The University of KwaZulu-Natal’s Ellie Newman Memorial Moot Court Competition, now in its 53rd year, is the oldest contest in the country for final-year law students to showcase their skills as advocates in a courtroom-style situation.
This year’s Moot was honoured to host as its presiding judge, justice Leona Theron of the Constitutional Court, an alumna of UKZN who has memories of being taught by Prof Ellie Newman himself.
The theme of the Moot was chosen in partnership with the Denis Hurley Centre, the Durban-based NGO working with homeless people and refugees. The trigger for the collaboration to mark the 40th anniversary of the illegal detention of Paddy Kearney, a respected Durban peace activist and a lecturer at what was then the University of Natal. In August 1985 when he was director of Diakonia, Kearney was marched off by the security police and detained indefinitely without trial.
Kearney was one of hundreds, possibly thousands, who were subjected to such extra-judicial oppression by the Apartheid government. What makes his situation memorable is that he was not left to languish in jail. He had an important protector in Archbishop Denis Hurley, who was outraged. Undaunted by the Apartheid government’s threats to silence people who talked about detainees, Hurley immediately brought a case against the minister of law and order demanding Kearney’s release.
The case hinged on three key words: ‘reason to believe’. The judge, Ramon Leon, ruled that ‘reason to believe’ meant that there needed to be specific reasons why Kearney was thought to be a threat to the state and that these should be presented in court. When the police refused to do so ― either because they did not have any reasons or they wanted to protect their spies ― the judge ordered Kearney’s immediate release.
Chris Nicholson, who was the junior counsel in the case and went on to be deputy judge president of KZN, famously commented at the time: “In the hurley burley, you need the burly Hurley.”
The case set an important legal precedent and protected others from peremptory detention. It was praised for setting “significant restraints on the exercise of official power in the republic” and is still taught in law schools today.
But does this history have any relevance to South Africa today? After all we are a democracy, with an exemplary constitution, an independent judiciary, a police force bound by strict regulations and a free press. What could possibly go wrong?
Well, if you are a homeless person or a foreign national living in Durban, you might be forgiven for thinking that the dark days of Apartheid-style extra-judicial actions have not gone away. The 4th-year law students from UKZN who come to the Denis Hurley Centre have the humbling experience of discovering the enormous gap between the promises of the constitution (with its attendant laws and judicial institutions) and reality as experienced by the poor.
The case for this year’s Moot competition imagined a fictional municipality using its power to destroy the shacks of homeless people and discard their belongings including IDs and medical records. For some older activists in the audience, this echoed the actions of forced removals of non-white communities during Apartheid. For homeless people on the streets of eThekwini, the resonance is much more current: it echoes their own day-to-day experience at the hands of the very people who tell us they wish to create ‘the most caring and liveable city in Africa’ ― an empty slogan which city officials persistently trot out. The challenge for the young lawyers was to argue whether or not these actions, and the by-laws that justified them, were lawful.
The competition was won by Ethan Hann-Singh, who was appearing with Shreya Bugwandin for the municipality: not necessarily because they proved their case but because the presentation of their arguments was stronger.
Archbishop Hurley, who cut his teeth as a young priest in the Pietermaritzburg Debating Society, would have enjoyed the debate about the details of the law. But he would also have known which side had the moral high ground. He would be as outraged by the extra-judicial actions of the fictional municipality as he was outraged by the extra-judicial actions taken against Kearney.
In the Moot competition, the aspiring lawyers referred frequently to whether the constitution allowed such actions by a municipality. Forty years ago, there was no such constitution to protect the vulnerable from the cruel whims of politicians or government officials.
So if he were alive today, I believe the archbishop would even more outraged when the constitution is being ignored. When homeless people are harassed by the police for doing what you or I are allowed to do with impunity – sitting in a park, walking down the street, meeting in groups, taking a shower on the beachfront. When eThekwini municipality makes it illegal to urinate in public but does not provide any 24-hour toilets. When foreign nationals and South Africans without IDs are blocked by vigilantes from accessing government hospitals and the department of health voice sweet words but do nothing.
He would be especially outraged if, as I did, he heard a very senior law officer of KZN say: “Are we going to ignore the views of people in favour of the constitution?” She clearly thinks that she can expediently ignore the constitution when political populism points the other way; Hurley would have reminded her, as would the young lawyers, that she has taken an oath to obey, respect and uphold the rights afforded by that constitution.
The Denis Hurley Centre in Durban, and partners in the National Homeless Network, work in practical ways to help the vulnerable. But we also speak out when people’s rights are infringed. We benefit from great support from partners in the legal fraternity: organisations like Legal Resource Centre, Lawyers for Human Rights and Pro Bono.Org. At the DHC, we are honoured to count both justice Theron and justice Navi Pillay as patrons; we also receive practical help from the UKZN Street Law project, ENS Africa and generous local advocates.
In his judgment, 40 years ago, justice Leon said:
“It is necessary to remind oneself from time to time that the first and most sacred duty of a court when possible is to administer justice to those who seek it – high and low, rich and poor, black and white.”
That sacred duty – to ensure that justice is done – extends, I would suggest, beyond courts, to individual lawyers and law firms, to government officials, to religious and community leaders, to anyone with a chance to speak out and help others. And I have ‘reason to believe’ that if we all do so, we really can make Durban the ‘most caring and liveable city in Africa’, for all our residents, ‘high and low, rich and poor, black and white’.
The 9th National Homeless Conversation is taking place in Cape Town November 3-5. For more information email: national-network@homeless.org.za
Dr Raymond Perrier is the spokesperson for the Denis Hurley Centre in Durban.
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