Superior Courts Bill to promote access to justice

21 August 2013

Phumla WilliamsNineteen years ago South Africans queued in long queues to cast their votes in the first democratic elections. They voted for a non-racial, non-sexist and democratic South Africa, built on the foundations of justice for all.

They voted for the opposite of the Apartheid legal system which was designed to oppress and discriminate against the majority. Under Apartheid, people were detained without trial, hanged for opposing the apartheid system, suffered systematic discrimination, banished to remote areas and forcibly removed from their land. The Minister of Justice at the time had the discretion to charge those who were seen as threats to the apartheid government, irrespective of whether their conduct was recognised by the law as crime.

In 1994 the first democratically elected government introduced the principle of constitutionalism where the power of the government would be controlled or restricted in order for an open and free democratic system to flourish. Constitutionalism simply means that a government is obliged to act in accordance with the principles or guidelines laid down in a constitution.

Our Constitution prescribes procedures for making laws, the separation of powers, an independent judiciary and courts which are effective and impartial. According to the Department of Justice and Constitutional Development, all of these developments improved access to justice which is an absolute right flowing from our constitutional democracy.

As we look back at the journey we have travelled over the last nineteen years, it is safe to say life for the majority of our people has changed for the better. Justice is no longer accessible only to the privileged, the powerful and the rich. Government programmes and initiatives prioritise addressing the historical legacy of injustices particularly for those who had been denied access to socio-economic rights and benefits.

For instance, justice is central to government initiatives such as the provision of houses, eradicating poverty, landlessness and the triple challenge of unemployment, poverty and inequality. The state has also made available to all its citizens mechanisms under the auspices of Chapter 9 Institutions for the just and peaceful settlement in instances where people feel their rights as enshrined in the Bill of Rights have been violated. These institutions are accessible to all at no cost.

To ensure that South Africans are educated about their rights, the Department of Justice and Constitutional Development in 2008 launched a programme known as “Access to Justice and the Promotion of Constitutional Rights”. According to the Deputy Minister of Justice and Constitutional Development, John Jeffery “under this programme the Department has been working with civil society on improving access to justice for vulnerable and marginalised groups, improving awareness and knowledge of constitutional rights in South Africa and enhancing participatory democracy through public policy dialogues and strengthening civil society organisations”.

The Department of Justice and Constitutional Development has furthermore launched initiatives to ensure that communities in rural areas and townships enjoy equal access to justice, along with their counterparts in urban areas. It also continues to build more courts to expand its justice infrastructure for a more efficient justice system. It announced earlier this year that over the next few years it will spend R3,1 billion to construct more courts and other infrastructure projects.

The signing of the Superior Courts Bill into law last week by President Jacob Zuma is another milestone to promote equal access to justice through the restructuring of the judiciary and integration of the courts. The objective of the Bill is to bring together a number of separate pieces of legislation relating to the Constitutional Court, the Supreme Court of Appeal and the High Court into a single legislation. This Bill which was approved by Cabinet in 2010, brings a new era in our Superior Courts which have largely been structured in line with the Supreme Court Act of 1959 passed during apartheid rule.

With the implementation of the Bill “ the current 13 High Courts which included High Courts inherited from the former ‘self-governing’ apartheid homelands of Transkei, Bophuthatswana, Ciskei and Venda, will be rationalised into a single High Court with a fully functional Division of the Court established in each Province”, President Zuma said in a statement.

This development according to the President will enhance access to justice for people in remote areas of the country. "The communities who live in the now Mpumalanga and Limpopo provinces have endured the hardship of accessing the High Court in North Gauteng and the High Court in Pretoria since the formation of the Union of South Africa, for a period of more than a century. Legally they can now have the benefit of having their own division of the high court right at their doorstep. This will happen as soon as the construction of the two high court divisions in Limpopo and Mpumalanga provinces has been completed," he said.

The President further highlighted that larger Divisions will in turn have one or more local seats where required to bring justice closer to the people.

The Bill which is intertwined with the 17th Constitution Amendment Act the President signed early this year also affirms the Government’s commitment to the independence of the Judiciary as it “assigns powers and functions to the newly established Office of the Chief Justice”, as stated by the President.

The Office of the Chief Justice will also be a separate institution from the Department of Justice and Constitutional Development. The Chief Justice will in addition be responsible for the establishing and monitoring of norms and standards and the judicial functions of all courts.

The Bill also brings changes in how Judges of the Labour Court and Labour Appeal Court will be appointed. Instead of being appointed on a fixed term contract and not enjoy the same benefits as other judges of the Superior Courts, they will now be appointed on the same terms and conditions as other judges of the High Court. According to the Minister of Justice and Constitutional Development Mr Jeff Radebe, this will ensure continuity in the functioning of the judiciary as the previous state of affairs had led to high turn-over of judges in the Labour Court.

As we head towards twenty years of democracy, we should be proud of what we have achieved in a short period of time. We have made huge strides in ensuring that access to justice is not only for the few and rich, but is accessible to everyone. It is now up to all South Africans to know their rights and make use of all these institutions to improve their lives for the better.

Phumla Williams is acting CEO of the Government Communication and Information System (GCIS)