depending on which rules you think dominates in a particular case, which rule dominates? 107 00:11:13,400 --> 00:11:18,290 Well, the rule which dominates is the one which is appropriate for the case, for the facts of the case. 108 00:11:18,290 --> 00:11:28,250 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? 109 00:11:28,250 --> 00:11:29,240 How can it be law? 110 00:11:29,240 --> 00:11:36,290 How can customary law be the law if it involves selecting the appropriate route of succession, which gives you the outcome you really want? 111 00:11:36,290 --> 00:11:45,890 That's not so far from what happens in the court, in the common law, and particularly in, oddly enough, in the constitutional era. 112 00:11:45,890 --> 00:11:50,090 So when you ask in a customary law dispute, what law prevails? 113 00:11:50,090 --> 00:11:55,340 The answer is often it depends. And that's not so different in truth from the common law method. 114 00:11:55,340 --> 00:12:00,390 It's not identical. One shouldn't get over the differences, but it's not so different. 115 00:12:00,390 --> 00:12:08,400 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. 116 00:12:08,400 --> 00:12:13,310 It's not about indeterminacy, it's not about those questions. The really. 117 00:12:13,310 --> 00:12:19,730 The real difference is this, I think common law is that it's a rules based system. 118 00:12:19,730 --> 00:12:25,970 In the end, the rules rule the maximum, the maximum beloved of common lawyers. 119 00:12:25,970 --> 00:12:33,330 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. 120 00:12:33,330 --> 00:12:40,770 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. 121 00:12:40,770 --> 00:12:48,450 Hard, hard cases make bad law. You mustn't adjust the rules in order to come up with a just solution. 122 00:12:48,450 --> 00:12:54,750 And if even if it creates a particularly unjust result in an extreme case, 123 00:12:54,750 --> 00:13:01,260 now that's that's the sort of traditional traditional approach of rules based systems. 124 00:13:01,260 --> 00:13:07,080 But what Roberts and Komarov have shown is that customary law isn't in the first instance, not a rules based system. 125 00:13:07,080 --> 00:13:14,790 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. 126 00:13:14,790 --> 00:13:26,190 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. 127 00:13:26,190 --> 00:13:33,210 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. 128 00:13:33,210 --> 00:13:42,300 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. 129 00:13:42,300 --> 00:13:44,610 The Recognition of Customary Marriages Act, 130 00:13:44,610 --> 00:13:53,220 which creates rules for enforcing or governing a customary institution of customary marriage, and the two don't fit altogether neatly. 131 00:13:53,220 --> 00:14:00,300 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 132 00:14:00,300 --> 00:14:05,640 and find a pragmatic solution which is accepted by everybody as fair or reasonable. 133 00:14:05,640 --> 00:14:11,790 It's not so easy to do that when it's no longer so clear who is the community 134 00:14:11,790 --> 00:14:19,260 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. 135 00:14:19,260 --> 00:14:21,030 These are the rules implied by the statute. 136 00:14:21,030 --> 00:14:27,060 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, 137 00:14:27,060 --> 00:14:30,360 then this isn't a customary marriage, and that's the end of the matter. 138 00:14:30,360 --> 00:14:38,250 And I think the answer to that may be to distinguish between those rules, which are custom rather than customary law. 139 00:14:38,250 --> 00:14:42,030 It's one thing to say the custom is to do things in a particular way. It's another thing to say. 140 00:14:42,030 --> 00:14:45,330 If it's not done in that way, then there's no marriage at all. 141 00:14:45,330 --> 00:14:53,220 But there is difficult in indeterminacy that we have to accept that that emerges from the cases, which is tantamount to explained. 142 00:14:53,220 --> 00:14:57,150 People do need some, some predictability in their lives. 143 00:14:57,150 --> 00:15:06,330 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. 144 00:15:06,330 --> 00:15:09,780 I don't think we should be embarrassed or afraid of that. 145 00:15:09,780 --> 00:15:17,700 It's a matter of how how the processes of customary law can be fitted into the into as part of the legal process. 146 00:15:17,700 --> 00:15:25,350 I don't think that's impossible. Okay. Let me get to the priority areas, an agenda for litigation against that background. 147 00:15:25,350 --> 00:15:34,170 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, 148 00:15:34,170 --> 00:15:37,860 which is running at the moment where that's what has been consistent about that. 149 00:15:37,860 --> 00:15:47,510 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. 150 00:15:47,510 --> 00:15:51,930 It's it's very unsatisfactory to be driven into test case litigation by the other 151 00:15:51,930 --> 00:15:55,860 side because then you're defending on their territory better to find the right, 152 00:15:55,860 --> 00:16:00,990 find the best facts and then bring the case. It was again one of us, the Chaskalson listeners. 153 00:16:00,990 --> 00:16:09,090 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. 154 00:16:09,090 --> 00:16:13,620 I was the attorney, he was the advocate of saying, don't worry about the law, 155 00:16:13,620 --> 00:16:21,660 just get the facts right, and if you get the facts right, the rule will follow. And there's a fundamental truth to that. 156 00:16:21,660 --> 00:16:26,960 It was a good teacher. So what are the issues we want to what are the 10 items on my agenda? 157 00:16:26,960 --> 00:16:33,380 The first item on my agenda is and I say in no particular order that this is probably the most important. 158 00:16:33,380 --> 00:16:37,190 The first one is the question of succession to traditional leadership. 159 00:16:37,190 --> 00:16:43,460 And we'll all remember Peter Diaz as a compelling account yesterday of how it works in 160 00:16:43,460 --> 00:16:49,790 reality and how there is a misfit between that and the theory that it's all about genealogy. 161 00:16:49,790 --> 00:16:57,610 And you put in the information and the an answer pops up like an ATM machine. 162 00:16:57,610 --> 00:17:04,900 That argument has been raised once in the Constitutional Court in the Lebanon case, the Constitutional Court said it found the argument attractive, 163 00:17:04,900 --> 00:17:08,950 but in the end it didn't have to deal with that because it decided to meet all the different grounds. 164 00:17:08,950 --> 00:17:11,860 Now the metric, now the cases coming before the court. 165 00:17:11,860 --> 00:17:21,430 The issues coming before the court in this so-called case, which is being heard in Pretoria in August 20th of August. 166 00:17:21,430 --> 00:17:25,420 It's actually probably not the best case on the facts, 167 00:17:25,420 --> 00:17:35,420 but sometimes you have to take deal with the hand because when you come in the facts of the case, you do it. 168 00:17:35,420 --> 00:17:39,490 It's not the best case facts, but you can play the hand that you've been dealt. 169 00:17:39,490 --> 00:17:44,740 And it will almost certainly end up in the Constitutional Court, and we will have some sort of decision from the court. 170 00:17:44,740 --> 00:17:50,650 I think on this fundamental issue arising from that second major issue, which we need to deal with, 171 00:17:50,650 --> 00:18:00,040 which is taking on increasing importance, is Typekit levies increasingly levies being imposed by chiefs all over the countryside. 172 00:18:00,040 --> 00:18:04,440 And the question is whether the chiefs actually have the power to do that. 173 00:18:04,440 --> 00:18:08,290 Well, there is a case pending on the courts. Michael and I know about. 174 00:18:08,290 --> 00:18:13,180 But it has. It has, I shouldn't say, come to a halt, 175 00:18:13,180 --> 00:18:19,240 but it needs resuscitation and it's a matter of matter of high priority to resuscitate it because that's the case, 176 00:18:19,240 --> 00:18:23,380 which is good on the facts and we shouldn't wait for some for a bad case to arrive. 177 00:18:23,380 --> 00:18:28,030 That seems to me as a matter of high priority is not a simple and proper port, 178 00:18:28,030 --> 00:18:33,500 which is not the most favourable, favourable place to be, but it will go elsewhere. 179 00:18:33,500 --> 00:18:44,510 The third issue, which which struck me listening to the debates was the issue of commercial contracts, which were never properly. 180 00:18:44,510 --> 00:18:47,780 Concluded chief signed the contract, 181 00:18:47,780 --> 00:18:55,670 and it wasn't validly done because either because it was done through a traditional council which which approved it or rubber stamped it, 182 00:18:55,670 --> 00:19:02,660 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, 183 00:19:02,660 --> 00:19:14,900 it wasn't wasn't obtained. And this seems to me that this rich ground floor for attacking contracts of that kind, the bill, 184 00:19:14,900 --> 00:19:21,890 as I understand it, is going to retrospectively validate some of these, some of these contracts, particularly. 185 00:19:21,890 --> 00:19:30,620 But that itself raises questions because if people have been deprived of their rights retrospectively by a piece of legislation that 186 00:19:30,620 --> 00:19:37,040 raises all sorts of interesting questions about whether there's an arbitrary deprivation of property contrary to the Constitution. 187 00:19:37,040 --> 00:19:42,110 And so the I know there've been some failed attempts to look at some of these deals, 188 00:19:42,110 --> 00:19:45,950 and part of the problem is time passes and time cures all in a way. 189 00:19:45,950 --> 00:19:53,450 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. 190 00:19:53,450 --> 00:19:55,940 And there's a question of how far back you can unwind. 191 00:19:55,940 --> 00:20:04,040 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. 192 00:20:04,040 --> 00:20:10,470 But it's a very it's a very it's a it's a very important question perhaps linked to that. 193 00:20:10,470 --> 00:20:17,690 I come with another point. OK, then then the next issue is accountability. All of the issues which emerged from the presentation. 194 00:20:17,690 --> 00:20:23,540 And I think there are three things which we need to. Three issues which we need to pursue under the hint of accountability. 195 00:20:23,540 --> 00:20:33,140 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. 196 00:20:33,140 --> 00:20:39,200 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. 197 00:20:39,200 --> 00:20:47,540 The time is to move on to another court. The issues of access to information and standing are at the heart of accountability. 198 00:20:47,540 --> 00:20:54,800 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. 199 00:20:54,800 --> 00:21:01,450 We need the assistance of the historians who can explain to us how how we can derive. 200 00:21:01,450 --> 00:21:10,390 A 21st century rule of accountability in respect of commercial transactions from different systems, 201 00:21:10,390 --> 00:21:15,230 of accountability for different issues at a different time. It's not so easy to find. 202 00:21:15,230 --> 00:21:19,300 I was involved in a matter where we thought it was going to be easy and we struggled again. 203 00:21:19,300 --> 00:21:26,350 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 204 00:21:26,350 --> 00:21:36,580 accountability mean in a way that gives some some strength to the members of the community to hold their. 205 00:21:36,580 --> 00:21:41,890 Governing bodies accountable. It may have something to do with the traditional authorities being organs of state, 206 00:21:41,890 --> 00:21:46,870 which I think I was hoping Kate was going to speak about that, but she stuck to it. 207 00:21:46,870 --> 00:21:52,330 But I think they are organs of state. And anyway, there's an argument about that which can be advanced. 208 00:21:52,330 --> 00:21:54,970 And I can't resist saying that while I'm on the subject, 209 00:21:54,970 --> 00:22:05,020 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. 210 00:22:05,020 --> 00:22:08,710 A delinquent director doesn't put the person in jail and doesn't bring the money back. 211 00:22:08,710 --> 00:22:16,720 But if the key mover in the entity is declared a delinquent director, that must have political consequences of of a significant cut. 212 00:22:16,720 --> 00:22:20,270 So that's what I want to say about accountability. Firstly, 213 00:22:20,270 --> 00:22:29,110 the we need to investigate and be ready to deal with the question of compensation for the expropriation of customary rights because the 214 00:22:29,110 --> 00:22:38,530 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. 215 00:22:38,530 --> 00:22:46,690 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 216 00:22:46,690 --> 00:22:52,270 are deprived of customary rights to land because the compensation is not just the market value of the land, 217 00:22:52,270 --> 00:22:57,520 whatever that may be, but it differently is a loss which people suffer when their land, 218 00:22:57,520 --> 00:23:02,230 which they've occupied for generations has taken from them is not the market value of the land. 219 00:23:02,230 --> 00:23:11,380 It's something much, much different. And so we need to look at questions of compensation seventh. 220 00:23:11,380 --> 00:23:17,710 The seventh issue is the term specifically dealt with in section 211 or three of the Constitution, 221 00:23:17,710 --> 00:23:21,310 which Michael think spoke about and Michael Bishop spoke about. 222 00:23:21,310 --> 00:23:27,890 Initially, I share what I read to be his anxiety about whether this. 223 00:23:27,890 --> 00:23:33,410 Marvellous judgement in the SCA will be sustained in the long term. I wouldn't be in a hurry to tinker with it. 224 00:23:33,410 --> 00:23:39,550 I think it's a very favourable. It's not the most favourable judgement conference hopeful and it's an extraordinary achievement. 225 00:23:39,550 --> 00:23:46,100 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. 226 00:23:46,100 --> 00:23:49,460 And I would hold on tightly to that judgement, 227 00:23:49,460 --> 00:23:57,680 and I wouldn't rock the boat too much if I were making that call Italy a puzzling thing which occurred to me, 228 00:23:57,680 --> 00:24:08,600 which relates to the accountability question and deals. What is the meaning of consent for deals which are done when they result in dispossession? 229 00:24:08,600 --> 00:24:14,540 It seems to me there's a very substantial argument which can be made along the following lines, 230 00:24:14,540 --> 00:24:20,330 and this is the issue which arose in the quickest rises in the heart of a failure case. 231 00:24:20,330 --> 00:24:27,830 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, 232 00:24:27,830 --> 00:24:34,460 it can't dispossess people without their consent, but that seems to be quite easy to persuade a court to do. 233 00:24:34,460 --> 00:24:40,380 Secondly, consent means informed consent. That's not a terribly difficult thing to persuade a court to do. 234 00:24:40,380 --> 00:24:49,420 It goes back a long way, you know, in our law. Thirdly, and here's the kicker when the informed consent requires. 235 00:24:49,420 --> 00:24:57,500 Skilled technical and commercial advice. Then there's no consent until the two party consent has had skilled commercial or technical advice, 236 00:24:57,500 --> 00:25:00,220 otherwise what is the point of what is the meaning of consent? 237 00:25:00,220 --> 00:25:07,840 It seems to me that flows logically and that leads logically to a conclusion that any third party the counterparty, 238 00:25:07,840 --> 00:25:13,030 the mining company who comes in and once the deal has to say to itself. 239 00:25:13,030 --> 00:25:17,590 But if I want to get consent, I've got to make sure these people are in a position to provide consent, 240 00:25:17,590 --> 00:25:24,370 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. 241 00:25:24,370 --> 00:25:30,850 And it's time that lessons that we learnt because that would really change the whole game fundamentally, 242 00:25:30,850 --> 00:25:38,950 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. 243 00:25:38,950 --> 00:25:47,330 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. 244 00:25:47,330 --> 00:25:52,510 Finding the knife, the knife issue, the bills. 245 00:25:52,510 --> 00:25:58,360 Firstly, there's the TKL V. We had a very an excellent analysis by Michael Bakuba this morning. 246 00:25:58,360 --> 00:26:05,040 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. 247 00:26:05,040 --> 00:26:11,020 The traditional possible, which looks very vulnerable indeed, I think, can be pushed over quite quickly. 248 00:26:11,020 --> 00:26:15,250 So there isn't an agenda for issues for us. 249 00:26:15,250 --> 00:26:25,570 I must stress because Tim Becker, who's the judge is looking at, I don't mess with judges, Michael incidents you and others. 250 00:26:25,570 --> 00:26:35,020 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. 251 00:26:35,020 --> 00:26:40,510 All of this this one is not going to work unless we find ways of laundering, 252 00:26:40,510 --> 00:26:47,020 broadening access to the enforcement of rights which exist and which we will find to exist under customary law. 253 00:26:47,020 --> 00:26:52,180 It's no use having one case in the whole country and hoping the rest of the country will follow. 254 00:26:52,180 --> 00:26:56,060 It's just not going to happen. There has to be some enforcement. 255 00:26:56,060 --> 00:26:58,570 There has to be you have to be willing to follow through. 256 00:26:58,570 --> 00:27:04,840 And what we all know from working with rural communities is that the judgement is not the end of the case. 257 00:27:04,840 --> 00:27:10,420 It goes on and on and on because the problems follow and you're once you're in, you're in for life. 258 00:27:10,420 --> 00:27:15,820 So there needs to be some, some facility, a specific specialist, 259 00:27:15,820 --> 00:27:21,340 institutional or specialist institutions created to focus on these issues and to see that we 260 00:27:21,340 --> 00:27:26,200 broaden the scope of our litigation and we're able to do the follow through in the litigation. 261 00:27:26,200 --> 00:27:28,060 And I think without that, 262 00:27:28,060 --> 00:27:35,710 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, 263 00:27:35,710 --> 00:27:50,520 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. 264 00:27:50,520 --> 00:27:55,740 It occurred to me that when we finished yesterday that really. 265 00:27:55,740 --> 00:28:05,730 There is an amazingly talented and energetic new generation which has arisen of people who are interested in and engaged in this work, 266 00:28:05,730 --> 00:28:14,520 and a lot of them are in this room. There are the lawyers that are the researchers, there are people who are who. 267 00:28:14,520 --> 00:28:18,720 Are a new generation of lawyers committed to and passionate about this? 268 00:28:18,720 --> 00:28:23,760 And for myself, at my rock old age, 269 00:28:23,760 --> 00:28:29,610 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, 270 00:28:29,610 --> 00:28:31,620 nobody else seems to be interested. 271 00:28:31,620 --> 00:28:37,290 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, 272 00:28:37,290 --> 00:28:41,310 if they are, if the space is created and the opportunities are created. 273 00:28:41,310 --> 00:28:46,590 So I don't end on a note of despite the difficulty of the tasks and the challenges we have at it, 274 00:28:46,590 --> 00:28:55,320 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. 275 00:28:55,320 --> 00:28:59,910 And I think this is a very. For me, this is a very uplifting experience. 276 00:28:59,910 --> 00:29:10,800 Thank you. Thank you. Thank you, Jeff. 277 00:29:10,800 --> 00:29:18,730 Your attempt at securing a favourable judgement is not going to work. 278 00:29:18,730 --> 00:29:26,790 So the invitation that I received specifically referred to the three cases of managed to Condoleezza and my name. 279 00:29:26,790 --> 00:29:33,090 So I want to start there and look at the context in which those cases arose. 280 00:29:33,090 --> 00:29:43,980 So firstly, it is the commercial and economic contexts. My lead was a dispute primarily about a platinum mine in the northwest. 281 00:29:43,980 --> 00:29:46,890 It came to court as a dispute about an eviction, 282 00:29:46,890 --> 00:29:53,700 but then is a dispute about a titanium mine in the Eastern Cape also came to court as a case about consent. 283 00:29:53,700 --> 00:29:59,130 And conversely, it is a case about an entitlement of local communities to exploit. 284 00:29:59,130 --> 00:30:09,360 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. 285 00:30:09,360 --> 00:30:15,240 But as you can see, there were strong commercial interests at play in all of those three cases. 286 00:30:15,240 --> 00:30:20,610 But they were political contexts too fast and strong community resistance, 287 00:30:20,610 --> 00:30:26,730 particularly in the case of Ballard, which is the in the case and in the case of the mandate. 288 00:30:26,730 --> 00:30:35,910 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. 289 00:30:35,910 --> 00:30:40,140 And secondly, there were also weak local government structures. 290 00:30:40,140 --> 00:30:46,800 The governmental structures were very weak. But thirdly, there was an aggressive business interests. 291 00:30:46,800 --> 00:30:52,920 The capitalist class that had been sitting around had consolidated. 292 00:30:52,920 --> 00:30:56,820 And then fourthly, there was a captured chiefly a it. 293 00:30:56,820 --> 00:31:09,330 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. 294 00:31:09,330 --> 00:31:21,970 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. 295 00:31:21,970 --> 00:31:27,580 Right. Or whether these ideas are themselves ideas that are contextual. 296 00:31:27,580 --> 00:31:34,450 They arise because there is an underlying commerce and political context. 297 00:31:34,450 --> 00:31:46,860 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. 298 00:31:46,860 --> 00:31:56,340 So this is context, the commercial context and the political context obviously carry a huge significance about the future of customary law. 299 00:31:56,340 --> 00:32:01,830 How are we going to litigate customary law and what are we going to litigate in customary law? 300 00:32:01,830 --> 00:32:08,920 What they do is to shine a spotlight on the underlying contestation for the sources. 301 00:32:08,920 --> 00:32:15,860 Over time. The nature of the resources that are exploited in black and African communities 302 00:32:15,860 --> 00:32:22,690 has changed the 70s and the 80s where the era of the exploitation of labour. 303 00:32:22,690 --> 00:32:30,670 Mining companies routinely asked troops to send the most able bodied young men to the mining areas, 304 00:32:30,670 --> 00:32:37,440 effectively, chiefs sometimes functioned as labour brokers. Now, minerals are in vogue. 305 00:32:37,440 --> 00:32:43,740 In the future, someone will say to me during the break, perhaps the oxygen would be invoked. 306 00:32:43,740 --> 00:32:54,900 Perhaps water would invoke the nature of the resource will change, but the idea of a commercial exploitation seems to be a permanent idea. 307 00:32:54,900 --> 00:33:09,090 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? 308 00:33:09,090 --> 00:33:19,800 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. 309 00:33:19,800 --> 00:33:26,280 What is striking for most of us is the idea that although we talk about land very fuel in those days, 310 00:33:26,280 --> 00:33:32,130 discourses situate the debate about land in customary law terms. 311 00:33:32,130 --> 00:33:36,840 It is as if we have in parallel conversations. 312 00:33:36,840 --> 00:33:45,060 The only time customary law is invoked is in relation to also to. 313 00:33:45,060 --> 00:33:46,140 And so it was simple, 314 00:33:46,140 --> 00:33:57,400 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. 315 00:33:57,400 --> 00:34:06,670 To use customary law, not only to protect the existing meagre resources that were left as a consequence of colonialism and apartheid, 316 00:34:06,670 --> 00:34:17,540 but also to advance. The interests of the subaltern, so we have to imagine customary law differently. 317 00:34:17,540 --> 00:34:26,720 And so not only did the cases take place in a commercial and political context, they also took place in a legal context. 318 00:34:26,720 --> 00:34:31,640 And that legal context has several characteristics that I just want to outline. 319 00:34:31,640 --> 00:34:40,010 The first is a point that was made repeatedly during the course of these two days, the absence of a legal framework. 320 00:34:40,010 --> 00:34:45,140 We are operating under with the Constitution and nothing else. All right. 321 00:34:45,140 --> 00:34:53,120 We are operating only with the framework in section two, one, one and two and two, but no more than that. 322 00:34:53,120 --> 00:34:57,860 And the second, of course, is the question of the legislative ambiguities. 323 00:34:57,860 --> 00:35:07,280 Even those laws that have been passed, presumably to give effect to customary law, contain gaps and ambiguities. 324 00:35:07,280 --> 00:35:12,800 I know Professor Cousins takes the view that ambiguities are not always a bad thing, 325 00:35:12,800 --> 00:35:18,470 but the difficulty is that ambiguity is always open up the scope for contestation. 326 00:35:18,470 --> 00:35:25,880 The owners open up the scope for the rule of law to be displaced by the rule of the strong. 327 00:35:25,880 --> 00:35:31,790 So how does customary law even out the contest where we know that we have the Constitution 328 00:35:31,790 --> 00:35:36,950 and nothing else where we know that the legislation that has been passed contains gaps, 329 00:35:36,950 --> 00:35:40,700 whether those are deliberate gaffes or inadvertent gaffes? 330 00:35:40,700 --> 00:35:46,730 The fact is that the legislation that we are operating under is incomplete, 331 00:35:46,730 --> 00:35:57,380 and the third legal feature is the question of an absence of an administrative and the regulatory system. 332 00:35:57,380 --> 00:36:04,820 Nobody knows when we talk about admittance will surely be invited. What notice must be given push to consult it? 333 00:36:04,820 --> 00:36:08,540 What is the nature of the consultation? Should women attend the meeting? 334 00:36:08,540 --> 00:36:11,330 Should young people attend the meetings? 335 00:36:11,330 --> 00:36:19,550 That's because we are operating in an administrative vacuum system that is what customary law has developed to be like. 336 00:36:19,550 --> 00:36:24,440 So we have the Constitution and no more. We've got statutes which contain gaps. 337 00:36:24,440 --> 00:36:29,930 We do not have a system of administrative and regulatory control. 338 00:36:29,930 --> 00:36:41,550 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, 339 00:36:41,550 --> 00:36:46,710 with the absence of an administrative system is that we are unable to hold still accountable 340 00:36:46,710 --> 00:36:51,750 using the well-accepted rules of administrative law because they are neither fish, 341 00:36:51,750 --> 00:37:02,220 no foul in between. And it is the absolute ability of that ambiguity that concerns us. 342 00:37:02,220 --> 00:37:07,260 And so all of these have brought us to where we are customary. 343 00:37:07,260 --> 00:37:11,820 Law is an impossible thing to prove, almost impossible thing to prove. 344 00:37:11,820 --> 00:37:19,920 And not only Michael Bishop, well, Jason Blair proved it's Michael Bishop persuaded the charge as it has been proven. 345 00:37:19,920 --> 00:37:29,370 Jason was unable to persuade the judge, although he did all of the speed with You need a historian unit and acted. 346 00:37:29,370 --> 00:37:35,660 Sometimes you need an advocate and sometimes you need an anthropologist. 347 00:37:35,660 --> 00:37:44,130 African people do not have those resources. Sometimes with supplement, but we can only run one case at a time. 348 00:37:44,130 --> 00:37:54,270 That's customary law also is not suitable to the adjudication of system, the adversarial adjudicating system. 349 00:37:54,270 --> 00:38:02,610 Dogs Skate Oregon was a professor at Oregon, pointed out to the problems of adjudication in the customary law context, 350 00:38:02,610 --> 00:38:08,430 the kind of rigmarole that one goes through, it reminds me of my role in the Land Claims Court. 351 00:38:08,430 --> 00:38:15,950 It is almost impossible to prove that I was here before. But customary law is exactly like that. 352 00:38:15,950 --> 00:38:24,470 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 353 00:38:24,470 --> 00:38:30,170 claim to a particular piece of land that we have pursued as a consequence of customary law, 354 00:38:30,170 --> 00:38:38,090 that is a fact intensive exercise. And that is not an easy thing. 355 00:38:38,090 --> 00:38:43,860 And so when I think about litigation, I think of litigation in this context. 356 00:38:43,860 --> 00:38:51,830 And I think it's not easy to think of litigation outside of these contexts. 357 00:38:51,830 --> 00:39:00,150 So how should we then think of litigating here? 358 00:39:00,150 --> 00:39:06,270 So perhaps. We can think first about building. 359 00:39:06,270 --> 00:39:11,790 Clear structures, and perhaps the difficulty is not so much on the substantive side. 360 00:39:11,790 --> 00:39:23,150 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. 361 00:39:23,150 --> 00:39:29,270 But the problem is a structural what is how should that rule haven't been established? 362 00:39:29,270 --> 00:39:38,270 How should it be protected? And so what this shows us is context that I have drawn is that perhaps litigating for 363 00:39:38,270 --> 00:39:45,350 the establishment of robust structures of customary law is a priority on its own, 364 00:39:45,350 --> 00:39:49,910 rather than litigating for particular outcomes. 365 00:39:49,910 --> 00:39:52,430 This, of course, does not mean we must choose. 366 00:39:52,430 --> 00:40:02,510 It started out based litigation model over its substantive outcomes based litigation model, but it means we must factor in. 367 00:40:02,510 --> 00:40:07,820 The establishment of robust customer no structures, we're doing it, of course, 368 00:40:07,820 --> 00:40:15,050 being fully aware that we are dealing with communities that are deprived of resources. 369 00:40:15,050 --> 00:40:26,390 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. 370 00:40:26,390 --> 00:40:32,660 And so even if the focus is to print is to build robust customer no structures. 371 00:40:32,660 --> 00:40:36,020 We have to understand our own limitations. 372 00:40:36,020 --> 00:40:46,880 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. 373 00:40:46,880 --> 00:40:55,760 And so the recognition is not only a question of humility, the recognition of our own limitations is not a question only of humility. 374 00:40:55,760 --> 00:41:07,480 It is also a question of the democratisation of customary law, democratising it from ourselves and recognising that the power truly lies. 375 00:41:07,480 --> 00:41:18,940 Amongst the people, I do not know what is a litigation model or litigation strategy that will lead towards the strengthening of community structures. 376 00:41:18,940 --> 00:41:29,320 But what seems clear to me is that we have to be thinking about a model that focuses on the establishment of these structures. 377 00:41:29,320 --> 00:41:36,970 But we should also be looking at litigation that focuses on rules, the establishment of rules, 378 00:41:36,970 --> 00:41:43,180 litigation that makes it clear who is entitled to come to a meeting when they are at the meeting. 379 00:41:43,180 --> 00:41:47,200 What rights do they have to speak when they exercise those rights? 380 00:41:47,200 --> 00:41:55,620 How decisions ought to be made? I know this sounds like an administrative model. 381 00:41:55,620 --> 00:42:01,120 But I don't think we should be ashamed of deliberately building. 382 00:42:01,120 --> 00:42:07,010 A model that is akin to an administrative state. 383 00:42:07,010 --> 00:42:14,810 Our country has a very strong administrative system and a very strong administrative culture. 384 00:42:14,810 --> 00:42:25,040 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. 385 00:42:25,040 --> 00:42:30,620 But the difficulty is that judges are not able to apply a standard to chips. 386 00:42:30,620 --> 00:42:37,490 No one is able to say you are accountable because you didn't follow the rules of ultram party. 387 00:42:37,490 --> 00:42:44,820 No one is able to say you are accountable because particular people who should have been at a meeting were not invited. 388 00:42:44,820 --> 00:42:49,890 And so in one case that we I think it was the case. 389 00:42:49,890 --> 00:42:55,850 I think when men discovered this policy, that was draughted. 390 00:42:55,850 --> 00:43:05,640 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. 391 00:43:05,640 --> 00:43:13,180 But the defence is that it contained my details about what a community meeting actually means. 392 00:43:13,180 --> 00:43:17,470 And so customer no itself needs to be moved along. 393 00:43:17,470 --> 00:43:28,130 We can no longer ask Oxford professors to go to Solomon every time we're trying to establish a rule of customary law. 394 00:43:28,130 --> 00:43:34,470 Those rules have to be migrated and formalised, and this are only procedural rules. 395 00:43:34,470 --> 00:43:39,140 Professor Cousins, these are not substantive rules I'm talking about. 396 00:43:39,140 --> 00:43:45,440 These are the ways of making decisions and the ways of encouraging accountability. 397 00:43:45,440 --> 00:43:50,360 So quite apart from litigating over the establishment of robust customary law structures, 398 00:43:50,360 --> 00:44:00,200 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, 399 00:44:00,200 --> 00:44:05,300 but also so that we will use litigation for accountability purposes. 400 00:44:05,300 --> 00:44:11,090 We know what is the standard to be applied. 401 00:44:11,090 --> 00:44:22,220 And again, I do not suggest the fossilisation of customary law, but I suggest an instrument for democratic accountability. 402 00:44:22,220 --> 00:44:32,480 The sad thing about how to think about litigation relates back to where I started, which is the. 403 00:44:32,480 --> 00:44:38,240 Resource. Question. 404 00:44:38,240 --> 00:44:43,510 The two cases managed to end by learning about mining. 405 00:44:43,510 --> 00:44:50,890 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, 406 00:44:50,890 --> 00:44:58,930 but anyway, the different issue I prefer to focus on KZN, which also concerns mine. 407 00:44:58,930 --> 00:45:11,290 But these three cases, we all proceed on the assumption that mining is accepted as, quote unquote, an unqualified human good or public good. 408 00:45:11,290 --> 00:45:23,290 But why should we? Because the evidence we have in the Ballina case is that mining always produces bad outcomes for communities. 409 00:45:23,290 --> 00:45:29,170 It is not as if mining is sometimes good for communities, but it is not as bad for communities. 410 00:45:29,170 --> 00:45:33,550 So how do we litigate in a way that does not only hold the state accountable, 411 00:45:33,550 --> 00:45:38,290 but also holds mining companies with big commercial interests accountable? 412 00:45:38,290 --> 00:45:44,710 I have suggested in the past. Not to I think Michael resisted such as that, 413 00:45:44,710 --> 00:45:53,240 we should ask whether or not it is reasonable for the state in each and every mining application to approve it. 414 00:45:53,240 --> 00:46:01,470 When the evidence clearly shows that mining owners produces bad outcomes for communities, right? 415 00:46:01,470 --> 00:46:08,070 Because ultimately, if you ask the people of colour, what would they rather do with the alleged? 416 00:46:08,070 --> 00:46:15,420 The answer is unequivocal. They would rather do tourism. They would rather put water, they would rather put schools. 417 00:46:15,420 --> 00:46:22,440 No one in India wants mining. But why should we, as the lawyers who assist the people of Columbine, 418 00:46:22,440 --> 00:46:29,670 accept the false premise that mining will produce the right outcomes for that community? 419 00:46:29,670 --> 00:46:33,690 And the only time that we have this mining is the consultation and the procedures. 420 00:46:33,690 --> 00:46:37,570 Why should we not challenge mining at heart? 421 00:46:37,570 --> 00:46:47,080 And ask whether or not mining is a good thing for the communities and that goes across all of the other resources. 422 00:46:47,080 --> 00:46:55,630 So we have to start using. Administrative law, questions of reasonableness, those are questions that fall and squarely, of course, 423 00:46:55,630 --> 00:47:00,970 within the real challenges of public power and mining deals are orders approved by the state, 424 00:47:00,970 --> 00:47:07,870 and the courts are quite clear that the decisions to approve mining applications constitute 425 00:47:07,870 --> 00:47:13,210 administrative action and therefore susceptible to reviews under the Administrative Justice Act. 426 00:47:13,210 --> 00:47:16,630 So the third area, I would rather. 427 00:47:16,630 --> 00:47:24,640 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. 428 00:47:24,640 --> 00:47:30,070 And if we want to extract greater accountability for the government to achieve particular outcomes, 429 00:47:30,070 --> 00:47:38,680 I suggest that we have to start asking is the presence of so many environmentally sustainable options? 430 00:47:38,680 --> 00:47:46,810 Why is the state eager to provide to always approve mining deals? 431 00:47:46,810 --> 00:47:53,270 Thursday's episode of Fourthly, Jeff, I agree with the point about consent because it comes. 432 00:47:53,270 --> 00:48:00,410 In line with the view I have about litigation, which is essentially administrative law writ large, 433 00:48:00,410 --> 00:48:05,390 which is what I am trying to persuade to the people listening. 434 00:48:05,390 --> 00:48:09,290 But I think that there are two points to be said about consent. 435 00:48:09,290 --> 00:48:14,210 The one is the domestication of an international law principle, free prior and informed consent. 436 00:48:14,210 --> 00:48:27,320 I knew nothing about this principle until talked to me about. That principle, if applied in the local context, covers for the most part. 437 00:48:27,320 --> 00:48:31,250 What we would need for what we call an informed consent is should not only be informed, 438 00:48:31,250 --> 00:48:38,850 but it must be free and it must be private, and most importantly, it's the question of who consents. 439 00:48:38,850 --> 00:48:49,470 We have been asked the question yesterday about community vessels, family or individual. 440 00:48:49,470 --> 00:48:56,910 That question is left open in my lead. It is another area that should be taken forward, 441 00:48:56,910 --> 00:49:02,160 and it sits uncomfortably with the provisions of the pillar because theoretically 442 00:49:02,160 --> 00:49:11,190 unpopular 50 plus one percent is enough constitute an acceptable basis for a deprivation. 443 00:49:11,190 --> 00:49:17,120 And yet we do that appeal at the time to resist the encroachment. 444 00:49:17,120 --> 00:49:19,190 But beyond Epira, 445 00:49:19,190 --> 00:49:28,910 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, 446 00:49:28,910 --> 00:49:35,470 we need new instruments to think about how to localise the consent to feminine level. 447 00:49:35,470 --> 00:49:42,010 And what happens when ultimately, because the government has been against intensive political action in Colombia, 448 00:49:42,010 --> 00:49:50,160 when ultimately they get the 51 percent? What happens to the 49 that still resists? 449 00:49:50,160 --> 00:49:58,470 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. 450 00:49:58,470 --> 00:50:04,450 Is that a cover of the IS? That means says a lot of money that has been stolen. 451 00:50:04,450 --> 00:50:08,320 The assumption is that we are trying to recover in the state capture commission. 452 00:50:08,320 --> 00:50:18,030 It's unclear to me why communities such as the Hudson should not litigate for the recovery of the moneys that they know. 453 00:50:18,030 --> 00:50:28,780 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. 454 00:50:28,780 --> 00:50:34,530 It because it will return the money to the communities if we theoretically get it. 455 00:50:34,530 --> 00:50:44,910 But it's crucial also for purposes of accountability. At some point, there must be consequences to this kind of looting. 456 00:50:44,910 --> 00:50:49,590 Today, likely the judgement came down in the Eskom case. 457 00:50:49,590 --> 00:50:54,990 The Guptas must now pay another half a billion dollars if they have. 458 00:50:54,990 --> 00:50:57,420 So these are my five areas, 459 00:50:57,420 --> 00:51:08,670 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. 460 00:51:08,670 --> 00:51:14,500 And then I want to finally make one more comment. About the third. 461 00:51:14,500 --> 00:51:20,110 Jeff, I accept the point that they are young, energetic lawyers, young, energetic academics, 462 00:51:20,110 --> 00:51:27,520 historians who are but who are looking at the web and thinking creatively. 463 00:51:27,520 --> 00:51:33,250 But overall, the centre is in the best shape. That is just the reality. 464 00:51:33,250 --> 00:51:38,500 The legal resources centre that has been the premier institution on this kind of work 465 00:51:38,500 --> 00:51:45,920 is facing probably one of the most financially challenging phases of its history. 466 00:51:45,920 --> 00:51:51,830 Many, many other NGOs are not focussed on the work of land and customary law. 467 00:51:51,830 --> 00:51:59,360 They are focussed on things like housing, education, health, no doubt very important societal concerns. 468 00:51:59,360 --> 00:52:12,230 So we cannot think about litigation strategies outside the context of how we strengthen the existing non-governmental organisations that do the web. 469 00:52:12,230 --> 00:52:20,780 So the Centre is in need of a radical reorganisation, but it's in need of resources. 470 00:52:20,780 --> 00:52:25,940 It's as basic as does certain needs resources in order for us to sustain the work. 471 00:52:25,940 --> 00:52:35,720 And we need these resources in the context of I have just described of an aggressive state and an aggressive private sector. 472 00:52:35,720 --> 00:52:44,610 We cannot match them with what we have. So instead of diminishing the role of lawyers, we need to be multiplied. 473 00:52:44,610 --> 00:52:53,820 We need more and more lawyers need more and more lawyers who do human rights work, and this is not only the problem about. 474 00:52:53,820 --> 00:52:58,990 This particular type of litigation, but human rights litigation as a whole. 475 00:52:58,990 --> 00:53:06,460 Requires the multiplication of the resources currently available to it. 476 00:53:06,460 --> 00:53:11,470 So I also must want to end on a point of optimism. 477 00:53:11,470 --> 00:53:17,020 Yesterday, I made the point about this trilogy of cases as being a big moment. 478 00:53:17,020 --> 00:53:22,350 We obviously need to lift our eyes and see what is going on around us. 479 00:53:22,350 --> 00:53:30,280 So it is an exciting phase because there is positivity around judgements. 480 00:53:30,280 --> 00:53:36,520 But of course, it is a phase that can easily be taken away from us, so we have to think about protecting it, 481 00:53:36,520 --> 00:53:42,700 I like your suggestion about protecting the conclusive judgement and not trying 482 00:53:42,700 --> 00:53:52,360 to do too much about it and instead using it for opening up of new avenues. 483 00:53:52,360 --> 00:53:57,010 I do want to challenge us to think about customary law. 484 00:53:57,010 --> 00:54:05,370 Of course, it's useful as an instrument of resistance we've seen from these cases because all these three cases and assistance cases. 485 00:54:05,370 --> 00:54:09,840 But it should also be an instrument of decolonisation. 486 00:54:09,840 --> 00:54:20,220 To think about law, as did the decolonising project or impulse of the Constitution, is something sometimes we're embarrassed to talk about. 487 00:54:20,220 --> 00:54:28,560 But I see the Constitution and its promises as ultimately a liberating project. 488 00:54:28,560 --> 00:54:37,650 So Customer No provides us the end to point towards this liberating impulse because it's truly decolonise. 489 00:54:37,650 --> 00:54:42,960 But that obviously means a lot more work, a lot more historical work. 490 00:54:42,960 --> 00:54:53,520 So woke historians look totally focussed on it, but not the other. 491 00:54:53,520 --> 00:55:03,490 So finally. No, no, no, the other guys are also okay with that, it's OK, OK. 492 00:55:03,490 --> 00:55:14,240 Just in case people think, think, think, think otherwise, but you have to take the whole cast. 493 00:55:14,240 --> 00:55:22,800 So Frantz Fanon reminds us this generation has a duty to discover its mission, and thereafter it must either fulfil its own property. 494 00:55:22,800 --> 00:55:26,976 Thank you.