Date: 23/01/2009

Source: The Presidency

Title: SA: Motlanthe: Speech by the President of South Africa at the Opening of the World Conference on Constitutional Justice

Honourable Chief Justice of the Republic of South Africa, Pius Langa;

The visiting Honourable Chief Justices and Presidents of the Supreme Courts of the participating countries;

Heads of Delegations;

Honourable Deputy Chief Justice, Dikgang Moseneke;

Members of the Judiciary and the Magistracy;

Deputy Secretary General of the Council of Europe Ms M De Boer - Buquicchio;

President of the Venice Commission, Mr Helgesen;

Honourable Minister of Justice and Constitutional Development, Mr Enver Surty;

Your Excellencies, Ambassadors and High Commissioners;

Distinguished guests, Ladies and gentlemen:

It is an honour for me to address this gathering of eminent jurists from around the world at the opening session of this important conference.

I am particularly thankful to our Chief Justice, Justice Pius Langa, for hosting this historic event.
This being the first event of its kind, I am confident that we will set a good precedent for future gatherings of this nature.

On behalf of the government and the people of the Republic of South Africa, I welcome you all. I hope you will find our country to be warm, gracious and hospitable.

This kind of interaction between legal minds and judicial systems and their related institutions from all over the world has contributed immensely to the development of our body of law and our judicial system.

During the process of crafting a new Constitution for our country, although we drew on our own sources such as the ANC''s Bill of Rights of 1923, the Africans Claims of 1943 and the Freedom Charter of 1955, we necessarily also drew quite heavily on other countries'' experiences with the Bill of Rights, Constitutional Court and an independent judiciary.

This conference, under the theme "Influential Constitutional Justice - its influence on society and on the development of a global jurisprudence on human rights," takes place when the world faces trying times: world economies have plummeted due to the global economic crisis, the destruction of lives and displacement of people continues in certain parts of the world due to political conflicts and instability, and poverty and the diseases and other afflictions that go with it, remains the biggest challenge facing the underdeveloped countries.

I am certain that the Heads of Constitutional Courts, Supreme Courts and Human Rights bodies and senior Judges present here will reflect on these challenges and in particular how the global constitutional and human rights jurisprudence can assist in addressing them.

In positioning law and human rights in the world today we should be guided by the simple precept expounded by Michael Beloff QC who said: "Justice is both the father and the son of the law. The law''s substance is - or should be - informed by a sense of justice; the law''s procedures should produce a just outcome."

Distinguished Guests,

It is fifteen years since the advent of democracy in this country. Later this year South Africans will go to the polls to elect this country''s fourth democratic Parliament.

I am certain that during the deliberations your South African counterparts will share with you some of the hard-fought gains we are enjoying and the challenges we face as we seek to normalise our society.

In spite of these gains we have some way to go in creating a better society for all South Africans. The challenges of poverty, unemployment and inequalities in wealth still remain with us.

The apartheid regime bequeathed us even a judicial system and judicial institutions that had been unashamedly manipulated to implement and uphold apartheid policies.

During the apartheid era, the judicial system was, in the eyes of the disfranchised and marginalised millions of this country, rightfully perceived and experienced as just another arm of a repressive regime.

In those dark days the judicial system was not a refuge for those seeking justice. The majority of this country''s people only approached the judicial system when they had little, if any, choice.

Of course there were great individuals who served in the system and endevoured to ensure that justice was not only done but seen to be done. But their efforts in a sea of collusion with an evil repressive system were unfortunately the exception.

It is precisely for these reasons that over the last fifteen years we have worked tirelessly to unseam the thread of injustice that was so deeply embroided in the fabric of our society.

One of the first steps in the normalisation of our society was the creation of universal respect for the rule of law, in South Africa. Central to this was the adoption of our Constitution which provides for
a culture of rights, responsibilities and freedoms.

However, in the context of a nation where these rights had been denied to the majority of the people, we also needed constitutional agencies that would uphold and protect these hard-won rights.

An independent, vigilant, fearless, vigorous and sensitive judiciary is the cornerstone of that protection.

More importantly we need a transformed judiciary that relates to and understands the realities of the society it serves. It is also crucial that the judiciary must earn the respect and support of the overwhelming majority of the people of the country.

There is no doubt that, in just over a decade of democracy, important changes have taken place to win legitimacy and respect for our judiciary from the wider South African society.

We now have a judiciary that is committed to implementing the letter and the spirit of our Constitution and apply and interpret laws impartially and to the benefit of all the people of this country.

Prior to 1994 our judiciary was almost entirely white and male. Through the efforts of the Judicial Services and the Magistrates Commissions, the race and gender composition of the judiciary has markedly improved.

The role of the Judicial Services Commission in the appointment of judges constitutes a radical break with the past, when judges were appointed and served at the behest of the State President.

Distinguished Guests

I have learnt from some of our judges that the South African system of judicial appointments, like our Constitution is exemplary and compares well with the best in the world.

In spite of these advances, challenges still exist. More work needs to be done in changing the attitudes of some of our judicial officers, not just with regard to race and gender but also with regard to the less privileged members of our society.

In a country with 11 official languages, massive efforts should be made to ensure that access to justice takes place in the language of the person seeking justice.

Our Constitution, with its justifiable Bill of Rights and Constitutional Court is the foundation stone of our democracy. The Constitutional Court in particular plays a crucial role in the transformation of society.

In the South African context, transformation is mandated, driven and guided by the Constitution which seeks to, as stated in the Preamble, improve the quality of life of all citizens and free the potential of each person.

The quest is to create and ensure a united, non-racial, non-sexist, democratic and prosperous South Africa and the enforceable socio-economic rights in our Constitution reflect the commitment to substantially improve the lives of the people of this country.

Our Constitution and legal framework provide the tools to change the lives of our people.

In his paper "Lessons from South Africa" Cass Sunstein, an American Legal Scholar, says:

"Some constitutions are preservative; they seek to maintain existing practices, to ensure that things do not get worse...By contrast, some constitutions are transformative; they set out certain aspirations that are emphatically understood as a challenge to longstanding practices.
They are defined in opposition to these practices... The South African Constitution is the world''s leading example of a transformative constitution."

But constitutions need more than enlightened intentions. They need reliable allies over a broad front. So for instance, a collective effort by government, the judiciary, the business community and other formations of civil society and the support of the international community is necessary for us to achieve the Millennium Development Goals adopted by the UN in September 2000, in particular the eradication of poverty and hunger, the promotion of gender equality and empowerment of women, the combating of HIV and AIDS and the establishment of a global partnership for development.

Chairperson,

For the public to respect the decisions and the decorum of the courts it is important that the conduct of judicial officers is beyond reproach.

Our Constitution requires that judicial officers be fit and proper persons. The requirement of "fit and proper person" connotes persons of high competence and integrity as the integrity and ethical standards of the judiciary lie at the heart of a fair and impartial judicial system as envisaged by the Constitution.

The late Chief Justice Ismael Mahomed, when addressing the Second Annual General Conference of the Judicial Officers'' Association of South Africa reiterated that professional and ethical standards as well as judicial temper should inform the conduct of Magistrates in the pursuit of justice.

And I quote from his speech:

"The ultimate power of the courts must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation and in the confidence it enjoys within the hearts and the minds of potential litigants in search of justice. No public figure anywhere, however otherwise popular, could afford to be seen to defy the order of a court which enjoys, within the nation, a perception of independence and integrity".

You may be interested to know that Parliament has recently passed legislation, which the President has signed into law, to provide for a complaints mechanism for judges.

I am referring to the Judicial Service Commission Amendment Act No. 20 of 2008 which provides for a Code of Conduct for members of the judiciary, a tribunal for the handling of complaints about judicial officers and a register of financial interests of judges.

This Act seeks to strengthen the independence of the judiciary and enhance judicial accountability.

Honourable guests,

If the judicial system is to contribute to the reconstruction and development of our society we must address the inequalities and imbalances which stubbornly remain as part of its defining characteristics.

We still have a problem where those of us with deep pockets have greater access to justice than the indigent. If a rich person is dissatisfied with a judgement from say a magistrates'' court they would have the resources to appeal to the High Court, the Supreme Court of Appeal and ultimately the Constitutional Court - something that a poor person would battle to do.

Clearly, there is a correlation between unequal social conditions and access to justice in modern societies, with the result that the poor and downtrodden often get the short end of the stick in comparable legal conditions.

The Constitution provides the paradigm within which any policy development for judicial transformation must take place and the primary objective is to establish a judicial system that would serve the new social order based on the values of the Constitution.

The envisaged system must lay the foundations for the development of a society based on human dignity, equality and fair administration of justice.

Recent assertions in the local and international media that the judiciary is being undermined are untrue and without basis.

There is a serious and necessary debate and a contestation regarding the balance of power between the judiciary, the executive and the legislature.

Sometimes this debate can get a little heated. We however, feel that this debate is essentially beneficial to our fledgling democracy which is being deepened as a result.

One of the challenges we face today is that of achieving a common understanding of the meaning of judicial independence and the boundaries of the separation of powers, particularly between the judiciary and the other arms of Government.

It is common cause that constitutional democracies across the globe are characterised by the inherent and indeed necessary tensions that exist between the three arms of Government which much necessarily co-operate even as they discharge their mandates.

There is no common approach through which different countries have organised and managed the complex and at times contentious relationship between the three arms of government.

In the judgment of Van Rooyen v the State, the former Chief Justice, the Honourable Arthur Chaskalson contended that different democracies have drawn the boundaries at different places depending on their constitutional framework and socio-political context while maintaining the universally acknowledged core principles of judicial independence as articulated in the United Nations Basic Principles on the Independence of the Judiciary.

In South Africa the Constitution and the interests of society are the primary guiding factors to be taken into account in the process of easing and normalising these tensions.

The challenge presented by the delicate balance is particularly important in our country, where the Executive has a duty to implement policies that are necessary to transform a society which is emerging from centuries of institutionalised discrimination, oppression, inequality and poverty.

Our Constitution is explicit in committing all organs of State to achieve this national goal - it obliges organs of State to cooperate with one another and act in mutual trust.

It is a source of comfort for us to note that we are not alone in our search for answers to these questions. This is a global quest which I am sure you will reflect on during the course of the deliberations.

The government has unequivocally pledged its commitment to and respect for the independence of the judiciary and the rule of law.

Distinguished guests,

I am pleased to announce that the Judicial Education Institute Act No. 14 of 2008 which establishes the Institute that will be managed by a Council chaired by our Chief Justice, comes into effect today.

Not only will the Institute be a reservoir of judicial knowledge and jurisprudence in Southern Africa and the African continent, but will also facilitate an exchange of knowledge with the rest of the world.

On a different but exciting note, South Africa will be receiving, in the very near future, soccer teams from some of the countries represented here to participate in the FIFA Confederation Cup, which is the precursor to the FIFA 2010 World Cup masterpiece. Since you are umpires and referees of the courts, we believe that your presence here will inspire the many teams that will be participating in these events to abide by and accept referees decisions.

We hope that you will find the facilities placed at your disposal for the duration of your stay in our country, particularly at this conference, good enough to meet your expectations.

I wish you well in your deliberations and thank you.