Pretoria 21 March, 2000
Thank you for inviting me to make this keynote address today. It is so important that legal practitioners identify with the Human Rights cause. Rights are meaningless if they cannot be enforced and people need practising lawyers to help them to enforce their rights. I am pleased to see from your programme that you will be considering whether human rights receive enough attention in the legal education process. It is absolutely essential that we prepare candidate legal practitioners to be able to represent people and communities who need to enforce their constitutional rights. I hope that you will give this appropriate emphasis in your practical legal training and continuing legal education courses.
Today is only the sixth time that we, as South Africans, are able to celebrate our national Human Rights Day. Over the past forty years, when South Africans have come together on March 21, it was to mourn the senseless killing of scores of South Africans during one of the darkest human rights tragedies to mark the contemporary history of our country. The massacre at Sharpville continues to be the quintessential reminder of the injustice, inequality and brutality suffered by a majority of people at the hand of a small and powerful minority.
How appropriate then it is that Sharpville Day has become our national Human Rights Day. We will never forget Sharpville. It will always serve as a stark reminder of our tortured journey from racial oppression to a model, rights-based democracy.
At times it feels as if we have moved light-years away from that infamous past. And then at other times we are left weary when we realise that our new journey has only just begun and that the way forward is bound to be a long and arduous haul.
Racism has, over the centuries, claimed countless black lives and resulted in appalling human degradation, which continues to this day. Its legacy continues to haunt us and while much has been achieved on this front over the past 6 years, our society still struggles with racism in almost every aspect of our daily lives.
Moving from the old to the new is invariably an awkward process. Change brings out the best and the worst in people. This was clearly demonstrated in the reluctant, yet brave compromise that delivered the miracle of our Interim Constitution in 1993 after months of negotiations. The negotiations were a demonstration of gracious (and often not-so-gracious) give-and-take. The often conflicting needs of diverse groups of people had to be accommodated in this process. Staunch gender advocates were required to barter and trade with traditional leaders; landowners attempted to stare down the dispossessed; federalists vied with centralists and communists knocked heads with free marketeers. It was a bruising and often exhilarating confrontation.
Reaching consensus on the main elements of what would become South Africa's first Bill of Rights took nights of horse-trading and much head butting. The final draft did not bring much joy to any of the parties at the negotiating table. The draft was the fruit of compromise, wrung from a process of defining common objectives, which at times seemed extremely illusive. Yet, it became the instrument that protected our fundamental rights and freedoms during our democratic transition. It provided the touchstone for the Chapter on Fundamental Rights for our Final Constitution, which was crafted by our democratically elected Constitutional Assembly.
Thanks to the efforts of that institution, all South Africans are now equal before the law and we can individually and collectively demand recognition and respect for our rights. What is more, we can proudly claim full and equal participation in the creation of a non-sexist, non-racist, democratic South Africa.
Equality underscores all the rights listed in the Charter of Fundamental Rights. The Charter recognises the indivisibility of human rights and that the achievement of political equality without economic, legal or social equality is in itself an abrogation of the rights achievement process.
The disparity between the rights described in our Bill of Rights and peoples' experience of these rights continues to be a major challenge. The struggle for substantive equality is - and must be - the prime motivator in Government's drive to achieve a truly rights-based democracy. The advancement of true equality should therefore apply to every aspect of our lives, including the family, the workplace and the state.
The state is tasked with establishing a proper legal framework and appropriate institutions to ensure the effective protection and promotion of equality for all its citizens, and these institutions should be accessible to all South Africans. The main purpose of South Africa's constitutional protectors is to act as the guardian of the rights of the people. Unless there is a strong, independent referee to ensure that these rights are respected, the rights we all fought so hard to achieve might be worn down and compromised to the point that they have no meaning at all. Our chief human rights protectors are the Constitution and our constitutionally entrenched Chapter Nine Institutions, including the Human Rights Commission and the Public Protector. Our referee is the judicial system and particularly the Constitutional Court.
The legal system must ensure the equality of all before the law and an equitable legal process. Achieving equality before the law includes the provision of appropriate legislation. It also includes the implementation of programmes or activities that have as their object the amelioration of the conditions experienced by the disadvantaged, including those disadvantaged on the grounds or race, colour or gender.
Too many communities in this country still suffer the effects of social and economic deprivation. How will we ensure that disadvantaged people derive benefit from their legally enforceable rights?
Government has sought to provide a legal framework that will assist those deprived groups and individuals. Specific legislation was introduced a mere month ago, for example, to ensure the practical realisation of the right to equality.
The Constitution tasked the State with the establishment of appropriate institutions to ensure the effective protection and promotion of equality for all its citizens, and these institutions should be accessible to all South Africans.
LEGAL DEFENCE AND LEGAL AID
As I said before, the legal system must ensure the equality of all before the law and an equitable legal process.
Access to Justice is one of the rights guaranteed by the Constitution. It is a key right, because without access to justice none of the other rights has any meaning.
There are many ways of facilitating access to justice:
These are just some of the things that we as the Department of Justice can do.
The most important way in which legal practitioners can facilitate access to justice is by making effective legal representation and advice services available to the community at a reasonable cost. You can also assist us by serving as small claims court commissioners and I want to take this opportunity of thanking those of you who already do this.
Many South Africans are indigent and cannot afford to pay for legal services at all. These people need to be provided with legal aid if they are to be able to enforce their rights. Your programme indicates that later today you will be addressed on 'Access to Justice through Legal Aid', which indicates an awareness of the need to focus on this topic. It is no secret that our legal aid system is in crisis and it is clear that this crisis needs to be addressed urgently. It is imperative that we now find a way forward that is socially, economically and politically acceptable. The solutions that we provide must address the groundswell of adverse public opinion that has been growing at an alarming rate. We need effective solutions to address the challenge of providing access to justice in the face of the ever-growing demand for legal representation. These solutions need also to be flexible so that we can address the very different needs of urban and rural communities.
During the apartheid years, law firms and individual legal practitioners defended the rights of the oppressed and the persecuted under extremely unfavourable conditions. The steady stream of litigation in defence of freedom fighters and against the state for illegal detentions, police atrocities and the erosion of the rule of law, often meant the difference between life and death.
It should be acknowledged that foreign funding, primarily through the Legal Defence and Aid Fund made it possible to pursue lengthy legal battles in defence of those claiming basic rights.
The position today is very different. There is no more Legal Defence and Aid Fund and foreign funding to pursue human rights litigation has slowed to a trickle. Yet, within our new rights-based culture, there is an increasing need for people to defend their rights, or to have their rights affirmed in a court of law.
Unfortunately only a few wealthy individuals and corporations can afford to have their day in court. For the majority of disadvantaged South Africans the legal enforcement of their constitutional rights remains an ideal.
We have created an awesome body of law - a fabulous framework of legally enforceable rights. Yet, as was the case during the landmark litigations that characterised the eighties, there will be no real equality before the law, unless access to legal representation is made a reality.
I believe there is an onus on the legal profession, on both the Bar and the Side Bar, to play an active role in the maintenance of our human rights culture. NGO's and human rights organisations are unable to cope with the increasing demand for legal representation. Here, the practising profession will have to respond as it did in the past - it must respond to the needs of the poorest of the poor.
TRILOGY OF LEGLISLATION
Less than a month ago Parliament voted in favour of three key pieces of legislation, aimed at addressing the wrongs of the past and ensuring the promotion of a rights-based society in the future.
This legislation included the Promotion of Equality and Prevention of Unfair Discrimination Act, the Administrative Justice Act and the Access to Information Act. This trilogy of legislation aims to eradicate the aftermath of decades of patriarchy, colonialism, racism, apartheid and economic deprivation that subordinated and oppressed the overwhelming majority of our people.
This legislation applies and extends the principle of equality to the development, application, adjudication, interpretation and enforcement of the law. It is therefore essential that the law, at all times, promotes and ensures the practical realisation of equality for all.
With the Promotion of Equality and Prevention of Unfair Discrimination Act we are pro-actively balancing the scales of justice for all South Africans. Yet, without legal representation many of these rights will remain unfulfilled, especially for those in most need.
Our society remains fraught with different types of repression. The compounded oppression suffered by African-, rural-, working class-, and poor women continues to narrowly circumscribe, to prejudice and to disempower.
Violence in all its forms is endemic to South African society. Both sexual and domestic violence are pervasive and children and women live under the constant threat of violence. Another topic on your programme that lies very close to my heart is the rights of victims, particularly victims of rape. The Department has established a National Task Team to co-ordinate and promote efforts to establish special sexual offences courts throughout the country and to ensure that they operate effectively. The Task Team has secured funding from the Canadian International Development Agency for a project that will focus on the training of officials involved in the investigation and prosecution of rape and other sexual offences. The project aims to facilitate the training of officials in at least twenty courts during a one-year period from 1 April 2000 to 31 March 2001.
EQUALITY
The energies and resources of this country must be channelled into unleashing the innate potential to be the best we can be as individuals and as a society. A dynamic implementation of the recent Equality legislation can deliver that aspiration. The remedies offered by this new legal framework will impact on the entire value system of our society. Nobody has been left out of the equation.
Whether it is in business or how we conduct our daily activities - whether it be religious organisations or traditional systems of belief - no person or entity will remain untouched by this legislation. This legislation will contribute to the elimination of unfair discrimination in education, in labour, the provision of health care services and benefits, housing and land, insurance services, pensions, commercial and professional partnership, professions and professional bodies, provision of goods and services, and even in respect of clubs and sports associations. Opportunities for the legal profession to intervene are vast. We are in the process of developing a business plan for the rollout of Equality Courts, where appropriately trained judicial officers will preside over this intricate and challenging work.
This legislation imposes a positive duty on the State to adopt the directives of the legislation, and enforce and monitor its development and implementation.
ADMINISTRATIVE JUSTICE
On an equal footing and of particular significance to South Africans is the promulgation of Promotion of Administrative Justice Act. The right to administrative justice holds special relevance to South Africans. It was in this area that South African legal practitioners defended basic civil and political rights during the apartheid era.
This Administrative Justice legislation provides remedies for injustice caused by maladministration, abuse or unfairness. It is the first line of defence against malice, bad faith and corruption by public bodies. It is cardinal to the enforcement of administrative accountability, and the realisation of substantive administrative justice.
The Bill advances the principle of fairness by imposing a particular procedural technique on all organs of state, statutory bodies, and public service institutions to be mindful in the application and execution of polices affecting the public.
The right to seek redress before a competent court or tribunal imposes a positive duty on the public sector to observe the tenets of legality, fairness and reasonableness in all their actions.
NATIONAL ACTION PLAN
This afternoon I will be attending a function at the State Theatre to launch the National Consultative Forum on Human Rights. The Forum emanated from the National Action Plan on Human Rights. In terms of this plan every government department has committed itself to a plan of action for the fulfilment of the obligations imposed upon it by the Bill of Rights. The Department of Justice and Constitutional Development is the lead Department and will spearhead the implementation of the NAP. We have put into place mechanisms for monitoring compliance by government departments. In addition we have, of course, to meet our own obligations to promote the development of human rights law through the courts and legislation and to ensure that the institutions of justice provide structures and processes that enable citizens to enforce their rights.
If we do not fulfil our obligations and if you do not fulfil yours as legal practitioners, the rights guaranteed by the Constitution will have no meaning.
Our work is mapped out for us. We have to heal the divisions of the past, we have to lay the foundations for a democratic and open society and we have to improve the quality of life of all citizens and free the potential of each person.
As Chairperson and National Convenor of the National Action Plan (NAP) I am daily strengthened in my belief that the only way in which we can possibly achieve these commendable goals is through social compacts and partnerships.
We have produced the National Action Plan. The real challenge lying before us now is its implementation - making it real. Our Bill of Rights must be seen and experienced to be promoting, protecting and advancing all our constitutionally entrenched rights, regardless of our gender, colour, creed, language, ability or disability.