Programme Director: Mr Gerry Eldson
Hon Chief Justice of the Republic of South Africa, Justice Mogoeng
My colleague in the Department of Public Works, Mr Nxesi,
Deputy Chief Justice Moseneke
Premier Mr. S Magashule
Deputy Minister of the Department of Justice and Constitutional Development, Mr AC Nel
President of the Supreme Court of Appeal, Justice Mpati
Deputy President Mr Justice Harms
Judges of the Constitutional Court, Heads of Court
Members of the judiciary
Executive Mayor of Mangaung, Cllr Manyoni
Distinguished Guests
Ladies and Gentleman
Allow me to express by delight at being part of this important occasion, to unveil the new wing of the Supreme Court of Appeal (SCA). Back in 1910, when the Appellate Division was designated as the final court of appeal in the then 4 Republics, the country had suffered the irony of unification and division at the same time.
While the white colonial supremacists sought to enact a government exclusively for white people, uniting as it were only the white people, on the other hand, the black majority started the long protracted struggle against the denial of their citizenship.
This had led two years later, to the convening of the meeting that founded the African Natives National Congress, later called the African National Congress to protest the exclusivity of the 1910 Union of South Africa, ironically in this same city that we have convened here today and housing this historic court institution.
Therefore the Appellate Division was established in 1910 to buttress this white supremacist ideology. The law, as it was enacted and interpreted, was geared to protect the rights and privileges of one section of our population, while the majority suffered exclusion and suppression.
This contrasting dichotomy of our political, social and economic society was to later increasingly filter into our jurisprudence, the latter as managed and led by the Appellate Division, for the greater part of the past 100 years. For this reason, these past 100 years brought mixed fortunes, characterised in the main by the dominant and antagonistic political postures threading this entire period.
The re-establishment of the court as the Supreme Court of Appeal in 1994 and the inauguration of the site of the court today, symbolises the turning point in our history when courts have become shelters of hope and justice, especially for the weak and the marginalised.
It is therefore befitting that we have come to witness the rebirth of a court which reflects a magnificent architecture and outlook that are commensurate with its post-apartheid constitutional mandate, of shaping our jurisprudence in accordance with the values that underpin our constitutional democracy. Remarkable improvements have been made on this heritage site which was first developed in 1929 when the Appellate Division commenced its work here.
The improvements we have come to witness today are vast, compared to the extensions which were made to the court back in 1967 to suit the needs of the white constituency at the time. This is a true investment for the nation and for future generations. We are indebted to the Department of Public Works, represented by my colleague Mr Nxesi, the judiciary and other stakeholders for their contribution towards the success of one of our grand projects.
As we meet here today, we cannot with pride and no fear of self-contradiction claim to celebrate the legacy of the jurisprudence of this court prior to the advent of democracy. While the theory and principles of law became more defined over the years as some leading jurists contributed to the evolution, positions, perspective, culture and history of our jurisprudence, the contrasting political and socio-economic environment that divided our nation during the dark years of apartheid rule also undermined the integrity not only of the Appellate Division but of our justice system as a whole.
It was therefore imperative that upon the attainment of a national consensus following our protracted negotiations on a new Constitutional Democratic State, that our judiciary must contribute towards this new dispensation. It was part of the political settlement reached during the multiparty negotiations that the Constitutional Court be established, as the first step of legitimising the judiciary and the courts which were to champion the reconstruction of jurisprudence and the oppressive and unjust laws of the past.
The Constitution provides the basis for the transformation of the State and society and envisions a non-racial, non-sexist, equal and prosperous society founded on human rights. It is therefore not a mere coincidence that the Constitutional Court and the Supreme Court of Appeal are at the apex of this transformation agenda.
Despite its name, the Appellate Division did not enjoy any appellate status above Parliament. Not only was the Appellate Division bound by Parliamentary sovereignty but judges of the court were appointed at the pleasure of the State President and owed allegiance to the Government of the day. Their executive mindedness ensured that Apartheid laws and policies were rooted in the fabric of the State machinery and society to keep alive the dream of the exclusion and marginalisation of the disenfranchised majority from equal protection and benefit of the law.
It is important, as we look back at what is admittedly a rich history of the Appellate Division that we put these historical facts into perspective, lest we betray the truth and do injustice to history.
Were we to fall into the trap of omitting the truth, that would be in sharp contrast to the sculptured design that features prominently in one of the Supreme Court of Appeal entrances, symbolically signifying the Roman helmet of the Armour of Faith, the keys of Emancipation and the Lamp and Torches of Truth. And if we are to continue to aspire for the truth as advanced by these symbols, we must ensure that the truth is not only metaphorically the beautiful architecture towering into the skies, but also that the foundation equally is metaphorically steeped into the same truth.
I am confident you will agree with me that this will be consistent with the symbolic scales of justice as advanced by the counsel of the “Owl of Wisdom”, whose symbols also proudly hang as monuments signifying and telling the story of what these historical premises are all about.
In highlighting how the judiciary, as narrated through the prism of the history of this court under the its first Chief Justice, Lord Henry de Villiers, mirrors the uncomfortable place our judiciary assumed in the history of our country could be what was referred to as the “Constitutional Crisis” of the 1950’s. This was when the National Party government sought to remove the coloured population from the common Voter’s Roll in 1952, by passing the “Separate Representation of Voters Act”.
The Appellate Division found this Act, in Harris v Minister of the Interior, to be invalid. It was that decision that put the judiciary on a collision course with the Executive and the Legislature, hence what had come to be called the “Constitutional Crisis” of the 1950’s. Consequently, Parliament then constituted “The High Court of Parliament”, a body established for the express purpose of reviewing decisions by the Appellate Division.
When the plan backfired, the Parliamentarians further devised ways to undermine the court from within. They enlarged the Senate so that five additional judges were appointed, and a vote in favour of that regressive Act that removed the coloured population from the common voter’s roll was achieved.
This Harris case is at the heart of the separation of powers doctrine which had become a contentious debate in modern constitutional democracies. In the South African situation, the separation of powers doctrine was further amplified in the enactment of the principles of a Constitutional Democracy, as opposed to that of what others refer to as ‘Parliamentary Supremacy”. In the latter, Parliament has final say on any contest amongst the three arms of the State.
However, even under the nose of Parliamentary supremacy, there are great jurists who came out of this court, who were resilient in defending civil rights of the oppressed citizens against the tyranny of the erstwhile government. It is this heroic struggle of principle that we must celebrate. Of course there were instances when ill-found decisions were made, largely due to the influence of an Executive and a Parliament that sought to advance the vision of the defunct apartheid regime.
Laws that were inconsistent with the ideals of the scales of justice that I spoke of as prominently displayed in the premises of these buildings were passed. In those unfortunate instances, this court was obliged to interpret and further the ends of those unjust laws. This is a curious and tricky scenario, as to the question of what do jurists do when the laws they are asked to interpret and apply are inconsistent with the universal principles and laws of justice?
However, we have fortunately resolved that tricky situation by adopting a Constitution which reigns supreme.
As most of you already know, one of the construct of the new order was to change the name of the Appellate Division into the Supreme Court of Appeal and juxtaposing this into a broad transformed court system. This change of name which was carried firstly through the Interim Constitution and later the Constitution, was not insignificant. It lay at the heart of revolution of our jurisprudence and legal system.
It symbolised the rebirth of the Supreme Court of Appeal from the old Appellate Division and brought with it, fundamental and far reaching consequences that aimed at consolidating our hard-earned democracy for which many laid their lives.
Indeed some could not be saved from the gallows by the then Appellate Division, which found it easier to justify its stance by invoking the “intention of the legislature” to defend the oppressive laws, and would strike down any unjust law only on grounds of procedural defects.
It was of significance that the Constitutional Court, in its first landmark decision in Makwanyane, found that capital punishment was inconsistent with the right to life and the right to human dignity in the Constitution, and redeemed the judiciary and the country of this sad history.
It is the scheme of our constitutional democracy that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. This is a fundamental constitutional revolution that changed the course of our history, from a divided society to a future founded on access to justice, equality and social justice.
With the rebirth of the Supreme Court of Appeal came new constitutional mandate and jurisdiction bestowed on the courts, of safeguarding and protecting our constitutional democracy. The crafters of the Constitution saw it fit to entrust the interpretation of the Constitution and the law on the superior courts of the land. Therefore the constitutional jurisdiction of the High Court, the Supreme Court of Appeal and the Constitutional Court is a foundational value of our constitutional order.
Not only are the courts the final arbiter in all disputes that are brought before them, but have the added duty of ensuring, through the necessary checks and balances, that one arm of the State does not encroach into the constitutional terrain of the other Branches. The latter responsibility is premised on the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy.
It is within this context that doctrine of the separation of powers is a delicate and intricate balancing act. The three arms of the State that are to be autonomous from each other, the Legislature, the Executive and the Judiciary, are all frontiers in our country’s development as designated by our constitution. Therefore healthy conflicts are inevitable, and the key is on how we manage these differences. Each arm of the State is in its own right to affirm its role, as this I suppose is a natural response of any living organism that seeks to assert itself and continue to live, as opposed to being swallowed by its competitors.
The common tendency to adjudge one arm wrongly when such assertions are made on roles, particularly the usual castigation of the Executive, is not fair to truth and to the advancement of justice or to the discourse on the separation of powers. All the roles of the State are defined in the constitution and the Constitutional Court is the final arbiter on all constitutional matters.
It is important that the courts themselves are truly transformed to be able to champion the transformation discourse and it is was the former Justice Mahomed, from this court, who, with other legal stalwarts, laid a solid foundation for the transformation of the justice system.
It was not surprising that Justice Mahomed, was chosen to chair the historic Convention for a Democratic South Africa (CODESA) talks which brought together political parties from opposing ends to negotiate a political settlement for our country which was ravaged by strife, untold suffering and injustice. When opening the negotiations he stated, in reference to the future of this country, and I quote:
We should seek to meet it with courage, with eagerness and with joy, by proclaiming, before the sun sets on this auspicious day, our irreversible commitment to a non-racial, democratic and caring New South Africa, which can hold its head high among the free and civilised nations of the world. A clear commitment to structure our society with all deliberate speed on the constitutional foundation of this basic truth shall begin to set us anally free from the shackles of fear, of anxiety, of greed, of insecurity, of poverty and of anger which have perpetuated our needless tragedy for so long. (close quote)
By chairing CODESA, former Chief Justice Mahomed, the first black judge who went on to become the first black chief justice of the Republic, emulated Lord de Villiers, who presided over the National Convention which led to the creation of the Union of South Africa in 1910, and became the first Chief Justice of the Union.
I have observed at the corridors of this court, pictures of 15 chief justices who succeeded Lord de Villiers to the highest judicial office before Justice Mahomed ascended to the helm. I have counted 93 judges in all who have served and some continue to serve at this court since 1910. It was during my counting that I realised that the first female judge was appointed only in 1991. Today, of the 25 judges of this court only seven are women. I trust that the Chief Justice and fellow commissioners of the Judicial Service Commission will continue to tackle underrepresentation of women on the bench head on.
One of the tasks in creating our new Constitutional democratic order was restructuring the hierarchy of our courts, so that they reflect the ideals of the justice system we collectively envisioned during the historic negotiations process prior to 1994. In terms of this hierarchy, the Supreme Court of Appeal is the highest court of appeal save in constitutional matters.
This court continues to shape the South African jurisprudence and through the stare decisis rule in our law, decisions of this court bind the all High Courts and magistrates’ courts country wide. It makes the ultimate decision in the case of conflicting decisions of two or more High Courts so as to provide legal certainty.
The affirmation of the Constitutional Court in the Constitution Seventeenth Amendment Bill as the highest court in all matters does in no way seek to remove the important role of this court, but to affirm what is de facto the constitutional and legal position. All laws are subject to the constitution.
The law reports contain landmark judgments of the Constitutional Court, Supreme Court of Appeal and High Courts which not only give effect to the realisation of the rights in our Bill of Rights, but continue to be referred to and relied upon by judiciaries in other jurisdictions. Therefore the Constitution Seventeenth Amendment Bill and the accompanying Superior Courts Bill, seek, among others, to advance the unification of the courts to constitute what is termed a single judicial system under the Chief Justice.
For those who know geography would realise that Bloemfontein was a good choice on the basis of its centrality, considering the mode of transport then. This was before the aviation industry took root with Johannesburg being now the hub of our air traffic flow. However, this centrality or appropriateness of Bloemfontein was not always agreed to by various administrators across the then provinces of our country during the early stages of the inauguration of the Appellate Division.
One of the problems cited with the choice of Bloemfontein was the unbearably high temperatures during the summer season. This was more evident when an appeal from the then Southern Rhodesia, now Zimbabwe, was granted permission to be heard in Cape Town instead of Bloemfontein.
In that judgment, Bloemfontein’s summer weather was cited as “the hottest and most trying months of the year………a time when the inured inhabitants find it necessary, if their circumstances permit, to seek relief by a vacation at the coast”. This judgment granted permission to Graham Mackeurtan KC, lead counsel for the appellant, as the argument advanced was that he could not survive the hot months of December, January and February in Bloemfontein hence the “nomadic” choice of Cape Town. On a lighter note, perhaps we must consider ourselves lucky that we are here outside the brackets of those dreaded 3 summer months!
This castigation of Bloemfontein was no small quarrel, as Lord De Villiers objected against the choice of Bloemfontein on the grounds, “Firstly that it increased the difficulty of staffing the court and secondly that it increased the cost of litigation”. Of course those resident in the then Orange Free State disagreed, and in this they were joined by jurists and even the local town council, in protesting what was sometimes described as the “Nomadic” sitting of the Appellate Division across the country under what they considered an objectionable proviso that it suited the relevant appellants.
To further highlight this conflict, an anonymous letter, later attributed to then incumbent Judge President of the Free State, Fritz Krause, was published in the newspaper “The Friend” and consequently caused chaos and litigations followed against the publisher, TW Mackenzie. The letter read as follows:
“As an old Bloemfonteiner I wish to register my protest, with so many others of my townsmen, against the extraordinary and absurd decision of the Appeal Court to change the venue of a trial to Cape Town on the ground of the climatic conditions alleged to prevail here during the summer months. . . .If there are judges who do not like to reside or sojourn here, well, let them hand in their resignations. There are as many good fish in the sea as come out of it . . . .The health reasons relied on by the court are, in my opinion, as flimsy as a curtain of gossamer.”
As we are here today, I am sure that the “Free Staters”, as they called themselves, are proud for having refused to be bullied on the choice of what is today Mangaung, as the choice of what is today the Supreme Court of Appeal. It is partly tribute to the fighting spirit of the local people that we are gathered here today.
Ladies and gentlemen
I have taken note of the fact that much detail has been put into ensuring that the architecture deployed in the building embraced modernity while at the same time appropriately juxtaposed with the old structure to which it is now part of. I know that as a quest for excellence a geologist from the University of the Free State was commissioned to check the quality of the sandstone that was quarried and transported from Mpumalanga to construct this new wing.
I also know that the choice of wood and other finishings were also specialised tasks. All these efforts must be appraised as they add to demonstrate how seriously we take this major institution and facilities housing our judiciary.
The contractors, the workers, those responsible for the supervision of the work from the department of Justice and Constitutional Development as well as those from the Department of Public Works, all did a splendid job. Those I may have not mentioned, I am sure they will be appropriately acknowledged by the Deputy Minister Nel who, I have noted from the programme that he will present the final vote of thanks.
Allow me to express my gratitude to the President as well as Deputy President of the Supreme Court of Appeal in their role during the construction of this new wing. I wish to thank the Deputy President, in particular, for his oversight in the construction of this building. As he bows out of active service at the end of this month, I am certain that he will derive fulfilment in the knowledge that his was a contribution in the life-time legacy of this court. I also congratulate Deputy President designate who will take over from Justice Harms when retires from office.
We thank you all for your mutual cooperation, as today we have a finished product that will stand as a colossus in the history of our courts. Indeed it was correct that we decided to enlarge the premises of this court, as that augurs well for the increased capacity required to address access to justice by all our people. The rising volume of cases is such that each judge has to peruse over 30 000 pages in documents of appeal cases per year!
This is by no means a small feat, and demonstrates that we must always appropriately and pro-actively project the increasing work load so that the physical and personnel power necessary for the administration of justice is at all times on par with the rising demands.
I am told that the library houses 43 000 volumes, of which about 4000 titles are said to be “old authorities”. These old authorities are from the writings of the Dutch and Continental jurists of the 16th, 17th and 18th centuries and we must be proud of such repository. Various works from different sources of law over different centuries and epochs enrich these library facilities so that our judges have at their disposal a repository of knowledge on par with any such library across the world.
I am therefore personally proud that we have convened here today to celebrate this milestone in the history of the Supreme Court of Appeal. I hope the truth will continue to be the winner and the golden thread in the administration of justice going into the future. Today we have recounted events that solidly re-enforce the truth and justice as paramount to our jurisprudence and I commend this new structure to the furtherance of these historic noble virtues of access to justice for all!
I thank you!
