I am fortunate to be part of a team working on the development of the Museums and Archive at Constitution Hill (March), which will stand opposite the Constitutional Court. While the court is where the Constitution is interpreted, March will be where the origins of the Constitution are understood.
The making of March has provided me with an opportunity to look at the long arc of the South African story of resistance and reflect on the question at the heart of it all – “how does change happen?” Ours is a story of people seeking, whether through peaceful or violent means, a change from oppression to liberation; a change from minority to majority rule; a change from inequality to equality and many other fundamental rights in our Constitution.
It is indisputable that South Africa has in many respects changed. Principal amongst those changes is our Constitution. As former Deputy Chief Justice Dikgang Moseneke reminds us “our constitutional design is emphatically transformative. It contains a binding consensus on, or a blueprint of, what a fully transformed society should look like”.
However, despite our excellent constitutional design, there are still apartheid- era patterns that stubbornly remain. As an attorney, the issue of my objection today is the lack of meaningful transformation in the legal profession, an industry where deeply entrenched unjust patterns still persist. Specifically, my objection is to the number of black women that are reflected in the power circle of some of our “best” firms. The 2018 “Best Lawyer” rankings were recently released and it is safe to estimate that most consist of white men. Why is that?
In 2010 the Law Society of South Africa briefed the justice and correctional services parliamentary committee on the transformation of the legal practice reporting that 80% of attorneys’ practices were still owned by white practitioners, and two-thirds of attorneys’ practices were still owned by men only. The latest statistics showed that even though 46% of the legal profession in South Africa is made up of women, retaining these women within the profession has been a challenge.
In 2014 the Centre for Applied Legal Studies in partnership with the Foundation for Human Rights released its research report on the Transformation of the Legal Profession. The report found that across the profession in Gauteng, lawyers experience a range of hostility and exclusionary conduct based particularly on race and gender which has led to the repression of talent in the profession. These are not just numbers to me, at the other end of these stats are the broken dreams of black women including mine.
Essentially the report’s prognosis is that transformation requires a champion, someone with power in the organisation who is both respected and a high fee-earner. The report concludes that change occurs if behaviour by those with power is adjusted and they start addressing the impediments identified within that firm.
This, unfortunately, is an incomplete recipe for change. In the Eighteenth Brumaire of Louis Bonaparte, Karl Marx wrote that men and women “make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past”. The difficulties faced by the legal profession today were transmitted from the past and it is from the past that I look for precedent.
There is a lot that can be accomplished by marginalised unknown people without conventional power and means and there is even more that can be achieved when these men and women band together for a common cause. “Give me a place to stand,” said Archimedes, “and I will move the world.” So at this moment where many of us are frustrated by the status quo in certain pockets of society – let’s interrogate how change happens.
First, we need to shed comfort, disrupt the status quo and ask difficult questions. History has taught me that when faced with injustice, take a stand even if your knees shake. Robert Kennedy, speaking at UCT in 1966 at the invitation of Nusas, at a time when liberation parties had been successfully repressed and leaders permanently silenced, insisted that obstacles cannot be moved by those who cling to a present which is already dying, who prefer the illusion of security to the excitement and danger which comes with even the most peaceful progress. In other words change will not be brought about by those who are interested in navigating the game as is but by those who demand a new game entirely.
Onkgopotse Tiro, was that game changer, at only 25 years of age at the time, he took a stand and later paid for it with his life. He stood up at his graduation ceremony in 1972 at Turfloop University to speak the unvarnished truth. He used the moment to boldly ask “my dear people, shall we ever get a fair deal in this land? The land of our fathers. The system is failing. It is failing because even those recommended it strongly, as the only solution to racial problems in South Africa, fail to adhere to the letter and the spirit of the policy.”
Tiro’s act gave courage to those afraid to give voice to thought. His words fed and fuelled a movement led by pupils, some as young as 14 years old to ask difficult questions at their own schools demanding equal education and the fall of apartheid.
Kennedy tells us that “each of us can work to change a small portion of the events, and in the total of all these acts will be written the history of this generation. For the fortunate amongst us, the danger is comfort; the temptation to follow the easy and familiar path of personal ambition and financial success so grandly spread before those who have the privilege of an education. But that is not the road history has marked out for us.”
History demands decisivenessfrom those aggrieved by the lack of transformation because as Kennedy perfectly declared “each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centres of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.”
Kennedy’s words continue to reverberate at UCT where student activism has been disruptive of stubborn patterns causing colonial statues to come tumbling down. Black students are at the forefront of these movements sweeping the country; students with no discernible power but who have decided that things must change.
Second, change does not happen under self-elected circumstances. Justice Edwin Cameron explains this with much clarity in his speech on Bram Fischer’s legacy where he demands that wereprimand cynicism, and reproach inaction. When criticising the poorly transformed legal profession, Cameron urges us not to dismiss the imperfect present. We have to “engage with it, struggling in conditions that are better, infinitely better than under apartheid, but that remain imperfect, to attain greater justice.”
The students of June 1976 were struggling under oppressive conditions but took action nonetheless. On 13 June 1976 the Naledi branch of the SA Students Movement held a meeting at which it was decided that protests against the use of Afrikaans in education would be held on June 16. At the forefront of this ambitious plan was, among the many brave leaders,Tsietsi Mashinini, a 19-year-old pupil from Morris Isaacson High School whose history teacher happened to be Tiro.
On the morning of June 16, Mashinini climbed o nto the podium urging the pupils not to be afraid and led them in song out of the school grounds towards history. The decisive action of that day mortally wounded the beast and set in motion a series of events that led to constitutional change. The pupils were not hypnotised by the complexity of their circumstances or their lack of power, they took action the ripples of which we can still see and feel today.
Third, we need stamina. I remember asking advocate George Bizos what the number one quality of a good lawyer is. He did not say grades or connection. He said stamina. It would be another two decades before the dream of the 1976 pupils would be realised – the adoption of the Constitution in 1996 – without the stamina of these pupils and many others change would have been impossible.
Often people my age look back at history and wonder what role they would have played, how brave would they have been, well that question is still relevant today. What are you doing and how brave are you? What have you done to make change happen. DM
This article was amended at 6.40pm on 21 June, 2018
More about the museum project
The museum and archive of the Constitution at Constitution Hill will tell the story of the South African Constitution. The museum will tell the story of our constitution, from the very early black thinkers and lawyers of the late 19th and early 20th century to the work of the Constitutional Court. The museum will focus on the ideologies and strategies of activists and lawyers and how they used an unjust legal system against itself, thereby dismantling apartheid from various angles including strategic litigation, mass protest, negotiation and international lobbying. The museum will be a platform where South Africans can tell stories of their contribution to change. Please submit your feedback to [email protected]