Dullah Omar Memorial Lecture by the Deputy Minister of Justice and Constitutional Development, The Hon John Jeffery, MP, at the Annual General Meeting of the National Association of Democratic Lawyers (NADEL), held at the Blue Waters Hotel, Durban

22 Feb 2014

Programme Director
President of Nadel, Mr Boqwana
Members of the National Executive Committee
Members of Nadel
Colleagues and friends,

I am honoured and pleased to have been invited to deliver a lecture named in memory of someone who played such a pivotal role in the development of our democracy - the late Dullah Omar.

In two months' time we will be celebrating the 20th anniversary of our democracy. It is a good opportunity to reflect on how we have performed regarding transforming both our judicial system and the legal profession.

At the start of the TRC Cde Dullah remarked that - "There is a commitment to break from the past, to heal the wounds of the past, to forgive but not to forget and to build a future based on respect for human rights. This new reality in the human rights situation in South Africa places a great responsibility upon all of us."

I find it a bit bizarre that there are attempts to peddle a perception that the government of President Jacob Zuma is seeking to undermine the independence of the courts.

In a 2008 Legalbrief article headed "Not just Polokwane", a prominent Senior Counsel writes about the ANC under President Zuma and says - "Not since the 1950s has there been such a sustained attack on the highest court.... Today the attack is more collateral, but if successful, has the potential of destroying the integrity of the Concourt." He continues along the same lines throughout the article by referring to "government's turf war to try and control the judiciary".

In 2012 the same concerns were still being raised, in this case by, amongst others, former President FW de Klerk who, in response to the ANC's Policy Discussion Documents, accuses the ANC of wanting to dispense with constitutional cornerstones and says: "most seriously, the government is manoeuvring to limit the role of the courts." And last month, again the FW de Klerk Foundation, criticised the current structure and composition of the Judicial Service Commission (JSC) because, they argue, the fact that there are politicians who serve on the JSC amounts to political interference, which, according to the Foundation, "threatens to chip away at the foundations of our constitutional democracy."

Comments such as these are ironic, particularly in view of what our courts and judiciary looked like under the previous dispensation. Apartheid era judges were appointed by the State President who, as Judge Dennis Davis put it, "generally acted as a rubberstamp for the Minister of Justice, who, in effect made judicial appointments."

And were these appointments made predominantly on merit? No. In fact, in the early 1980s Sydney Kentridge wrote that - "it must also be said that over the past thirty years ... a number of judicial promotions have been made which are explicable solely on the ground of the political views and connections of the appointees and on no other conceivable ground." Appointments were predominantly made from the ranks of senior counsel and were white and male.

Today we have a Judicial Service Commission. The process for appointing judges is outlined in the Constitution. And it is a much more open, consultative and transparent system.

As for the composition and structure of the JSC, these provisions are also outlined in the Constitution, in section 178 thereof. So when people criticise the JSC, they would be well advised to remember that these provisions were part and parcel of the Constitutional Text which certified by the Constitutional Court in the certification judgments. So, to accuse the ANC of "chipping away at the foundations of our constitutional democracy" when it follows the procedure as set out in section 178 of the Constitution is simply absurd. How can it be unconstitutional to follow the Constitution?

The simple truth of the matter is this: Today, our courts are more independent, more representative, more accessible and more legitimate than they have ever been. Yes, our judiciary is not yet fully transformed and more needs to be done with regards to the transformation of the judiciary, but we have made significant progress. We no longer have magistrates who are part and parcel of the public service and therefore under the control of the Minister or Director-General. We no longer have presiding officers who uphold apartheid laws whilst knowing them to be unjust and inhumane. The ANC government under President Zuma has passed various pieces of legislation, including a recent constitutional amendment, to further enhance and entrench the independence of the judiciary and the role of the Chief Justice as head of the judiciary.

When we change the Constitution, we do so to strengthen the independence of the courts, not to detract from it.

On 23 August 2013, the President signed into operation the Constitution Seventeenth Amendment Act, as well as the Superior Courts Act.

I would like to pause briefly to point out that these Bills, together with the Legal Practice Bill that I will refer to later, were begun during the tenure of Dullah Omar as Minister of Justice over 15 years ago and I would like to ask the question why does reform of the justice system and the legal profession need to take so long. It is absurd that the Transkei High Court existed as long in the nominally independent state called the Republic of Transkei as it did the democratic South Africa.

These two Acts have fundamentally changed the landscape of our judicial system and our court system. The Constitution Seventeenth Amendment Act further entrenches the independence of the Courts and acknowledges the Chief Justice as the head of the judiciary who exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. It is in this context that the CJ must now develop such norms and standards for the judicial functions of courts. In addition, the Constitutional Court may now, over and above constitutional matters, also decide on any other matter if it grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court. 

The Superior Courts Act not only rationalises and consolidates the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa, but also recognises the desirability to provide for a uniform framework for the judicial management, by the judiciary, of all courts. This includes the Magistrates Courts that were, before 1994, not constitutionally recognised as part of the judicial authority and were largely dealt with as an extension of the public service. 

In terms of the Superior Courts Act, the Judge President of a Division is now also responsible for the co-ordination of the judicial functions of all Magistrates' Courts falling within the jurisdiction of that Division, and this may include any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts, including case flow management. The Superior Courts Act further enhances the administration of the magistracy by placing magistrates in every Division of the High Court under the control of the Judge President of the Division concerned.

At the ANC's last Conference in Mangaung it once again emphasised its commitment to the independence of the judiciary and the separation of powers. In it 53rd Conference Resolutions, the ANC again reaffirmed the position that the branches of the state are co-equal parties entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa. Each branch of the state must therefore observe the inherent constitutional limitations regarding its own power and authority and no branch should undermine the others when exercising its constitutional mandate.

The responsibility for the administration of the courts has been an area of considerable debate with earlier versions of the Superior Courts Bill providing for the Minister to play a very dominant role in this regard. The argument used was that the Minister is accountable to the electorate for the administration of justice. Judges cannot be accountable to the electorate as they are independent.

However this administration has accepted the responsibility of the judiciary to play an active role in the administration of the courts. A separate department - the Office of the Chief Justice - has been established for this purpose under a Secretary General. Legislation to determine the precise role of the judiciary and the Minister in this regard still has to be finalised and a number of issues still have to be debated - some argue for example that the administration of the courts should be the sole responsibility of the judiciary but this approach ignores that there is a political responsibility to the people of South Africa for the administration of justice that unelected but independent judges cannot exercise.

Our Constitution itself refers to a Minister responsible for the administration of Justice. In addition if the judiciary are to be the sole appointers of staff is it appropriate for them to be taken to the Labour Court in the event of a dispute? If money is misspent, is it appropriate for the Chief Justice to appear before the National Assembly's Standing Committee on Public Accounts to account?

I would like to say few words on the Legal Practice Bill. Even when it is assented to, the establishment of the Legal Practice Council cannot take place for while. The Bill as you may know provides for a consultative forum to resolve some outstanding issues regarding matters such as the powers of provincial structures and the manner of election of the representatives of attorneys and advocates on the Legal Practice Council.

Programme Director,

We all need to work together in the interests of justice for all. We know that there are previously disadvantaged legal practitioners who say that they are not given briefs. They tell us that briefs are not awarded on an equitable basis, as big law firms in the cities and affluent areas and white counsel get preference over PDIs and over single-person practices in under-privileged areas, that female practitioners are overlooked due to gender prejudices, that PDIs are not briefed to perform specialised and commercial legal work.

We also know that state is the biggest consumer of legal services in South Africa, and its litigation account runs into billions of rands annually. However, it is evident that the cake is not shared equitable among the diverse constituencies of practitioners, with Black and female practitioners trapped at the bottom of the ladder. It is therefore important that we open doors of access to equal justice. Therefore the department's Policy Framework on the Transformation of State Legal Services, seeks to remove obstacles to access and unleash the potential of all practitioners, by ensuring a fair and equitable distribution of legal work. The creation of a Solicitor-General - a civil version of the NDPP as provided for in the State Attorney Amendment Bill will assist in this process.

Programme Director,

Lastly I would like to say a few words on NADEL. twenty years into our democracy what is the role of NADEL and how has that changed since NADEL was first established? NADEL is an organisation of progressive lawyers. Progressive lawyers are sorely needed in a society where many lawyers see the practice of law not as being ensuring access to justice but as making as much money as possible.

I would like to take the opportunity of wishing Nadel and its members a very successful AGM. Nadel was formed to be a voice for the voiceless and the dispossessed. Nadel has a proud history with many of our greatest legal minds and most astute social activists like Cde Dullah, Krish Naidoo, Silas Nkanunu, Krish Govender and the late Pius Langa, all being Nadel members. 

Let us continue to be inspired by their legacy. There are many issues facing society, our legal profession and our justice system. Most pressingly is the question of how do we ensure that all our people, especially the poor and marginalised, have adequate access to justice and to quality justice services. We still live in a deeply unequal society. Some of you may be familiar with an address that I delivered last year, where we found that for the average domestic worker who earns a minimum wage, it will costs three days' wages to afford a 15 minute consultation with a lawyer, if one uses the scale of tariffs. If we are all in agreement that we are seeking justice for all our people, then the reality of unaffordability is something that needs to be urgently addressed.

We are all fully aware of the rising costs of running a legal practice in a tough economic climate and we know that there are many legal practitioners who are battling to keep their practices going. But we cannot over-emphasise the importance of community service, in the form of pro bono work, or the importance of taking in candidate attorneys or students even if just for holiday internships or mentoring. And maybe just to share with you a recent email which was sent to the Minister of Justice from a LLB graduate:

"Dear Minister Radebe
Firstly I understand and appreciate that you have much more important work to do than to read an email from a mere graduate, but I ask for you to just entertain my brief communiqué. I am a law graduate from the University of Fort Hare and I am currently doing my PLT course.

I write to you just to highlight the plight of many law graduates facing the same as I am with regards to securing articles of clerkship. I feel there is a need to address this, particularly with some private law firms who place emphasis on recruiting from universities such as Wits and UCT. Therefore it seems as if it is not about merit anymore but about privilege.

Is there anything that can be done?"
As members of the profession we need to come up with innovative ways of creating opportunities for our young law graduates, just as all of us here were once given that opportunity.

To conclude,

Lawyers have, throughout history, been at the forefront of societal change. We can do it again. We can transform our society into the society that the Constitution envisages. We need to be progressive if we want to make access to justice and a culture of human rights a reality for all and you can be assured of the ANC government's commitment in achieving this. As Cde Dullah Omar always said: "Human rights is not a gift handed down as a favour by government or state to loyal citizens. It is the right of each and every citizen. We must involve our citizens in the debate so as to ensure that human rights are not the preserve of the few but the birth-right of every citizen."

I thank you.

Issued by the Department of Justice and Constitutional Development, February 24 2014

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