Honourable Chief Justice of the Republic of South Africa, Justice Sandile Ngcobo
Speaker of the National Assembly
Chairperson of the National Council of Provinces
Ministers, Premiers and Deputy Ministers who are in our midst
Honourable Justices from the Southern African Development Community (SADC) and international jurisdictions
Heads of Courts and Members of the judiciary
Members of the Legislature
The National Director of Public Prosecutions, Directors-General and Heads of State Institutions and Bodies present here
Members of the Legal Profession
Distinguished guests, ladies and gentlemen;
It is an honour and privilege to address this historic and important Conference and would like to thank the Chief Justice and the Heads of Courts for convening this prestigious and dignified event. We in the Justice family are grateful to the President of the Republic of South Africa, President Jacob Zuma, for having taken time from his heavy schedule to come and address this gathering of esteemed jurists, policy makers, strategists and policy implementers, among others. Those who will be watching news on tv tonight will be forgiven if they mistakenly believe this gathering to be part of the President’s programme on Libya and Russia wherein he has been representing the South African perspective on the promotion of global peace, the rule of law and the universal adherence to the broad spectrum of justice as espoused by the world’s democracies.
Our gratitude also goes to the members of the legislature and my colleagues in Cabinet for having taken leave of their pressing Parliamentary and Executive assignments to be part of this very important gathering. We are equally indebted to our guests from the Continent and from other International jurisdictions, for having sacrificed their time to come and share their judicious wisdom with their South African counterparts in pursuit of global justice.
The President has already alluded to the significance of today’s gathering which has brought together the three Branches of the State who over the next three days will collectively and jointly unravel challenges confronting our justice system and in their collegial wisdom, seek answers that will benefit the South African justice system. What makes the conference more significant and different from previous conferences is its clear and unambiguous articulation of its programme which is geared towards the development of an implementable plan of action to address the challenges and shortcomings that continue to deprive society of equal justice. There have been, since the advent of our constitutional democracy, a number of colloquia, conferences and engagements between the Government and the judiciary which sought to crystalise a vision of a transformed judicial and legal system suited to the values of our post Apartheid constitutional dispensation. I am confident that this Conference is in no way a re-invention of what has been analysed, debated and agreed to upon in the past, but a consolidation of the different initiatives that have been and are being undertaken as well as developing a clear agenda to accomplishing the outstanding tasks that still lie ahead.
Distinguished guests and delegates, the importance of justice is succinctly captured in the famous quote attributed to Marcus Tullius Cicero in that “Justice is the crowning glory of all the virtues”. It is for this reason that we wait with anticipation the outcome of this very important conference.
By historical account, justice cannot be the direct result of power balance, but the adherence to the ideal values that society has collectively embraced, and which makes no distinction between the powerful and the weak in every aspect of social, political and economic life. The question we could accordingly ask ourselves, is whether or not the national, regional and global institutions and programmes reflect this impartiality in the relationship between power and justice.
There are instances that we could refer to with regards to how power, including military superiority, determines outcomes and dispensations that could be adjudged as injustice to say the list, and a crime against humanity in some if the worst scenarios. On the aftermath of the United Nations (UN) Human Rights Council Resolution on the 2008-2009 conflict in Gaza, Amnesty International released a public statement on the same day the resolution was adopted on 25 March 2011 and I quote:
“The resolution urges the UN General Assembly to address the continuing impunity of war crimes and possible crimes against humanity committed. Amnesty International is urging the General Assembly to move the process towards international justice as swiftly as possible. Palestinian and Israeli victims of the 22 day conflict in Gaza and southern Israel have been waiting for justice for more than two years, and the domestic authorities have shown that they are unable or unwilling to provide it. Amnesty International has been calling for international justice solutions to end the cycle of injustice and impunity. The General Assembly must now ensure that the issue is placed on the Security Council’s agenda in a way that facilitates meaningful action, in particular referral to the International Criminal Court (ICC). The report concurred with Amnesty International’s assessment that – more than 18 months since the UN Fact-Finding Mission on the Gaza conflict documented crimes under international law committed by both sides – the Israeli authorities and the Hamas de facto administration have failed to conduct investigations meeting the required international standards of independence, impartiality, thoroughness, effectiveness and promptness.”
This quote reflects on the failures by State authorities in the case of Israel and de facto Administrative authorities in the case of Hamas, to dispense justice independently, impartially, thoroughly, effectively and promptly, these being the basic attributes of justice in the power balance between the weak and the strong. In response to these failures, Amnesty International then besiege the UN General Assembly and the UN Security Council to become the custodians of these processes informed by the Fact Finding mission report, so that justice may reign supreme for the victims of the Gaza conflict.
However, recent patterns of development also brings into the fore the question of the UN General Assembly and in particular the UN Security Council, to dispense justice in line with the principles of international law. In this, the role of the International Criminal Court, in whose chambers Amnesty International argues must be the referral point of the Fact Finding Mission is itself being brought into disrepute. The pattern wherein only the weaker countries have their leaders hauled before those chambers for trial is indeed disturbing to say the least. We do not condone any crime committed in Sudan or Libya or anywhere else by whosoever. However, access to justice must be seen as not biased against the weak in favour of powerful nation States. This is the picture on access to justice that I wish to paint on both domestic and international scenarios. Back on the domestic scenario, our Constitution, which is our Supreme Law, is a product of intense negotiations and dialogue.
Distinguished guests and delegates,
We come to this gathering in our full conviction that the 3 day Access to Justice dialogue will yield the desired outcomes of a truly accessible justice system that South Africans yearn for. I therefore believe that this Conference will reflect on the (draft) resolutions of the 2009 Judges’ Conference which include a commitment made by judges to act fearlessly and be guided by their conscience as they are only accountable to the Constitution and the law. They must not bow to pressure regardless of its source. Judges may only take leave during recess periods when reserved judgments have been written, court preparation is complete and administration tasks have been fulfilled”.
Programme director, allow me to first give a broad perspective of the concept of access to justice and how it is generally understood in the context of our transformative Constitution. Access to Justice has become an internationally acclaimed concept which is used to define initiatives undertaken by States to improve the lives of their most vulnerable communities, in particular the poor and the indigent and denotes a commitment by such States towards the attainment of universal human rights and justice. In its broader sense, Access to Justice is defined in the context of programmes undertaken by States to promote equality, eradicate poverty, improve illiteracy, empower women and children as part of the initiatives which seek to promote and enhance access to justice. South Africa is a signatory to international and regional human right instruments that promote access to justice. Nationally, these provisions are made part of our laws and form the basis of the Constitution. Within every country, Access to justice, similar to the principle of separation of powers, is defined in the context of the given political history.
As eloquently described in the Postamble of our Interim Constitution of 1993, ours is a history of a deeply divided society characterised by strife, conflict , untold suffering and injustice. It is in this context that in the Preamble of the Constitution is reflected as our Supreme Law envisioned “to heal the division of the past and establish a society based on democratic values, social justice and fundamental right. The values which underpin our Constitution, of a democratic society founded on human dignity, equality, non-racialism and non-sexism, are implicit in the enforceable Bill of Rights enshrined in Chapter 2 of the Constitution. The Bill of Rights binds the legislature, the executive and the judiciary and Organs of State who all must ensure that the human rights in the Bill of Rights are progressively realised.
In its narrow sense Access to Justice refers to the mechanisms and processes to facilitate the obtaining of legal redress and commonly relates to, among others:
- The development of appropriate legislation and programmes to strengthen the judicial system, including the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the courts as mandated by the Constitution and thereby promote public trust in our justice system;
- The development of legislation to strengthen the institutional arrangements and enhance the capacity of our judiciary to safeguard the Rule of Law and promote the efficiency of the judicial arm of the State; and
- The development of the rules of procedure to provide for easier, speedier and affordable procedures to be followed in obtaining legal redress.
The broad connotation of the Access to Justice lies in the scheme of our constitutional framework, premised on the Supremacy of the Constitution, the Rule of Law and the enforceable Bill of Rights. The Bill of Rights in the Constitution is an embodiment of the value system founded on Access to Justice without which the Constitution will be a lifeless document. It gives meaning to our collective endeavor as the Branches of the State and business community, including the legal profession, to transform society to realise the ideals that underpin our democracy. The Constitution places the responsibility on the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the socio-economic rights in the Bill of Rights. A strong independent and accountable judiciary is necessary to interpret and give effect to the legislation enacted by our Parliament. Our Constitutional Court continue to adopt a value-based purposive approach in the interpretation of the Bill of Rights, thereby expanding the meaning of Access to Justice to relate to all measures undertaken by Government and Organs of State to progressively realise the values in our Constitution.
This method of interpretation derives from the Constitution, which enjoins every court, tribunal or forum to promote the values that underlie an open and democratic society based on human dignity, equality and freedom when it interprets the Bill of Rights. Our courts are therefore the final arbiter on matters relating to the enforceability of the rights in the Bill of Rights, including the rights to housing, health care, food, water, social security, education and environment, which characterise the social justice fabric of our Constitution. It is in respect of these socio economic rights in particular, that the courts must exercise the power of judicial review cautiously and judiciously.
Section 34 of the Constitution provides that “everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, another independent and impartial tribunal or forum”. In the context of our judicial and legal system access to justice relate to access to courts; access to legal services; access to the legal profession; and access to legal work. Access to legal services includes the provision of affordable legal services and adequate legal aid particularly to the marginalised poor and rural communities. Access to the legal profession requires improving the quality of legal services by encouraging continuous and sustained programmes for skill enhancement and professional qualifications, monitoring and evaluating academic qualifications and improving the regulation of legal services and the development of common ethical standards for all legal practitioners and the implementation of positive measures designed to protect and advance historically disadvantaged individuals.
Many of our people living in the rural areas complain about poor services, unnecessary postponement of cases, delays in the finalisation of cases, long distances which they must travel to courts; racism and abuse at the hands of the judicial officers and other officials in the criminal justice system. The delay in the finalisation of cases negatively impacts on access to justice. These are matters that we must address collectively if public confidence in our judicial system is to be maintained and enhanced.
I am pleased to report that we have, through the support of the judiciary, attained progress wherein government’s efforts to the integrity and effectiveness of the criminal justice system is increasingly yielding positive results. The strides and milestones we have achieved which include the significant reduction of serious contact crimes realised in the recent past is attributable to the cooperation of the law enforcement agencies and the courts.Our successful interventions during the 2010 FIFA World Cup attest to our ability and capability to do our work differently to accelerate the finalisation of cases. The best practices learnt from this initiative must become a permanent feature of ourwork programme. I trust that delegates will find opportunity to discuss the effective implementation of the Case Flow Management Guidelines and Protocols developed with the participation of the judiciary in the lower courts. We will, during the debate at the break-away sessions, share with the delegates the 8 outputs of the Justice, Crime Prevention and Security (JCPS) cluster which are geared towards the realisation of Outcome 3 of the cluster, namely “All people in South Africa are and feel safe”. Of the 8 outputs, the following that relate to the judiciary are worth mentioning:
- Reducing the overall levels of serious crime
- An effective criminal justice system- particular emphasis is paid to the operation and efficiency of courts at all levels
- Corruption within the cluster combated to ensure its effectiveness and ability to serve as deterrent against crime
- Perceptions of crime among the population managed and improved – annual crime survey conducted and a report will be finalised by July 2011
- Levels of corruption reduced thus improving investor perception, trust and willingness to invest in South Africa
We are heartened by the initiatives undertaken by the Chief Justice to meet with Senior Officials of the JCPS Cluster to monitor and address the delay in the finalisation of cases.
Distinguished guests will recall that I announced in the budget vote debate early last month that the comprehensive review of the civil justice system has commenced. Through the Civil Justice Reform Programme which we plan to launch soon, we seek to overhaul the civil justice system to align the system with the Constitution. To date the reforms that have taken place in the civil law value chain have been at the instance of the courts and the legal practitioners and these have been few and apart. In my recent meeting with the Chairperson of the Rules Board I expressed the need to give urgent attention to the reform of the rules of court. In his paper titled Delivery of Justice: Agenda for Change, authored by the Chief Justice in 2003 he succinctly reflected on the shortcomings of the civil justice system where he explained, and I quote: “Our civil justice system suffers from a number of weaknesses: it is expensive, it is slow, it is complex, it is fragmented and overly adversarial. These weaknesses combine to produce a system that is gradually becoming inaccessible to the average person. In a country like South Africa where there are gross disparities in wealth and education, the system becomes unequal for those who are wealthy and those who are poor and the result it produces is similarly unequal. Citizens have a right of access to -vindicate their constitutional rights. The civil justice system in a constitutional state is therefore to facilitate that access and not to obstruct it”.
The need for the review of the civil justice was identified before Justice Ngcobo wrote the above article in 2003. Professor Erasmus, who the Rules Board had commissioned to draft a set of new rules that would bring about the harmonization of the rules with the Constitution responded as follows to the assignment: “My efforts to prepare a preliminary draft have led me to a conclusion that the development of a set of rules within the parameters of existing legislation and rules (ie the existing “infrastructure”) is an impossible task. – what is required is a comprehensive and wholesale review of the system in all its underlying elements… In evaluating the civil justice system and in recommending change, it would be important to bear in mind that it is part of a larger system. Thus, for example, the total, cost of litigation embraces more than the cost to the parties.There are also the infrastructural costs provided by the state in the form of the provision of a court room, officials and a judge. The wasteful use of time of the court and judges is an abuse of an expensive resource which has an adverse effect on the allocation of judicial resources. An inefficient civil justice system may, for example, adversely affect the allocation of resources in criminal cases. The economics of civil justice, a largely neglected topic in South Africa, should receive attention in an overview of the system is undertaken”.
It is inexplicable that we have taken such time to undertake this important work which is central to access to justice. The department has provided additional capacity in terms of budget and Human Resources to fast track the Civil Justice Reform Project (CIRP). This project is joint initiative of the Department and the Judiciary and both the Rules Board and the South African Law Reform Commission have significant roles to play. This Project includes the implementation of the court-based mediation and arbitration programmes which are essential elements of access to justice. A concept draft rule to facilitate court based mediation and a concept document of the CJRP and its Terms of Reference, which were approved by Cabinet, have been developed by the research team and are included in the conference pack as part of the resource documents.
Distinguished guests, I am advised that Parliament will soon commence with the processing of the Constitution Seventeenth Amendment Bill and the Superior Courts Bill which were introduced into Parliament recently. In particular, the Constitution Seventeenth Amendment Bill seeks to affirm the role of the Chief Justice as the Head of the Judiciary and provides a constitutional framework for oversight functions and responsibilities over judicial administration by the incumbent of the highest judicial office in the Republic. In turn, the Superior Courts Bill gives substance to the Constitution Seventeenth Amendment Bill and provides, among others, for a comprehensive framework for the Chief Justice to issue directives and protocols for the monitoring of the performance of judicial functions in all the courts. The constitutionalisation of the judicial leadership powers and functions of the Chief Justice which he or she exercises jointly and collectively with the other senior judicial officers who are heads of the different courts, is not only consistent with the trends in established democracies world wide, but is a furtherance and enhancement of judicial independence.
The enactment of the Constitution Seventeenth Amendment Bill and the Superior Courts Bill will put us on course for the ultimate goal of administrative autonomy which will enhance judicial independence which is necessary for the Rule of Law as well as the strengthening of the accountability arrangements. We are conscious of the preference of the judiciary recorded in the draft resolution of the 2009 Conference as follows: “The judiciary should be empowered to administer the courts and its own budget. To this end the judiciary should work with and cooperate with the other branches of Government to develop a model of court administration that best reflects the principle of judicial independence”. We will be guided by the outcome of the ongoing research undertaken by the department and the judiciary on the appropriate court administration model that will be commensurate with our constitutional framework.
Government has, pending the completion of the research which will guide policy and legislative reform in this area, implemented measures to strengthen the governance arrangements and capacity of the Office of the Chief Justice (OCJ) to improve its efficiency, which is vital during this transitional phase. These measures include the enhancement of the OCJ to a status of a National department by virtue of the Proclamation by the President which took effect from 3 September 2010. Pursuant to the Proclamation, an Acting Secretary-General, Adv RK Sizani, has been appointed to head the OCJ. The recruitment of other key staff is under way. A joint task team made of Senior Officials of DOJ&CD and OCJ have finalised a draft Memorandum of Understanding (MoU) that will regulate the interface between the Department of Justice and Constitutional Development (DOJ&CD) and the OCJ during the transition. The MoU will be signed by the Director-General and the Acting Secretary-General once both myself and the Chief Justice have approved its content. A deadline of the end of July 2011 has been set for the conclusion of the MoU.
I also trust that Parliament will soon be seized with the Legal Practice Bill which seeks to transform the Legal Profession which is also an essential component of access to justice. I urge the legal profession to be part of this transformation discourse and take the opportunity to participate in the proposed Transitional Legal Council which will continue to pursue negotiations on the identified principles of legal reform on which we could not reach consensus.
Before I conclude let me briefly clarify our position on the speculation in the media that the Public Protector is about to be arrested on allegations of fraud and/or corruption. I have issued a statement denouncing the manner in which the integrity of the Public Protector, Adv Thuli Madonsela and that of the Office of the Public Protector have been questioned publicly without the presentation of any substantial facts showing criminality or dishonesty of her part. The Public Protector occupies an important position in our constitutional framework there is a constitutional duty placed on the Government and Organs of State to protect the independence and integrity of the Office, as well as other Institutions Supporting Democracy against unwarranted attacks that seek to undermine their integrity. When Advocate Madonsela was appointed a Commissioner at the South African Law Reform Commission (SALRC) she was conducting a consulting business styled Waweth and the department was requested by the National Treasury to look into a possible conflict of interest as she was operating a business entity which was rendering a service to the Department of Justice.
The Department duly instituted an enquiry into the matter. This was intended to establish whether or not there was a duty on her part to disclose that she was operating a profitable business entity whilst serving as a member of or a Commissioner at the SALRC. The enquiry found that Adv Madonsela was not appointed in terms of the Public Service Act and Public Service Regulations and as such was not subject to those prescripts. The South African Law Reform Commission Act did not provide for regulations governing code of ethics for Commissioners. Therefore no wrong doing was established on her part.
The Office of the Public Protector must enjoy confidence of all South Africans. For this to be safeguarded, all of us must work towards strengthening and supporting it as opposed to attacking and weakening it in the process.
Lastly but not least, let me briefly give the Government’s perspective of a matter in respect of which the courts have been asked to pronounce. I will not go into the merits of the matter which the courts are still to decide. It would be remiss of me, if I do not mention, albeit briefly, an issue of national importance which has the potential to undermine the confidence which the nation and the international community has in our judiciary.
Our President requested the Honourable Mr Justice SS Ngcobo to continue to perform active service as the Chief Justice. Mr Justice Ngcobo agreed and on the 3 June 2011, the President by way of a Presidential Minute formally exercised his powers in terms of section 8(a) of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001) and extended Chief Justice Ngcobo’s term of office for a period of five years from 15 august 2011. In requesting the Chief Justice to continue in office, the President took into account the outstanding service which the Chief Justice has rendered to our country, the contribution which he has made to our jurisprudence, his scholarly writings and the remarkable steps which he has embarked upon to transform the judiciary and to enhance its independence. Under his watch, the foundations will be laid for a judiciary which will be representative of and accountable to the nation as a whole and which will give greater expression to the values contained in our Constitution. The Executive supports fully the Chief Justice’s initiatives. On 23 June 2011, the National Assembly unanimously passed a resolution in principle supporting the extension of the term of office of the Chief Justice. This was an unequivocal vote of confidence in our Chief Justice by the National Assembly.
It is unfortunate that the decision was met with disapproval by some and this led to the court challenge which government has taken a decision to defend as we remain confident that the impugned section in terms of which the President acted is constitutional.
However, the government is mindful of the fact that the litigation undermines and demeans the office of the Chief Justice and the Chief Justice himself. If the litigation is allowed to continue, public confidence in our judiciary will be eroded.
It is important that the Executive acts responsibly and proactively under the circumstances given the enormous ramifications for the judiciary, the country and the nation. The Executive is also mindful of the provisions of section 165(4) of the Constitution which obliges organs of state through legislative and other measures to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. With this in mind, the Cabinet held a special meeting on 6 July 2011 to consider a Bill which will amend the Judges’ Remuneration and Conditions of Employment Act. After due deliberations, Cabinet approved the Bill.
The Bill will, in essence, extend the terms of office of a Chief Justice and a President of the Supreme Court of Appeal who have not completed 7 years of active service to 7 years or until they reach the age of 75 years whichever occurs first. However, such a Chief Justice or President of the Supreme Court of Appeal may request to be discharged from active service, subject to the President’s approval or through infirmity.
The passage of this Bill through Parliament will be expedited in the national interest to maintain public confidence in the judicial system. I am therefore confident that all of us will put the national interests ahead of our own and approach this matter with the respect and foresight that it deserves.
I thank you!
