Geoff Budlender

Geoff, you are an experienced South African lawyer who appears in cases before the Constitutional Court regularly. Would you call yourself a ‘human rights’ lawyer?

I suppose I am a human rights lawyer. A large part of what I do is about rights. Under apartheid I thought of myself as a human rights lawyer because I was defending people’s rights against the state. That is the traditional conception of what it means to be a human rights lawyer. I would say that today I try to use the rights in the constitution to transform the society in a much more positive way for two things – for government which is accountable to ordinary people, and to enable people to achieve social and economic rights. That is really about transforming society and the way in which people live. It’s about full citizenship. So I am no longer primarily in the more traditional defensive role. The role of a human rights lawyer has changed in South Africa.

Let’s go back to how you started.

For three years in the 1970s I worked in a one principal firm which was a general attorney’s practice. A large part was criminal work in political trials. Then, I was one of three lawyers who formed the Legal Resources Centre in 1979. That was South Africa’s first public interest law centre. I was there from 1979 to 1996 when I went into government.

Tell me about the Legal Resources Centre.

The LRC represented people who had no money. It focused on litigation with an impact on people’s conditions under apartheid. We ran a sort of dual practice in that we were not a rarified test case organisation. We were simultaneously a service organisation, serving large numbers of people with daily problems, and trying to learn from that work to identify opportunities for a strategic and test case approach. The balance was always difficult to get right. Looking back, people remember only the test cases, but that was only part of what we did.

How did the regime react to the LRC?

It didn’t know what to do with us. What we did was dressed up as lawyers acting for poor people for free. We said we would take on test cases in order to advance the interests of poor people. We behaved conventionally: we dressed like lawyers and behaved like lawyers. On the face of it, the only difference from other lawyers was the type of cases that we took, and that we did not charge any fees. The Bar and Law Society gave us backing, albeit after a bit of hesitation. The government did not like what we were doing, but didn’t know what to do. Some eminent members of the profession gave us support and protection by becoming trustees. We always toned down our rhetoric, and were never shrill. The government wasn’t sure what to do about us. Then in the mid-1980s there was a series of states of emergency. By that stage, we had become a real nuisance. The Minister of Justice spoke to the Chief Justice, who was very compliant, and told him to tell the judges president of the various provincial courts to tell the judges among our trustees to resign, because action was going to be taken against the LRC, and it would be embarrassing if judges were amongst our trustees. The result was mixed. One judge did resign, though he subsequently denied it was for this reason. One, who had been about to resign for other reasons, decided to stay on. In relation to the third, the judge president told the chief justice that he would convey the information, but not in the form of an instruction. That judge also stayed on. In the end, the threat passed. Subsequently, the names of people from the LRC were found on enemies’ lists of the government security apparatus – including my own and that of Arthur Chaskalson, who subsequently became president of the Constitutional Court and Chief Justice.

Did you come to law with a history of student activism?

Yes. I had been a student activist in the 1970s. It was that experience that turned me to law. I was originally a medical student. The student activism brought me into contact with lawyers who defended us. I thought that this looked fun and useful. I then went into the law, with a very clear political purpose. I was extraordinarily lucky. If you had asked me why I switched to law, the description of the ideal organisation in which to work would have been very similar to the Legal Resources Centre, which happened only years later.

Since 1994, you have been a close observer, indeed participant both within and outside government, in the constitutional settlement. What is your opinion of South Africa’s constitution? And of the constitutional court?

The constitution has been a remarkable success. It has taken hold of the popular imagination in a way that is quite extraordinary. It is amazing how quickly it has become part of political and popular culture. This partly reflects the nature of the political struggle that we went through. People see that as in part a struggle for rights and for accountable government. The constitution is a transformative document, and has been quite successful in guiding the processes of change. In significant measure, that is due to the role of the constitutional court, which has had to invent an entire system – some of it with very little international precedent. Whatever their weaknesses, you will find very few people who won’t say that the constitution and the court have been successful. Almost everyone agrees that of the many new institutions which we have since 1994, the most successful has been the court.

The constitution sets out social and economic rights. How has that worked?

Social and economic rights have had a real battle. They have been most successful in housing. They are not only positive rights: they also have a negative component. They protect people’s existing rights, and provide some protection against rights being taken away, for example by making it more difficult for public and private landlords to evict. In that sense they can operate in a manner similar to our traditional conception of civil and political rights. They also have a strong positive component. For example, the court has said that it is inconsistent with the constitution if the state housing programme makes no provision for those in immediate need or in a crisis situation. Similarly, in relation to social welfare legislation, the court has said that it is unconstitutional to have a programme which is unreasonable in terms of its gaps in provision. Where the rights have been least successful is where there is a systemic failure of a programme, and the problem is poor implementation rather than poor design. This is our biggest problem. It is difficult to see what the court can do. The problem is the question of remedies. We have not yet answered the question as to what remedies a court should order to address systemic failure. To me that has been the great eye-opener of the last seven years that I have been back in the law since I left government. We tend to think that if we find a wrong, then a remedy will follow. That is essentially a private law way of thinking. The courts have really struggled with this. It is much easier to persuade judges to decide that there has been a breach of the constitution, than to persuade them to adopt innovative, or as they would see it intrusive, remedies. I think this is because most judges are inherently conservative and also to some extent because they are concerned with the separation of powers – which is a legitimate concern.

So you would be positive about the effect of the constitution?

Surprisingly so after such a short period – in part because there has been such a big effort across the board from government and the court to make people feel that the constitution belongs to them. One of the best things that the constitutional court judges have done is to see their job as popularising the constitution and the work of their court. Judges are usually very aloof. The constitutional court judges are very unusual in the number of speaking engagements they accept, and in making themselves available to talk about the constitution and the court. This has clearly been a deliberate strategy. And government has similarly spoken a lot about the constitution – starting with Mandela and the first minister of justice. Respect for the constitution has taken hold surprisingly quickly. There are now some in government with a more traditional government attitude that judges are trespassing on their area. But I think that the tension is a sign that the judges are doing their job.

And would you be as positive about the state of South Africa as a whole?

I have a mixed response. We have had very high expectations of ourselves – partly because the transition was so quick and overwhelmingly favourable in its outcome. Our expectations were heightened, and they have not been fully met. If in 1990, you had said that this is where we will be in 2007, people would have been amazed. But if in 1997, shortly after the political transition, you had described our current position, a lot of people would have been disappointed. There is still terribly high unemployment. Poverty is still deep and broad. We still have unacceptably high levels of violent crime. We have not yet shown that we have been able to address these problems effectively. We have much more to do.