A Public Lecture by Minister Jeff Radebe, Minister of Justice and Constitutional Development on “Access to Justice” at the University of Fort Hare, 31 July 2013
Master of ceremony; Mr Lizo Phiti
Vice Chancellor of the University of Fort Hare, Dr Mvuyo Tom
Deputy Vice Chancellor: Institutional Support, Dr Jabulani Mjwara
Dean of Law Faculty, Professor Obeng Mireku
Representatives from the Institutional Advancement Directorate,
Lecturers of the University of Fort Hare,
Representatives of the SRC, other student societies on campus and the entire student community
Members of the university staff, in your different capacities,
Ladies and Gentlemen!
Allow me to first and foremost express my gratitude at being invited to this historic institution, to speak on access to justice, which is fundamental to our constitutionalism in our quest to build a rights-based society. I am particularly honoured because I am addressing an institution led by a person I recruited and worked with in the underground structures of the ANC during the turbulent days of the struggle against the monster called Apartheid. It was therefore not by accident that Dr Mvuyo Tom is now Vice Chancellor of this historic University. Let me also convey our deepest sympathy to the family of the late former Chief Justice Langa and to the Justice family at large whose death last week robbed us of a legal giant who contributed immensely to the struggle for social justice and human rights.
On these premises once stood students who were later to become political giants that immensely shaped the course of the struggle against colonialism and apartheid amongst them OR Tambo, Nelson Mandela, Robert Sobukwe, Robert Mugabe and many more. It is also fitting that today’s lecture takes place during the month when we celebrate the birth of our global icon and statesman, the first President of a democratic South Africa, President Nelson Mandela whose contribution and sacrifice to humanity is a great inspiration to us all.
Thus in coming here we must not only highlight where we are with regards to access to justice, but also pay tribute to the role that this great institution played in the historical evolution of our country. We are confident that the legacy and rich intellectual prowess of this university will provide insightful lessons to the Mpumalanga and Sol Plaatjie institutions of Higher learning which are destined to open their doors of learning in the forth-coming 2014 academic year as our President announced recently.
As students in this university, you must harbour no doubt about the opportunity and privilege of being associated with this university and thereby contribute to its rich history that I am confident will continue to influence our evolving epistemology and academic landscape for many years to come.
As you will know, our country has seen the protracted struggle against colonialism and later apartheid, which essentially could be summarised as a struggle for justice. As many will recall, the attainment of justice has been the biggest aspiration behind the formation of the ruling party, the African National Congress, which celebrated the phenomenal 100 years of its existence in 2012. Many of our freedom fighters and leaders of this profound political home to millions of our people have passed through the doors of this university.
Our struggle for freedom and justice culminated in the adoption of our democratic Constitution and subsequent laws flowing from it. The Constitution itself is premised on the progressive polies adopted by the African National Congress during its long struggle for freedom, amongst them, the Bill of Rights of 1923, African Claims 1943 and the Freedom Charter of 1955. Whilst acknowledging that 20 years cannot completely undo the legacy of inequality and deprivation of over three hundred years of colonialism and apartheid, the National Development Plan which is premised on Vision 2030 sets out a clear path to redress these inequalities and injustices of the past.
This Plan builds on the foundation laid by the Reconstruction and Development Plan which formed the basis for the Government’s policies, legislation and programmes that continue to guide this country from a deeply divided past to a just society espoused by our democratic Constitution. These policies and programmes have yielded immeasurable delivery outcomes including access to housing, basis education, health care, water and social security to millions of our people. Not only does the National Development Plan consolidate and enhance these gains, but also provides a formidable roadmap to address the persistent inequality, under-development, poverty, unemployment, crime and corruption amongst others, which threaten to erode the fruits of our hard-earned democracy.
Ladies and Gentlemen
Access to justice as a concept is usually viewed in the narrow frames of affording a lawyer and having your case speedily dealt with in the court of law. If one were to put a number of philosophers in one room to discuss what is meant by justice, I am certain that one would receive various definitions equal to the number of philosophers in the room. This shows that differing emphasis is informed by social, economic and political conditions. The recent Access to Justice Conference which was convened by former Chief Justice Ngcobo in 2011 which drew participants from the three branches of government, the Legislature, the Executive and the Judiciary as well as participants from the Legal Profession and the institution of Traditional Leadership unpacked the various elements of access to justice. Important resolutions which were adopted by this historic Conference which I am sure some of you have had sight of from the media and internet include 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.
My address will also reflect the extent to which some of the resolutions of the Conference have been given effect to. 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 enough quality legal representation, availability of judges and more of such capacity challenges.
There is no doubt that elements touched during the Access to Justice Conference I have alluded to constitute important ingredients of access to justice as it is generally understood. However, access to justice is much broader than the realisation of timely litigation with due legal representation of the litigants involved. In its broad sense the concept entails the progressive realisation of the rights entrenched in the Bill of Rights in our Constitution and the ability of every citizen to claim the fulfilment of such right. The ability and the right of every natural person or juristic person to claim the realisation of such a right in the Constitution finds expression in section 34 of the Constitution which provides as follows, (and I quote):
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.” (close quote).
From the perspective of the Justice sector, 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. 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 endeavour 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 institute 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. The project on the assessment of the impact of the jurisprudence emanating from our Constitutional Court and the Supreme Court of Appeal which this University will undertake in partnership with the Human Science Research Council, will go a long way in analysing the impact of many of the decisions of our superior courts and addressing some of the gaps within the state machinery that hinder the full implementation of these decisions. I am pleased that this university has opted to become part of this important project which I am certain will complement the 20th review of the impact of the programmes undertaken by Government since 1994.
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/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 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.
It is in this broad context that we, as the Department of Justice and Constitutional Development, take our cue from the constitution which enjoins us to ensure that we thrive towards a just society, through the laws and ideals entailed in the various chapters of the constitution itself and those that we promulgate as anticipated by our Constitutional democratic dispensation. Some of the important legislation we have finalised recently includes the Constitution Seventeenth Amendment Act and the Superior Courts Bill. The Constitution Seventeenth Amendment Act which asserts the Chief Justice as the Head of the Judiciary was signed into law by President Zuma in February this year. Intertwined with the Constitution Seventeenth Amendment Act is the Superior Courts Bill, which sets out a structure and arrangements of superior courts. This Act was passed by both Houses of Parliament and awaits to be assented into law by the President. 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 have, in anticipation of the enactment of these 2 Acts, moved steadfast to enhance the capacity of the Office of the Chief Justice which was proclaimed by the President as a national department on 2010. The implementation of these Acts and the Regulations contemplated thereunder will set us on a path to the ultimate attainment of a judiciary-led court administration.
While injustice is the historic past that we seek to change, justice as its antithesis is on the other hand the ideal society that we seek to build, underpinned by non-racism, non-sexism, equality, unity, prosperity and a democratic dispensation for all to enjoy. Entrenching these principles advances the cause of justice, while contravening the same advances the cause of injustice.
My learned guests
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 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 are more patent in the Eastern Cape and Limpopo provinces. In respect of the Eastern Cape the province extends over the defunct RSA territory and the Transkei and Ciskei homelands. Through the Superior Courts legislation which I will allude to later, we will ensure that communities are not restricted by the current judicial boundaries in terms of which, for example, communities living in the former Homelands are served by the Bisho and Mthatha High Courts which have historical constraints while those living in the old RSA territory enjoy the benefit of services of the much affluent Port Elizabeth and Grahamstown High Courts. Nationally major capital projects underway include the construction of the Limpopo High Court which is scheduled for completion by June 2014. The construction of the Mpumalanga High Court is expected to commence late this year and anticipated completion during the 2015/16 financial year. In respect of the magistrates courts’ 8 new courts will be constructed within the next 5 years. These courts are: Dimbaza and Bityi in Eastern Cape province; Mamelodi in the Gauteng Province; Port Shepstone in KwaZulu Nataland Garies in the Northern Cape Province; and Plettenberg Bay and Goodwood in Western Cape 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 services, maintenance, small claims and deceased estates in addition to their limited services relating to the adjudication of criminal cases. Motherwell, which is part of the 24 branch courts and New Brighton have been earmarked for upgrade and conversion during the current financial year. We look forward to the participation of the community of this province and this institution when we rewrite the history of the courts of this province, guided by values enshrined in our Constitution.
The transformation of our Regional Courts by conferring upon them the jurisdiction of hearing civil and divorce cases is an important milestone in the transformation trajectory. We have, through this initiative alleviated the old King Williams Divorce Court of the burden of hearing divorce matters that straddled beyond the boundaries of this province to the whole of Northern Cape. This court, similar to the other old Bantu Divorce Courts, is now part of the regional courts and their services are open to all races.
The reintroduction of Sexual Offences Courts attest to our unrelenting resolve to eliminate the scourge of gender based violence which undermine the right to gender equality and protection of the rights of Lesbian Gay Bisexual Transgender Intersex (LGBTI) communities. Some of the identified fifty-seven 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.
Before I step off the subject of the courts, it will be remiss of me not to mention our work regarding Small Claims Courts which are an important vehicle through which access to justice is enhanced. Through these courts indigent litigants are able to obtain legal redress for claims of up to R12 000 without the any 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. May I make an impatient 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.
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 a constitutional imperative explicitly stated in section 174 of the Constitution that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.
. I am advised that a member of the teaching staff of this university, Prof Rembe, serve as a member of the Magistrates Commission, for which we are grateful.
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 Fort Hare 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. I trust that as the teaching staff and learners you are engaging with the on-going discourse to enhance of the final product and ensure that it embraces the views the different sectors of our society.
On the other hand 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. I trust that these initiatives will inspire our learners who one day wish to see themselves as attorneys, advocates, prosecutors, magistrates and judges.
I passionately subscribe to the advocacy that justice must not only be done but also 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.
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 fraternity. 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.
What this implies is that there must be equality across race and gender on economic participation in the broadest sense, but also on the various concerns of access to houses, electricity, education, water, healthcare, food security and other such basic needs. Justice flows from the broad comprehensive social, political and economic systems that we enact to define our nation State. This in turn becomes the pre-condition for justice to thrive and be administered successfully by our courts.
As the Constitution of our country states in the Preamble, the correction of the injustices or imbalances of the past is fundamental to access to justice as this is ultimately our holistic conception of access to justice for all! The systems that we put in place must be as noble as the Constitution itself, but so must be the quality of the warm bodies such as the Executive, the Legislature, the Judiciary and all the other stakeholders such as the legal fraternity and society at large. Various legislative frameworks have been enacted since 1994 to ensure that both these three branches of the government as well as society at large are empowered for respective roles in fostering justice. I know that some legislative pieces have raised much public debate, but again their legitimacy is weighed against consistency with the letter and spirit of the Constitution.
For justice to prevail that in itself requires a collective effort by all our people including you as the students and the community of this historic University of Fort Hare. As someone once said, for evil to prevail, it would be because the good people do nothing about it, the same could be say of injustice as a societal evil.
Once again, allow me to express my gratitude to partake of 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 thank you!