Allow me to express my profound delight at the opportunity to make this presentation to you on the very important aspect of “access to justice.” Even more, I am happy to be here in this institution because it was here back in the 1970’s that I first cut my teeth into higher education. And I am certain you will therefore appreciate that this institution remains an important part of my making as an individual.
Over the past century, the international re-organisation of society around the world has been along the theme of democracy. Likewise, our historic struggle for democracy was essentially a struggle to ensure justice because in any society if there is no democracy, injustice prevails. Justice and Democracy are two sides of the same coin.
When we emphasise “access to justice” as our theme in the Department of Justice and Constitutional Development, we are invariably suggesting that we must make democracy work in the lived experiences of our people. And indeed our claim to democracy would be vanity without justice as its bedrock.
It was therefore not a coincidence that when our people led by the African National Congress (ANC) negotiated for the new democratic dispensation we emphasised above all, the pre-eminence of the Constitution as the platform from which comprehensive social, economic and political transformation could be effected. In essence we meant that justice, as Constitutionally-defined, must be the premise for the new democratic dispensation.
Merely a few months away from April 2014, we will be celebrating 20 year of our democracy. The context of my address is to ensure that access to justice is underpinned by the quest for a non-racial, non-sexist, democratic and prosperous South Africa.
Two important aspects can be highlighted when speaking about access to justice in South Africa. Firstly, it is against the backdrop of our history of colonialism and later Apartheid that embedded and entrenched injustice in all our social, economic and political spaces. Secondly, it is against the prism of the Constitution and the various laws that flow from it that we speak of justice as a transformative weapon in our new democratic dispensation. The Constitution enjoins us to heal and correct the divisions and injustices of the past.
As we approach the end of our second decade in power, the ANC government and all the people of this country have good reason to celebrate the various achievements we have made to transform society.
Amongst other achievements are the following:
- In 1994 there were only 5,5 million households had electricity. In 2012 over 10 million houses are electrified, which means up to date we have added up to 6 million on the national grid.
- Before 1994 less than 5 million people had access to water, but today about 20 million have access to water infrastructure, with the indigent group getting 6000 of free water every month.
- In 1994 there were only 150 000 students are universities. Today there are over 750 students at the different universities.
- In 1994 TEFSA as it was then known only provided R120 million to needy students. By 2012 R7.7 billion has been allocated to NASFAS and in this financial year it is about R8 billion. 1,4 million students are beneficiaries of bursaries provided by this ANC-led Government.
- 19 years before 1994, the economy of Apartheid South Africa grew only by 1.6% per annum which was less than the population growth. Between 1990 and 1993, the economic growth declined to below 1%, meaning that the economy stagnated. Since 1994 the economic annual growth has averaged above 3%, almost double the population growth.
- Four new million extra jobs have been created since 1994.
- In the last five years the ANC Government has spent almost R1-trillion on infrastructure, meaning that the public sector has created more jobs in the last five years.
This goes to show that those who equate South Africa of today with the Apartheid-era, are displaying the reckless tendency of viewing our Government from a non-informed and emotional perspective. It is in this context that our golden theme as we will be commemorating the 20 years of comprehensive transformation is thus the bold assertion that South Africa is today better than it was in 1994 and that tomorrow holds the promise that it will be better than today!
In 1994 we assumed power as novices in governance issues, but under the able leadership of former President Nelson Mandela and all other leaders after him, and their respective leadership collectives, steered the ship of democracy into stable waters that lived to the promise of being the beacon of hope for all Africans continentally and the diaspora. We defied the odds staked against us that we could not as a black majority government enact a government that could ensure stability and continued development in a democratic environment.
Steadily over time, even our sceptical critics were won over, as we ushered in a period of unprecedented move towards effecting a just order without an all out civil conflict as it were in many other liberation struggle experiences continentally and around the world.
Allow me to make this as my humble submission, that access to justice cannot be unless the environment permits for justice to hold. In other words, there must be a stable and democratic State as opposed to anarchy for justice to flourish. The three arms of the Government must exist side by side, each performing its respective Constitutional mandate without fear or favour or of encroachment of the other arms of the Government Judicial officers must be able to make rulings without fearing repercussions either from the Executive or any vested interest.
The Executive must be able to discharge its mandate without being hampered in doing so by false claims to legality of its transformation programme which is often a disguise to retain the apartheid engineered inequalities. Equally the Legislature must champion transformative pieces legislation that reflect an endeavour to bring about a better life for all.
We have engaged broadly as society on the meaning of how our State must be organised, underlining the doctrine of the separation of powers amongst the three arms of the State. Along this broad configuration of the State, swings as its axis the various political, social and economic permutations by our people, to advance their own respective and collective end.
It is then that we can speak of the ability and the right of every natural or juristic person to claim the realisation of such a right as provided for in the Our Constitution gives rights to our people, in particular section 34 of the Constitution: "Everyone has the right to have any dispute that can be resolved by application of law decided in a fair hearing before a court or where appropriate another independent and impartial tribunal or forum.”
I am quoting this section to illustrate the fact that access to justice is not just about court litigation. It is about pro-actively addressing the legacy of the past as enjoined by our Constitution because that is our broad definition of what is meant by justice. Many people make the mistake of interpreting the Constitution as a neutral bystander in the social, economic and political conflicts facing our people.
However, as I have alluded, the Constitution is a progressive document that calls for comprehensive change, premised on the acknowledgement of the continued existence of the injustices of the past. As we know that the historical legacy still lingers on, our Constitution is thus biased towards a transformed society.
The people of South Africa came up with the National Development Plan (NDP) that outlines our vision 2030. The NDP, the “People Plan” articulates our vision 2030 to create full employment, eliminate poverty and significantly reduce inequality.
The NDP is our rallying point for government, business, labour, NGO’s and society at large, to work together to make our economy work for all our people. By so doing, we would have fulfilled the Constitutional mandate to redress the legacy of the past and heal those historic divisions whose legacy hitherto lingers on.
After the National General Elections in 2009, we reconfigured national departments to better position them to accelerate quality service delivery to all our people. Likewise, as the Department of Justice and Constitutional Development, we have been seised with effecting the broad statutory paradigm from which the possibilities of social, economic and political transformation could be pursued. All government departments must find ways to ensure that the NDP find practical expressions in our respective strategic plans and programmes of action. This we do because in our political bible, justice is not just a matter for court litigation but very importantly also broadly a socio-economic matter.
The historic injustice of political exclusion and denial of the universal suffrage was dealt through the ballot since 1994 and the regular periodic elections thereafter. That is why in the ANC National Conference in Mangaung we recognised that while we made strides in political transformation such a repealing old apartheid laws and replacing these with laws that flows from the Constitution, socio-economic transformation nonetheless lagged behind. As the Universal Declaration of Human Rights highlights, socio-economic rights are part and parcel of human rights.
Often people see us as merely the Department of Justice and forget that Constitutional Development is integral to our mandate. In this way we are entrusted as custodians to advance the text and spirit of the Constitution as that is what gives effect to our conception of justice. The Constitution itself is premised on the progressive policies adopted by the African National Congress during its long years of struggle for freedom, amongst them, the Bill of Rights of 1923, African Claims 1943 and the Freedom Charter of 1955.
Very critical to our work has been to ensure that justice, however contextualised, is accessible to all our people. We had to prioritise our departmental work in this regard, which is about the systems that must ensure access even to the most poor from our communities.
Fully cognisant of the cooperation amongst the three arms of the State, the Legislature, the Executive and the Judiciary, we participated in the “Access to Justice Conference” organised by the Office of the Chief Justice in 2011 under the theme: “Towards Delivering Accessible Quality Justice for All”. It was the first time that these three arms of the State together with other statutory and voluntary institutions supportive of our democracy, met to deliberate on the challenges of access to justice under one roof.
In his opening remarks on the occasion of that Conference, the then Chief Justice Sandile Ngcobo had this to say, and I quote:
“We should draw inspiration from the Preamble to our Constitution that reminds us of the goals that we fashioned for ourselves as a people.
These include to:
- Establish a society based on democratic values, social justice and fundamental human rights;
- Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
- Improve the quality of life of all citizens and feed the potential of each person.”
As government we agree with this broad conceptualisation of access to justice as advanced by the former Chief Justice Sandile Ngcobo.
Representing the Legislature, the Parliamentary Speaker Mr Max Sisulu concurred with the Chief Justice when he said, and I quote: “Giving expression to a broader sense of social justice, the Preamble of our Constitution accordingly proclaims that the Constitution was adopted to "establish a society based on democratic values, social justice and fundamental human rights” in which “government is based on the will of the people and every citizen is equally protected by law” and to “improve the quality of life of all citizens and free the potential of each person.”
Within these broad frameworks as alluded to by both the Judiciary and the Legislature, as the Executive we were also cognisant of the specific mandate of the Department of Justice and Constitutional Development to make its own contributions towards access to justice. We noted that 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 their independence, impartiality, dignity, accessibility, and effectiveness 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.
Important resolutions which were adopted by this historic conference included the following:
- Implementation of judicial case management;
- Measures necessary to enhance access to justice which would involve sufficiently restructuring and reasonably resourcing the Small Claims Court, community courts and traditional courts;
- Steps to introduce alternative dispute resolution (preferably court annexed mediation or CCMA type of ADR);
- Focus more attention on sexual violence cases affecting children.
As already indicated, the nearly two decades of our constitutional democracy was largely preoccupied by the establishment of a legitimate institutional and legislative framework to realise the transformative objective of our democratic Constitution through legal means. At the pinnacle of this institutional framework is the establishment of the Constitutional Court which plays a pivotal role in leading the transformation of our jurisprudence and the law which underpin our endeavours to advance a rights-based society and constitutionalism.
Since its inception, the Constitutional Court has not only delivered landmark decisions which continue to shape our evolving constitutional jurisprudence, but has made an indelible contribution in global human rights jurisprudence. I am certain that students and the teaching personnel of this institution and other jurists elsewhere continue to find the leading decisions of our Constitutional Court such as Certification judgment, Makwayane, Grootboom, Soobramoney, Harksen and many others engaging and thought provoking.
Distinguished guests;
Our democratic Parliament has, since 1994, enacted in excess of 1 294 laws (Acts of Parliament) while the Executive has adopted and implemented a number of policies and plans during the same period. As the Department of Justice and Constitutional we move from the premise that justice is basically to fulfil the letter and spirit of our Constitution. In the main, these Acts seek to strengthen the following aspects relating to our Justice system, namely:
- deepening democracy and constitutionalism and the advancement of the rule of law;
- transforming the judiciary and the administration of justice broadly;
- fighting crime and corruption; and
- broadening or widening access to justice.
Great strides have also been made in establishing and strengthening the Institutions Supporting our constitutional democracy. Amongst these institutions are the Office of the Public Protector and the South African Human Rights Commission which are part of the Justice institutions which are aimed at promoting and upholding the rule of law.
Not only do these institutions enhance access to justice for the majority of our people, but also hold Government and organs of state accountable for their programmes and actions that are funded through the fiscus. The National Prosecuting Authority (NPA) and the Legal Aid South Africa (LASA) also contribute to the realisation of the goals of our Constitution. The NPA, in particular, continues to make notable achievements which in turn yield impressive results in our quest to improve the performance of our courts and thereby sustain and enhance our high conviction rates.
The Asset Forfeiture Unit which is a component of the NPA continues to up its stakes in its endeavour to combat corruption by diverting gains earned through illicit means to programmes aimed at strengthening our criminal justice system. LASA on the other hand, ensures that the poor members of society, children and other vulnerable members of society are accorded legal aid in order to enjoy the equal protection and benefit of the law which is basic human right.
Some of the important legislation we have finalised recently includes the Constitution Seventeenth Amendment Act, 2013 and the Superior Courts Act, 2013. Both these Acts came into effect on 23 August 2013. The Constitution Seventeenth Amendment Act in particular, asserts the Chief Justice as the Head of the Judiciary and affirms the Constitutional Court as the highest court in the land, whilst the Superior Courts Act sets out a structure and arrangements of superior courts.
An important outcome of the implementation of these two Acts is the consolidation and enhancement of the principles of the separation of powers and the rule of law. We had already anticipated the enactment of these 2 Acts, hence even before their assent into Law by the President we had already initiated the enhancement of the Office of the Chief Justice capacity on the basis that it was already proclaimed by the President as a national department in 2010. The implementation of these Acts will enable us to have a judiciary-led court administration and thus reinforcing further the doctrine of the separation of powers across the three arms of the State.
Access to justice has much to do with creating a legitimate legislative and institutional framework that I have alluded to above of which courts constitute an important part. It is for that reason that the Department channels more than 80% of its nearly R16 billion budget to Access to Justice programme. This Programme entails mainly the building and distribution of court facilities and offices of the Master of the High Court throughout the country which are our prime service delivery centres. Through our capital works programmes we have, since 1994, built 43 new courts mainly in rural areas and the historically Black townships. This brings to 762 the number of courts distributed throughout the country.
The rationalisation of the areas of jurisdiction of the courts which seeks to redress the racially-based judicial boundaries of the erstwhile RSA and Homeland territories is part of our Access to Justice Programme. Through this programme we aim to correct the persistent anomalies of our judicial boundaries which still reflect the pre-1994 segregation policy which was premised on the defunct Homeland and self-governing states. Some of the major capital projects underway to give effect to the Superior Courts Act include the construction of the seats of the High Court in the Limpopo and Mpumalanga provinces.
The Limpopo seat of the High Court is scheduled for completion by June 2014 while the construction of the Mpumalanga High Court is expected to commence late this year and anticipated completion during the 2015/16 financial year. The immediate consequences of the Superior Courts Act in the KwaZulu-Natal province is that the Matatiele and Maluti magisterial districts which are in Eastern Cape but resort under the jurisdiction of the KwaZulu-Natal Division will now fall under the Mthatha local seat of the Division of the Eastern Cape of the High Court. This will alleviate the hardship endured by the communities of the two districts who will now travel shorter distances at much reduced cost to obtain services of the High Court in their province.
A similar rationalisation process to unbundle the magisterial boundaries of the magistrates’ courts is underway. As part of this project, 24 branch courts out of a total of 90 have been upgraded and converted into full services courts. These proclaimed self-standing detached courts now provide additional services relating to civil and family law matters, maintenance, small claims and deceased estates in addition to their limited services relating to the adjudication of criminal cases. In respect of this province, the Branch Court in eZakheni in the Kliprivier district is earmarked for re-designation into a full services court during this current financial year.
The reintroduction of Sexual Offences Courts attest to our unrelenting resolve to eliminate the scourge of gender based violence which undermines the right to gender equality and protection of the rights of Lesbian Gay Bisexual Transgender Intersex (LGBTI) communities. Fifty-seven of our Regional Courts are being upgraded and equipped with modern technology to operate as dedicated Sexual Offences Courts during the 2013/14 financial year. We believe that these sexual offences courts will help address the growing challenge of sexual offences in the country, particularly against vulnerable groups.
The Small Claims Courts remain an important vehicle through which access to justice is enhanced. This attests to our belief that no matter how small the matter may look, justice must prevail in all social conflicts through the law. Through these courts indigent litigants are able to obtain legal redress for claims of up to R12 000 without the assistance from a lawyer. The department has increased the number of Small Claims Court by an additional 16 during the financial year to a total of 263 courts.
We are moving steadfast to ensure that every magisterial boundary has at least one Small Claims Court. We continue to make an impassioned plea that our distinguished law teachers avail themselves to preside in these courts to complement the fewer presiding officers that are drawn from the attorneys and advocates’ profession. As some of you would know, these services are rendered by the Commissioners pro bono, that is to say without any financial reward or salary. This is part of an endeavour to bring justice to all our people, including the poor who are the ones most likely to have disputes over monies less than R12 000.
An important aspect of the transformation of the State is the constitutional injunction that requires of our Judiciary and other institutions within the administration of justice to reflect the racial, gender and other constitutional characteristics of our South African society. We have uncompromisingly made great strides to realise this goal. In respect of the Judiciary in particular, the appointment of women judges has been slower than it was initially anticipated.
Out of a total of 311 judges appointed since the establishment of the Judicial Service Commission in 1994, only 76 are women. In respect of the magistrates only 687 are women out of a total number of 1661 magistrates. This is a matter of grave concern to Government and to both the Judicial Service Commission and the Magistrates Commission which play a vital role in the achievement of the constitutional imperative explicitly stated in section 174 of the Constitution about “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.
The steps we are embarking upon include the transformation of the legal profession which largely constitutes the pool from which judicial officers are appointed. We need to increase the numbers of students studying law and in turn increase the numbers of attorneys and advocates from which pool we derive candidate judges. This is the challenge that you as the University of Zululand can help contribute towards resolving.
The Legal Practice Bill and the transformation of the State Legal Service are the most important initiatives underway through which the Institutions of Higher Learning will contribute. The Bill which was introduced in May 2012 and is currently before Parliament, seeks, in the main, to establish a single regulatory structure which will be responsible for setting the norms and standards for all legal practitioners. Members of the public as primary beneficiaries of the legal profession will also be represented in this structure. Other important objectives of the Bill are the removal of barriers of entry to the profession for young law graduates who aspire to pursue a legal career and the introduction of measures aimed at ensuring that fees chargeable for legal services are reasonable and within reach of ordinary citizens.
As the teaching staff and learners you are encouraged to engage yourselves with the on-going discourse to enhance the final product and ensure that it embraces the views of the different sectors of our society.
Initiatives to transform the State Legal Services are aimed at improving the strategic management of state litigation and thereby ensure efficiency, effectiveness and the proper utilisation of resources in providing litigation services to the State. The initiatives also include an increase to the allocation of briefs to legal practitioners from Previously Disadvantaged Individuals. This should be possible even more because the State is the biggest litigator in our country and that should be used as platform for transformation. I trust that these initiatives will inspire our learners who one day wish to see themselves as attorneys, advocates, prosecutors, magistrates and judges.
It is important that justice must not only be done but also manifestly seen to be done at all times as perception to some is reality. Both the perception and the realities of any allegation that access to justice is compromised must be dealt with. As a Department of Justice and Constitutional Development, it remains our main concern to ensure access to justice to all our people more so from the premise of the supremacy of the law in all matters of social, economic and political conflict. There is no doubt that justice must adhere to the democratic conception of justice itself. Ours is not justice that is arbitrarily conceived but one based on our evolving Constitutionalism.
While the three arms of the State, the Legislature, the Executive and the Judiciary are important drivers of access to justice, ultimately the people must be the owners of the entire State as common estate of all our people. I cannot over-emphasise the cardinal point that justice must not just be a concept to be litigated in courts but must be the lived experience of all our people on matters of health, education, crime prevention, transport systems, availability of infrastructure and equitable access to jobs and all other economic activities. Access to justice ultimately speaks to the broad definition of our democratic dispensation as an antithesis of the legacy of apartheid and the attendant historic injustices therein that we seek to transform.
As I conclude, when we took over political power in 1994, first and foremost in order to achieve these goals, we sought political transformation, which as I have indicated involved the eradication of the various apartheid laws whose basic measure we are enjoined by the Constitution to fulfil, in that they were inconsistent with the Constitution itself.
Having concluded the Heritage month yesterday, we must consider the Constitution and the justice that it enjoins us to fulfil as one of our greatest heritage as a democratic nation State. Ultimately justice must be the social, economic and political fibre that defines us as a people and as last Month’s Heritage theme would suggest, our living heritage. Our national diversity which is recognised by the Constitution as fundamental human right then flows from this common concept of justice as national and universal acclamation.
We must thrive as a people to make justice and human rights our lived culture and not assume the courts are the only places where justice must be attained. The principles that the Constitution speaks of must be internalised by all our people be they in their homes, in the streets, in businesses, at work, in government departments, in political organisations, in NGO’s, in labour organisations and in every facet of our lives. That is why Constitutional Development is important task of our work as the department, through which we engage in public education on the values of our Constitution, the laws and the various rights that emanate from these.
As we do that, the levels of crime in particular and acts of injustice in general would drastically decrease in our communities. None of the social, economic, political or State institutions working alone can achieve the transformation that we seek, but when all of us work together to make the Constitution our living document as the heritage month theme suggested.
Therefore, as we celebrate 20 years of democracy, we are certain that we have made strides towards comprehensive transformation that is underpinned by access to justice for all because South Africa is today better than it was in 1994 and tomorrow holds the promise that it will be better than today!
I thank you!
