Our Dear Friends,
I greet you in peace and trust the start of 2015 has been a good one for you. Herewith some news and important updates:
1. Website Compromise
As I sent out my last communication, our website was hacked and our ISP took it down temporarily. Whilst it seems all the info is still there, our webmaster is rebuilding the backend so I look forward to learning about new stuff we can do with it. Apologies if you could not access that news
2. Upcoming Training
16-20 Feb Jozi/Durban/Bloem.
9-13 March Durban
16-20 March Cape Town/PE
The cost is R 11 999 for the full days or R 1000 for the Thursday which can be undertaken as a one day on Court Annexed Mediation for those with prior training
Please note we now have 6/12 or 24 month payment options on the five day programs
3. Distance Learning
This is a year long program which is content-rich and research based. It can be undertaken over a shorter period and there are a number of specialist elective areas to choose from
Contact times are optional but 4 half days are included at no further charge throughout the year
We also plan to use the webinar platform more strongly this year
Cost is R 11 999 or payment over 6/12 or 24 months
4. Tough Minds, Tender Hearts conference
This is for lawyers, ADR Practitioners, Activists, Creatives, Gardeners and others interested in developing full spectrum peace-making. It will be an amazing time to either advance what you do or establish yourself in the work of Peacemaking
5. Administrative Requirements
If you need certificates, assessments, material or anything else of an Admin Nature, Sipho Madlala is your go to guy. Contact him on firstname.lastname@example.org. His Cell number is 0820927425
6. Facebook and Twitter
Daily I publish useful info on all my social pages. From available jobs, to needs we have in matters which are sometimes pro bono, and also significant court judgements or info on public hearings. I also post some interesting anecdotal stuff and its a great way to engage the world in what we do. If you would like to please follow me on Twitter @sheena_ostjon or friend me on Facebook Sheena St Clair Jonker. You can also follow me on Pinterest or Instagram where I often post the more visual aspects of where we go and what we do. I am very happy to share work that you do that advances ADR, Restorative Justice and Access to Justice.
7. Access to Justice
The need out there currently exceeds our capacity. If you are keen to help resource our work in any of the following ways, please get in touch:
1. Offering Pro Bono ADR or Legal Services
2. Offering Pro Bono Research Services and Legal Opinions
3. Financial Donation. We are a registered NPO
4. Being willing to make copies, deliver and serve documents
5. Writing Opinion Pieces on specific issues
6. Pro Bono Creative Services and Journalling
7. Helping us to fundraise and raise awareness
8. Being available for emergency relief in small ways or big ways
9. Any other ideas are welcome
Please get in touch via email using the relevant heading in your subject line
8. Refer a dispute to mediation or arbitration
We have trained mediators and arbitrators all over SA
Please email email@example.com
As always, Peace
I reminder that if you wish to attend any of the following 5 day workshops you should request registration forms at firstname.lastname@example.org:
16-20 February Johannesburg/Bloem
16-20 March Durban/ Cape Town/PE
We had released 2 fifty percent subsidies per program and have a few left. Please enquire directly on this
Also a reminder that the Thursday of each program covers Court Annexed Mediation which can be attended as a stand alone for those who have done prior 40 hour training, either with us or elsewhere.
As always, Peace.
I returned from Cape Town last night and this morning as I opened 3 brand new files for evictions of communities, I wept.
Look. The weather in Cape Town was enough to make any grown Durbanite cry, but right now, I write of not natural phenomena, but imposed human tragedy and suffering.
I was in Cape Town, primarily to advocate for members of the Taxi Industry who are patently being sidelined and subject to arbitrary non-renewal and non-granting of permits which is accompanied by, expensive, and sometimes violent, law enforcement.
While I was there, I was consulted by yet another community facing eviction. Correction, this is the first one facing eviction. The other two were evicted in some kind of act first and explain later massacre of the law and complete derogation of the essential standard of what is humane.
This community faces eviction. And they were referred to me by Ses’khona on the day before the action for eviction was to be heard in court.
I met with the community leaders who handed me a heart breaking statement they had written on the mandate of the community. I publish it here, with their consent.
“New Castle residents we came from inside Monwabisi Park that know as Ndlovini, we were living as back yarders and house keepers. Living like that was never been pleasant, the land lords do whatever they like because they know that we were depending on them. It hurt deep inside when somebody is telling you that should’ve been living on the streets if he/she didn’t accepted you in his/her space.
Being a backyarder had never been easy. You must always keep in your mind that anytime you can be kicked out as that happened to us, because we were not in our own space or plot. What during the process of development we were given the notice by our land lords to move our shack out so they can put their relatives and children on the spaces so they can get development. It is hard to refuse when someone is telling you that, while you know that you living in his/her space. Rent and electricity are so expensive, some of us are not working, and some of us does not get enough salary/wages to go rent some else when we got kicked out. When got kicked out we didn’t know where to go, we then decided to use piece of land to build us some houses.
As there is a speech or saying here in South Africa, South Africa belong to all who live in it, our feeling on that speech is like we are foreigners in our country. We then decided to come to this space at back of Ndlovini which we called it New Castle and use it as our home. A home is where it is safe, we took that as our responsibility to keep New Castle safe and secured.
In New Castle we did not mean to interrupt the metro of City of Cape Town on the progress of working. As the slogan of our metro says, this City works for you, we sincerely want it to work for us on this really hard situation. We have families and children to take care, we don’t afford to be on the streets.
As New Castle residents we are sincerely needed a place to live and that’s why we ended up here.”
So yesterday what I did was attempt to call the City’s attorneys to let them know we had been instructed and needed time to consult with the community and instruct a legal team to represent them. I found that even with a case number and file reference number, the firm dealing with the matter could not direct me to the attorney handling the matter. I have over 10 years experience formerly practising as an attorney and conveyancer, over 18 years experience in teaching law and ADR and in the practice of alternative dispute resolution and restorative justice. And I could not secure these details. What chance does a Xhosa speaking community of urban shack-dwellers facing eviction by the City have?
As I was heading down to court the community leader called me
“Mamma, the community is waiting at court for you
I’m on my way
Mamma can the community sing?
Yes, you can sing. But remain peaceful. We must be safe.
As I arrived at the court, I heard a group approaching, singing.
They gathered in from of the court and I thought it was the New Castle Community. But I stood on the court steps waiting for the community leaders. The group were singing and dancing, but they were peaceful.
At some point I was called by our clients. They had gone to the wrong court and I directed them to the High Court. I realised the community before me were not our clients. I learned this was a community who had been evicted and their matter was also in court.
At some point a police officer approached me:
“This group must stop singing
Why? They are peaceful, I said
Do they have permits to gather?
They have been evicted and summoned to court. They have every right to be here, I said
The police officer turned menacing and took out his phone threatening that if they do not stop singing he would “call who I have to call”
He a wrapped up his threats with “They will disturb the office workers and we can’t allow that”
Seeing this engagement the group started to Toyi Toyi. So just to help diffuse the situation I approached one of the members upfront to chat to them. The community became suspicious and started to chant “shoot, shoot, shoot.” In Xhosa. I with the assistance of someone with me was able to convey that we were allies of their plight and not against them and all remained calm.
Time was getting short so I headed up to court to see if I could find the City’s lawyers. The registrar was helpful and said as soon as they arrived, he would introduce them to me. Looking around the court and seeing it filling up with Advocates rapidly, I said to the registrar, the community is gathering outside and there is another community. I think things may be tense with police and I may like to invite the community in just to help mitigate against any injury or harm.
“We don’t care what happens out there, they can kill each other for all I care. We don’t have space in here”
So I said, Sir, I think we have a responsibility to guard against injury and loss of life.
The Registrar softened and said “Madam, you are right, and they have every right to be here. Inside. Please invite them in”
When the City Legal Team got there, they were immediately directed to me. They were gracious and approachable and agreed on a two week postponement for Access to Justice to understand the case against the community and instruct an appropriate legal team.
Outside, in the rain, I addressed the community, with the help of one of our Taxi Operator clients who helped me interpret and who helped me get to Court and Assisted me in navigating all the territory, literally and figuratively. I explained to the community the purpose of the adjournment and how we would gather information and advocate for engagement with the City in terms of Section 26 of the Constitution and the Grootboom case which makes it unlawful for Administration to evict without proper consultation on alternative living arrangments. I also gave them comfort, confirmed by the City’s legal team, that no action to evict would be undertaken immediately.
As we were wrapping up, a woman approached me and asked to meet with me. She happens to be the acting head of the SA Human Rights Commission of the Province. We met later and discussed the disturbing trend of local government and the state literally negating the needs of the poor and actually creating further homelessness. We spoke of the plight of the poor as the sleeping giant about to surge up and agreed that we would do all we could to work in solidarity with each other and others who recognize this as untenable for every citizen of the country. And we agreed that we would respond to the plight of the poor in this with whatever measures we can to protect them against further injury, further homelessness and further, extra-aneously imposed poverty. We agreed that it is in the interests of every single citizen of this land that we protect the poor.
We will not accept a status quo where office workers are protected from hearing singing in the streets, but the poor are not safe in their own homes. And the enemy of the poor, happens to be the very ones with a responsibility to protect them
Sheena St. Clair Jonker
ADR Network SA and Access to Justice
Over the past two days the presence of Cyril Ramaphosa at the Marikana Inquiry has held a significant presence in the news.
Advocate Dali Mpofu’s cross examination of him was frought with some tough themes, propositions, emotive adjective and idiom which Judge Farlam often called Mpofu on. I have watched, with interest varying views with many calling Mpofu to keep his anger in check and insinuating that there is some kind of personal-politico stand-off going on between opposing political agenda. Following are my views.
Mpofu at the outset told Ramaphosa his cross-questiong would comprise four broad themes:
- Action, or alternatively inaction where there was a duty to act
- State of mind or intention, etc
- Causality. He would explore the causal nexus between Ramaphosa’s action, or alternatively inaction and the consequences ie deaths and injury
- Outcomes, or consequences
Mpofu referred to a publication penned by Ramphosa in the wake of the Marikana tragedy and spent much time unpacking Ramaphosa’s sense of responsibility. There were concessions. However the concessions fell short of the strong personal responsibility that Mpofu was building a case for with Ramaphosa conceding “Collective Responsibility”
On state of mind and intention Mpofu explored Ramaphosa’s business interests, financial interest in the situation and what he referred to as a “web of relationships” which Rampahosa was caught up in that seem to be “incestuous”. He spent much time exploring conflict of interests. On this theme Ramaphosa attempted to raise an extra-aneous discussion around Mpofu’s impending status as silk. His raising of this in my view was a clear attempt at mischief making and it was conceded by himself that the discussions were initiated by him. With Judge Farlam’s own son on the list awaiting the president’s signauture, Judge Farlam ultimately diffused the situation well by affirming that everyone would be grateful if the Deputy President did what he could to promote the President’s action and due consideration of all on the list. This was done elegantly, graciously and light-heartedly. My view is that Ramaphosa’s attempts to humiliate Mpofu here achieved nothing except for possible reflection on capacity for dirty play.
But I wish to give a more personal account. I met Dali Mpofu on the Saturday before the start of the Marikana Inquiry. I was introduced to him by a mutual colleague on the issue of Alternative Dispute Resolution, something we have a mutual belief in. I didn’t know him, who he was, or any of his history at all. During the time I spent with him, I was struck by a brilliant legal mind and a deeply compassionate heart. We chatted about Marikana and I will never forget his words “Sheena, the public thinks this was a wage dispute. It’s so much more. It is a 300 year old story of systematic economic exploitation and exclusion. And we have a responsibility to ensure the story is told”
Later I met with Senior Counsel Dumisa Ntsebeza also on Alternative Dispute Resolution. We spoke about Access to Justice in the Marikana Matter and the danger that the powerful narrative of the miners would be muted or shut down.
Seeing Mpofu angry yesterday did nothing to compromize my respect for him. Sometimes anger is the right response. And for all his political alignment which may be at odds with the Deputy President, I can’t but see beyond the political stuff that may be at play and know that Mpofu is a deeply compassionate courageous lawyer and I honour his proceeding through this under very tough circumstances. Mpofu and Ntsebeza both relayed to me accounts of individual miners and families with an authenticity that I was unable to interpret as anything other than compassion.
Mpofu accused Ramphosa of selling out for 30 pieces of silver. Tragically, I don’t think the Idiom is misplaced. I work in alternative dispute resolution and access to justice. In exploring causality with Ramaphosa, Mpofu unpacked a chain of events and communique linking his action and sometimes inaction to the tragedy. Action in the form of exerting political pressure and the like and inaction in the form of his failure to assess, understand or promote negotiation. One of the most significant aspects of his action was his campaigning for the situation to cease being regarded as a labour dispute, and for it to be declared as criminal activity
In my work we deal with public violence and illegal gathering matters. Mpofu spelt out a very alarming tendency for the source of gathering and marching to be displaced and for gatherers and marchers to be viewed as criminals. The focus is completely taken off the originating cause which is often human rights violations or unfair labour practice, but in general, inhumanity. And if the powers that be can convince us that it is not what it is, but is actually criminal activity, then we will go on accepting police heavy- handedness which is accompanied by killing, injury and detention. The sum total is that the authentic voice of the people is brutalized, suppressed, maybe completely shut down.
I run two organizations. One in alternative dispute resolution (ADR and Mediation) and one in Access to Justice) Both remain apolitical. I remain apolitical. That’s important in what I do. I do what I can to bring light to dark places and to interrupt ensuing injustice. But it’s not enough. I do know though that the voice of the people will take on a life of its own. There is a growing collective no to this stuff and it’s in all of our interests, as a nation to get in the corner of those saying no to injustice.
I blog in peace. And today I blog about the application of mediation in commerce. And I want to specifically speak about co-operative business practice.
As many of you know, Gerhard Borstlap has recently joined ADR Network SA as our Operations Director. He is something of a philosopher in his own right, as am I, to the extent that we are seekers of wisdom. So we have been exchanging a lot of thoughts, ideas sharing and merging to some extent our own philosophies and those of others. Gerhard has a great interest in game theory and military strategy. And we believe that in as much as we are absolute proponents of non-violence and non-adversarialism, there is much to be learned from such theory and strategy that can be utilized in displacing what we regard as unhelpful systems and mindsets.
In resolving commercial conflict I often tell business owners and leaders that I regard competitive practice in business as average, mediocre at best, and ultimately detrimental at worst. And so I have been engaging with business leaders about co-operative business practice for some time. Recently a representative of a large group has asked to engage us on a transactional mediation mandate to set up co-operative partnerships with multi-nationals. Very exciting stuff.
But this morning before dawn, a light bulb went on for me and I realized that my philosophy and those of Gerhard’s merge and accord in a very powerful way. He talks a lot about blue ocean strategy and the art of war.
Allow me to explain: Red Ocean Strategy is about bloody competition in business. Thus the read waters. It is about confrontation, combat and ultimately conquering or destroying competitors who are regarded as opponents or enemies. It is about dividing up shrinking demand. It is about benchmarking. It is about head to head combat with rivals. We all know that this involves casualties along the way. It involves deteriment and often total destruction. Businesses bleed. Often to death.
BlueOcean Strategy makes competition irrelevant by creating uncontested market space. And I am going to expand here and say that it also involves destroying enemies or rivals by making them friends. We can compete with our rivals or we can co-operate with them, help them even, want the best for them. We can take business to stratospheric untapped unfathomable levels.
We believe that in business the ultimate way win victories is accomplished without combat. Sun Tzu says that the supreme art of war is to subdue the enemy without fighting. We regard the enemy as adversarial patterns, competition, rivalry. We dismantle this by making competition irrelevant. Creating uncontested markets. Applying co-operative business strategy.
Corporate strategy has been profoundly influenced by military strategy. Rivalry, competition, combat. It has been about confronting an opponent and about fighting over a given piece of land that is limited and constant. But we know that the market is not constant. And it is not limited. So this kind of strategy adopts key constraints of war strategy.. Limited terrain and the need to conquer the enemy to succeed.
Superior strategy is accessible. It lives in a higher realm. Co-operation. Collaboration.
So how do we make this shift. We use the weaknesses of current strategy: rivalry, combat, competition to displace it with co-operative business practice.
Sin Tzu says who wishes to fight must count the cost. The cost is high. It is damaging. Often fatal.
So in practice how does this work. Organizationally you can take a big picture look and invite us in to systematically shift your business practices from competitive combative business practices and culture to co-operative business practice and culture.
Transactionally, transactional mediation is a powerful model of mediation used to create co-operation in legal contract and business relationship negotiations. The scope in commercial mediation is untapped. And it is powerful.
Both Gerhard and myself do public speaking around these topics. If you are interested, please email Gerhard@adr-networksa.co.za and email@example.com
For ADR Training in Mediation and Arbitration firstname.lastname@example.org
As always, and until next time, peace.
The Art of War