Date: 03/10/2003
Source: Department of Justice and Constitutional Development
Title: Gilwald: Women Judges' Conference
WELCOME ADDRESS BY THE DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, MS CHERYL GILLWALD, AT THE WOMEN JUDGES' CONFERENCE, 3 October 2003
Programme Director, Honourable Justices from South Africa and around the world, distinguished guests, friends from the legal and justice families, ladies and gentlemen. It is my great pleasure to welcome you to this evening's proceedings. Before I go any further, I would also like to extend to our distinguished guests from Zimbabwe, Botswana, Jamaica, the United States of America and Canada, a very warm South African welcome.
I have to say that I am a little overwhelmed. Not being familiar with the experience of having to appear before a judge in the traditional sense of the word, this appearance before no less than 25 Judicial Officers (at one time) is a really interesting baptism of fire!!
A meeting of such a large group of women judges is a welcome development on the Justice calendar of events. In addition, interaction such as this - across so many judicial cultures - is nothing short of remarkable. This legal and cultural diversity will, I am sure, enrich the content of this conference considerably. As South Africans, we know this to be true because during the process of normalising our society, we frequently look beyond our shores for precedents and examples of best practice that could benefit our transformation processes.
Your conference follows on this country's recent national Judicial Symposium in July this year. This symposium was the first such gathering of South Africa's judiciary in seventy years. This unique gathering gave the judiciary, as an institution, an ideal opportunity to reflect upon and discuss the many questions relating to its place and role in a dynamic and rapidly changing young democracy. The judiciary not only affirmed the importance of international law in the protection and promotion of human rights - an item that I am delighted to see is also on your programme of discussion - it also produced a unanimous resolution of commitment to the transformation process.
And in the context of South African change and reform, issues of race and gender are primary considerations. It is therefore particularly relevant that such a large group of women judges have gathered together on the African subcontinent to deal with issues that are peculiar to them. The upcoming two days of planned deliberations promise much in the way of new insight into and understanding of the relative strengths and weaknesses of our respective legal systems.
Our judicial system, including the judiciary and the magistracy, has come a long way from the days when the judicial system and its institutions were unashamedly manipulated to implement and uphold chauvinistic, apartheid policies. In May 1994, racial and gender representivity - as it related to the judiciary - was notable only for its near absence; two white women judges and one very lonely black male judge populated the bench in a sea of distinctly pale, males faces! Today 60% of judges in the High Court, Supreme Court of Appeal and our Constitutional Court constitute post-apartheid placements and significant levels of race and gender representivity have been achieved in a relatively short space of time. Much, however, has yet to be done on both these fronts and this is particularly true within the Magistracy where whites still constitute 51% of the judicial community. Generally, progress to date has been encouraging, but the pace of change is far slower than we had anticipated.
The pursuit of race and gender representivity is not an idle numbers game - it is a constitutional imperative and references to social justice in what I like to refer to as Our Mother Law, are not accidental. It is essential that our justice system accords with the South African context and it is critical that its values and principles resonate within the hearts and minds of the majority of our people. Justice must not only be done it must be seen to be done and viewed within the historical perspectives that apply in our country. Achieving a generally accepted and credible Judiciary is vital for the long term survival of our Democracy. Transformation in the South African context is thus fundamental if a vigorous and independent Judiciary is a principle to which we are truly committed. Clearly for this to become a reality, there is a pertinent need for the judiciary to be reflective of a post 1994 South Africa that is founded on a commitment to non-racism and non-sexism in all aspects of its society.
To address the problem of a judiciary that is still predominantly (just under 60%) male and white, part of the solution could be a re-look at the source for candidates for the Bench. It is of concern to the government that the appointment of black candidates still languishes below expectation. Of course one of the reasons for this is that there is a small pool from which judicial appointments can be made. The Bar, the traditional source for candidates for the Bench, is not doing any better in terms of the number of black and women advocates. If, therefore, progression from the Bar continues to be the only feeder for the Bench, then the transformation process will take even longer.
The Bar will, however, continue to be an important source for new entrants to the Bench and the need for greater transformation in this institution is illustrated in this quotation from the late Ismael Mohamed a former Chief Justice:
"It is crucial for this country that the Bar should succeed in the realisation of this rich potential. Its success in doing so, will bring not only fulfilment and meaning to new generations of young men and women attracted by the eternal fascination of the law; it will accelerate also the process of healing the deep wounds inflicted by the pain and the shame of our racist past. It will discipline and accelerate the crucial process of transformation - domestically within the Bar itself to reverse the grossly unacceptable racial and gender distortions within its own membership at all levels; and externally to restore for the law its legitimacy, relevance and living creativity in a constitutionally protected democracy enforceable before Independence Courts of integrity and scholarship. The Bar must remain a crucial source for recruitment to such a Bench."
I believe his words are also quite relevant to the challenge that faces our judiciary as it comes to grips with the transformation process. Achieving greater levels of representivity will not only validate the Judiciary as a truly progressive South African institution, it will bring new voices and different perspectives to decision making within the justice system.
In their book Ideological Virgins and Other Myths , Joanne Fedler and Ilze Olckers have the following to say about new perspectives: "The notion of beginning afresh has been quite foreign to the practice of law, since the law pre-eminently relies on what has gone before as a yardstick for how things ought to be done now. When we look for legal answers, precedent or stare decisis is our first port of call. We teach decisions handed down decades ago, valorise ancient principles and apply rules whose validity has gone largely unquestioned for centuries, despite enormously diverse settings."
The development of our constitutional jurisprudence has come into its own since the advent of our precious constitutional democracy. As South Africans, we are extremely proud of the significant contribution made to this process by our Constitutional Court. Their ground-breaking judgements, reflective of the new perspectives to which I referred, have been acclaimed internationally. During our recent participation in the Commonwealth Law Conference in Melbourne frequent reference was made to the recent South African jurisprudential experience - and our entire delegation basked unashamedly in the Court's reflected glory!
In conclusion, I wish to refer to the following remarks by Chief Justice, Arthur Chaskalson at the Opening Ceremony of the Judges Symposium to which I referred at the beginning of this address:
"The building of the legal order that the Constitution contemplates is like a painting on a huge canvas, many parts of which remain to be filled. Indeed, in the past nine years, we have only begun to sketch the outlines of the new legal order, and an enormous amount of detailed work remains to be done. The work is never ending, for law is not static. It evolves as responses are demanded to the changing needs of society and to the different issues that constantly arise in the complex world in which we live. The outlines are, however, sufficient to enable us to identify the contours of the picture that must emerge. It is of a legal order that will strengthen democracy; facilitate development and the attainment of the constitutional goal of improving the quality of life of all citizens, and of freeing the potential of each person. It is of a society which respects which respects the founding values of human dignity, freedom and equality."
With that fine picture of our Constitution in mind, allow me to wish you well in your deliberations over the next two days.
I thank you!
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)
Source: Department of Justice and Constitutional Development
Title: Gilwald: Women Judges' Conference
WELCOME ADDRESS BY THE DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, MS CHERYL GILLWALD, AT THE WOMEN JUDGES' CONFERENCE, 3 October 2003
Programme Director, Honourable Justices from South Africa and around the world, distinguished guests, friends from the legal and justice families, ladies and gentlemen. It is my great pleasure to welcome you to this evening's proceedings. Before I go any further, I would also like to extend to our distinguished guests from Zimbabwe, Botswana, Jamaica, the United States of America and Canada, a very warm South African welcome.
I have to say that I am a little overwhelmed. Not being familiar with the experience of having to appear before a judge in the traditional sense of the word, this appearance before no less than 25 Judicial Officers (at one time) is a really interesting baptism of fire!!
A meeting of such a large group of women judges is a welcome development on the Justice calendar of events. In addition, interaction such as this - across so many judicial cultures - is nothing short of remarkable. This legal and cultural diversity will, I am sure, enrich the content of this conference considerably. As South Africans, we know this to be true because during the process of normalising our society, we frequently look beyond our shores for precedents and examples of best practice that could benefit our transformation processes.
Your conference follows on this country's recent national Judicial Symposium in July this year. This symposium was the first such gathering of South Africa's judiciary in seventy years. This unique gathering gave the judiciary, as an institution, an ideal opportunity to reflect upon and discuss the many questions relating to its place and role in a dynamic and rapidly changing young democracy. The judiciary not only affirmed the importance of international law in the protection and promotion of human rights - an item that I am delighted to see is also on your programme of discussion - it also produced a unanimous resolution of commitment to the transformation process.
And in the context of South African change and reform, issues of race and gender are primary considerations. It is therefore particularly relevant that such a large group of women judges have gathered together on the African subcontinent to deal with issues that are peculiar to them. The upcoming two days of planned deliberations promise much in the way of new insight into and understanding of the relative strengths and weaknesses of our respective legal systems.
Our judicial system, including the judiciary and the magistracy, has come a long way from the days when the judicial system and its institutions were unashamedly manipulated to implement and uphold chauvinistic, apartheid policies. In May 1994, racial and gender representivity - as it related to the judiciary - was notable only for its near absence; two white women judges and one very lonely black male judge populated the bench in a sea of distinctly pale, males faces! Today 60% of judges in the High Court, Supreme Court of Appeal and our Constitutional Court constitute post-apartheid placements and significant levels of race and gender representivity have been achieved in a relatively short space of time. Much, however, has yet to be done on both these fronts and this is particularly true within the Magistracy where whites still constitute 51% of the judicial community. Generally, progress to date has been encouraging, but the pace of change is far slower than we had anticipated.
The pursuit of race and gender representivity is not an idle numbers game - it is a constitutional imperative and references to social justice in what I like to refer to as Our Mother Law, are not accidental. It is essential that our justice system accords with the South African context and it is critical that its values and principles resonate within the hearts and minds of the majority of our people. Justice must not only be done it must be seen to be done and viewed within the historical perspectives that apply in our country. Achieving a generally accepted and credible Judiciary is vital for the long term survival of our Democracy. Transformation in the South African context is thus fundamental if a vigorous and independent Judiciary is a principle to which we are truly committed. Clearly for this to become a reality, there is a pertinent need for the judiciary to be reflective of a post 1994 South Africa that is founded on a commitment to non-racism and non-sexism in all aspects of its society.
To address the problem of a judiciary that is still predominantly (just under 60%) male and white, part of the solution could be a re-look at the source for candidates for the Bench. It is of concern to the government that the appointment of black candidates still languishes below expectation. Of course one of the reasons for this is that there is a small pool from which judicial appointments can be made. The Bar, the traditional source for candidates for the Bench, is not doing any better in terms of the number of black and women advocates. If, therefore, progression from the Bar continues to be the only feeder for the Bench, then the transformation process will take even longer.
The Bar will, however, continue to be an important source for new entrants to the Bench and the need for greater transformation in this institution is illustrated in this quotation from the late Ismael Mohamed a former Chief Justice:
"It is crucial for this country that the Bar should succeed in the realisation of this rich potential. Its success in doing so, will bring not only fulfilment and meaning to new generations of young men and women attracted by the eternal fascination of the law; it will accelerate also the process of healing the deep wounds inflicted by the pain and the shame of our racist past. It will discipline and accelerate the crucial process of transformation - domestically within the Bar itself to reverse the grossly unacceptable racial and gender distortions within its own membership at all levels; and externally to restore for the law its legitimacy, relevance and living creativity in a constitutionally protected democracy enforceable before Independence Courts of integrity and scholarship. The Bar must remain a crucial source for recruitment to such a Bench."
I believe his words are also quite relevant to the challenge that faces our judiciary as it comes to grips with the transformation process. Achieving greater levels of representivity will not only validate the Judiciary as a truly progressive South African institution, it will bring new voices and different perspectives to decision making within the justice system.
In their book Ideological Virgins and Other Myths , Joanne Fedler and Ilze Olckers have the following to say about new perspectives: "The notion of beginning afresh has been quite foreign to the practice of law, since the law pre-eminently relies on what has gone before as a yardstick for how things ought to be done now. When we look for legal answers, precedent or stare decisis is our first port of call. We teach decisions handed down decades ago, valorise ancient principles and apply rules whose validity has gone largely unquestioned for centuries, despite enormously diverse settings."
The development of our constitutional jurisprudence has come into its own since the advent of our precious constitutional democracy. As South Africans, we are extremely proud of the significant contribution made to this process by our Constitutional Court. Their ground-breaking judgements, reflective of the new perspectives to which I referred, have been acclaimed internationally. During our recent participation in the Commonwealth Law Conference in Melbourne frequent reference was made to the recent South African jurisprudential experience - and our entire delegation basked unashamedly in the Court's reflected glory!
In conclusion, I wish to refer to the following remarks by Chief Justice, Arthur Chaskalson at the Opening Ceremony of the Judges Symposium to which I referred at the beginning of this address:
"The building of the legal order that the Constitution contemplates is like a painting on a huge canvas, many parts of which remain to be filled. Indeed, in the past nine years, we have only begun to sketch the outlines of the new legal order, and an enormous amount of detailed work remains to be done. The work is never ending, for law is not static. It evolves as responses are demanded to the changing needs of society and to the different issues that constantly arise in the complex world in which we live. The outlines are, however, sufficient to enable us to identify the contours of the picture that must emerge. It is of a legal order that will strengthen democracy; facilitate development and the attainment of the constitutional goal of improving the quality of life of all citizens, and of freeing the potential of each person. It is of a society which respects which respects the founding values of human dignity, freedom and equality."
With that fine picture of our Constitution in mind, allow me to wish you well in your deliberations over the next two days.
I thank you!
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)
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