Address by the Minister of Justice and Correctional Services, the Advocate Michael Masutha, MP, on “Accessing justice and the domestication of international human rights treaties in South Africa” at the occasion of the University of Fort Hare Nelson R Mandela School of Law Conference, held at the East London ICC
Programme Director, Dr Nombulelo Lubisi, Dean of Law, UFH
Prof Sakhela Buhlungu Vice-Chancellor of UFH
Madam Justice Leona Theron, Judge of the Constitutional Court
Judge President of the Eastern Cape Division of the High Court
Academics present
Distinguished guests and delegates
Ladies and gentleman
Allow me to first and foremost express my gratitude at being invited to this auspicious occasion hosted by the University of Fort Hare, an institution with a profound history in the development of our political and constitutional landscape.
Let me also acknowledge Professor Coomans, from the Maastricht School for Human Rights at the Maastricht University in Netherlands, which has partnered with the University of Fort Hare in organising this important occasion.
It is fitting that this conference takes place this year when we, as the South African nation, celebrate the lives and contribution that world’s iconic statesman President Nelson Mandela and our mother figure Albertina Sisulu have made in the advancement of humanity and global justice.
The Preamble to our Interim Constitution alluded to -“…a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms”. This remains the lodestar in our quest to establishing an egalitarian society underpinned by values of human dignity, equality and freedom.
International human rights law sets the normative standards of conduct of States towards their citizens and non-citizens alike. The concern for human rights has grown worldwide and therefore they have been given priority by most nations. The main source of human rights norms is international human rights instruments. The international human rights regime consists mainly of two sources of international law: customary law and treaty law. They, however, have to be integrated into States’ constitutions and domestic legal instruments to ensure their enforcement.
Internationally states are guided by the UN and the Universal Declaration of Human Rights as adopted on 10 December 1948. In its Preamble the Member States pledge, among others, to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.
South Africa has come a long way from an apartheid pariah State to a democratic dispensation. Being a signatory to a host of international treaties and conventions and belonging to various international bodies means that South Africa is now well-placed to play a leading role in the region, our continent and globally.
Let me, at this point, reiterate our stance with regard to the International Criminal Court. Our Government has made known its intention to withdraw from the Rome Statute, for reasons which we have made public, making use of article 127 of the Rome Statute. For this purpose, a draft Notice of Withdrawal was tabled in Parliament towards the end of 2017 for consideration. At the same time we introduced the International Crimes Bill into Parliament in order to address the lacuna which would otherwise be created in our domestic law concerning the prosecution of genocide, war crimes and crimes against humanity as a result of the proposed repeal of the ICC Act. The envisaged Bill, once enacted into law, will among others, criminalises conduct constituting international crimes (genocide, war crimes and crimes against humanity) and confer jurisdiction on the South African courts in respect of international crimes committed within the territory of the Republic and, under certain circumstances, outside the territory of the Republic.
In 2015 the international community made a clear political commitment to, amongst others, access to justice and human rights through the adoption of the 2030 Agenda for Sustainable Development (the ‘2030 Agenda’). Whilst this commitment is laudable and expected to drive significant change, it is not legally binding for Member States. That is why domestication of international instruments remains so important.
The onus is, however, on States to establish effective, inclusive, participatory, and transparent accountability mechanisms at the national and regional levels as ‘national ownership is key to achieving sustainable development’. This lack of entrenched accountability may negate the achievement of the development to which Member States have committed themselves to.
As expected, South Africa is a signatory to the Sustainable Development Goals. In particular, Global Goal 16.3 calls upon all countries to: “Promote the rule of law at the national and international levels and ensure equal access to justice for all”.
Prior to the advent of democracy in 1994 the administration of justice and the courts was geared towards upholding and defending the apartheid State and enforcing its oppressive and unjust laws and policies. The apartheid system resulted not only in the denial of justice for the majority of our people, but deprived them of the right of access to, and use of the land of their birth.
The creation of the Union of South Africa in 1910 through the South African Act of 1909 for the White minority which comprised less that 10% of the population to the exclusion of the majority was a missed opportunity. The Union propelled a plethora of laws and policies to entrench apartheid, amongst which the notorious the Land Act of 1913, the Black Administration Act of 1927, and the Separate Amenities Act and the Group Areas Act of 1950 have left deep scars. The Land Act preserved 87% of the total land for Whites and unashamedly crammed the overwhelming majority of Blacks in the remaining 13%. The formation of the African National Congress in 1912 and the struggle it launched with other political formations was a necessary response to the brutal and offensive attack launched by the colonial and apartheid regimes, against the defenceless Black majority.
With the advent of democracy following the first general elections in 1994, the constitutional State inherited a huge baggage of a deeply entrenched legacy of injustice and inequality which had permeated all fabric of society. When we celebrate a quarter of century of our constitutional democracy in a period of just under seven months from now, we will do so well knowing that we still have a long way to go to reverse the devastating legacy of inequality, poverty and deprivation which was orchestrated over three hundred years of colonial and apartheid rule.
Our Constitution is the culmination of this painful and long journey to freedom for which many have sacrificed their lives. Institutions such as Fort Hare played an important role in the struggle against apartheid and injustice. Many of the ideals in the Freedom Charter of 1955 which came to form the bedrock of our Constitution were nourished on the grounds of this profound institution which is identified with the struggle for justice and freedom. The choice of this University, jointly with the Human Science Research Council (HSRC) to undertake the assessment of the impact of the jurisprudence of our Constitutional Court and the Supreme Court of Appeal on the lived experiences of South Africans, was partly in recognition of its significance and stature in the history of the struggle for freedom. The report of the study, which we launched in November 2016, attests to the independence of our courts and the importance of the evolving human rights jurisprudence in redressing the deeply rooted legacy of inequality and abject poverty which remain visible hallmarks of our painful past. We remain grateful to the team of experts and researchers, which included Professor Rembe and other academics who are in our midst today, for the sterling work. The study will remain an important reference point in our human rights discourse, including on land expropriation and land redistribution which occupy a centre stage today.
Distinguished guests,
The report released by Statistics South Africa on the Victims of Crime (VOC) on 11 October 2018 is an important barometer to measure public confidence in our criminal justice system. The report shows a significant drop in the percentage of South Africans who are satisfied with the work of our courts. The survey indicates that satisfaction with courts, as perceived by South African households, has declined by 8,5 from last year’s 41%. Reasons for the decline are stated in the report include perceptions that courts are too lenient on criminals when passing judgement (63%); that accused were released easily and unconditionally (17,1%) and delays in the finalisation of cases by the courts (14,3%). The report comes against the backdrop of the statistics released by South African Police Service in August 2018 which show an increase in contact crimes such as murder and sexual offences. We have embarked on a process to develop an Integrated Criminal Justice system to accelerate the transformation of the criminal justice system including its modernisation. We continue to roll out sexual offences courts, which now stand at 75, to improve access to improve the quality of justice for the gender based violence such as rape.
We continue to build, in ever-increasing numbers, courts where there were none before, and the Eastern Cape Province has also benefited from our ambitious Infrastructure rollout programme. We have built and revamped over 55 new courts since 1994, and in the few months leading to May 2019 we will increase the tally to 59 with new additional 5 courts. Two of the five courts are in this province, namely Dimbaza near Zwelitsha and Bityi near Mthatha.
Closely linked with our infrastructure rollout is the rationalisation of old magisterial districts’ project which seeks to create integrated and inclusive areas of jurisdiction for all our courts in the place of the erstwhile racial-based districts. The aim of this flagship project is to redress the legacy of spatial injustice of our past which is more visible in the Eastern Cape and other provinces which incorporate territories which formed part of the defunct Homelands and self-governing States. I will use the opportunity, while I am in the province today to meet with the Judge President and leaders of the Lower Court judiciary and other stakeholders regarding the rollout of this important project in the province.
Legal Aid is an important element of access to justice. Without adequate legal aid there can be no fair trial, no functioning criminal justice system and no respect for the rule of law. In the 2017/18 financial year alone, legal assistance and advice was given to 731,856 indigent and vulnerable persons. This include 426,617 new legal aid matters, 371,202 (87%) Criminal legal matters; 55,415 (13%) Civil legal matters and 305,239 legal advice matters. Our Legal Aid dispensation has become exemplary within the United Nations.
The justice service offerings we provide also include services of the Office of the Master through 15 Offices across the country and in the Magistrates Courts. Through the offices of the Master we continue to deliver justices services relating to deceased estates, insolvencies, the registration of trusts and payment of dependents’ benefits being administered under the Guardian’s Fund to the most needy and vulnerable.
Once more I would like the organisers of the Conference for inviting me and wish delegates well in the deliberation over the next few days.
I thank you.
