Chairperson
The vice chancellor and principal
Deputy vice chancellor
Directors of schools
Dean of Faculty of Management and Law
Distinguished members of the academia
Members of the legal professions
Law students
Ladies and gentlemen
It is a privilege, once again, to be able to speak at the Law Week Conference. Minister Radebe, who was looking forward to attend this occasion, has asked me to convey his appreciation of this important event and his best wishes to all the participants.
This conference started during Women's month. It is correct then that the carefully packaged programme of conference focuses, amongst others, on critical aspects affecting women and children.
Topics such as "Gender, Land Ownership and Land Reform in South Africa" and "Can judicial consideration of sex work be expected?", among others, point to the areas where major law reforms are necessary if the full emancipation of women from systemic inequality and patriarchal oppression is to be realised.
This brings me to the theme on which I am required to speak on today, namely: "Law Reform". I will specifically focus on the importance of law reform as an instrument to bring about beneficial change or proposed change in the law.
Lord Scarman, a former Chairperson of the Law Commission of England, captured the need for law reform as follows: “There are in the contemporary world challenges, social, political, and economic, which, if the system cannot meet them, will destroy it. These challenges are not created by lawyers; they certainly cannot be suppressed by lawyers: they have to be met either by discarding or by adjusting the legal system".
The law is one of the main institutions of social organisation. It has a significant impact on people's lives. The law must remain relevant and useful to people, hence need to develop and refine existing law as well as to adapt laws to new social, economic or cultural circumstances.
The transition from Parliamentary sovereignty to a Constitutional state was itself revolutionary and law reform was at the centre of this transition.
To reconstruct the laws that defined the colonial and apartheid rule was no mean task. Since 1994 a maze of laws in the statutes books were, depending on their extent of their inconsistency with the Constitution as the supreme law or its values, either scrapped or rewritten by the legislatures at the three spheres of government with a view to democratise and transform the State and society.
The South African Law Reform Commission (SALRC), which together with the Rules Board for Courts of Law are the South Africa's pre-eminent law reform agencies has, through its flagship project, the statutory law revision project, identified some 3 000 odd statutes that require attention with a view to removing or adapting them to the constitutional dispensation. Some of these acts had become obsolete, while others contain provisions that are in conflict with the Constitution.
It is important to note that law reform is neither the exclusive domain of law reform agencies nor exclusively a legal topic. Law is not an esoteric and technical discipline, whose values are safe in the hands of the judges and lawyers.
Contemporary society requires that it be given the opportunity to test its laws by its own criteria; it insists that laws are either to serve the needs of society or to be rejected. While the legislatures are the ultimate repository of the law making authority, participative democracy had become a bulwark of law making in our constitutional democracy founded on an open and democratic society.
It is within this context that academic institutions through programmes such as the Law Week Conference we are about today, the judiciary, the legal profession, the business community and civil society at large has a critical role in the development of laws that impact on the lives of people.
The courts, through their purposive value interpretation of the Constitution and other law, play a critical role in jurisprudence and what is termed judge-made law.
Research, particularly legal research and writing, are the foundations of the law reform process and universities are the reservoir of knowledge. Legal research involves finding, reading, analysing, and integrating contextualised judicial decisions, legislation and literature relevant to the legal subject at hand, and often involves a comparative study of the relevant laws in other jurisdictions.
The late Chief Justice Ismail Mahomed emphasised the importance of legal research and writing when, in his address to the Johannesburg Bar on 25 June 1997 on the occasion of his appointment as Chief Justice he spoke of: “The tradition of thorough scholarship, the pursuit of forensic excellence, the capacity of rational thought, intense intellectual energy, and unremitting discipline which barristers have always been expected to display in the discharge of their briefs".
Before I reflect on the critical role of the law reform agencies allow me to highlight some of the laws that were developed, enacted and promulgated within the justice sector recently to transform the justice sector and to increase access to justice for all.
The Children's Act and the Child Justice Act of 2008 both of which came into operation on 1 April this year, fundamentally transform the law relating to children in need of care and children in conflict with the law respectively. These acts provide comprehensive policies and programmes geared to give effect to the children rights protected in section 28 of the Bill of Rights in the Constitution.
Let me also reflect briefly on the proposed bills through which we seek to transform the judicial and the legal systems, namely the Constitution Amendment Bill, the Superior Courts Bill and the Legal Practice Bill.
The Superior Courts Bill and the Legal Practice Bill have a similar objective, namely; to establish rationalised and unified judiciary and the legal profession respectively guided by the principle of access to justice.
The Superior Courts Bill, on the one hand, is premised on the Constitution Amendment Bill, which provides a constitutional framework necessary to effect the institutional reforms envisaged by the Superior Courts Bill.
Some of the fundamental principles that both the Constitution Amendment Bill and the Superior Courts Bill seek to address are, among others, the rationalisation of the composition, areas of jurisdiction and structures of the superior courts, which are still largely constituted in accordance with the Supreme Court Act of 1959 to be suited to the post 1994 constitutional order.
The bills would also harmonise the constitutional courts and the Supreme Court of Appeal by affirming the former as the apex court of the republic, facilitate the integration of the Labour Appeal Court and Labour Court into the Supreme Court of Appeal (SCA) and the general divisions of the high court respectively.
With particular reference to the Limpopo province, the effect of the changes envisaged by the Superior Courts Bill is that this province will be freed from the jurisdiction of the North Gauteng high court and will acquire its own fully fledged high court, and consequently its own bar, attached to the court.
This will bring immense benefit to the community of this province and equally this university has the potential of growing its legal research and become a feeder to both the court and the legal fraternity in the manner the Rhodes University had the Wits University had become in relation to the Grahamstown and South Gauteng high courts respectively.
I am optimistic that during the same time next year, possible attending the Law Week event, we would have opened or very near to the opening of the Limpopo High Court. Plans are afoot to open the Mpumalanga High Court around the same time.
Some of the key principles underlying the transformation of the legal profession espoused in the Legal Practice Bill are the following: guaranteeing equal access to the profession, in particular for the previously disadvantaged individuals; establishing an accountable and responsive legal profession, ensuring access to justice by ensuring that legal services are affordable and beyond reach of the community.
The last major legislation that has an impact on the courts is the Jurisdiction of Regional Courts Amendment Act of 2008 which came into operation on 9 August 2010 to coincide with Women's Day commemoration.
The act confers on regional courts, civil jurisdiction to adjudicate over civil disputes of between R100 000 and R300 000 and has divorce jurisdiction. Sixty existing magistrates' courts have been designated as seats of the civil regional courts the list of these courts and their areas of jurisdiction have been published in the Gazette and advertised widely.
There are also posters being affixed to all court buildings to make sure that people are informed of these courts and the services they offer. The immediate consequences of the act are the integration of the divorce courts into regional courts and the devolution of matters of falling under higher monetary threshold from the jurisdiction of high courts to the regional courts.
The Rules Board has revised the entire magistrate courts rules to enable the designated regional courts to exercise civil jurisdiction. This is a major process of legal reform intended to make access to justice a reality for all, in particular the poor and the vulnerable sectors of our society.
The permanence of an institutional law reform agency provides some inherent advantages over more ad hoc arrangements in furthering the reform process. A critical factor in winning and maintaining respect for a law reform commission is ensuring that its scholarship is first class.
Law reform work must always proceed from a meticulous treatment of black letter law and a clear understanding of the surrounding process. Only after that is it possible to consider intelligently the possibilities for reform and to make recommendations that are realistic and achievable. A commission report should have independent and enduring value as an authoritative text on a given topic, even where the recommendations have not been acted upon by government.
A standing law reform commission needs at least some full time and engaged commissioners and a critical mass of excellent research staff in order to achieve a high quality product. The truth is that law reform, if it is to be done properly, is a slow, complex, and time consuming business.
It is fundamental to success that a law reform commission maintains its independence. Internally this refers to the willingness to make findings and offer advice and recommendations to government without fear or favour.
The commission as a whole must be, and must be perceived to be, free of political partisanship or association with private or special interests. Externally, this means that governments must respect this culture and ensure that law reform bodies do not become politicised.
Ladies and gentlemen, I am proud to be able to say that in South Africa we do have a permanent law reform agency that meets the criteria which I have expounded, namely the South African Law Reform Commission established by the South African Law Reform Commission Act 19 of 1973.
Having said this, it should be borne in mind that commissions (including the SALRC) do not have a monopoly on law reform. It also happens in ministries and departments, through the work of politicians directly, and through the output of courts and academics.
The reform of the substantive law of South Africa is the primary mandate of the SALRC while the Rules Board is responsible for procedural law. The SALRC Act states in section four that the objects of the South African Law Reform Commission are to do research with reference to all branches of the law of the Republic of South Africa in order to make recommendations for the development, improvement, modernisation or reform thereof.
The members of the commission are appointed by the president for a period of five years and the commission is assisted by a full time secretariat consisting of officials on the establishment of the Department of Justice and Constitutional Development.
Since the advent of our democracy, the SALRC has contributed greatly to the transformation of the justice system. The recommendations of the SALRC have culminated in, among others, the:
- Recognition of Customary Marriages Act 120 of 1998
- Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
- Domestic Violence Act 116 of 1998
- Child Justice Act 75 of 2008
- Sexual Offences and Related Matters Amendment Act 32 of 2007
- Children's Act 38 of 2005 and
- Civil Union Act 17 of 2006.
Bills emanating from the SALRC which are currently being considered by Parliament are the:
- Protection of Personal Information Bill
- Protection from Harassment Bill and
- Prevention and Combating of Trafficking in Persons Bill.
Ladies and gentlemen, it is evident that the SALRC does not shy away from controversial projects and that it has made distinctive contributions which are aligned with government's long-term social justice objectives:
- promoting access to justice for all
- protect the rights of all persons, especially those of women, children and the poor
- making legal processes affordable
- making the law less complicated and
- giving effect to the values and principles underlying the Constitution.
An important social law reform initiative which is presently receiving the attention of the SALRC is adult prostitution, which forms part of the larger project on sexual offences.The legal response to prostitution differs from society to society and over the course of time. Internationally, the topic of prostitution remains an emotive one and opinions on the legal treatment of prostitution are generally strongly polarised. This is no different in South Africa.
In the context of lending legitimacy to the process of law reform, it is imperative that I share with you a few thoughts on law reform and community participation. We live in an information rich age but information does not necessarily translate into engagement or that sense of civic involvement so necessary to a deliberative democracy in which people feel able to involve themselves with law, justice or the law reform process.
The law is something to which people want access, but are denied or sense that they are denied. It must be the concern of policy makers to ensure that all who want and need access to the law, and to law reform, are provided with it, within the limitations of the system.
The purpose of community participation in law reform is two-fold: to gain responses and feedback and to promote a sense of public "ownership" over the process of law reform. This in turn ensures that law reform work is intellectually rigorous and practical, having considered evidence of how the area of law in question operates in practice.
Information should be gathered from a variety of sources and perspectives, and proposals should be tested with interest groups and affected parties. All these factors produce law reform proposals that political decision-makers can accept as community tested, before consideration and hopefully implementation of the reform proposals.
In terms of section five of the South African Law Reform Commission Act (SALRC Act) the Commission, in order to achieve its objects, must draw up a programme of the matters that in its opinion require consideration, to be approved by the Minister of Justice and Constitutional Development.
It is significant that the SALRC Act states that the Commission may include in its programme any suggestion relating to its objects received from any person or body, thereby making law reform an inclusive process.
However, given the human and financial resources and the amount of time expended on an investigation, it is clear that the SALRC is unable to investigate each and every proposal received, and selection criteria developed by the SALRC are applied to determine whether it should be recommended to the Minister of Justice and Constitutional Development that an investigation should be included in the research programme.
The selection criteria are in the public domain, and in addition to affording the SALRC a valuable tool to assist with the execution of its objects, it also gives potential proposers of investigations an indication of the issues that are taken into consideration when a proposal is considered, thus facilitating the submission and motivation of investigations.
The SALRC relies extensively on the cooperation of institutions and persons who have an interest in its investigations for the efficient performance of the SALRC's functions.
In order to ensure the best possible involvement of interested parties, it is the SALRC's policy to inform the public as far as possible of new investigations undertaken and of issue papers and discussion papers published for general information and comment.
The SALRC's issue papers and discussion papers are released by way of media statements so as to ensure good coverage. However, the SALRC also submits issue papers and discussion papers of its own accord to institutions that have an interest in the investigations concerned.
The reaction to these documents is an indispensable link in the process of law reform and it plays an important role in the eventual recommendations made by the Commission in its reports. Issue papers and discussion papers are supplied free of charge to interested institutions and persons who wish to comment on a particular matter.
Another way of increasing community participation in the SALRC's law reform process is the institution of advisory committees in terms of the SALRC Act. The advisory committees consist of experts who assist with investigations and advise the commission.
The SALRC holds extensive workshops and briefings in respect of relevant investigations, which is in line with the commission's policy of broadening its consultation base. An effort is made to host the workshops and present briefings in as many different locations (urban and rural) as possible and the target audiences are state departments, parliamentary committees, relevant non-governmental organisations (NGOs), the legal fraternity, relevant experts and the community in general.
Ladies and gentlemen, this Law Week Conference is part of a bigger programme, the Legal Research and Writing programme. It is therefore pertinent to mention the Ismail Mahomed Law Reform Essay competition which was established by the SALRC in 1999 in honour of the late Chief Justice and Chairperson of the South African Law Reform Commission, Judge Ismail Mahomed.
Its aim is to encourage critical legal writing by students, while generating new innovative ideas for the reform of the law. It also seeks to encourage legal scholarship and public dialogue on the link between law reform, human rights and the rule of law. The competition involves essay writing by law students and the selection of a winning essay by a panel appointed by the SALRC. All LLB and LLM students registered at a South African university are eligible to enter the competition.
Allow me to use this platform to make an appeal to academics to encourage their students to enter the 2010 Ismail Mahomed Law Reform Essay competition, thereby giving students the opportunity to participate in law reform and to be rewarded for original thinking in law reform. The closing date for entries is 30 November 2010.
It is significant how various legal systems are often faced with similar problems. Comparative legal research is therefore an integral part of law reform. The exchange of documents and information contributes to the evaluation of law reform elsewhere in the world.
In Africa, regional cooperation in law reform is advanced by the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA), which was formally established in Windhoek, Namibia in August 2003 and its members include the law reform agencies of Botswana, Kenya, Lesotho, Malawi, Mauritius, Namibia, South Africa, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe.
Its purpose is to exchange and share ideas on best practices in law reform; exchange and share ideas on the development of law, within the countries of the member agencies in accordance with the principles of human rights, good governance and rule of law and collectively contribute to the attainment of the objectives of member agencies.
All legal systems of ALRAESA are common law jurisdictions. This emanates from their direct or indirect experience with British colonial rule. This colonial history partially explains the strong belief in law reform in these jurisdictions, because political independence automatically necessitated review of and changes to the inherited statute book.
However, the dynamic processes of economic, social and cultural development also require constant review of the law as an enabling tool. In view of the tortured history of colonialism and apartheid in parts of Eastern and Southern Africa, institutional law reform, with its strong emphasis on public consultation and participation, is a particularly suitable mechanism for restoring community confidence in the legitimacy of law and legal institutions.
A life in the law teaches the constant changes that are happening in society, to which the law must respond. Never have those changes been more numerous and more perplexing than today.
I believe that it is not part of human destiny to finish the task of improving society. Yet, we are not entitled to decline the effort. I believe that we are programmed to seek justice within a rational civic order. Most people are affronted by injustice and irrationality when it can be drawn to their notice and wrongs explained. That is why we can be confident about the long-term future of law reform, and institutional law reform in particular.
I wish you best as you round off your deliberations of this important event.
Thank you.
