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Made in South Africa: The Mankayi case is a powerful lesson in making an argument for change

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Lwando Xaso is an attorney, writer and speaker . She is the founder of Including Society. She is also the author of the book, ‘Made in South Africa, A Black Woman’s Stories of Rage, Resistance and Progress’. Follow her at @includingsociety.

Without a movement of people over generations who dreamt and struggled for freedom, we would not even have the Constitution that Thembekile Mankayi used to change his life and that of others.

First published in Daily Maverick 168

When I was a law clerk at the Constitutional Court I was in awe of the number of ordinary people who approached the court to enforce and protect their rights, thereby expanding the meaning and relevance of the Constitution in all of our lives. 

A case that particularly moved me was that of Thembekile Mankayi, a mine worker who had contracted silicosis while working for AngloGold. Mine workers were often sent underground without the necessary protective gear. We all know that this country would not exist without the labour of mine workers, for which they are inadequately compensated. 

After working for Anglo for about 20 years, Mankayi had to stop working because of his illness. However, because of apartheid-era laws, Mankayi was precluded from suing AngloGold for damages that resulted from its failure to ensure a safe working environment. 

Mankayi, despite his failing health, could not accept this grossly unjust set of circumstances. He approached the court to have these laws overturned and to enforce his constitutional rights. After a marathon of proceedings, he finally made it to the Constitutional Court. 

But two days before we handed down the judgment in his matter we learnt that Mankayi had passed away from his illness. He died before he could hear that he was victorious, changing not only the circumstances of his family but also those of many mine workers in the same dire circumstances as him. 

The Mankayi judgment enabled the biggest class action in South African history against mining houses that was settled in the biggest settlement in our history. 

Mankayi’s refusal to accept injustice and his efforts to change our country for the better remind me of the three words that are at the start of our Preamble – “We, the people.” It is a state of mind that has the power to imagine and make a better reality for ourselves. It is a movement of believers who know that the impossible is indeed possible because that is how we won our Constitution. 

The Preamble starts with these words in recognition that it is ordinary people like Mankayi who can make our Constitution more than just a document but an actual transformative agent. 

Without his resolve to right a grave wrong in our society, who knows when justice would have come for all mine workers who have been used and neglected by big mining companies. 

Without a movement of people over generations who dreamt and struggled for freedom, we would not even have the Constitution that Mankayi used to change his life and that of others. 

Urgent work remains to be done as we contend with a pandemic that has upended all of our lives, disproportionately affecting those who had limited resources even before the virus struck. 

Change doesn’t always happen through the courts. Change doesn’t often have to be big gestures – it can be small acts by each one of us which, when put together, can change the forecast of our future. 

This is why the Constitution Hill Trust, one of the organisations I belong to, has started a “We, the People” campaign. It is a campaign that aims to educate the world about how change happens through the lessons that can be learnt from how we won our Constitution.

And with this story the trust in turn hopes to inspire us, the people of today, to continue in our tradition of active citizenry. In the words of the chairperson of the trust, Cheryl Carolus, democracy is not a spectator sport. We all need to assume and play our positions for change. DM168 

To learn more, visit www.ourconstitution. constitutionhill.org.za.

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  • Glyn Morgan says:

    “democracy is not a spectator sport. We all need to assume and play our positions for change.” Great stuff! Not enough people in South Africa know what “democracy” is. It is NOT what the ANC says it is, it is not what a communist would say it is. This is what DEMOCRACY is: Democracy is a form of government in which the people have the authority to choose their governing legislation. Who people are and how authority is shared among them are core issues for democratic theory, development and constitution. Cornerstones include freedom of assembly and speech, inclusiveness and equality, membership, consent, voting, right to life and minority rights. Our CONSTITUTION lays down the governing legislation. Apartheid and BEE are manifestations of the fear of equality. Equality is laid down in our CONSTITUTION.

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