Date: 08/07/2011
Source: The National Council of Provinces
Title: NCOP: Mahlangu: Address by the Chairperson of the National Council of Provinces, at the third Access to Justice conference, Johannesburg

Programme director
His Excellency the President of the Republic, Hon J G Zuma
Chief Justice of the Republic, Hon Justice S Ngcobo
Speaker of the National Assembly, Hon M Sisulu
Minister for Justice and Constitutional Development, Hon J Radebe
Former Chief Justices A Chaskalson and P Langa
Esteemed Members of the Judiciary
Distinguished guests and participants

I appreciate the opportunity to address this summit convened by the Chief Justice of the Republic, in partnership with the Department of Justice and Constitutional Development, to examine access to justice in our country under the theme Towards delivering accessible and quality justice for all.

Any state that prides itself on upholding democratic principles should equally be concerned when its citizens face challenges with regard to access to justice. It is with this in mind that our Constitution, under the chapter on Bill of Rights, provides expressly that:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. (section 34)

This provision presupposes that the state will take measures to ensure that there are no impediments to access to justice, even by people who do not have the necessary resources.

Given the history of our country, the task of ensuring this right has not been easy. As we traverse the length and breadth of South Africa as the National Council of Provinces, promoting a sustained engagement process between the people and Parliament, we often hear accounts from ordinary people especially in the rural areas about the challenge of accessing government services. The challenges include long distances to health centres, schools and often courts. These are institutions which provide some of the services needed most by our people, especially the poor.

Other problems we have heard, especially in remote areas, include exclusions due to institutions (courts) being slow and unaffordable, and discriminatory – for example, through language used. Other barriers to justice occur when disadvantaged groups are not aware of their rights, or where justice institutions and processes are intimidating or unnecessarily complex.

There is also the issue of access to justice for children, with particular reference to orders that must be given by the Children’s Court (Magistrates Court) based on the application by the social worker(s) in terms of section 46(1) of the Children’s Act of 2005. These include:

• Foster Care Order,
• An order removing a child from abusive parent(s) to an alternative care, and
• An order placing a child who is in a child-headed household in the care or under the supervision of an adult designated by the court.

In some of the rural provinces we have been told about backlogs in the justice system, with regard to the granting of the order. This has a negative impact on the welfare of children.

These challenges are to be expected, especially because of the divide between rural and urban areas that was designed by the previous system of government. However, in a new democracy we need to break that divide by striving to bring government in all its forms closer to the people. I am happy that progressive initiatives are being taken by government for our new-found freedom to be meaningful through ensuring that government operates among the people and with the people.

Another important element in the promotion of access to justice is ensuring an integrated approach to justice and fairness. For example, the issues often raised by the people during our public participation sessions, especially under the banner of our Taking Parliament to the People programme, are in many respects not intricate. They often do not require people to approach the courts but rather other government bodies such as the Public Protector or relevant public structures. Ideally people should rather take a state department in any sphere of government to the Public Protector than to court. We need to work together to use our platforms to educate our people, while at the same time ensuring that we provide the necessary infrastructure for these offices to operate among our people.

In the final analysis, this will lighten the burden on our people who are often advised, sometimes from lack of knowledge, to approach the courts at the slightest hint of a dispute or concern. On the other hand, it will free some time for our courts to deal with matters that require their competence and skill.

I am happy to say that earlier this year I agreed with the Public Protector to have her office form part of our parliament to the people sessions for purposes of educating citizens or intervening directly on matters within their purview as they arise.

Programme director

Critical to the notion of ensuring access to justice in our South African context is the task of transforming the judiciary, which will surely feature highly in reflections at this conference. This involves the creation of a judiciary that is appropriate to a democratic South Africa.

This transformation embraces a variety of factors including the following:

• building a bench that is demographically representative of the population,
• appointing judges who identify with and are dedicated to the new constitutional order,
• increasing access to justice for all sectors of society,
• promoting a culture of judicial accountability,
• re-organising the court system to better reflect changes in the country’s provincial and demographic make-up, and
• creating the structures necessary to foster judicial independence.

The composition of the bench impacts on various aspects of judicial activity and influences public opinion about the independence and legitimacy of the courts. The attempt to increase race and gender representivity aims to rectify this situation and ensure that the judiciary as a whole is better able to understand and relate to the people of South Africa.

Along with creating a judiciary better able to respond to the needs of the people, increased diversity helps foster public confidence in the judiciary and thus in the government as a whole.

This is an important factor in the process of promoting access to justice. People need not be apprehensive before approaching the courts.

Another important aspect of judicial transformation is increasing access to justice for all South Africans, particularly the poor, marginalised and otherwise disempowered sectors of society whose situations in part reflect the legacy of apartheid policies. Access to justice includes various factors such as:

• physical access to courts,
• the existence of multi-lingual courts and interpreters so all litigants can understand court proceedings, and
• affordability, including the provision of lawyers or legal aid so that lack of resources does not become a barrier to accessing the justice system.

In addition to improving access to courts and to promoting awareness of and commitment to remedying the problems of all South Africans, transformation should aim to increase the sense among all people that the justice system belongs to them. Feelings of belonging and of ownership are arguably as important as structural guarantees in promoting the use of courts as a means of solving disputes and of improving quality of life for all our people.

While not as concretely defined as some of the other elements of transformation, changing the culture of the courts so as to foster a greater sense of belonging among all groups in South Africa seems critical to creating a judiciary that can effectively protect the rights of all people and promote the democratic transformation of the country as a whole.

One of the mechanisms of this democratic transformation is provided for by section 174(2) of the Constitution, that is racial and gender considerations in appointment of judges. However, given the history of the judiciary, improving racial representivity may not be enough on its own to transform the culture of the courts in a way that creates a belief among all people that they have a stake in and can benefit from the justice system. So change in attitude is also necessary.

A judiciary that is seen to be independent, that has integrity and that provides decent recourse for citizens and state in a democracy, is central to the task of delivering accessible quality justice for all. Therefore the notion of independence of the judiciary is key.

To ensure this independence the Constitution gives judges some protection in terms of their terms of office and remuneration (section 176) as well as their removal (section 177). This protection is also guaranteed by the Basic Principles on the Independence of the Judiciary , which were adopted in Milan in 1985 and subsequently by the UN General Assembly the same year. These principles include:

• Security of tenure either in the form of life-long appointments, set terms of office or a mandatory retirement age.
• Judges to be removed only “for reasons of incapacity or behaviour that renders them unfit to discharge their duties”.
• Judges to be immune from civil suits arising from acts or omissions in the course of exercising their judicial functions. This is to protect them from fear of reprisals for their decisions.
• Financial security. This is to prevent other branches of government from using threats of salary reduction to influence judges.
• Judicial appointments “should be made on the basis of clearly defined criteria and by a publicly declared process”. This is to prevent the executive from trying to appoint judges who shared its beliefs and would be unlikely to challenge government acts.
• System of promoting judges “to be based on objective factors, in particular ability, integrity and experience”. If judges believe that the content rather than the quality of their decisions will impact on their likelihood of being promoted, they might be reluctant to make decisions upon which the government will look unfavourably.

While judicial conduct is important in ensuring that judges act impartially, public perception of the judiciary is also fundamental to creating an effective system of justice and a legitimate government.

Courts are supposed to protect the people against illegal action by others, including the executive or legislature. If people do not believe that the courts are independent, they will not trust courts’ pronouncements about the validity of government action and may thus lose faith in the system as a whole.

This public confidence in the judiciary, however, does not only relate to public vis-à-vis other branches of government, but also vis-à-vis individuals. If people have impression that the law is lenient to wrongdoers they might be tempted to take the law into their own hands, which is unacceptable. We have seen instances of this where people unleash “mob justice” to alleged offenders.

Our Constitution guarantees that “no one is above the law”. However, we need to educate our people to respect the law and due processes, so that they do not resort to street justice. An eye for an eye makes the world go blind.

Independence and impartiality, as expressed in court decisions, in the processes by which judges arrive at decisions, and in judges’ individual behaviour, underpin public confidence in the legitimacy of the judiciary and thus strengthen democracy as a whole.

Programme director

There is no doubt that development, especially in our rural areas, is essential to the promotion of quality justice for all. There is also no doubt that independent courts that inspire confidence among the populace are part of the required solution. Fundamental to this is the judiciousness of judicial officers.

There is often an assertion that services offered by the state, through the Legal Aid Board, are not of requisite quality. That sometimes due to huge demand and work pressure, government-sponsored lawyers often ask accused people to admit wrongdoing so as to expedite processes. I do not know if this is true, but we must examine such assertions towards ensuring quality justice for all.

Once again I would like to thank you for the opportunity to address this august gathering whose task is to examine challenges relating to ensuring people’s access to justice and to find solutions to manage them. It is an exercise in the enhancement of the quality of justice in our country and ultimately our democracy.

Thank you