Constitutional Change Conference 2020, University of Texas Austin Law School

Title of Presentation: "South Africa's Nkala Settlement: Contractualized Constitutional Justice”

2020 Global Conference on "Constitution Making and Constitutional Change"
University of Texas Austin Law School, January 17-18, 2020

“South Africa’s Nkala Class Settlement: Contractualized Constitutional Justice”

The recent South African Nkala v. Harmony Gold Mining Company Limited class action, and Ex Parte Nkala class settlement present a novel case study of how South Africa’s distinctive Constitution provides the potential for private law mass tort settlement agreements to ‘contractualise’ the structural protection of constitutional rights, as a judicially approved constitutional remedy. This is important considering that tort or delictual law has emerged as a means of holding corporations accountable for civil wrongs. The challenge however, is that constitutional rights violations arising from civil wrongs receive none or incidental protection in private litigation. A post-conflict transitional constitution, the South African Constitution provides for the direct and indirect application of constitutional rights to corporations in litigation. The Constitution also provides for the class action as a constitutional remedy in itself, aimed at promoting the right of access to courts. Accordingly, when groups seek to vindicate common law, statutory rights or constitutional rights against corporations by means of a class action, they are enforcing this right and are entitled to a constitutional remedy for these underlying claims. The Constitutional Court has reiterated that private law monetary damages claims are not always the most appropriate remedy to enforce constitutional rights. Constitutional remedies are public, forward-looking, community-orientated and structural, rather than, private, individualistic, backward-looking, corrective or retributive. Settlement agreements in private litigation where direct constitutional rights violations are alleged must integrate these constitutional remedial objectives. 

Report

The conference was presented by the International Forum on the Future of Constitutionalism, and convened by Professor Richard Albert, William Stamps Farish Professor in Law and Professor of Government, the University of Texas at Austin. The conference brought together 130 participants from 20 countries. The program was comprised of three components: the first, concurrent sessions in which works-in-progress were presented; the second, a series of plenary lectures delivered by the Comparative Constitutionalism faculty at the University of Texas at Austin; and third, two plenary panels on new books in the field. The conference covered the following aspects in the field: constitutional amendments, constitutional reform, constitutional conventions, constitutional transitions, judicial interpretation and review, unwritten constitutional norms, revolution, secession, forms of direct democracy and including popular initiatives and referendums.

Paper Presentation
I presented my paper in the Wealth, Power and Constitutionalism Session. This was a very well moderated and attended session in which the common themes were highlighted in all the panelists’ papers. My fellow panelists were constitutional scholars who presented the following papers: Ramon de Jesus Jorge Taveras (Dominican Republic) – Social Constitutionalism and Labor Law Reform in the Dominican Republic; Anotonio Maues (Brazil) – Constitutional Change and Distributive Conflict: The Case of Brazil, Ana Carolina Couto Pereira Pinto Barbosa (Brazil) – Capital, Authoritarianism and Democracy: The Role of Brazilian Bankers in the Constitutional Changing Process of 1987-88; Masahiko Kinoshita (Japan) – Constitutional Economic Design for Making Democracy: Case Study of Japanese Economic Reform after World War II. My paper titled South Africa’s Nkala Class Settlement: Contractualized Constitutional Justice, was well received. The focal area of interest from the questions and comments provided on my presentation, was on South Africa’s direct application of constitutional rights to corporations as a constitutional mechanism of regulating private violations of human rights and the uneven distribution of wealth in a post-conflict society. These questions and comments provided useful input for my further consideration. Subsequent to our session, my fellow panelists and I have established a post-conference network, whereby we continue to engage on the common features of our research into the future.

Relevant Concurrent Sessions Attended
I attended the following two Concurrent Sessions where I listened to other participants who presented their papers: Post-Conflict Constitution-Making and Constitutional Struggle. These sessions were beneficial for my research as a comparative study of South Africa’s Constitution featured prominently on the themes addressed in the papers. Comparative scholarship and contributions were useful to the development of my thinking on these aspects, including and beyond the focus of my paper.

Plenary Lectures and Plenary Book Panels
I attended all the plenary lectures and the plenary book panels. The following book panels were delivered: Professor Richard Albert – Constitutional Amendments: Making, Breaking, and Changing Constitutions; Professor Gary Jacobsohn and Yaniv Roznai – Constitutional Revolution.

The following plenary lectures were delivered: Professor Zachary Elkins – How Constitution Makers Borrow Ideas (and Why it Matters); Professor Sanford Levinson – Preservation and Transformation: The Inevitable Tension in Constitution Formation and Constitutional Amendment; Professor William Forbath – Socialism and Constitutionalism; Professor Lawrence Sager – Imperfect Constitutional Duties: Durable Entitlements, Inconstant Entailments; Professor Daniel Brinks – Building Systems of Constitutional Justice: Power and Ideology.

I particularly found Professors Sager’s and Levinson’s lectures interesting. I engaged both of them on their studies of the South African Constitution. My comment and question directed to Professor Levinson was on the role of negotiated settlement agreements in post-conflict constitution-making and their subsequent inclusion in the constitutional text. My comment and question directed to Professor Sager were with regard to his discussion on South Africa’s notable jurisprudence on the justiciability of constitutional socio-economic rights, particularly health rights.

The Conference on the Whole and Results
Professor Albert and the University of Texas at Austin hosted an important conference on critical issues of constitutionalism today. In its inaugural year, it is already highly commendable. The conference created a space for global scholars to debate and exchange perspectives. It was good balance between senior established scholars and young early career scholars. To facilitate further engagement and collaborative scholarship, a listserv has been created of the conference participants. The listserv is a platform in which participants can engage in knowledge exchange to enhance research into the future. This is particularly useful network for young doctoral researchers such as myself. It was critically important to me to contribute an African perspective on democracy and constitutionalism. I left the conference with a richness of knowledge that has contributed meaningfully to my thinking on my work-in-progress doctoral research.