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Nathi Mjenxane LRC Oral History Project 5th September 2008 Int This is an interview with Nathi Mjen...please could you pronounce it for me. NM Mjenxane. Int Mjenxane.. I can’t get the click in the right place. NM Sure. Int Nathi, on behalf of SALS Foundation in the United States, we really want to thank

you for agreeing to take the time, I know you have a hectic schedule, and for agreeing to participate in the LRC Oral History Project.

NM Ja. Int I wondered if we could start the interview if you could talk about early childhood

memories, growing up in South Africa under apartheid, and where you think your sense of social justice and injustice developed?

NM Ok. Well, first of all I must thank you for inviting me to come and talk about the LRC

here today. I was born...just a brief background about myself...I was born in the Eastern Cape, in the former Transkei...former homeland state of Transkei. And growing up...in fact...I’m from a rural area called Bengu, which is a village in a small town called Lady Frere. I grew up under very difficult conditions, and injustice was an everyday thing for some of us, to an extent that some of us did not even know that we were living an injustice and that we were not supposed to live in the way that we lived.

Int Right. NM We managed to pull through there, we understood about issues of struggle and

injustice as we were growing up, you know, attending school, and so on, and seeing things happening, people being harassed by the police and by the Transkei State. My father particularly…sorry, my grandfather particularly, who was a tribesman in the area where I grew up, was totally opposed to the Matanzima Government, and Matanzima was the head of state in the homeland, Transkei. He was particularly opposed to his rule, because it changed the entire cultural system in the area. Traditional leadership was confused and they introduced their own people, who came and did things the wrong way as far as my grandfather’s generation believed. So, he was very opposed to it, and he was, as a result, very harassed by the Transkei State, ja, basically. And, all of his children, which include my...which include my mother, were, sort of, exposed to it.

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Int Really? NM Ja. Int To harassment? NM To harassment, you know, police raids early in the morning, people looking for

documents, he was accused of harbouring terrorists... Int ANC? NM Ja, ANC terrorists, and so on. And therefore my mother became a very strong ANC

activist in the area... Int Really? NM Ja. Int So was she involved in any of the women’s movements at all? NM She was actually, she was a member of the Women’s League in that area, and she

later became the Regional Secretary of the ANC Women’s League. Int Gosh. NM Ja. Int Growing up in this environment, I’m sure you must have been really influenced, I’m

wondering what were some of your key memories around what influenced you in particular ways, as you were growing up, and the thoughts, and maybe even family discourse around what was going around...in the country?

NM Ja, look I was greatly influenced by everything that was going on, in the family and

outside of the family. You know, the environment then, was obviously...it was just before the ANC was unbanned, and there was a lot of political talk going around. And my mother, specifically, would have briefing sessions with all of us, you know, just to tell us that you do not be confused, this is what is going on, this is what we are going to do, or what we intend to do to liberate the country, take it away from the minority and then give it to the majority, and so on. So, I was actually very politicised from a very young age, ja, I knew what was going on, basically, and I was very interested. To an extent that I even thought when my mother told me of armed struggle, I thought that if I was big enough, I would go and join the Umkhonto we Sizwe, which was the liberation arm of the...which was the armed liberation...liberation army of the ANC.

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Int Right. NM Ja. I was too young to do anything though at that stage. Int Sure, sure. NM Ja. But my mother played a very important...a pivotal role, I would say, she would

keep people at home, strangers, people would come in the middle of the night and they would stay over, stay for a while, and so on, ja.

Int I’m also wondering, Nathi, in terms of a sense of injustice, where do you think that

really came...how do you think that really came about in terms of your sense of wanting to do different...to make things different, to create change?

NM Look, the injustice was just on your face, or, in your face, in the area I grew up. You

know, just the level of poverty, the level of suffering amongst the people there, they had very...In the rural areas, as you might know, they have big plots of land, you know, which they do not own…well, where they did not own land, it was land which was kept in trust for the Transkei Government, and people were just given plots to plough. but not given necessary support to plough anything on the land. And just the way that women were...you know, you would feel that they’re being...not because...not only because of culture, but they were treated as second class citizens. Of course, culture, to a great extent, has got a lot to do with it, or the way that culture is perceived, but, also the injustices of the time, forced women, basically, to occupy a very second-class role in society. Which made things very difficult for me because I was born of a single parent, my father wasn’t around, yes, there was a father-figure in the form of my grandfather...

Int ...Right, and a very strong political form... NM ...Exactly, ja, and then my mother obviously. So, it really confused me in a way, you

know, how to see my mother as both my mother and my father, because my father was not around. You know, but coming back to your question...

Int I think that’s important what you’re talking about as well. NM Ja. So, it was quite difficult in that way and...but, we survived, we survived in the

midst of it all, ja. Int Did you have many siblings? NM We did, actually. We were about seven children, four from my mother’s side and

some were my uncle’s kids, my mother’s brother, and we all grew up together. We, you know, looked after the cattle and the sheep, and the goat, but which all belonged

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to my grandfather, he was a...he was quite a well-to-do man in that respect; he was a small-scale farmer, which really helped with things around there.

Int Just looking back on your life and reflecting, I can see how your mother might have

been influenced by your grandfather and his political activism, but your grandfather, what do you think made him really take the particular part that he took, given that he was wealthy, he could have just been completely...gone his own way and not worried about what was going on?

NM No, he could have, he could have, he…he, in fact, I think wealthy is too strong a

word, but he really was not very poor because he had stock, obviously. Int Sure, of course… NM But, I think that, out of principle, he’d decided that he was not going to just toe the

line. I must...I would have you know that he was an advisor to the local chief, before the Transkei Kingdom came in, or, the Transkei independence came, before ’76, he was an advisor to the chief in the area, and obviously, when the Transkei Government came, they opposed it and therefore all of them were removed from those positions that they held. Well, the chief was removed and all of his advisors were removed. Now, the issue was, not so much the fact that they had been removed, but it was the fact that, with the new system, everything was just going to be confused. As you will understand that the issue of chieftains here, and traditional leadership, is more of a blood issue, than an administrative issue. So, here were these people who are supposedly chiefs who were coming in an administrative form, who have no real blood in them, who did not understand the community, but were just being imposed on people. So, my grandfather, from that stage, was really opposed to the government…to the government of the day. I remember at one stage they wanted to build a school in a village across where my grandfather lived...he really opposed it because it was not based on scientific research which had been done in the area to see where there was a need to build a school, it was just that on the other village, people supported the Transkei Government, as opposed to where my grandfather’s village, you know, where the government was not supported. So, in order to get back at them, they would have to cross a very big river, the kids, to go to the other side of the village, which already had a school, you know, instead of building a school on the other side where there was really a need to build one. So, that was some of the things that my grandfather was very passionate about. And they would come and build so-called clinics, you know, health facilities, on top of old graveyards, you know, and you’ll understand that the importance of ancestors in the Xhosa culture, and this is also something that really infuriate...infuriated my grandfather and his cahoots, and they really...in fact, they even brought a court challenge to it, but, obviously, they lost. Ja.

Int I’m also wondering, Nathi, amidst all of this, you were quite a young person and

apartheid ended, how do you think that transition, etc, might have influenced your future direction, if at all?

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NM Look, it all starts during the 1991 process, I was a little aware or more aware of things now, during the CODESA negotiation process, and my mother was very helpful in trying to explain to me how the process went about. That this was CODESA 1, this was what was on the agenda, this was CODESA 2 and this is what was being debated. So, I got very interested in the process, going on to 1993 when the Interim Constitution was introduced, all of this being explained to me, word for word, I’d been mentored through the process. ’94 came, (Nelson) Mandela became...oh, 1993, Chris Hani died. Just a little interesting story that in 1993, just before...about two weeks before he died, he visited the Lady Frere area, and we were transported from the village that we stayed in to another very far village to go and listen to him speak. And he made all of these mass promises and he spoke all of the liberation talk, you know, all the slogans and so on. We were all...and we were all, you know, quite influenced by him, and the following week he dies, you know, he was assassinated, so...

Int …That must have been...come as quite a shock? NM It was quite a shock, not only to myself, but to everybody in the area, in the country as

a whole, actually. And it got even...also even more interesting because now I was thinking to myself: if a very influential leader like him dies, what’s going to be the future of this country, what’s going to happen to us, you know? Because my mother always spoke to me about the possibility of a civil war, you know? So, I thought: ok, now this is it, we are now going to have a civil war. And (Nelson) Mandela, with his calm voice, came and calmed the entire nation and said: I wish you not be moved by this, you know, you must look at the bigger picture. And so on, so, moving onto 1994, and he became president, I was following throughout the process, and I was highly politicised at this stage.

Int Right. NM Ja. Going on, obviously now, I was a bigger boy, going to high school and university.

In fact, my grandfather had always...I thought I would tell you this later, but my grandfather had named me, actually inaudible, which is a very strong and profound Xhosa name; my mother didn’t like it, unfortunately.

Int Really? NM And I was not given that name. This is why I’m called Nathi now. Int What was the... why was it such a profound...and why didn’t she like it? NM This name means, inaudible means ‘a lawyer during tough times’, loosely translated,

basically, that you’ll be our lawyer during tough times. Obviously, you must imagine that when he named me, I was probably two days or three days old, you know, and somehow, my mother didn’t like it, she thought it was too primitive, and so on, and

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she didn’t like the...the name, and she has not really given me enough reason why, but, she kept on telling me that: your grandfather wanted you to be this, and we hope that you’re going to become this.

Int When did he pass away? NM He passed away in ’95, yes. I was still in high school then. And, you know, going

onto high school, I decided that I wasn’t going to be a lawyer, you know? Int Really? NM Ja, I was too interested in politics, you know, I just wanted to be a political scientist,

because at this stage you saw...you saw black political scientists, and political commentators coming through radio, television, and I thought this is what I wanted to do. And I was really very interested at it...in it, and in ’98 I passed my Matric and I thought: ok, maybe not political analysis, maybe journalism where I’ll get more knowledge about these things. I came to Peninsula Technikon, which is a Technikon here in Cape Town, to study that journalism, business, and about three months later I decided no, this was not for me.

Int Really? NM Ja. I didn’t like it at all. Int What didn’t you like about it? NM To me, it was not what I had expected, you know? I thought that journalism was all

about fact-finding and trying to get information. But, here I was in this class being taught the basics of English, you know, language acquisition courses, and so on...

Int ...Which you didn’t need? NM ...which I didn’t need at all, I thought it was an insult to my intelligence, you know? I

want to be talking about the real stuff. So, I took that year off, I took a gap year and I went back home, and came back in 2002 at UWC to live my grandfather’s dream, and study for law…to become a lawyer, basically, ja.

Int And so, what was your experience at UWC...did you do a BA Law? NM No, I did an LLB, a straightforward LLB...ja, they’d recently combined all of those

law courses. Int So, it’s a four year...?

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NM It was a four year programme which...ja, BProc can be amalgamated to form one four-year LLB programme.

Int Right. NM Ja. So, I started that in 2000, I lived on campus there, at UWC... Int 2000? NM Ja, in 2000. Int Right. NM Yes, and ja, it was an...some interesting years that... Int ...Really! In what way? NM Well, UWC, as you might very well know, is a very...it is known as the ‘University of

the Left’, it’s a very progressive institution of higher learning, and many of our leaders came through UWC. Jakes Gerwel, who, you know, was a rector at UWC. So, there’s a...there’s high political activity on campus, so, that was one of the plusses for me, ja. And the fact that I’d just moved from home to be away and, you know, try to be a man, and I’d just really come from the initiation school as well, so, it was just an opportunity for me to be independent and make it on my own, ja.

Int In terms of studying law, did you really feel that you were coming to grips with

enjoying it, and also did you feel that law...could be used as an instrument of social change, when you were studying it?

NM In fact, I realised when I start...when I...just before I even came to study law, you

know, because I...because now I had the entire year of doing research and trying to find more about law as a field of inaudible, and I...and I, obviously, at this stage there were people, you know, like George Bizos who were very popular at the time, and I thought to myself: ok, now sit down and think about it, you know? Your grandfather wanted you to be a lawyer, and you are now also interested in that, what can it bring for you? I sat down and I analysed it, and I saw that it could be an instrument for social change, you know? It...I looked at the...at this...at what I knew to be right at the time, you know, in the Constitution, and the way that people were living in the rural areas, and I was thinking to myself: isn’t there something, in law, that could be done to change around things in this area. And I thought: ok, here’s an opportunity for you and a challenge. Go out there, study law, see if you can, after having studied that law, come back to this community and bring about change, you know? Ja. And a lot of that drove me and motivated me through university, which was quite difficult actually...ja.

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Int Right. In what way? NM It was difficult in many ways, one of which was the fact that at UWC they did not

provide food, you know, it’s self...it’s self-catering. And the fact that we...my mother didn’t have enough money, as she was a single parent, my grandfather had passed away and a lot of his stock had been sold to educate those who were before me. And now, my mother really had to make do out of nothing, basically. So, I didn’t have text books, I didn’t...you know, like, as compared to other kids who had all of that. So, I had to do odd jobs, I worked at the law library, I worked at the local pub as a bouncer, just to make, you know...

Int ...ends meet? NM ...ends meet. It was very difficult. Difficult in a very encouraging way for me, because

I thought: ok, now this is definitely a challenge for me, and I’m going to prove it to myself that I can make it through. And make it through, I did.

Int Good for you. I’m wondering also...you could have when you finished your law

degree, gone into Commercial Law firms to do Articles, I’m wondering, at what... you decided...that you were going to come to the Legal Resources Centre?

NM It was never my intention to go the commercial route. I was never interested. If you

looked at my study record now at university, I did not take any of the Commercial Law subjects which were available.

Int So you did Practical Legal Studies? NM To me it was Practical Legal Studies, it was Social Security Law, Gender Law,

Human Rights Law, Bill of Rights...you know, Constitutional Law. That’s...that is what I was interested in...Administrative Law, ja. When everybody once told me about all of these nice, nice Commercial Laws, like Text Law, Internet Law, Banking Law, I was not interested at all, not at all. In fact, in my third year, I knew exactly where I wanted to work, because I knew about the LRC when I was doing my third year.

Int Really? NM Ja. Int In what way...how did you come to know about the LRC? NM Look, in...in...when I was doing my third year, I registered for a course called Land

Law...

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Int Right, ok. NM Ja. And...and the case of the Richtersveld came through. Int Did Kobus Pienaar and Henk Smith teach that? NM No. Int Not at the time? NM No, not at the time, but they were actively involved in the class programme at UWC,

which was a programme for Land and Agrarian Studies, which I think they are still involved in.

Int Sure. NM Ja. And my professor at the time, Professor Rugege, who came from...who was from

Rwanda, who was teaching us Land Law, knew Henk (Smith) and Kobus (Pienaar), and he was working with them for the PLAAS Project. So he kept on referring to them and telling us about the LRC. I went on and did my research and I saw people like Geoff Budlender in the...website of the LRC, and then I knew that this is where I want to end up.

Int Really? NM Ja. Int So, you applied and you got in? NM Ja. They came to present at university, one day, and you can imagine, scores of

students wanting to talk to them and interested in them, and I was thinking to myself: how can I make sure that my interaction with them stands out, so that they can remember me when they leave here? So, I was thinking of saying all the nice things to them about the LRC, but I did not know much at the time, you know, my...it was just based on my informal research. So, there was a lady called Mushahida (Adhikari). Mushahida who worked here, Mushahida, and I approached Mushahida and I said to her: I can’t stand here and give you anything else except for that I’m interested to work for your organisation, really interested. And luckily, in the class that they...they had given a presentation in the class about non-profit organisations, and I’d really participated in their class, and obviously I must have stood out and they...they took notice of me and I was invited to apply, actually. I applied and then got an interview, and the rest is history.

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Int Right. So, in your experience, 2005, 2006, your experiences of Articles, who were your principals, what were your rotations, and what areas of Public Interest Law really appealed to you?

NM Three, really. My principal was Henk Smith and I worked in his project, the Land

Project, for a very long time, a lot of my Articles are actually...I was stuck in the Land Project doing the Richtersveld case, which was very interesting and informative...

Int I’d like you to talk about that… NM Ja. I also worked with William Kerfoot in the Immigration Project... Int Refugees? NM Refugees, yes. And I worked with Chantel Fortuin on the Women’s Rights Project. Int Ok. NM Ja. I didn’t much...work much with Angela Andrews. Int Ok. NM Ja. Int So, tell me a bit about......what were your experiences working with Henk Smith in

Richtersveld, what was fascinating about that case, etc? NM The Richtersveld itself is the biggest land claim in the country, as far as I understand

it. And apart from that, it was a real-life situation for me, you know, because, you know, litigation really is all about...it’s a superficial...anyway, let’s just put my opinions aside...

Int No, talk at length about it…. NM Ja, it’s just that I...I just...I’m not impressed with litigation, generally, as a form of

practice... Int Why is that? NM I think...I think that it’s too...how can I say it, now...it’s too confrontational.

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Int Adversarial? NM Ja, too adversarial, that’s the word I’m looking for. It’s too adversarial and

confrontational; I think that we could find other forms of alternate...other forms of dispute resolution, except for litigation. And I think that those forms would have come in very handy at the Richtersveld case. Because the Richtersveld was a unique case, it was not just a case where people were fighting for rights and therefore their rights had to be settled by some...some court, you know? These people had...you know...id...they identified with their land, they were born on that land, and they know nothing else but that land. It was taken away unfairly from them, and here was a situation where, in terms of the government programme, and in terms of the rules of fairness and justice, they were supposed to get it back, period, you know, without any of the complications that they had to go through. But, thanks to the LRC they managed to...which, you know, held their hand throughout the process until the Constitutional Court decided that they...that the land actually belonged to them. And what was even more shocking for me, was the fact that it was the government of the day that the people of the Richtersveld were opposing. You know, I found it particularly difficult that, here’s this community which has gone through all forms of hardship, which is now being opposed by the very same government which is supposed to be protecting their interests.

Int You mean an ANC government? NM An ANC government. Int What’s your sense of why the government took the position they did with regard to

Richtersveld? NM I think, it’s...it’s economic interest, I would say. It was just selfish, economic interest

on behalf of those who are in government. I know it’s a very bold statement to say, but, I would say it anywhere. I did not understand why the government would be interested in diamonds in the Richtersveld area, which did not belong to the state in any way. Here there was documented proof that the land belonged to the people of the Richtersveld, the highest court in the land had decided that the land belonged to them, and the state...

Int The Constitutional Court? NM Ja, the Constitutional Court. But they continued to challenge it. So, the Richtersveld

case was very informing for me, it was informative, it was very emotional for me as well, and it was very nice to work on that case. And the interactions with the community were particularly interesting.

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Int It’s often been said that Henk Smith has devoted...most of his lawyering career to this case, I wondered whether you could reflect on experiences, working with Henk in particular?

NM Well, I’ve...what you just said now is totally true. Henk (Smith) has devoted his

life...as far as I understand it...was from the day I met him, basically, that’s all he could talk about, the Richtersveld case. And he, you know, he’s been through thick and thin in the Richtersveld community, and what was interesting about it all was that he constantly, constantly engaged them on each and every aspect of the case. We undertook trips here every now and again, going to the Richtersveld case to...you know, to go and do workshops to the community, where Henk (Smith) would go and talk to the Community Property Association, Communal Property Association, you know, what is...was known as the CPA, engaging members of the community, and so on. That’s all he could talk about. Some of the most interesting things I’ve see...I saw, were situations where...when the case was going on here at the Land Claims Court in Cape Town, you’d find that Henk (Smith) has not slept, actually. You’d leave him in the office at seven o’clock in the evening, and come back at seven in the...in the morning, and he’s still sitting where he was sitting, working on this case, the Richtersveld case. And I’d not...I did not have much experience for law practice then, and I could see that this was more than just being a lawyer. He owned the Richtersveld Land Claim, he had passion for it, and he...ja, ja.

Int I’m also wondering, the Richtersveld case has ended on a very low note in that the

people of the community have been approached by government in terms of Alec Erwin and stuff, what’s your sense of what happened there?

NM Well, like I said, you know, my sense is that the government has acted very unfairly

throughout the process. And there were instances where they would tell the community, or tell the LRC that...in fact, try to influence the community that the community must tell us that we shouldn’t be involved in the process, you know, that...for free...so we can have free-flow information, they called it. For free-flow information, there shouldn’t be any lawyers…you must understand however, that Alec Erwin himself is a lawyer, he would attend those meetings and try to influence members of the community, you know? So, I think that they used underhand tactics to influence the community of Richtersveld, which is not very sophisticated, with all due respect. But, that’s just the way the government handled the whole thing. It was very underhanded and I think that history will judge the ANC government in the Richtersveld issue.

Int You also worked with other people, you worked with William (Kerfoot), you worked

with Chantel (Fortuin)…? NM Ja. Int I wondered whether you could talk about particular cases that you worked with them

on or just working with them, in particular?

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NM Well, working with William (Kerfoot) was actually very wonderful. I will start with

the Immigration Project; it was quite wonderful because when I was working on the Land Project, I didn’t really understand why were all these refugees coming into the office all the time. And...and, coming and asking for Mr. William (Kerfoot)...Mr. William as they referred to William, until I joined the project, I rotated to that project. And some of the outstanding things I could mention about that project were...There was an application, an urgent application that William brought against the Department of Home Affairs for the...for the way that they were handling the asylum-seeker per...in the issue of asylum-seeker permits, you know? To me, just...just the fact that the scores of refugees who come into this country would otherwise not get assistance if it was not for the LRC. And the way they will come here, so hopeful that the court will decide in their favour. And when the court finally decided in their favour, you could see the relief in their eyes, you know, that in this very huge country, South Africa, land of promise to some of them, because they came here thinking they’re coming for a better life, and what they experienced in the country was not necessarily so...so better than their areas or countries where they came from. And there was really no-one to protect them, but, here there was this organisation that they could come to any time, at no cost, and still get that protection and get their rights realised. To me, that’s what stood out about the Immigration Project. And to an extent, the refugees would come here and, you know, and talk to you about their personal lives, you know, which had nothing to do with the law. But, because, you know, that we are their only hope, we would have to sit there and talk about possible solutions and how we could possibly assist them.

Int Having had this background, I wonder...whether you could reflect on the current

xenophobic attacks and whether you, at the time when you were working with refugees, whether you saw that, as something that might happen, potentially, in this country?

NM Ja, ja. Just before...before I get that I was just going to mention working with

Chantel...for Chantel Fortuin… Int Sure. NM There was a specific case that we worked for...we worked in, called the Mikro

Primary case, which was a case about some kids in...in Kuils River, an area up north of Cape Town, where these black kids were not allowed to go into...were not...go into an Afrikaans...a white Afrikaans school in Kuils River, on the basis of language. The governing body of the school said: we are not going to allow kids who are going to study in a different language here. They approached the LRC, and we understood it from the outset that it was an exclusion on the basis of language, which was totally against the Constitution. We lost the case in the Cape High Court and lost it in the Court of Appeal. I still believe, up to this day, that the government which was arguing mainly the issue of exclusion, failed to argue the relevant points. The LRC was acting in the best interest of the kids...of the children at the time, and which we argued very well, especially in the High Court here, because counsel...counsel for the LRC was

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Geoff Budlender, he was an advocate at the time. His heads of argument actually that were...the judgment by Justice Thring of the Cape High Court, was based on Geoff Budlender’s heads of argument about how...what are the best interests of the kids...of the children. But, ja, at a broader level we...we lost the case, but, I think that some of the principles that came through in the judgment, or some of the comments made by the judge, were actually very progressive.

Int Right. NM Ja. It was one of the outstanding cases that I got involved in while working with

Chantel Fortuin. Int And what was progressive about the judgment that was handed down, do you think? NM Basically what the judge said was that, in whatever you do, in all of this interest that

you might be trying to protect in, you must understand that we must...you must always seek to identify what are the best interests of the children, you know? Because there, there were political interests, you know, people wanting their own, and people wanting to impose on others, and so on. But, at the end of the day, it was not about that, the judge said. Here, it’s about these twenty-one kids which have to be protected by the law, and that we have a constitutional obligation to protect the interest of the children. Ja...and this principle of the best interest of the children is a very well established principle in South African law, and for me, it was quite intriguing that the court confirmed, that at all times we must always try...we must always seek to identify that, in these circumstances, what are the best interests of the children.

Int Right. NM Ja. Int I’m also wondering, Nathi...I asked you the question about the xenophobia...? NM Oh ja. Could you please repeat that question? Int Ja, sure. I was wondering when you were working with William Kerfoot, whether you

could have foreseen that this might have been a likely scenario in South Africa, in terms of local communities feeling quite frustrated and targeting any asylum-seekers and refugees?

NM It was quite obvious that...even then, to me, because people were experiencing

isolated incidents of abuse, you know, of xenophobic verbal abuse, you know, being called Amakwerekwere, which is a very derogatory term and which is very widely used in this country. It was quite obvious. And what was even worse was that, just the treatment that they were getting from the Department of Home Affairs was very clear

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that they are being marginalised, and one day the community will see them as outcasts and will want to attack them on this basis, which is exactly what happened, you know? They were not well integrated into communities, they are not getting any assistance from the government, you know? The UNHCR, which is by all means trying to do the best it can, to me, I believed was not doing enough to protect these people. So, it was always very clear that one day it was inevitable, basically. And I hope that we have learnt very important lessons through this process, of the xenophobic attacks, I think that...I think that is important for us to draw lessons here, so we can inform where we go...what we do, going forward. Ja. Everyone concerned, not just the government, but, civil society, and everyone else that’s involved, you know?

Int Doing your Articles at the LRC, how do you think it shaped you, if at all, with regard

to Public Interest Law and the future work you’ve undertaken? NM You know, look, it influenced me a great deal, I didn’t think that it did at the time. To

me, it was just doing what I’ve always wanted to do, and working with all these wonderful people, and you see people that are here at the LRC, I would have you know, are very paternal, you know? You’re just like a little kid here, they protect you and you do not realise it when you work with them, you know? You’re protected from all of this abuse and tension that comes with the work environment. So, you work here, you wake up every day, you go to work, it’s like you’re going to your home, basically, you know, where people are just monitoring your time to see...trying to make sure that you’re ok all the time. So, it really shaped me. So, I left the LRC and joined what is called the Institute for Democracy in South Africa...IDASA...

Int IDASA? NM IDASA, ja. When I joined IDASA then I started to see what a work environment is

really all about, you know? A lot of opposition...a lot of opposition from amongst colleagues, and so on.

Int So there was a lot of tension at IDASA? NM A lot of tension, which really is in the...I would say it’s inherent to a work

environment, you know, people always want to promote themselves, they want to be seen to be the best, and so on, even if they are not necessary...they’re not necessarily are. It’s by no means a criticism of IDASA as an institution.

Int Sure. But, that seems to me a very starkly different experience from the LRC? NM Totally different, totally, totally different. But then the foundation that I’d gotten in

the LRC managed to guide me and to pull through the whole process. Int In what way?

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NM Ok, at IDASA there were many opportunities, I mean, there was an opportunity to

focus more on political analysis, on research, and so on. But, because I’d...I’d been groomed into this culture of human rights, and so on, and constitutionalism, I...at IDASA, I was employed as a legislation monitor, which basically was all about monitoring parliamentary processes and legislation coming through Parliament. Just the committees that I focused on in Parliament, were those who were dealing with constitutionalism and promoting human rights. I monitored very closely state institutions that support constitutional democracy like the Human Rights Commission, the Gender Commission, and so on, and I wrote articles about those institutions. So, until...I didn’t realise that it had been influencing great...or my actions were influenced a great deal by...by lessons that I’d learnt from the LRC, until one day I decided...I sat down and I thought to myself: why am I not interested in the Fiscal Policy Committee in Parliament, you know? Why can’t I write about Foreign Affairs Committee, you know, why am I writing about the Justice Committee, and so on. And then I realised, that it is lessons learnt from this very great institution, the Legal Resources Centre.

Int Right. NM Ja. Int Nathi, you’re now at Cullinan, at what point did you decide to leave IDASA and go to

Cullinan? NM Look, my understanding of human rights, until I was at IDASA, was that human

rights are just human rights inaudible, you know, social justice is what we want and nothing else, I was very idealistic in my approach. Until when I was at IDASA and I started seeing things more broadly, you know, that human rights are informed by a lot of things, ja. And these guys have always been working with us, the...it was then known as Winstanley & Cullinan, a specialist environmental law firm, and we had an Environmental Justice Project here, and Terry Winstanley was a partner at Winstanley & Cullinan and was a member of our Justice Advisory Committee, basically for the LRC Environmental Justice Project. So, I was also interested in doing a Masters programme then...an LLM, and I wanted to...So, I sat down and I analysed it: ok, now, now, what is it that influences these human rights, what informs human rights, you know? And, to me, human rights, having worked at the LRC, you know, about land issues that the LRC dealt with, you know, issues of natural resources, and so on. So, from that perspective I decided: ok, now, Environmental Law, how does it...how does it...it’s always been my interest, I must tell you, I’ve always been interested in Environmental Law, but not as a field of specialty, it was just an interest that I had about this field, you know? And I realised, sitting...sitting there, that there’s a lot of interface between Environmental Law and human rights, and I thought that maybe one day I’ll get an opportunity to do research about it, and then perhaps write an article on it. And I was about to register for my Masters then, when I received a telephone call from them, out of nowhere, out of the blue, saying that they had a job

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for me, if I wanted to come for an interview. So, I went to the interview and the rest is...and they employed me, basically.

Int Right. And so your work predominantly now is? NM Its Environmental Law, straight Environmental Law. Int So you work with Greg Daniels? NM I work with Greg Daniels. Int And he was at the LRC? NM Ja. Who also was from the LRC. And most of my clients at the firm, even though it’s

a commercial firm, are non-governmental organisations. Int Ok, right… NM Ja. I’m currently working with Angela Andrews on the Earthlife Africa...we are

representing Earthlife Africa against Eskom. Int Really? NM In the nuclear power... Int ...plant case? NM ...case, ja. A project that Eskom wants to undertake, ja. Int I’m wondering, Nathi, having had such a strong grounding in political activism that

was really ideologically ANC-based... NM Ja. Int ...and now you really, it seems, do Public Interest work that’s really against an ANC

government? NM Ja. Int How does that sit with you?

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NM Look, it was quite difficult at first. To me, the ANC, it could do no wrong, as I’ve told

you I came from a very strong ANC background and, to me, all of these talks about protecting the rights of the people against the ANC government, I was thinking: how is that possible? Isn’t that a contradiction in terms? Because the ANC is there to protect the interest of the people. But then, as I developed and understand...understood things properly, is that, you see, the government by its very nature, has got its own interests to protect, you know? And that the government is a very big machinery, a big institution which can, in the way of pursuing its programmes, can be very abusive on the rights of the people. And I understood that we should not be guided by our fanaticism, and we should not be guided by our beliefs, but rather we should be guided by our principles and those principles must be informed by a very supreme regimen in this country which is the Constitution. And that the Constitution says it very clearly, that anything that isn’t consistent with the principles in the Constitution is unconstitutional. Now, whether that be the ANC, that be the government or that be me, or anybody else, the big corporations, if it isn’t consistent with the Constitution, because the Constitution is a document that was developed through consensus in this country. And it’s the only document that protect...can protect our interests, you know?

Int But, it’s interesting you say that because currently the Constitutional Court has been

under attack, so has the Constitution, and the judiciary seems, to me, to be in a crisis, Constitutional Courts are...judges are referred to as counter-revolutionaries, what concerns do you have for the type of work you do, and for Public Interest Law organisations like the LRC?

NM Well, I’m quite concerned for the judiciary in this country, and I’m quite concerned

for everybody for that matter, not even these few institutions you’ve just mentioned. You see, what gives a country credibility is a very strong judiciary. It’s the only arm of government, given the three arms: the executive, the legislature and the judiciary; the judiciary is the only arm of government that can really ensure that there is fairness and justice, you know? It’s the only institution that...or arm of government that can ensure that the rules of natural justice are being followed, you know? And that this unprecedented attack on the judiciary...because people want, you know, a very subservient judiciary that endorses or rubber-stamps decisions of the executive, is just...is just unfair. But, I think that is a stage that we are going to pass, and I think that the ANC is in cri...is in deep crisis at the moment, and they’re obviously trying to blame everyone for it. And that the whole issue of Zuma...Jacob Zuma being...you know, has led to this unprecedented attack on the judiciary. And I think that it’s going to affect us in the...going forward in the way...you know, in the pursuance of our aims and our objectives as these organisations.

Int I’m wondering, Nathi, in terms of... NM …I mean, I was just going to... Int Sure, sure.

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NM ...to talk about how the judiciary has made progressive proclamations about the

recognition of human rights in this country. The Grootboom case, being one of those cases, the TAC case being one of those cases, and many other cases, ja, where really, the judiciary interpreted...interpreted those...those broad principles in the Constitution and put them into practice, you know? That this is what this means, and these are our obligations, and we should follow these obligations.

Int Based... NM And that this had...no, I was going to point out that this attack then, is just going to be

too intimidating in the long run for judges, and they might not be able to carry out their constitutional functions properly.

Int Arthur Chaskalson and George Bizos have both…come out saying that...emphasizing

the independence of the judiciary and criticising the use of intemperate language, like ‘killing for Zuma’, etc. I’m wondering,...just based solely on the absolute opposition that the nuclear reactor case has received...you’ve mentioned the TAC case, you’ve mentioned the Grootboom case, both cases the LRC was involved in, and...by taking on those kinds of high profile cases against government...do Public Interest Law organisations like the LRC not run foul of the government, and do you think then it might actually impact on their functioning in the future?

NM No, it certainly impacts on the government and the LRC, in the pursuance of its

objectives, it has really rubbed people up the wrong way (laughs). Alec Erwin being one of those people. He’s an influential and senior minister in government, and he clearly took a stance against the LRC in the Richtersveld matter, for instance. No, it is obviously inevitable for the LRC, you know, that it would be identified as a white...the ANC would now call counter-revolutionary, you know? Which is really…you know, I just believe that the term counter-revolutionary is just being used very loosely, you know, without proper understanding of what it should mean, I think. But, that’s another debate or it’s a debate for another day. But, I think you are right, the LRC will be seen in a bad light for what it does, but then you must understand the role of the LRC, so it gives meaning to those rights in the Constitution, and it’s doing that without fear or favour. And even if it means that it must inaudible it’s pursuing its objectives, and by trying to toe the line, and not want to upset the government by protecting people’s interest, the ANC...the LRC will be inaudible in its role, ja.

Int I’m also wondering, I’ve asked you a range of questions, I’m wondering whether

there’s something I’ve neglected to ask you, which you feel ought to be included as part of your LRC Oral History interview?

NM Look, I could just comment... Int Sure.

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NM ...and say that the role of this organisation, the Legal Resources Centre, remains

relevant and will always be relevant in South Africa, until such time that we achieve equity in this country. It pains me to see how civil society is being marginalised in this country, and how organisations like the LRC are seen to be pursuing political agendas. Ja? Really, it...it really has no basis, that argument really has no basis. And that I would like to see, one day, maybe that’s in a perfect society, but I would like to see one day, organisations like this one, getting government funding to do the work that they do, ja. That is my comment. I cannot understand why government cannot fund civil society in this country, when there is so much funding for political parties, you know? And where’s there’s so much funding for big armies in this country, big war coverts and so on, and yet you can’t fund organisations that are dealing...doing so much good work at grassroots level.

Int One question I’ve neglected to ask you which I think is important is, some claim that

the LRC’s really unable to attract good quality lawyers now, and particularly young, black lawyers. I’m wondering what you think, as someone who has had this background, why you think young, black lawyers are going the commercial route and not necessarily wanting to work in Public Interest Law organisations like the LRC?

NM Look, it’s a simple economic factor, basically, it’s actually no rocket science. The

LRC, because of its circumstances, cannot offer the same packages that commercial firms are offering, and that young black students coming out of university with student loans, and economic needs at home, some of them are going to be bread winners when they start working as lawyers, so, there is a need for them to provide for their families, and so on. And the LRC, unfortunately, cannot provide that kind of money, cannot pay its junior lawyers that kind of money. Which is very unfortunate, but I do...I do think still, that you will find those black lawyers who will be interested in the ideals that the LRC stands for, instead of money, ja. But, it’s very few of them, I must say, very few of them. And without passing judgment, the circumstances are forcing people to rather go the commercial route, than the other route.

Int Nathi, to end the interview, I wondered whether you could share a particular memory

of either a client, case, or even some interaction with a lawyer at the LRC that really embodies for you what it means to work for the LRC, and also in terms of Public Interest Law?

NM Ja. Look, it’s...there was...when working in the Immigration Project, you know, you

have scores of refugees coming to this office every day, each day coming in their thirties and their forties, about fifty of them in one day. So, you really don’t recognise their faces, but they recognise you, but you don’t realise this. So, one day I was...it was on a weekend and I was walking in Bellville, which is up north there...north of Cape Town, and a group of these men, African men, were walking towards me and it was quite late, and it was in a deserted area, so, I was starting to get worried, you know, what if these guys attack me, and so on. South Africa has a lot of crime, you know? So, I wanted to cross and walk on the other side of the street, but these guys are walking towards me and when I was...as I was crossing, they also crossed and

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they walked towards me. The next thing these guys come up to me and say: hey, Mr. Nathi, Mr. Nathi, and then I realised, no, these are not South African guys, so ok, maybe they know me. So I stood and said: Hi, ja. Hi, Mr. Nathi. And then they started introducing themselves, you know, these are Congolese guys, which I had helped here at the LRC with their refugee status, you know, and they recognised me from, you know, from here, basically. So, I thought to myself, the change that we make in people’s lives, by working here at the LRC, is so much...is so much that, you know, it stays with them forever, even though they don’t pay you for the service that you give them, but they are so grateful, you know? And that, to me, was very satisfying about working here, you know? It was a very satisfying thing, every day I would go home knowing that I’ve made change in somebody’s life, which, you know, that person would otherwise not have gotten because...because they wouldn’t afford it and all of these other circumstances. So that the clients, to me, stood out in this place more than anything else. The gratefulness on their faces as they leave the LRC, having been advised of whatever, you know? I mean, you understand the LRC has a specific focus, it’s got its projects, and people walk here for anything, they come here and they tell you about, you know, a consumer protection matter, you know, they’re being abused by a shop, or a credit agreement that’s gone wrong, and so on, and people whose things have been attached by the sheriff because they couldn’t afford to pay this and that and another, and you have no choice but to advise them, because you know that if you send them away, where will they go, you know? So really, the clients and how they’re satisfied by the work of the LRC, to me, really stood out, you know, during the period I worked here.

Int Nathi, I want to thank you so much, not just for the interview...an interesting

interview at that, but also for really taking the time and coming to the LRC for this interview, I really appreciate it.

NM I thank you for inviting me.

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Nathi Mjexane–Name Index Adhikari, Mushahida, 9 Andrews, Angela, 10, 17 Bizos, George, 7, 19 Budlender, Geoff, 9, 14, 19 Daniels, Greg, 17 Erwin, Alec, 12 Fortuin, Chantel, 10, 12, 13, 14 Gerwel, Jakes, 7 Hani, Chris, 5 Kerfoot, William, 10, 12, 13, 14 Mandela, Nelson, 5 Pienaar, Kobus, 9 Rugege, Professor, 9 Smith, Henk, 9, 10, 12 Winstanley, Terry, 16 Zuma, Jacob, 18 Cases:

Earthlife Africa vs. Eskom, 17 Grootboom, 19 Immigration Project, 13, 20 Mikro Primary, 13-14 Richtersveld land claim, 10-12

TAC, 19

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DOCUMENT DETAILS:

Document ID:- AG3298-1-109 Document Title:- Nathi Mjenxane Interview Author:- Legal Resources Centre South Africa (LRC) Document Date:- 2008