23 October 2015
The recent furore over the lawyers in the huge silicosis court case focused on race, but the real issue is how lawyers advance the cause of justice, argue Pasika Nontshiza and John Clarke.
The president of the National Association of Democratic Lawyers, attorney Maxwell Boqwana, took issue last week with FaceBook comments by Richard Spoor, one of the attorneys for the mineworkers in the silicosis case, about the lack of black lawyers on the mineworkers’ side.
Nadel viewed Spoor’s statements “with utter trepidation”, Boqwana said in a statement, noting that “reconciliation is a mere pipe-dream”. Commenting on the fact that only two of 42 advocates in the historic case are black and 98% of the attorneys are white men, Spoor had said his team of advocates was all-white because his firm briefed advocates who were “exceptional” and willing to work for a reduced rate. His comments drew a storm of criticism and he later retracted the comment which he said was “ill-considered, posted thoughtlessly, and highly regrettable”, “offensive and deeply hurtful” to colleagues and inaccurate “in light of the many black counsel who have devoted their time and considerable skills to public interest cases, including work done for no or reduced fees”.
That the bar has so few black and female advocates is a serious problem. So too that nearly all the lawyers in the silicosis case are white. It’s important to understand why this is happening and to change it. Even more important are fundamental values and attitudes, and whether the legal profession can be used as an instrument of social change. From our perspective, all lawyers need to seriously ask themselves whether the best interests of the most vulnerable and disadvantaged are now being served by the escalating racial polarisation and trading of accusations of racism within the profession.
Boqwana was the founder director of the Xolobeni Empowerment Company, the black economic empowerment partner of Australian mining company Mineral Resource Commodities (MRC), which with its South African subsidiary Transworld Energy Resources (TEM) has applied for the mining rights to titanium-rich dunes in the Xolobeni area.
Xolco has been in existence for 12 years now and has produced extremely bitter fruits, as the award winning documentary The Shore Break shows. Boqwana resigned from Xolco in 2006 after the first major media expose on the saga, but a year later set up another company with Zamile “Madiba” Qunya, Blue Bantry Investments, which partnered with MRC to form Mineral Sands Resources (MSR) — the holding company of the Tormin Minerals Sands project on the Cape West Coast near Lutzville. The third director of MSR is the notorious Perth entrepreneur Mark Victor Caruso, who has yet to embark on a mining venture anywhere in the world which has not ended in conflict and litigation. Just ask his former business partner in the Tormin mine Andrew Lashbrooke. Lashbrooke successfully initiated the Tormin mine in record time, but as soon as the money started to flow, different values and priorities surfaced, leading to acrimony, more litigation and now serious labour unrest and conflict.
Will that recent experience on the west coast now convince Boqwana to review his relationship with Caruso and Qunya?
History also shows that you don’t mess with the AmaMpondo when it comes to land rights. The Pondo Revolt started in the Amadiba area.
History also shows that this is not the first time that Richard Spoor has been besmirched by shallow knowledge, and identity politics. When the former Minister of Mineral Resources Buyelwa Sonjica visited the Amadiba Community in August 2008 to try and persuade them that the mining of their ancestral lands was in their best interests, she sought to undermine their relationship with Richard Spoor by asking “Where was Richard Spoor when Joe Slovo was in exile?”. In fact Richard Spoor was one jump ahead of the apartheid security police, deeply immersed in the struggle for justice, representing activists as best he could under the regime.
Last Tuesday in an Environmental Impact Assessment meeting at the Umgungundlovu Komkulu tribal courthouse in the middle of the proposed mine site, the community leaders repeated their conviction, complaining about MRC’s attempts to co-opt community leaders with cash and directorships of subsidiaries, including appointing the iNkosi, Lunga Baleni, a former opponent of the mine, as a director of XolCo and providing him with a car.
After more than a decade of painstaking struggle against MRC and Xolco, the Amadiba leaders won a major victory: it was agreed that the TEM specialists would not proceed with their impact assessment due to the overwhelming opposition of community members to mining.
“I believe that this is an unprecedented development,” Spoor said. “A community united.”
The current furore around Spoor’s remarks should not be allowed to shift focus from the bigger issues: the liability of the mining companies, as well as the general tendency within the legal profession to play with the jots and tittles of the law while failing to seek weightier matters of justice.
Long before an attorney’s brief reaches the expensive wood-panelled chambers of advocates in the urban centres, the evidence has to be gathered, from people living in very different conditions. Much painstaking, arduous work took place in inaccessible rural areas of our country, which unfortunately seemed less attractive to many attorneys, black and white. Spoor’s silicosis class action application only reached the High Court because an extremely talented and compassionate lawyer (alas the two attributes do not always go together) put in an extraordinary personal effort.
Vivid in our memory is a meeting in Bizana with a group of former mineworkers in the old Catholic church. Spoor was too stretched to attend the meeting, and sent us, with instructions to reassure the mineworkers that he would be back. We expected perhaps a dozen men and perhaps a few widows of men who had already passed away. Five times that number turned up, with expectant, hopeful looks on their faces. Careful not to raise expectations, we said that the only promise we could make was to ensure their story of suffering was told, in the hope that such gross injustice and exploitation might be prevented in the future.
The meeting closed with them singing the hymn Ngiphe Baba, which we recorded. Four years later the Constitutional Court handed down a landmark judgment Thembekile Mankayi v AngloGold Ashanti Limited that secured Mankayi’s right (and the rights of many of those men who had sang the mournful hymn in Bizana) to sue his former employer for compensation. The court found that the mining company owed him a duty of care arising under both common law and statute to provide a safe and healthy working environment.
Tragically, Thembekile Mankayi passed away a few days before the judgment.
Nevertheless it was a joyous occasion to return to Bizana with Spoor. We asked the gathering to sing Ngiphe Baba again. They sang the same hymn, but it had an entirely different emotional register.
The hymn is a prayer, “Father stretch out your staff to lead us into heaven”. It is that prayer which has sustained us to work with Spoor over the past four years. Many of those who sang for us have, like Mankayi, since been released from the hell of suffering that they and their families have had to endure. Many others are now among the claimants represented by Spoor as he sits and waits to hear the outcome of the application for certification of a Class Action suit. The largest available courtroom in the South Gauteng High Court is now overflowing with lawyers, also waiting to hear what the Deputy Judge President Phineas Mojapelo and two colleagues Judge Bashier Vally and Judge Leonie Wendell will decide, after two weeks of intensive, history making, legal disputation.
That class action started under extremely difficult conditions in the Transkei. Putting into place the administrative machinery has been a nightmare as the demand grew on the ground; reaching out to thousands of miners was a daunting task as most of these miners could ill afford to get to town. The work involved interviewing junior attorneys who soon after realising that the work involved field work would politely reject the offer. This opened the way for paralegals who were trained in-house.
Advocates with an avowed and sincere commitment to public interest law are very hard to come by. Public interest law is high risk and often very frustrating. The mountains of files and testimonies that are now before the court have been put together by young activists who have sacrificed their time to expose this iniquity. They might not be professional lawyers but the para legal training they received from Spoor has made it possible for the plight of the silicosis victims to reach the world stage.
There is nothing in the statement issued by Nadel in response to Spoor’s Facebook post that we would substantively disagree with. But in the interests of peace-building and reconciliation we would like to extend a personal invitation to Max Boqwana to come to Bizana again, to meet the former mineworkers, and hear what song they have to sing for him
While he is in the area we would also like to take him back to the Umgungundlovu Komkulu to listen to the people of Xolobeni again, and perhaps to share with them what lessons he has learned, what regrets he has and what he proposes to do about the problems that the Xolobeni Empowerment Company that he formed has caused.
See Black advocates tell court they object to ‘racist sting’ for further information.
Views expressed are not necessarily GroundUp’s.