Dean of the Law Faculty, Professor PJ Schwikkard
Head of the Department of Student Affairs, Mr Sfiso Ndaba
President of the Student Representative Council, Mr Insaaf Isaac
Chairperson of the Law Student Council, Mr Jonathan Singh
Academic staff present
Distinguished Guests
Ladies and Gentlemen
Let me take this opportunity to express my gratitude at being invited to address this august centre of excellence, which occupy an important space in the academic field. Let me, at the same breath, apologise for the fact that I could not have come earlier, due of course to competing demands, servants of the people such as ourselves faced with on daily basis.
I am also glad that my today’s visit and indulgence with the gathering of jurists and intellectuals who made time to be here today, coincide with the sitting of the Judicial Service Commission, which has become one of the most significant change institution tasked with a duty of creating an environment for Access to Justice, a theme I am required to talk about this evening.
Tomorrow, this body of esteemed members who are drawn from the three branches of the state, namely the judiciary, the legislature and the executive as well as our social partners from the legal profession and the academia, will be dedicating the entire day in search of fit and proper persons who will not only assume the responsibility of delivering justice to the community of Western Cape, but will form part of an esteemed branch of the state, the Judiciary who, collectively contribute in shaping our jurisprudence to realise the transformative goals set out in the Constitution.
Access to justice is not only a value and theme that binds the Judiciary, but binds all Branches of state, organs of state, and juristic person such as universities and individuals. Non state institutions and individuals are bound by this constitutional value that permeates our Constitution, to the extent that they are bound by the Bill of Rights enshrined in our Constitution. It is in this context that the Constitution provides that the Bill of Rights, which is a cornerstone of democracy in South Africa, binds the legislature, the executive, the judiciary and all organs of state; as well natural or a juristic person.
It is in this context of our enforceable Bill of Rights that institutions such as universities are bound to have policies that are not tantamount to a denial of justice; lest they are they are challenged before the courts.
Before I give a cursory description of this fundamental value that is founded on the rule of law, let me first give background to the political evolution that gave rise to the need for Access to justice to be an embodiment of our constitutional order. As you know, our country has seen a protracted struggle against colonialism and later apartheid which had persisted for more than 300 years.
During this era the country was characterised by racial hatred and discrimination, deep inequality, poverty and strife which were rooted in, and enforced through the laws and policies of the colonialists and erstwhile apartheid Government. Apartheid was entrenched in every fabric of society and was manifestly inherent in the political life, economy, religion, sports, business, employment, residence, education including access to institution such as universities. The fruits of colonialism and apartheid were the denial of justice. Justice was a commodity which was accessible only to the privileged, the powerful and the rich, to the detriment of poor, the marginalised and the weak. It was for this reason that that apartheid was declared a crime against humanity and threat to world peace by the UN. The formation of the African National Congress in 1912 was in response to the suffering and injustices which was endured by the majority of the citizens of this country, at the hands of the colonialists and the apartheid regime.
It is important therefore, first and foremost to define what is meant by justice before we could even speak of access. The constitution enjoins us to ensure that we thrive towards redressing the injustices of the past, through the laws and ideals entailed in the various chapters of the constitution.
While injustice is the historic past that we seek to change, justice as its opposite is the ideal society that we seek to build, underpinned by non-racism, non-sexism, equality, unity, prosperity for all and democracy. Entrenching these principles advances the cause of justice, while contravening these promotes advances the cause of injustice. This is the broad scope of justice beyond that of equality before the law that our jurisprudence is primarily pre-occupied with.
For as long as there is injustice, invariably that will imply access to justice is inadequate or somehow denied. What this means is that for access to justice to find practical meaning beyond the formalities of court litigation or equality before the law, we must create a broad social, political and economic environment for justice to prevail.
It remains our primary mandate as government, not only to create a thriving economy but also to ensure that it is underpinned by justice and equality so as to fulfil the mandate entrusted on all of us by our Constitution. In is for this reason that the Constitution and all the laws flowing from it remains our guide in ensuring the content of a just and equitable order. Without doubt, this must, of necessity, speak to race and gender parity across all the spectrum of our country’s development.
In this regard, we speak of access to housing, security, water, electricity, schools and many of the programmes that government is preoccupied with to ensure that the values enshrined in our Constitution find life in the lived experiences of all our people on a daily and continued basis. In this regard again, there must be cooperation across all stake holders of our country’s development and that includes business, government, labour, NGO’s and all concerned citizens, to ensure that we assist each other to play our various respective roles towards ensuring that indeed there is access to justice in the real lives of our people.
Ladies and gentlemen;
Let me briefly highlight some of the programmes of Government which are aimed at enhancing access to justices from the perspective of the administration of justice. In this sphere, access to justice is usually viewed in the narrow frames of affording a lawyer and having your case speedily dealt with in the court of law. There is no doubt that this constitutes part of the important ingredients of access to justice as we conceive it.
But this concept is broader than that. It connotes a legal system that is underpinned by the rule of law, which together with the Supremacy of our Constitution, constitutes part of the founding values of our democracy. In a democracy the rule of law flourishes if there is an independent judiciary and the courts which are effective and impartial. We have devised legislation and programmes to enhance the independence of our judiciary and the courts within the context of the separation of powers. We are transforming the criminal and the civil justice systems, the legal profession and our state legal services.
All these programmes are aimed at enhancing access to justice which is an inalienable constitutional right flowing from our constitutional democracy. Within the sphere of the Judiciary, we have introduced radical reforms through, among other legislative reforms, the Constitution Seventeenth Amendment Bill and the Superior Courts Bill which are currently being considered by Parliament. I am encouraged that this University in particular, through Democratic Governance and Rights Unit has made submissions on these Bills and I am confident that its input will enrich the end product.
Parallel to the legislative processes under way we have taken measures to enhance the independence of the judiciary by establishing the Office of the Chief Justice as an independent institution from the Department of Justice and Constitutional Development. This we achieved through the Presidential Proclamation of August 2010, which affirms the Government’s commitment to a fully independent judicial administration which consonant with the separation of powers in our Constitution. We are in the process of capacitating the Office of the Chief Justice and very soon it will have its own Head equivalent to a Director-General in a state department and its own budget.
We continue to reform and improve our justice system to ensure that the criminal and the civil justice systems serve the interest of justice, consistent with the dictates of our Constitution. The Justice Crime Prevention and Security cluster have developed programmes that not only ensures that All people in South Africa are and feel safe, but also ensures that the law enforcement agencies continue to cooperate and collaborate with each other in the common goal of eradicating crime and corruption. We have introduced radical reforms to overhaul our civil justice system to increase access to justice. These measures include the introduction of court-connected mediation and to review the rules of the courts to ensure that court processes and proceedings are flexible and simpler to use.
The Department continue to build courts to expand our justice infrastructure which is necessary for Access to justice. We have built no less than 5 new courts in this province in the last 18 years of our democracy and we do the same in other provinces. We will soon open two new High Courts in Limpopo and Mpumalanga. As we expand justice services, there is a great need for capacity. University of Cape Town will always be required to produce jurists who must swell the ranks of the advocates, attorneys, prosecutors, and legal administrators, who will advance to the bench over time as magistrates and judges.
We continue to restructure and transform the legal profession through the Legal Practice Bill which was recently introduced into the Parliament. The objectives of the Legal Practice Bill is to transform the legal profession by among other, the equalisation of opportunities for access to the profession on the one hand, and the need to enhance access to affordable legal services by the users of the legal system.
One of the fundamental concerns with regards to access to justice are the two issues I have referred to earlier in my introduction, which are affordability of legal representation as well as speedy trial. With regards to litigation costs for the poor, we continue to resource Legal Aid South Africa. If anyone is considered indignant, such can apply for the Legal Aid South Africa to provide a lawyer so assist with litigation.
The Access to Justice Conference convened by the Chief Justice was a historic event, in that it became a window of communication amongst the three arms of the State, while further cementing the principle of the separation of powers.
It was the outcome of this Conference that the judiciary has taken lead in developing a Case Flow Management System that will improve our court performance and ensure speedy trials, the lack of which has resulted in case backlogs and denial of justice. There is no denying that justice delayed is justice denied as the popular adage would assert! This is a challenge that speaks to the overall efficiency of the court administration system, including the availability of courts nearer to the people, availability of quality legal representation and the availability.
The introduction and expansion of the Small Claims Courts around the country has enabled the speedy settlement in an easier way of disputes whose financial value does not exceed R12 500. The result of this is that magistrate courts are dedicated to more serious matters without minor financial litigations cloaking the system. However it remains our considered view that even on small matters such as disputes on financial matters not exceeding R12 500, it is imperative that justice is seen to be done and that the court system recognise this importance.
I passionately subscribe to the advocacy that justice must not only be done but manifestly seen to be done at all times. 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. There is no doubt that justice must adhere to the democratic conception of justice itself.
This is why our Constitution recognises the provision for Traditional Courts as part of the justice system. I have studied comments on the Bill and I am encouraged that once more there have been important commentary by scholars from this university, which I hope Parliament will find invaluable as it concludes on this important legislation. Ladies and gentlemen;
I have spoken of the need to ensure speedy and affordable justice for all as our pre-occupation as the Department of Justice and Constitutional Development, nonetheless a function shared with other stake holders such as the judiciary and the legal profession. In this we share the responsibility at various levels with other stakeholder departments. I have also stated that the matter of justice is broader than mere court litigation as it must necessarily refer also to the quality of life of our people across race and gender lines hence the vision of a non-sexist, non-racial, united, prosperous and democratic society.
Once again, allow me to express my gratitude to partake in these necessary conversations on the critical matter of access to justice. Access to justice remains a defining feature on the strides we are making towards the success of our democratic agenda.
I urge our learners to be inspired by the words of our icon of all times, President Nelson Mandela who denounced apartheid and stood for justice when as an accused person courageously remarked from the dock, and I quote,
“I hate race discrimination most intensely and in all its manifestations. I have fought it all during my life; I fight it now, and will do so until the end of my days. Even although I now happen to be tried by one whose opinion I hold in high esteem, I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man's court. This should not be. I should feel perfectly at ease and at home with the assurance that I am being tried by a fellow South African who does not regard me as an inferior, entitled to a special type of justice”.
I thank you!
Speech by Minister Jeff Radebe, at the University of Cape Town, on the challenges facing access to justice in SA
