"Justice for all: Strengthening a Transforming Judiciary to Enhance Access to Justice"
The Honourable Chief Justice of the Republic of South Africa, Pius Langa,
Honourable Deputy Chief Justice, Dikgang Moseneke,
The Minister of Justice and Constitutional Development, Mr Jeff Radebe,
Members of the Judiciary and the Magistracy,
Ladies and gentlemen,
Thank you for inviting me to share our thoughts on such a crucial topic in our country at this stage in our democracy.
The legal fraternity has a special place in the hearts of many, especially the previously oppressed. Many progressive lawyers, some of whom are now on the bench, worked tirelessly during our struggle for freedom to save freedom fighters from the gallows and to improve the conditions of those who were incarcerated.
They fought endless battles and became victims of the apartheid security infrastructure themselves. They remain the unsung heroes of the struggle against apartheid.
We extend our gratitude as the people of South Africa to all the men and women in the legal professions, who used their skills to defend and save others and to fight for a better life for all.
The Chief Justice, the Deputy Chief Justice, Judge Arthur Chaskalson, Advocate George Bizos, and many others have an impeccable record in the fight for justice, freedom and human rights in our country.
The reason there is so much interest in the transformation of the judiciary is because South Africans know what this fraternity is capable of!
Ladies and gentlemen,
This second judicial conference is a significant gathering at this stage in our young democracy. It indicates the seriousness with which men and women of the Bench take transformation and access to justice.
Let me from the onset state that the transformation of the judiciary should be advanced and undertaken without interfering with the principle of judicial independence.
An independent judiciary is one of the cornerstones of any democracy. As the Executive we respect without reservation, the principle of judicial independence and the rule of law. We must also state that all institutions in our country should continue to undergo transformation, not only the judiciary.
Under colonialism and apartheid institutions of the State were used to perpetuate injustice. It therefore follows that in overturning the apartheid system, all State institutions should be transformed with a view to make them accessible to all.
When we talk of judicial transformation and access to justice, we are talking about three issues in particular. We want to ensure that even the poorest of the poor do enjoy access to justice.
Secondly, that the justice that people access is of a high standard and thirdly, that justice is attained without undue delay. Central in the struggle for a just society has always been, and continues to be human rights and the rule of law, which are fundamental pillars of a Constitutional democracy.
Under apartheid colonialism South African Courts discriminated on the basis of race, culture, gender and religion. The oppressed therefore viewed the courts as part of the instruments of the apartheid system of oppression.
It has therefore been a mission of all administrations since 1994, to create a society, which would be underpinned by justice and human rights, guided by our country's Constitution.
In undertaking the transformation of all institutions, we are guided by the Constitution. The preamble of the Constitution, provides that
"South Africa belongs to all who live in it, united in diversity."
In this regard, the Constitution lays down an important foundation for a democratic society in which various cultural, religious and linguistic communities are bound by one common objective of building a nation united in its diversity.
When we speak about judicial transformation we are doing so to promote the implementation of provisions of the Constitution, as transformation is constitutionally sanctioned. The Constitution of the Republic states that:
"The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed." However, judicial transformation goes beyond the composition of the judiciary in terms of gender and race. Other aspects must be considered as well.
Transformation should also mean the appointment of judges who are committed to the new democratic order. It means increased access to justice for all sectors of society, including the poor and marginalised. Transformation means the promotion of a culture of judicial accountability, and the creation of structures necessary to foster judicial independence.
Transformation to ensure improved access to justice must address issues of language, procedures and processes, as well as other issues that may alienate poor from the justice system. It must include physical access to courts, and the provision of some form of legal aid to ensure that a lack of financial resources does not hamper access to the justice system. Poverty is still one of the major barriers for our people in exercising their right of access to justice.
Some of the poverty-related factors which inhibit access to courts or justice include the long distances that people have to travel in order to access the courts and related services. There are also the prohibitive costs of attaining the services of lawyers. The Legal Aid Board has traditionally provided legal assistance to those who are indigent in criminal matters.
Government has as part of promoting access to justice, given the Legal Aid Board limited jurisdiction on civil matters to assist the most vulnerable such as farm dwellers that face evictions, women and children. Government has also begun to deal with the question of language in some courts on an experimental basis.
Fifteen years after the democratic breakthrough the language used in many of our courts and in the administration of justice is alien to many of our people who have to rely on interpreters. Working together with the judiciary, we must devise means in terms of which all official languages of the country are used in the courts to enhance access to justice.
Compatriots, the common or indigenous laws of all peoples and nations are informed by their belief systems, culture and traditions. The colonial and apartheid efforts to suppress African culture sought to destroy the spirit of African law. The democratic Constitution of the country sought to address the problem by recognising African law.
But the usage and development of this law and its institutions has been neglected over the last fifteen years. We need therefore, as part of transformation, to look into how 16 to 18 million South Africans in the rural areas who subscribe to African Law and its institutions can have access to justice, and be able to access courts or appropriate forums of tribunals in order to settle their disputes.
We also need to work harder to deal with the perception that the rights of criminals are prioritised, above those of the rights of victims, which is an issue of access to justice for victims. In this regard, the approach to the granting of bail needs to be examined. Communities see alleged perpetrators arrested and then swiftly released only to commit further crimes or to intimidate witnesses.
The Victims' Charter is intended to promote the rights and services provided to victims of crime. While this initiative is welcomed by many of our stakeholders, clearly much more remains to be done if the concerns expressed by the public are to be addressed.
We mentioned earlier that transformation also refers to improving procedures as well as court processes, including the transformation of the court system. Envisaged in the Constitution of the Republic is a rationalised court system, with the Constitutional Court at the apex of that system.
The Superior Courts Bill was introduced in Parliament to amongst others, create a single judiciary. Some of the key policy positions that the Bill seeks 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 Superior Courts Act of 1959. These need to be suited to the post-1994 constitutional order.
The Bill has not been finalised because it raised many issues that require further consultation with the judiciary. We encourage such consultations to ensure that all the stakeholders are brought on board in developing this important legislation; however there is a need for urgency in finalizing these matters.
We need to move towards integrating the Judicial Service Commission and the Magistrates' Commission into a single appointment mechanism. We must also move to establish a single grievance procedure for all judicial officers. We must also expedite the drafting and processing of the Legal Practice Bill.
Similar to the courts, the legal profession is still regulated by pre-1992 legislation. The Legal Practice Bill aims to remedy this. The legal profession is divided into attorneys and advocates, something which creates a challenge for the public, especially the poor. They have to go to more than one lawyer to have a dispute resolved, which is costly and time-consuming. The question of training is also important in promoting access to justice and transformation.
The Constitution states that the "judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights."
The promulgation of the South African Judicial Education Institute Act in January this year provides for the establishment of an institute to train both aspirant and serving judges and magistrates to improve the quality of the outputs of the courts.
The training of aspirant judicial officers will go a long way to establish a pool of black and women practitioners from which judges and magistrates may be appointed.
The Institute also provides an opportunity for the judiciary, legal experts and law practitioners to exchange ideas, share information and establish precedents on the work of the judiciary in a democratic society.
By addressing all these different elements, from the composition of the bench to language, poverty barriers, changing court systems, training and others, we will move swiftly towards creating a sense ownership of the justice system among all South Africans.
We support the judiciary in efforts to work towards courts that are no longer seen as instruments in the hands of the elite, but rather as champions of the rights of all poor and rich, rural and urban, young and old.
We are very optimistic about the future as our country has already moved steps ahead towards the understanding of the role of our judiciary and the justice system as a whole.
All South Africans accept the fact that the judiciary is the final arbiter of all disputes. There is also a general understanding of the fact that the task of the women and men on the bench is to ensure that the supremacy of the Constitution and the rule of law prevail.
However, that does not mean that the judiciary and other dispute resolution institutions should be beyond criticism. Criticism of the said institutions is allowed and indeed proper in a democratic society, but it should be fair and informed. I cannot state this better than the late Chief Justice Mahomed who said:
"Judges must consciously accept the risk that their judgments in crucial areas may be subject to vigorous attack and criticism. This should cause them no distress. A viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination.
"What they are entitled to and demand is that such criticism should be fair and informed; that it must be in good faith, that it does not impugn upon the dignity or bona fides and above all it does not impair their independence, because judges themselves would not be the only victims of such impairment."
Compatriots,
Working together we must overcome the legacy of apartheid and build a country in which the value of all citizens is measured by their humanity, without regard to race, gender and social status.
We must continue to uphold our Constitution and ensure that organs of State operate under the democratic principles enshrined in it. Amongst the key principles in the Constitution is that of the separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.
In addition to these mechanisms, we are fortunate to live in a society where ordinary people are the primary custodians of human rights and democracy. Our country is defined by a culture where injustice, even on the part of State institutions, is exposed and condemned by ordinary people. The population is an effective guarantor of our democracy, and in that way democracy has the best protection ever.
We appreciate all the efforts made by the judiciary in dealing with difficult transformational issues. We also commend you for not shying away from these issues. This can only strengthen the institution, for the benefit of the country as a whole. You will always have our support as government. We will endeavour to fulfil our responsibilities as guided by the Constitution.
We also need your support, as we can only succeed if we work together in harmony. We must respect each other's independence, while also noting the fact that we are inter-dependent in fulfilling our obligations to South Africans.
I wish you well with the conference.
We look forward to the resolutions, which will guide all of us in taking forward the general transformation of our country.
I thank you.
