Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the Ismail Mahomed Law Reform Essay Competition, hosted by the SA Law Reform Commission, 11 September 2015
Judge Jody Kollapen, Vice-Chairperson of the SALRC
Fellow Commissioners
Family of the late Chief Justice Mahomed
Mr Edmund Beerwinkel and his team from Juta’s Law Publishing
Members of the essay adjudication panel
Deans of Law Faculties
Representatives of Chapter 9 institutions
Colleagues of the Department of Justice and Constitutional Development
Participants in the essay competition
Esteemed guests,
Ladies and gentlemen,
It is an honour to be able to be part of this event, named in honour of the late Chief Justice, and former Chairperson of the South African Law Reform Commission.
Ismail Mahomed’s life story, in many ways, also tells the story of our country.
While growing up in Pretoria, Ismail Mahomed could not be admitted to the Pretoria Bar Association, as this was reserved for whites only. He could, however, join the Johannesburg Bar Association, but could not have chambers, due to the provisions of the Group Areas Act.
In a career of some thirty-five years as an advocate, he appeared in numerous trials on behalf of some of the leading figures in the liberation struggle. Like other members of the Johannesburg Bar such as George Bizos, Arthur Chaskalson, Bram Fischer and Joe Slovo, he helped lead the challenge in the courts to the injustice of apartheid. He dedicated his life’s work to the achievement of just, fair and equitable society.
In 1994, at the dawn of our country’s democracy, he was the only judge of colour on the bench.
Because of his reputation for impartiality and fairness, he was accepted as co-chairperson of the multi-party constitutional negotiations at CODESA.
His commitment to the supremacy of the Constitution was unwavering: as President Mandela often told the story of how Justice Mahomed warned all politicians gathered at those negotiations that, as judges, they would fearlessly uphold the Constitution; and they did.
The essay competition encourages critical legal writing by students, while generating new ideas for law reform. Law reform is a fundamental pillar of a constitutional state.
The SA Law Reform Commission is tasked to do research with reference to all branches of the law and to make recommendations for the development, improvement, modernisation or reform thereof.
Law reform proposals should be aligned to South Africa's priorities as a developmental state and be aimed at keeping the law abreast of developments in society and in tune with the needs of South Africa's diverse population and national policy priorities.
Why does a country need good laws? Are laws truly able to impact on people’s daily lives in a significant way, and if so, how?
In 1994, the Constitution became the supreme law of the country, replacing parliamentary supremacy. In the 1994 South African Journal on Human Rights the late Professor Etienne Mureinik described the Interim Constitution as a bridge from a culture of authority to one of justification, where every action of government is expected to be justified.
Since 1994, we have embarked on the mammoth task of transforming the entire justice system by putting in place the foundation and pillars to build and sustain our new democratic constitutional dispensation.
Improving access to justice for all and enhancing the rule of law have been critical priorities for Government. Our main objectives have been to bring the justice structures and systems in line with the Constitution, to re-establish trust and public confidence in our justice institutions and to restore the legitimacy of the system.
Constitutional imperatives included the promotion of the right to equality, just administrative action, access to the courts, protection of the rights of all arrested, detained and accused persons, and other matters concerning the administration of justice.
In the last two decades, various initiatives were undertaken to extend access to justice to the 90% of the population who had previously been excluded. Access to justice was further improved through the creation of more courts, particularly in previously disadvantaged communities.
One of the Law Reform Commission’s most exciting initiatives is this competition, as the Commission seeks to encourage legal scholarship and public dialogue on the link between law reform, human rights and the rule of law.
I would like to extend a special welcome to the winners of the competition and the students who participated in the competition who are here with us tonight.
The topics covered by the winning essays and the runners-up are particularly relevant to the legal landscape in South Africa today. For example, Sarah Vahed the LLM winner, wrote on protecting the child in a pluralist state and focussed on the practice of ukuthwala.
Traditionally, ukuthwala is a cultural practice used by a couple who want to marry with the intention of compelling the woman's family to endorse marriage negotiations.
Earlier this year, the Cape High Court dismissed an argument that a man was practising ukuthwala, when he bought, raped and abducted a 14-year-old girl in 2010.
In this case, the accused left his home in Cape Town and made his way to the Eastern Cape in search of a wife. There he bought the girl for R8 000 and forced her into a customary marriage with him. He raped, beat and abducted her, taking her from her home to Cape Town. The girl reportedly escaped and returned to her rural village, only to be taken back to Cape Town again by family members who had participated in the negotiations for the marriage. She escaped again and went to the police.
The accused was convicted of rape, human trafficking and assault in 2013 and sentenced to 22 years in jail. He appealed the convictions on the basis of ukuthwala and argued that he acted according to customary law.
However one of the experts on customary law testified during the case that ukuthwala was not properly performed in this matter.
The young age of the complainant, her lack of consent and the fact that lobola was paid before the ukuthwala occurred, indicated that it was, in fact, not a true instance of ukuthwala.
He noted that there are several situations in which ukuthwala is abused to try and justify patently offensive behaviour such as rape, violence and similar criminal conduct under the guise of ukuthwala.
This “misapplied or aberrant form” of the customary practice was also described by Inkosi Mahlangu of the National House of Traditional Leaders as a perversion of the custom.
A full bench of the court accordingly dismissed the appeal. The ruling is important because the court had to balance its constitutional duty to respect and give effect to customary law whilst, at the same time, remaining sensitive and mindful to the vulnerability of the girl.
The LLM runner-up, Nontembeko Mathe-Ndlazi, wrote on aspects of debt enforcement under the National Credit Act. The issue of debt enforcement has also been in the spotlight recently.
In a recent case in the Cape High Court Judge Siraj Desai ruled that certain emoluments attachment orders were unlawful, invalid and of no force and effect.
This comes after the University of Stellenbosch Legal Aid Clinic, on behalf of several debtors, brought a court application to have certain provisions of the Magistrates’ Courts Act declared unconstitutional and invalid because of lack of judicial oversight over the authorisation and issuing of emoluments attachment orders.
An emoluments attachment order, also called a garnishee order, permits the attachment of a debtor’s salary or wages and obliges his or her employer to pay out of such earnings specific instalments to the judgment creditor or his or her attorney.
The court noted the widespread abuse of the debt recovery procedure system. The most common abuses were requiring consumers to consent to judgments and EAO’s before a loan is granted; requiring consumers to consent to the jurisdiction of a magistrate’s court which would ordinarily not have jurisdiction over the consumer; obtaining judgments and orders in a fraudulent manner; and salaries being overcommitted to EAO’s with very little or no take-home pay.
The Department is currently preparing a Magistrates’ Courts Amendment Bill in an attempt to curb the abuses that are taking place.
The LLB winner, Musa Kika, wrote about assessing the effectiveness of the Public Protector, while runners-up Tamrynne Barnes’ essay focuses on consumer protection through organic food labelling and TA Hudson’s essay on terrorism.
There are two issues that I would like to raise in respect of the competition.
Firstly, we should seek to ensure the widest possible participation from students from all our universities. The winners or runners-up tend each year to come from the same universities. While those law faculties must be lauded for this achievement, it exposes the difference in capacity of the law faculties or law schools across the country.
We all know that due to our country’s history, historically Black universities are less well resourced. Are we doing enough to ensure a proper sharing of resources? For example, can academics from, let’s say, UCT not assist in mentoring the participants from historically black universities? Are we doing enough to encourage traditionally black universities to participate?
Secondly, there is the issue of research. What we often find in government is that universities do not want to undertake research on behalf of government, because they feel it impedes on their independence. In fact, they want to be seen as highly critical of government.
Surely, government and universities should look at establishing a closer working relationship, as ultimately quality research is in the best interest of our country as a whole.
Focussing specifically on the law, why is legal writing and legal scholarship so important?
One hundred years ago, then US Solicitor-General, John W Davis, said this about legal scholars - “True, we build no bridges. We raise no towers. We construct no engines.We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see.
But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other's burdens and by our efforts we make possible the peaceful life of man in a peaceful state.”
Those words are still as true today as they were a century ago.
Congratulations to all the winners, the runners up and each and every student who submitted an essay.
My hope is that many of you will one day be the drafters, the interpreters, the defenders of our laws.
Laws have the power to make our lives better, laws can contribute to a better society and to a peaceful world.
I thank you.
