6 October 2008

Programme director,
Honourable Minister of Public Enterprise, Ms Brigitte Mabandla,
Honourable Chief Justice, Pius Langa,
President of the Commonwealth Magistrates and Judges Association,
Chief Justice Richard Banda,
Chief Justices from the Commonwealth,
Deputy Minister for Justice and Constitutional Development, Adv Johnny de Lange,
Chairpersons of the Justice Portfolio Committee and the Select Committee on Security and Constitutional Affairs,
Chairperson of the Portfolio Committee on Public Enterprises,
Members of Parliament,
Distinguished judges and magistrates from abroad and the various parts of South Africa,
Honoured guests,
Ladies and gentlemen,

It is a special privilege and honour for me to host eminent jurists and distinguished members of the judiciary from the Commonwealth. I am delighted that my predecessor, Minister Mabandla, who is now the Minister of Public Enterprise, is here with us this evening. I also wish to thank our Chief Justice, Justice Pius Langa for hosting this vital and significant conference. I believe that the experiences and lessons that will be shared during the deliberations will benefit the South African judiciary and the Commonwealth Magistrates and Judges Association constituencies.

Distinguished guests, the theme that you have selected for the conference - "Constitutional independence for the magistrate and judge with reference to the separation of powers" is timely, current and relevant, especially in the South African context. South Africa is a constitutional democracy and our Constitution reigns supreme. Our Constitution is premised on the separation of powers and the rule of law which together are the pillars of our democracy. The distinct and separate role of the legislature, executive and judicial organs of the State are clearly spelt out in the Constitution: The executive initiates, develops and implements policies, the legislature exercises legislative authority and has oversight role over the executive and the judiciary upholds the Constitution and the law, which they must apply impartially and without any fear, favour or prejudice.

The separation of powers provides checks and balances in which the judiciary plays a sensitive and crucial role as an independent arbiter where one organ of State has encroached the functional boundary of another.

Our Constitution prescribes the character and calibre of, and the environment within which the magistrate and the judge profiled in the theme chosen for this conference must perform this delicate role. Judicial officers must be fit and proper persons, who must broadly reflect the racial and gender composition of the South African society. The requirement of "fit and proper person" connotes persons of high competence and integrity. The integrity and ethical standards of the judiciary lies at the heart of a fair and impartial judicial system 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 judicial temper should inform the conduct of magistrates in the pursuit of justice. 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."

These sentiments were echoed recently by the Chief Justice, Pius Langa, when he addressed the audience at the Inaugural Lecture in memory of the late Justice Mahomed, when he reiterated:

'It stands to reason that a weak, unprincipled judiciary will be powerless to stem a tide of human rights violations and to keep state power in check. It is accordingly in everybody's interest that the courts should be enabled and protected so that they can do their work properly and impartially, without fear, favour or prejudice in protecting these rights. At the same time, we should demand the highest ethical standards and the utmost competence and integrity among members of the judiciary.'

The duty of the courts in deciding disputes and protecting the rights of individuals is immense. In performing these functions the courts are guided by the Bill of Rights and the rule of law. It is not insignificant that in the final Constitution, unlike in the 1993 Constitution (Interim Constitution), the Bill of Rights binds all organs of State, including the judiciary. In the Interim Constitution, the exclusion of the judiciary from the organs of State that are bound by the application of the Bill of Rights had the effect of limiting the interpretive role of the court in balancing the fundamental rights enshrined in the Bill of Rights. This limitation was recognised by the Constitutional Court in its minority judgment of Du Plessis and another v De Klerk and another, when it expressed the view that the supremacy of the Constitution manifestly entailed the horizontal application of the Bill of Rights and its binding effect on all legislative, executive and judicial organs of State at all levels of government.

Whilst the situation has been remedied by the final Constitution, which put to rest the debate on the horizontal application and the binding effect of the Bill of Rights on the judiciary, we need to ask ourselves the question: What does the paradigm shift from the position which prevailed under the Interim Constitution to the position that obtains under the final Constitution mean for the South African judiciary in terms of its functions and responsibilities?

The rights protected in our Constitution are not arranged in any pecking order nor do they follow any hierarchical preference. It is also not insignificant that the Constitution enjoins the courts, when interpreting the Bill of Rights, to promote values that underlie an open and democratic society based on human dignity, equality, and freedom. Given the pre-eminence of human dignity as a right and a value a question may be asked how the courts will, for example, resolve a tension between human dignity, as a right and value, and freedom of expression?

The relevance of the emphasis on these fundamental values lies in the fact that the judiciary itself must be guided by the ethos and values that underlie an open and democratic society. The Constitution enjoins the three organs of State work together to serve the public interest or the interest of a democratic and open society. Therefore the supremacy of the Constitution and the rule of law form an important yard stick that guides the court in executing its judicial function. It is this yard stick that ensures that courts cautiously exercise their judicial power.

At the heart of the principle of separation of powers is a commitment to enhance democracy, increase accountability, and protect, promote and fulfil our fundamental human rights which are the cornerstone of our democracy. The common thread binding the functionaries of the three organs State is the commitment to respect, protect and uphold the Constitution which is the pledge every public office-bearer must make before he or she assume public office. I imagine that the extent to which constitutional precepts inherent in the constitutional democracies with adequate checks and balances such as ours are applicable to the judiciary may arise in the context of the debate.

Distinguished guests

It is a common cause that constitutional democracies across the globe are characterised by the inherent tension that exists between the three arms of government as they jostle for pre-eminence. 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. The manner and approach by which the three organs of State manage their relationship is paramount. The Constitution and the interest 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 South Africa, where the executive has a duty to implement policies that are necessary to transform a society which is emerging from centuries of institutionalised 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 co-operate with another and act in mutual trust.

This conference today takes place against the backdrop of interesting developments in our political landscape. The independence of the judiciary and the rule of law has recently occupied a prominent space in the local and international media. While the debate is essentially beneficial to our fledgling democracy, we need to acknowledge that in some quarters it is fuelled by reckless or intemperate statements that may have the effect of undermining the integrity of the judiciary. As the South African Government, we have the responsibility to protect State institutions, including the judiciary against unwarranted criticism. We should however be mindful of the fact that in a democratic society, decisions of the judiciary, as is the case with the conduct of other branches of government, will constantly be subjected to public scrutiny and criticism. However such criticism must be rational and informed. The late Chief Justice Mahomed observed, during an address at the University of Cape Town in 1999, that criticism which is persistently uninformed and unfair and which improperly impugns the integrity and the reputation of the judiciary, corrodes public confidence in its legitimacy and may ultimately diminish its capacity to enforce its will in the defence of the citizen seeking redress against injustice. It is therefore important that we all conduct ourselves in a manner that will not erode the integrity of the judiciary in the eyes of the public. Both the President of the ruling party, Jacob Zuma and the President of the Republic have unequivocally pledged their commitment to the independence of the judiciary and the rule of law.

Ladies and gentlemen,

One of the challenges we face today is that of achieving a common understanding of the meaning of judicial independence and the boundaries of separation of powers, particularly between the judiciary and the other arms of government. It is a source of some comfort for us to note that we are not alone in our search for answers to these questions. This is a global quest.

This therefore calls for the jurists and legal minds gathered here to consider a number of probing questions posed elsewhere in this paper, including the following:

How does the magistrate and the judge entrusted with the responsibility of controlling the exercise of power by other branches of State avoid encroaching into the arena of policy making, in particular within the peculiarity of the South African Constitution with a justifiable Bill of Rights?

How does the judiciary ensure that in interpreting the Bill of Rights which it must uphold in respect of every citizen, it does, itself not violate or is perceived to violate any of the rights in the Constitution?

These are difficult and complex questions that require jurisprudential responses which I hope will help find permanent solutions to the constitutional challenges that continue to arise in democratic jurisdictions. I am hopeful that the meaningful inputs that will derive from the discussion will help shape our judicial education training programme. This could not have come at a better time as South Africa stands at the threshold of realising its watershed dream of establishing a Judicial Education Institute for the training of judges and magistrates. Not only will the institute be a reservoir of judicial knowledge and jurisprudence in Southern Africa and the continent, but it will also facilitate an exchange of knowledge with the rest of the world. That institute, will be managed by a council and chaired by our Chief Justice, reflects South Africa's commitment to the independence of the judiciary. My predecessor and the Chief Justice have worked tirelessly for the realisation of this dream.

I wish you well in your deliberations over the next few days and may I, then on behalf of the South African Government and the people of South Africa welcome you to our beautiful country. I hope that in your busy schedule you will find time to enjoy the many beautiful sights among which are Table Mountain and our historical world heritage site, Robben Island.

Please enjoy your dinner.

I thank you!