Programme director, J Chetty
The Honourable Mrs L Mpati
Chief Justice Sandile Ngcobo
Judge President Cecil M Somyalo
Members of the judiciary
Distinguished guests
I must express my gratitude to the privilege and honour of being invited to speak on this prestigious event, wherein we celebrate the life of Judge President Cecil Mpho "Doc" Somyalo as he takes his retirement.
Often the case, we say our constitution is the cornerstone of our democracy, but what we often ignore is the fact that it is the judiciary that places that stone in the corner.
It could be argued therefore that the judiciary gives life to the Constitution; otherwise it is a dead booklet. That is why the quality of the judiciary is as good as the constitution because it is the judiciary that gives interpretation not only of our laws but also the constitution for everyone to enjoy human rights and the fruits of democracy. Judge President Somyalo emerged from very humble beginnings to be one of the pioneers of our esteemed judiciary.
Ladies and gentlemen,
It was former President Nelson Mandela who declared that prisoners cannot negotiate, this after the PW Botha regime tried to enter into negotiations with him whilst in prison, as re-assurance that he would not change his mind once freed from his incarceration. The tragedy about justice is that in many parts of the world, it has historically been used as tool to oppress the masses.
The determination of wrong and right in the context of dictatorship is a view skewed to benefit the powerful at the expense of the oppressed. Our historical oppression enjoyed legality, while our calls for freedom suffered the indignity of illegality. The democratic expression of the masses of our people was banned, while apartheid laws continued to flow from the legislature and through judicial precedence as sources of law.
Today, as we are gathered here to honour Judge President Somyalo, he too suffered the injustice of an unjust system. His passion to re-organise the judiciary system and ensure it is geared towards the dispensation of true justice was born out of a personal experience of a wicked system that enjoyed legal status.
In his acceptance of his own appointment as Judge President of the Eastern Cape, Judge Somyalo quipped and I quote: "Rightly or wrongly, the perception among blacks is that justice will not be done to them if whites are on the bench. That is why they would rather go for kangaroo courts, tolerating whatever form of justice they dispense".
Our political breakthrough in 1994 saw us inheriting a state which bore all the marks of apartheid oppression. Law after law had to be repealed as such were incongruent with the vision of a democratic South Africa as envisioned in our constitution.
Judge President Somyalo was appointed to a vast division which comprised the former territories of the defunct Transkei, Ciskei and Republic of South Africa. He oversaw the rationalisation of the high court division that comprised three high courts namely; Mthatha established for Transkei territory, Bisho high court for the Ciskei territory and Grahamstown for the Republic of South Africa which was no mean task.
Judge President Somyalo managed the transition and unified the separate three high courts into a single institution that today help foster unity amongst judges who were previously kept apart by the divisive policies that applied at the time. The Judge President has played a profound role in the processes that led to the enactment of the Interim Rationalisation of the High Courts Act, 2001, which sought to rationalise the high courts of the different erstwhile self governing States into a single high court within a province.
It is ironical that the same act applied in the Eastern Cape only, which is the only province which inherited three high courts, when we have the other two provinces, Mpumalanga and Limpopo could not get at least one high court between them to make access to justice a reality for the communities of the two provinces. These are the anomalies that the Superior Courts Bill will address in the very near future.
Judge President Somyalo has, in his individual capacity and as part of a collective of the Heads of Courts Forum made extensive inputs on the Superior Courts Bill based on his personal knowledge and understanding of the province. Those still serving in the judiciary will be part of the machinery that implement the superior courts after its enactment to realise the judge president's vision of a united judiciary within the context of the Eastern Cape.
We have taken a position in the Superior Courts Bill to establish the seat of the division of the high court in the Eastern Cape in Bisho which is the seat of government in the province. This will facilitate effective cooperative governance and interaction between the three branches of government which is essential element of our constitutional democracy. We are aware of the divergent views of the judiciary on this matter and we will continue to further engage on this issue.
Judge President Somyalo expressed his satisfaction upon the legacy he left behind in the Transkei high court upon his appointment as judge president of the Eastern Cape. Indeed the same can be said of the legacy he has left in the Eastern Cape division as a whole; now that he is retiring as Judge President. Those who might have feared black rule or what others called "swart gevaar", were proved wrong by giants of our new democratic order such as President Nelson Mandela where politics are concerned and Judge President Somyalo where matters of the judiciary are concerned. What this attest to, is that transformation must never be viewed as antagonistic to the welfare of any section of our population.
While in the past the judiciary was by and large a product of apartheid which also determined its role in society, the new democratic dispensation has affirmed the independence of the judiciary as one of the pillars of our constitutional democracy. As part of that transformation, we are in the process of establishing an administration that will enhance institutional independence and affirm the Judiciary as a separate branch of government.
We do this, because we believe that there must be mutual trust between the executive and the judiciary and I must state that we as cabinet have no reason to be afraid of the role of an independent judiciary. Judges must not be seen as prisoners of the executive or perceived to be executive minded. They must adjudicate cases without any bias to the executive, legislature or any private citizens, great or small. It is our contention that prisoners cannot think freely.
The transformation of the judiciary is important, because like Judge President Somyalo said, people will not believe that justice will be done for as long as they see their own injustice mirrored in the judiciary. Despite all the strides we have taken to transform the legacy of the past in many areas of society, by and large the injustice of inequality in society still mirrors those of the judiciary as this may justly be considered recipe for injustice.
Speaking on the challenges facing the American people, former President JF Kennedy declared in his "Civil Rights Message" speech, and I quote:
"The Negro baby born in America today, regardless of the section of the state in which he is born, has about one-half as much chance of completing a high school as a white baby born in the same place on the same day, one-third as much chance of completing college, one-third as much chance of becoming a professional man, twice as much chance of becoming unemployed, about one-seventh as much chance of earning $10 000 a year, a life expectancy which is seven years shorter and the prospects of earning only half as much".
The situation that obtained then in the United States was very much similar to the South African situation, where black people were made to suffer simply because they are black. Therefore the legacy of transformation permeates every fibre of our society and the judiciary is expected to play its role as arbiter in such conflicts. And I make reference again to President JF Kennedy when he said and I quote:
"In a time of domestic crisis, men of good will and generosity should be able to unite regardless of party or politics. This is not even a legal or legislative issue alone. It is better to settle these matters in the courts than on the streets and new laws are needed at every level, but law alone cannot make men see right. We are confronted primarily with a moral issue".
It is an injustice if the composition of executives in our country's businesses, our Olympics team, our news room, our farms ownership and our economy in general, were to reflect racial bias. It should not be that children born in our country or anywhere in the world for that matter should have the heights of their career progress determined by the colour of their skin or of their gender.
My point is that if those inequalities are still evident in the composition of our judiciary, then our people would have a case in disbelieving that they would be served with justice when they bring their own conflicts borne out of such racial disparities. They would not be faulted that a racially and gender skewed judiciary would be biased against them too if this were to be evident in the judiciary itself.
We have launched equality courts, as part of ensuring that we respond to the highly unequal society that we are, so that the concerns of JF Kennedy where the future of what used to be called a negro is not determined by the colour of his skin. As we will be giving the judiciary more responsibility with regards to the administration of courts, we expect the judiciary to ensure that these equality courts do actually serve our people.
Amongst the challenges that the judiciary will have to deal with is the ignorance about rights with regards to the avenues provided through these courts.
Today we celebrate a son of the soil, who proved that to be black is not a natural handicap. For this reason, Judge President Somyalo became the first attorney amongst both black and white attorneys in South Africa to be appointed a judge. In his glowing tribute to the judge president in the article "A man for all seasons", Carmel Rickard quotes Judge President Somyalo in his reaction to his own appointment as judge president and I quote:
"I felt that I couldn't afford to fail: the future of so many other attorneys depended on my performance".
Indeed, as Carmel Rickard further noted, Judge President Somyalo went on to lead the Eastern Cape division with excellence, diligence and humility and helped to unite judges across age, race and other differences. That's is why those of us serving in the Judicial Service Commission are inspired by his legacy and we cannot afford to ignore society's transformation challenges as we appoint judges, as we cannot hide under the excuse that black judges are incapable.
This is more so as Judge President Somyalo proved that theory wrong by being the first attorney to be appointed judge across all races in South Africa. Upon his appointment as judge president of the Eastern Cape, Judge President Somyalo refuted any expectation of mediocrity on the basis of his race, insisting that his greatest challenge is to keep up the high standards of judicial service as set by his predecessor, the Judge President Neville Zietsman. But he added and I quote:
"But more importantly, my greatest determination is to prove wrong anyone who thinks that, because I am black, my promotion to the highly esteemed Grahamstown bench is not on merit but mere affirmative action".
Similarly the judge president was fully conscious of the demands of the job he was about to take and responding to the issue of affirmative action, he expressed concerns that of the 200 judges including those of the constitutional courts and court of appeal, only 40 were black and 10 were female.
Emphatically he declared that, and I quote: "Unless we take positive steps to address these imbalances, we are merely scraping the bottom of the barrel in our attempts to achieve gender equality or to make sense out of affirmative action".
Ladies and gentlemen, today we celebrate the life of a humble servant of the people, one who sought to set and keep high standards in judicial service. In one of the cases brought before him, involving Nelson Manakaza and Vabaza Dlengenga where they sought salary increases in line with their supposed promotion, judge president rescinded the corrupt promotion of nearly 2 000 prison waders in the Transkei, which were done shortly before the 1994 elections.
The implication of this judgment was that not only would the two fail in their bid for illegal salary increases, but also the nearly 2 000 prison warders who already received their increases would have to repay the government. In this way, the judge president helped save government money and stopped corruption in its tracks.
Judge President Somyalo, on behalf of myself, my family and the entire Department of Justice and Constitutional Development, please allow me to wish you and your wife Lungiswa well into your retirement. The legacy that you leave behind will continue to enrich the judiciary and posterity.
Indeed you have helped lay down the stone, that being our constitution, to where it belongs, right at the corner of our democratic dispensation. I hope your children and the rest of your family, relatives and friends will cherish the moment to have you around them and share with them your invaluable insight into the various matters of life.
As we often say when judges retire, we should remind you to keep your phone on at all times, because at any time, we may come knocking so that you may help us with your wise counsel on the challenges of the day.
I thank you!
Issued by: Department of Justice and Constitutional Development
23 April 2010
Source: Department of Justice and Constitutional Development
(http://www.justice.gov.za/)
