It is an honour and a privilege to be invited to make opening remarks at this historic gathering. This is indeed a momentous occasion for our country as the three arms of government gather for the first time to discuss an issue so critical and fundamental to our democracy: Delivering accessible and quality justice for all.
This important conference gives us the opportunity as this collective to come up with innovative ways on how to enhance access to justice and more importantly to ensure that all our people have access to quality justice. Given our history and context access to justice is of utmost importance in fostering a just and equitable society.
It is of significance for us that this gathering takes place shortly after the 56th anniversary of the adoption of the Freedom Charter which embodies a broader definition of justice by proclaiming that "South Africa belongs to all who live in it and that no government can justly claim authority unless it is based on the will of the people." The Charter further declares that "All shall be equal before the law! All shall have equal human rights!!"
The adoption of the Freedom Charter represented a creative response wherein the disenfranchised concretised their vision of what a future just society and democratic dispensation would entail in the face of an increasingly repressive and exclusionary state. At the time, law was used increasingly by the apartheid state as the primary tool to facilitate its programme of social engineering to exclude the majority of our people politically, economically and socially.
Under the doctrine of parliamentary sovereignty, supported by a complicit judiciary, the law was virtually ineffective as a shield for protecting the vulnerable. The most relevant example in this regard is found in the 1962 Supreme Court judgment of Minister of Interior versus Lockhat and Others where an attempt was made to challenge the Group Areas Act.
"The Group Areas Act represents a colossal social experiment and a long term policy. Parliament must have envisaged that compulsory population shifts of persons occupying certain areas would inevitably cause disruption Whether all this will ultimately prove to be for the common good of the inhabitants is not for the court to decide The question before this court is the purely legal one not the discriminatory results complained of."
This position was supported by some sections in the legal fraternity who argued that under the cardinal constitutional principle of parliamentary supremacy, the essential function of the court is to apply the law - any law which Parliament chooses. As apartheid laws violated nearly every provision of the Universal Declaration of Human Rights, the law became synonymous with injustice. It was not surprising that people lacked faith in the legal system and expressed serious reservations when, during the Constitution making process, we debated empowering the judiciary to validate laws enacted by a democratic Parliament accountable to the people.
In the 1995 case of the State versus Makwanyane, former Justice Mohamed held that and I quote "The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution".
Giving expression to a broader sense of social justice, the Preamble of our Constitution accordingly proclaims that the Constitution was adopted to "establish a society based on democratic values, social justice and fundamental human rights" in which "government is based on the will of the people and every citizen is equally protected by law" and to "improve the quality of life of all citizens and free the potential of each person".
The Constitution, which is supreme therefore applies to all law and binds the legislature, the executive, the judiciary and all organs of state. The Bill of Rights not only guarantees that the state will not negatively infringe civil and political rights, but it also imposes a positive duty on the state to "respect, protect, promote and fulfil the rights enshrined in the Bill of Rights." Significantly this includes that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of socio economic rights which are the right to healthcare, food, water social security and housing.
The important equality provision states, that "everyone is equal before the law and has the right to equal protection and benefit of the law", that "equality includes the full and equal enjoyment of all rights and freedoms," and that "everyone has inherent dignity and the right to have their dignity respected and protected."
Under a supreme Constitution with a Bill of Rights, these core values were adopted to achieve substantive equality, human dignity, the protection of human rights and freedoms, non-racism and non-sexism; a democratic system of governance and the rule of law". Section 34 of the Bill of Rights is particularly important in this regard as it provides for the constitutional right of access to justice, by prescribing that "everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum".
In its 2008 report the United Nations Development Programme Commission on Legal Empowerment of the Poor estimated that four billion people around the world are robbed of the chance to better their lives because they are excluded as a result of poverty. The report indicates that it is only the minority of the world's people who live mostly in the developed economies who can take advantage of legal norms and regulations. Thus, whereas the same protections and instruments exist in many developing countries, the overwhelming majority, mostly the poor, have no way to access them.
In a similar vein the UN report released a few days ago on "Progress of the World's Women: In pursuit of Justice" highlights the challenges faced by women in accessing the justice system. Whereas legislative frameworks have been reformed, it is clear that this is only the first step and that implementation is essential. It can be noted that our vibrant Parliament which is truly representative of all sectors of society has ensured that the progressive laws that address important matters of access to justice, health and labour are in place.
It is gratifying to note that the United Nations report on Women recognises the South African example of the Thuthuzela Care Centres as international best practice. These centres act as one-stop facilities aimed as a critical component of South Africa's anti-rape strategy. They have assisted in reducing secondary victimisation, improve conviction rate and thereby ensure access and realisation of justice.
The lofty words of our Constitution often ring hollow, to those whose human rights are infringed. Undoubtedly much has been achieved by the state in the last 17 years, but given the systematic discrimination and exclusion of the past, it is not surprising that many provisions in the Bill of Rights remain not fully realised. The bitter irony is that while the Constitution is premised on achieving equality, those most in need of protection are often unable to exercise their rights.
I am pleased to note from the 2011 Budget Speech of the Minister of Justice and Constitutional Development in Parliament that improving access to justice remains the primary focus of our government, with approximately 70 per cent of the budget allocated to service-delivery programmes to ensure access to the indigent.
It is estimated that Legal Aid South Africa provides representation in 80 to 95 per cent of all High Court cases. This success notwithstanding, that only 10 per cent of the available resources are allotted to civil matters, with a focus on family law and matters affecting the landless, is commendable. While this focus is laudable, there is however a need to find the means to provide access to justice in non-criminal matters as there is no explicit right to legal representation at state expense in civil cases. This includes constitutional matters.
In the Foreword to the manual "Making Legal Aid a Reality" (a source book for policy-makers and civil society) former Constitutional Court Justice Albie Sachs says and I quote: "We cannot restrict ourselves to seeing the problem of access purely in terms of finding more funds and extra people to help those who cannot afford to hire lawyers. There are numerous other ways of achieving greater access. We can remove barriers, which at present block access. Laws can be written in more accessible language and in the languages used by the people affected by them. Procedures can be simplified."
Legal aid also makes little provision, for aid in matters relating to social assistance. Thus whereas section 27 of the Constitution guarantees the right to social security, the only recourse available to a person who has been refused a grant is to approach the High Court. To do so, an attorney is needed, but how would an indigent person with no means to support himself or herself afford a lawyer considering that legal fees are so high We have already set up various tribunals such as the Commission for Conciliation Mediation and Arbitration (CCMA) and perhaps it would be feasible to look at expanding these types of tribunals to other matters that require intervention?
Chief Justice Ngcobo on 15 April 2011 in an address on Access to Justice mentioned that a junior counsel appearing before the Constitutional Court charges approximately R8 000 per day, while a Senior Counsel costs as much as R38 000 daily. Statistics elsewhere indicate that a single hour's consultation with an attorney would cost between 8 and 21 per cent of the average South African monthly wage. This is compounded by low literacy rates, problems of distance and the fact that Afrikaans or English are still the languages used by courts.
In its 2010 report, Access to Justice: Human Rights Abuses Involving Corporations: the International Commission of Jurists noted the urgent need to improve legal representation in non-criminal matters as already disadvantaged people are further disempowered when confronted with complex legal issues and proceedings. Without representation they are more likely to obtain an inequitable result, particularly where the matter involves a socio-economic power imbalance and where the other side has legal representation.
If the poor are to be legally empowered, they must have effective, legally protected rights, not just the right to vote, the right to free expression, and the right to due process. It is a central purpose of democratic societies to provide these rights, and on an on-going basis. Transforming society to include the poor requires comprehensive legal, political, social, and economic reforms. This is something that we need to work towards collectively as the state, but also with the very active support of the legal fraternity and civil society.
In 2002 already, Judge Navsa noted that whereas during apartheid we had a committed legal fraternity interested in fostering change but since the advent of democracy, in spite of South Africa's having one of the best Constitutions in the world, its legal practitioners "are losing their social consciences" and are doing less and less pro bono work.
Today our Parliament, is not only the guardian of democracy, but an institution that must shape and give meaning to the achievement of substantive equality. In terms of section 42(3) of the Constitution, the National Assembly is elected to represent the people under the Constitution and it does this by among others, providing a national forum for the public consideration of issues, by passing legislation and by scrutinising and overseeing executive action.
In the first three democratic Parliaments, not only have we removed all known discriminatory laws from the statute books, but we have also enacted a significant amount of legislation aimed at promoting and fulfilling the rights enshrined in the Bill of Rights.
It is widely acknowledged that a significant barrier to access to justice is as a result of people being unaware of their rights and remedies. Parliament's system of public participation when passing legislation not only goes a long way in making people aware of the contents of Bills before Parliament, but it also gives the public a meaningful opportunity to participate in shaping the legislation. I have come to realise however, that the Bills that go out for public comment are mostly in English. Together with the Executive, we need to look at means of making translated Bills more accessible so that the public at large can make a meaningful input.
While the enactment of new laws to achieve the vision of the Constitution is on-going, the Fourth Parliament has also placed greater emphasis on oversight. The Portfolio Committee on Justice and Constitutional Development has always been a very robust committee. The rigorous manner in which they dealt with the delays pertaining to the implementation of policy for the Sexual Offences Act is but one example of our Parliament's on-going engagement with the Executive. Parliament enacts the laws and the Executive is expected to implement them without delay.
Our Parliamentary system envisages constituency offices and public participation processes as being a vital part of public education. Ideally, constituency offices should be the real barometer to measure change in the lives of our people, and to serve as an information hub for those without necessary means.
Whilst judicial remedies are indispensable for implementing and enforcing human rights protections, non-judicial remedies can significantly enhance access to justice. In this regard bodies such as the South African Human Rights Commission, the Commission on Gender Equality and the Public Protector were created to play a meaningful role. These institutions should act as catalysts for ensuring that people are aware of their rights, that people have access to information. However the extent to which such work enhances access to justice still remains unanswered.
Measures to improve access to justice should focus on developing low-cost justice delivery models, taking into account the cost of legal services and remedies, the capacity and willingness of the poor to pay for such services, congestion in the court system, the incentives of the judiciary and law enforcement agencies and the efficacy of informal and alternative dispute resolution mechanisms.
The Commission for Conciliation, Mediation and Arbitration (CCMA) has achieved a moderate degree of success and we must look into establishing similar tribunals to make justice more available. In this way the legal system can be enhanced to play a role in supporting poverty eradication by helping poor people to access the appropriate mix of rights and remedies. In such contexts, law and justice sector reforms can provide the foundation for protection and incentives to enable poor people to realize the full value of their human and physical capital.
Former Justice Albie Sachs also makes the point that culture could play a part in the increasing access to justice by, and I quote: " enhancing the participatory and restorative aspects of the justice system. South Africa happens to be the country where the ancient African philosophy of ubuntu meets the evolving international notion of restorative justice. Offenders and victims are brought together. Families are involved. The emphasis shifts from almost exclusive focus on punishment to seeking ways and means of repairing damage and healing torn social fabric."
We therefore have to ensure that our people have a legal and judicial system that they can access and one that ensures their legal entitlements are practical, enforceable and meaningful.
The Constitution envisages that the State, consisting of the Legislature, the Executive, and Judiciary, while maintaining the separation of powers, collectively plays a role to ensure that the goals of transformation are achieved.
The Constitution states that judicial authority of the Republic is vested in the courts and that they are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. The Constitution further provides that no person or organ of state may interfere with the functioning of the courts and organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
In the 1999 case of Dr Frene Ginwala the former Speaker of the National Assembly versus Ms Patricia De Lille it was held that and I quote: " the Constitution is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the Constitution." In this regard Superior courts are enjoined to declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency.
Chief Justice Ngcobo eloquently stated and I quote it is in the performance of this role that the judiciary, in particular, the Constitutional Court, interacts with other branches of government. It is within this context that the constitutional dialogue between the courts and other branches of government must be understood. The idea of a constitutional dialogue arose, in part, in response to the criticism in other jurisdictions that the exercise of judicial power to invalidate legislation is anti-majoritarian in the sense that it replaces the will of the people as expressed by the elected legislature or executive with the will of undemocratically selected judges. More generally, it is a response to the need to find a formulation of the separation of powers that accurately captures the true relationship between the courts and other branches of government.
I agree with Chief Justice Ngcobo that the concept of a dialogue between the branches marks a shift from a view under which the branches of government are perceived as being engaged in a turf war, to one in which they are bound together in an on-going and shared endeavour. Under the former view, it might well be recognised that the courts have a constitutional mandate to strike down unconstitutional action or legislation; but when such power is exercised, it is perceived as the end of the matter.
It is important to note that our arms of government are in actual fact already working together and cooperating with each other within the framework of our Constitution. A case in point is the Judicial Service Commission where the three arms work together to appoint members of the judiciary. We should continue to seek more avenues for cooperation to improve the lives of our people.
In 1998, in the case of De Lange versus Smuts the Constitutional Court stated and I quote "over time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed by South Africa's history and its new dispensation, between the need, on the one hand to control government by separating powers and enforcing checks and balances, and, on the other, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest."
As the ultimate guardian of the Constitution, Courts occupy a very powerful position and for this their independence is crucial. They also need to be beyond reproach. Discussions in the past have often concentrated on securing judicial independence by insulating judicial processes from external influence, but more recently the question has been asked as to how you deal with this where judicial independence is undermined not because of external influence, but because of internal weakness?
In undemocratic states, safeguarding the independence of the judiciary in relation to the state was considered more of a priority than judicial accountability. Given this context, and the tension that exists between the principles of independence and accountability, efforts to address judicial accountability have been perceived as problematic.
Today it is broadly accepted that the judiciary, like other branches of government, must be accountable directly or indirectly. It has been pointed out however that holding the judiciary accountable to an external body raises questions as to whether that same process could be used to undermine judicial independence. Accountability mechanisms, particularly those using external bodies, would expose the judiciary to the risk that its processes will be used by aggrieved parties for the purposes of harassment or intimidation. By contrast, internal judicial accountability mechanism, while they protect judicial independence, raises issues of legitimacy, apparent or otherwise.
Long delays or unethical conduct of judges are not conducive to legitimacy of the law. Studies show that where justice is not seen to be happening, people lose faith in the system and create alternate centres of justice. The often quoted adage holds true that justice delayed is justice denied equally true is that justice denied anywhere diminishes justice everywhere. However this conference is a testament to the fact that the judiciary itself is leading the process of addressing these concerns.
I am confident that this conference will come up with innovative solutions to assist us in our endeavour to provide quality justice to all our people. Your inputs will guide us in creating a just and equitable society.
ï· The Constitution Amendment Bill will define the role of the Chief Justice as the Head of the Judiciary, provide for a single High Court of South Africa comprising of various divisions; establishes the Constitutional Court as the highest court of the land on all matters and to further regulate the jurisdiction of the Constitutional and the Supreme Courts as well as the composition and functions of the Judicial Services Commission.
ï· The Legal Practice Bill will provide for the creation of a unified body for the legal profession, to be known as the South African Legal Practice Council to regulate the affairs of the profession including setting norms and standards; introduces community service for the candidate legal professionals; provides for the establishment of a Legal Services Ombudsman; and provides for a Transitional Council to oversee the implementation of the Bill.
Let me conclude by quoting Kofi Annan, former Secretary-General of the United Nations The United Nations has learned that the rule of law is not a luxury and that justice is not a side issue. We have seen people lose faith in a peace process when they do not feel safe from crime. We have seen that without a credible machinery to enforce the law and resolve disputes, people resorted to violence and illegal means. And we have seen that elections held when the rule of law is too fragile seldom lead to lasting democratic governance. We have learned that the rule of law delayed is lasting peace denied, and that justice is a handmaiden of true peace.
We must take a comprehensive approach to Justice and the Rule of Law.