FULL PDF OF LETTER: https://drive.google.com/open?id=0B0iU6rEWj2UTVDBISHpqR2g3LWs
14 October 2016
Dear Council for our Law Society KZN, South Africa
RE: In Defence of Justice
“The purpose of law is the pursuit of justice”. The late Justice Dullah Omar.
“An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust”. St Thomas Aquinas.
This is an urgent communication in respect of our moral duty and constitutional right to champion for justice; on behalf of our chil-dren, homeless, traders, students and other vulnerable groups who need to depend on us to promote and defend human rights.
1. A few years ago I had a discussion with Manette Strauss about our intentions to formalise our NPO’s legal services for vulnerable people. During this meeting I asked about practicing while our law service recognition is pending. She indicated I could continue practice in the public interest. As a childhood survivor of abuse who did not get justice; I remember being proud to be an attorney.
2. Most recently, as you are aware, we had a meeting with Gavin John and Poobie Govindsamy about our law unit Bambanani So-cial Justice, regarding its recognition, funding and other support for our work. A follow up letter was sent, a few weeks ago, to which we await a reply. We were also compelled to write an open letter regarding the very future of social justice in South Africa.
3. We had a maintenance inquiry yesterday at which the magistrate requested a copy of my appearance certificate, alternatively a letter from the law society confirming that I can practice. We had a meeting in chambers where I explained that I can practice, and that our discussions are ongoing. However, as her advice made sense, I undertook to again contact our law society. In good faith, I was also obliged to raise the constitutional right for anyone to represent any person/group - as indicated through section 38 of the Bill of Rights, the supreme law of our land to which we are proudly bound, and to whose vision we should not create obstacles:
“The state must respect, protect, promote and fulfill the rights in the Bill of Rights.
The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court In
order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does
not give effect to that right; and
May develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).
A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
Everyone is equal before the law and has the right to equal protection and benefit of the law.
Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, lan-guage and birth.
No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). Na-tional legislation must be enacted to prevent or prohibit unfair discrimination.
Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
10. Human dignity: Everyone has inherent dignity and the right to have their dignity respected and protected.
28. Children: ………………………A child's best interests are of paramount importance in every matter concerning the child………………...
33. Just administrative action
Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
National legislation must be enacted to give effect to these rights, and must provide
for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
impose a duty on the state to give effect to the rights in subsections (1) and (2); and
promote an efficient administration.
34. Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
38. Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been in-fringed or threatened, and the court may grant appropriate relief, including a declaration of rights.
The persons who may approach a court are -
anyone acting in their own interest;
anyone acting on behalf of another person who cannot act in their own name;
anyone acting as a member of, or in the interest of, a group or class of persons;
anyone acting in the public interest; and
an association acting in the interest of its members.
39. Interpretation of Bill of Rights
When interpreting the Bill of Rights, a court, tribunal or forum Must
promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
Must consider international law; and
May consider foreign law.
When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.”
4. Our client is understandably aggrieved that his children’s rights are being prejudiced by the lack of compassionate and progressive thinking in respect of social justice work done by NPOs and NGO’s. You will see from his open testimonial in BSJ’s Profile-Proposal, that there is a relationship of trust that exists. Any person with a conscience would never abandon adults nor children.
5. Our client cannot afford to get another attorney, nor should he be forced to take a bond on his home to pay a lawyer who may not know nor care about his children, one of whom is autistic and needs protection. As our return date is Wednesday 26 October 2016, please advise when you will issue the certificate confirming right to appear; I did have it when I practiced articles in Pretoria.
In the words of our late president, Nelson Rolihlahla Mandela:
“Our children are the rock on which our future will be built, our greatest asset as a nation. They will be the leaders of our country, the creators of our national wealth, those who care for and protect our people.”
“As we set about building a new South Africa, one of our highest priorities must be our children. The vision of a new society that guides us should already be manifest in the steps we take to address the wrong done to our youth and to prepare for the future. Our actions and policies, and the institutions we create, should be eloquent with care, respect and love.”
“As a young man, I decided to study the law with a view to using what little talent I had in the service of justice and the cause of my people. Like many before me and those of my generation. I entered legal practice with a determination to employ my skills and training to at least alleviate the suffering of the oppressed if not to reserve it”
“I was made by law, a criminal; not because of what I had done, but because of what I stood for, because of what I thought, be-cause of my conscience”
The people we live to serve [including a homeless person who was thrown in front of a moving train, and rape and domestic violence victims who will not go to anyone else but us] are considering a public campaign and petition on this matter - to highlight their plight and the plight of others affected by our delays in a just resolution. We look forward to hearing from you soonest.
Shabnam Palesa Mohamed
Activist Journalist Attorney
Founder CEO: Stand UP! Foundation
Call: 082 325 4136 / 074 874 2291
Facebook: Shabnam Palesa Mohamed