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Mbeki: Opening of new building for Constitutional Court (21/03/2004)

21st March 2004


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Date: 21/03/2004
Source: The Presidency
Title: T Mbeki: Opening of new building for Constitutional Court


Honourable Chief Justice, Arthur Chaskalson
Honourable Deputy Chief Justice, Pius Langa
The visiting Honourable Chief Justices
Members of the Judiciary and the Magistracy
Honourable Minister of Justice, Penuell Maduna
Your Excellencies, Ambassadors and High Commissioners
Distinguished guests
Ladies and Gentlemen.

I am truly grateful for the privilege to participate in the official opening of this marvellous, new building, the final home of our country's Constitutional Court.

I thank Chief Justice Chaskalson and the justices of the Constitutional Court for the kind invitation to be here today, our Human Rights Day, to address such a distinguished gathering, which includes eminent jurists from around the world.

It was indeed right that this important event should take place on Human Rights Day, both to celebrate this day, and to emphasise the central role of the Constitutional Court in protecting the rights that our people won through a protracted and costly struggle.

The fact that we meet only now, almost ten years after our liberation, officially to open this important building, underlines the fact that ours is a young democracy, an infant that we are still nurturing towards its maturity.

The very history of this building attests to our people's sustained striving to address the legacy of the past and replace it with all the things we believe should define the new South Africa.

As has been said, this is the site of an old fort - a citadel built to protect white minority rule. When it was used as a prison, it became a temporary home for many of our heroes and heroines, stretching from Mahatma Gandhi to those who were charged with treason in 1956.

The decision was taken to locate the Constitutional Court on these grounds to make the categorical statement that our country had broken with its past of despotic and tyrannical misrule, and that henceforth, from here will issue decisions dedicated to the defence and advancement of liberty and human rights.

The decision to locate our apex court at this place also had to do with yet another consideration. This relates to the national resolve to give new life to the centre of this major hub of our activities as a country, the city of Johannesburg.

This too is part of the process of building the new South Africa, given that businesses and many among the better off fled from the city centre to the suburbs and new areas, as central Johannesburg began to change into a home for South Africans of all races, as it began to transform itself into a truly South African city.

Constitution Hill makes the statement that central Johannesburg will continue to grow and thrive, no longer a place of segregation or of urban decay, but a leader in our country and continent as the city of the future.

The formation of this new and magnificent structure also gave us the opportunity to encourage and celebrate the creative talent of our people. It provided the time and space for the architects, workers in the plastic arts and landscape gardeners to give free reign to their imagination. And thus it has made the statement that all human beings have a soul, and are miraculous creations that are more than mere law-governed animals.

It is also in this way that we seek to establish and entrench the understanding among all our people, and for all time, that we are building a system of justice that must define its justness by the extent to which it enriches and enhances our humanity.

In a 1998 lecture, the Hon David K Malcolm, Chief Justice of Western Australia, addressed the issue of the independence of the judiciary. Among other things he said:

"In reality, a strong, independent judiciary forms the foundation of representative democracy and observance of the Rule of Law and human rights. (However), it is primarily the confidence of the community in the legal system which encourages observance of the law...(The practice of judicial independence) also relies on a community perception that in resolving disputes between parties, the judiciary reflect and act upon the basic and enduring values to which the community subscribe

"If one accepts that the courts work through the voluntary acceptance of their authority by the community, the relationship between the Courts and public must be reciprocal. This doesn't mean that the Courts will decide cases by reference to every shift in public opinion. The Courts and the judiciary must have the confidence of the community in order to maintain their authority. Apart from acting in accordance with their ethical obligations, the judiciary must also keep a 'weather eye' on community values in order to retain the relevance of their decisions to that community.

"(But over the years) a common set of moral or social values held by the community (has) become harder to define, particularly in the context of our multicultural society...It is arguable that...stability in the law and the longevity of a number of its basic tenets is part of the basis for its authority.

"For society to maintain its respect for the law, the law must bear relevance to the society to which it is applied. There are many occasions upon which a judge is required to decide what is just, what is fair or what is reasonable. In cases of that kind a judge necessarily seeks to apply basic values representative of community values. In doing so, he or she cannot merely reflect public opinion. He or she must objectively determine what is just, fair or reasonable so that while he reflects the basic values of the community he does not allow himself to be influenced merely by temporary shifts in public opinion or by prejudice, emotion or sentiment."

I have quoted Justice Malcolm at some length to make the point that I would assume that our judiciary is seized of the challenging issues he raised. This must be particularly difficult in our case, given that the judiciary has to carry out its work in a society in transition, working to overcome a past of deeply entrenched divisions and social fragmentation, not least along racial lines.

The questions must therefore arise as to whether there are such things in our country as "basic and enduring values to which the community subscribes", "basic values representative of community values", "a common set of moral or social values" and shared "public opinion".

If Justice Malcolm was right in his assertion that "the judiciary must also keep a 'weather eye' on community values in order to retain the relevance of their decisions to that community", it must follow that our judiciary, and perhaps our society as a whole, must reflect on the question how our judiciary can keep such a weather eye on values that may very well be as different and disparate as the colonial and apartheid system intended them to be.

Central to all this is the consideration mentioned by Judge Malcolm, that "it is primarily the confidence of the community in the legal system which encourages observance of the law." Accordingly, ultimately, the defence and enforcement of the rule of law, and therefore respect for the decisions taken by our Constitutional and other courts, must rest on whether our people are convinced that these decisions are consistent with what Judge Malcolm described as "basic values representative of community values."

None of us can pretend that the issues we have sought to raise are easy to resolve. At the same time, none of us can deny the fact that some of our courts have handed down decisions that have seemed to be supremely insensitive to the impact that our racist and repressive past continues to have on the consciousness, values and expectations, certainly of important sections of our people.

In the end, we have to do everything we can to avoid the situation that is much discussed in other jurisdictions, of lack of public confidence in the judicial system. In 1999, speaking of the situation in this regard in the United States, Robert Bork Jr said:

"The American public's opinion of the legal profession today generally ranges from indifference to disdain. The lawyer joke-mill churns out books and desk calendars and more jokes year after year, and the average American now views lawyers, once a revered profession, as synonymous with shysters or sleazy courtroom soldiers of fortune...The perception reaches the top of the legal pyramid. You may not hear people disparaging the professionalism of our Supreme Court justices very often, but that doesn't mean the public is particularly crazy about them either."

Bork went on to say "The level of public trust and confidence toward the legal system, that is the general sense that the judiciary is doing the right thing, is essential to the survival of the rule of law in any country. Indifference isn't enough. In a democracy, especially one where the Constitution's preamble begins with "We the People", the people must have a positive and healthy opinion about the branch of government that metes out justice in society or the rule of law starts to deteriorate."

In our situation, we must also reflect on the history of our judiciary, a history that is not so distant that we can view it merely as belonging to the past.

In his submission to the Truth and Reconciliation Commission, our Deputy Chief Justice, Judge Pius Langa, said:

"I am making this submission because I believe that the judiciary occupies, and will continue to occupy, a crucial position in our democracy. The relationship which it has with the rest of the community is therefore important. It should be regarded as an integral part of the community it serves, and it can only function properly if it enjoys the complete trust and confidence of that community. I believe that that confidence was severely damaged in the past. In order for it to be completely restored and its maintenance guaranteed, I believe that there should be a common understanding of the role of the judiciary and the courts, as well as how they perceive their functions and responsibilities towards society. The divisions and conflicts of our apartheid past have distorted the relationship between, on the one hand, institutions involved in the administration of justice, including the judiciary, and, on the other, significant sections of the South African community. This has to be set right, now, in order to ensure and to maintain a healthy democracy, which fully espouses the values of a new constitutional dispensation. I make the submission in the hope that the story of some of my personal experiences, perceptions and observations, shared as they are by thousands of the citizens of this country who were similarly placed, might assist in bringing about a greater appreciation of how others were affected by the operation of the legal system during the period under review. I make this submission also because of my belief that the correction of this distortion, the restoration of complete trust, is not something which should simply be assumed because the country now has a new Constitution. A process needs to take place, a process which will not only liberate those members of the judiciary who have felt the alienation, but which will also reassure the formerly oppressed about the judiciary's rededication to justice for all."

(Quoted by Mr Justice Ralph H Zulman in his "South African Judges and Human Rights" speech in Australia.)

The decisions of our courts are binding on all of us. They are stated with a certainty that suggests that beyond them there can be no greater truth or measure of justice. But it would seem to me that we should also be mindful of the humbling comments made in 1932 by US Chief Justice Benjamin Nathan Cardozo, who said:

"We tend sometimes, in determining the growth of a principle or a precedent, to treat it as if it represented the outcome of a quest for certainty. That is to mistake its origin. Only in the rarest instances, if ever, was certainty either possible or expected. The principle or the precedent was the outcome of a quest for probabilities. Principles and precedents, thus generated, carry throughout their lives the birthmarks of their origin. They are in truth provisional hypotheses, born in doubt and travail, expressing the adjustment which commended itself at the moment between competing possibilities."

He went further to say:

"In our worship of certainty we must distinguish between the sound certainty and the sham, between what is gold and what is tinsel; and then, when certainty is attained, we must remember that it is not the good; that we can buy it at too high a price; that there is a danger in perpetual quiescence as well as in perpetual motion; and that a compromise must be found in a principle of growth."

(Cardozo J, The Growth of Law, p. 70 as extracted from Frank, J, Law and the Modern Mind (Peter Smith, Gloucester: 1979), pp. 252-3)

Our Constitutional Court is a product of bitter struggles waged by millions of people who were defined as sub-human. As a product of their sacrifices, it cannot define itself as an institution outside the transformation process that is taking place in our country.

Rather, it is, like many of our democratic institutions, an important organ for transformation. Indeed, by transforming the old edifice of repression that once stood here, a clear message is issued that this Court cannot and will not march out of step with our evolution, insensitive to the fundamental changes that will characterise our country for a considerable period of time.

As Deputy Chief Justice Pius Langa said, "it should be regarded as an integral part of the community it serves, and...can only function properly if it enjoys the complete trust and confidence of that community."

As South Africans, we are all partners in the great enterprise of ensuring that the promise of our Constitution is fully realised, making a positive impact on the lives of all our citizens. That Constitution lives on as a vital compact at the core of our national life. We are proud that we have our Constitutional Court to ensure that the entirety of our society respects its provisions as well as its spirit.

It is right that the Constitutional Court should occupy this building, which represents the conversion of the negative, hateful energy of colonialism, subjugation and oppression into a positive, hopeful energy for the present and the future, a celebration of the liberation of the creative potential among our people that has given us an architectural jewel.

I would like to congratulate the Departments of Justice, Public Works and Arts and Culture for seeing the project through, the Johannesburg Development Agency for helping with its realisation, and the Gauteng Provincial Government and Blue IQ for giving their backing at a crucial stage.

I am honoured to declare the new Constitutional Court building at No.1, Constitution Hill, open, trusting that it will provide the Chief Justice and all who use it the space to do what they have to do efficiently and in comfort. May it be a shining beacon of hope for the protection of human rights and the advancement of human liberty and dignity.

Thank you.

Bheki Khumalo
Presidential Spokesperson/Chief Director:
The Presidency
Tel: +27 12 300 5436
Fax: +27 12 323 6080
Cell: +27 83 256 9133
Issued by: The Presidency
21 March 2004


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