Why we're subjecting the ConCourt to review - Jeff Radebe

Minister reiterates that judiciary must reflect race and gender composition of society (Feb 14)

Speech by Minister Jeff Radebe in response to the President's State of the Nation Address

14 Feb 2012

Mr President 
Deputy President
Mr Speaker
Honourable Members; 

In his State of the Nation Address, President Zuma reminded us all that, 

"The year 2012 is special because it marks the 16th anniversary of the Constitution of the Republic, which gives full expression to our democratic ideals. The Constitution is South Africa's fundamental vision statement, which guides our policies and actions. We re-affirm our commitment to advance the ideals of our country's Constitution at all times". 

It is the Constitution of the Republic of South Africa that is our guide as we advance our quest to create a national democratic society which its Preamble enjoins us to:

" ... Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations". 

Honourable members, 

As we celebrate ANC's Centenary, it is important to reflect how the ANC's history of the struggle sought to advance Human Rights and equal opportunity for all people of South Africa. The struggle for freedom has always been a struggle for human rights and a struggle for justice. It was therefore no coincidence that in 1923 the ANC was the first to adopt the Bill of Rights in South Africa. 

Its main themes were that human rights should be universal, that all South Africans be given right to ownership of land, that there should be equality before the law and equal political rights. These fundamental principles were rooted in contemporary democratic thinking and applied to the South African situation. These principles laid the basis for the adoption of African Claims by the ANC in 1943. The African Claims committed to the following, among others:

  • The abolition of political discrimination based on race;
  • The right to equal justice in courts of law;
  • Freedom of movement and the repeal of the pass laws;
  • The right to freedom of the press;
  • The right of every child to free and compulsory education; and
  • Equality of treatment with any other section of the population.

It is also of significance that the African Claims were adopted ahead of the United Nations Declaration of Human Rights in 1948. This did not end there. The continuous struggle for freedom culminated to the Congress of the People, a countrywide campaign that led to the birth of the Freedom Charter, which became a profound policy document that ultimately formed the bedrock of our current Constitution. The mass gathering of people who assembled in Kliptown pledged to "... fight side by side, throughout our lives until we have won our liberty". 

It has taken close to half a century for the freedoms and liberties in the Freedom Charter to be realised in a protracted painful struggle for freedom led by the ANC. Allow me also to remind this House, that many in the liberation movement suffered the consequences of fighting for these Constitutional values. 

In this regard, many were imprisoned, many exiled, and many suffered various atrocities at the hands of the repression by the apartheid security forces. Many paid the ultimate price to ensure that this fundamental vision statement that the Freedom Charter represents finds expression in every sphere of our endeavours as South Africans.

Honourable Members, 

As you would know, these historical documents formed the basis of the mandate of the ANC leaders who led the negotiations process for a free South Africa that we have come to witness today, representing the views and aspirations of millions of South Africans. 

The unbanning of the ANC and the other political parties and the release of our first President of the democratic South Africa, President Nelson Mandela and other political leaders set the tone for the negotiated settlement. The Groote Schuur Minute and the Pretoria Minute set the conditions for the negotiations between Government and all political formations led by the ANC.

The negotiations ushered in our esteemed Constitution, which was eloquently described by the President Nelson Mandela as follows: 

"This is our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions. Our pledge is: never, never again shall the laws of our land render our people apart, or legalised their oppression or repression. Together we shall march, hand in hand to a brighter future".

Therefore, the Constitution is founded on the values that ANC stands for, that of non-racialism, non-sexism, respect of human rights and prosperity for all. It enshrines a justiciable Bill of Rights which in terms of section 7 of the Constitution is a corner stone of our democracy. It enshrines the rights of all people in our country and affirms the democratic values of human dignity and freedom. The independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored. 

The separation of powers embodied in the Constitution provides checks and balances to safe guard these values. Each of the three arms of the State has been conferred a mandate by the Constitution. 

These mandates are not meant to result in unhealthy competition or conflict with one another, or to put the three arms into antagonistic positions against each other. Instead the Constitution creates a complementary framework, where powers are exercised in a manner that would entrench the overall text and spirit of the Constitution as a whole.

We should bear in mind that the judiciary by and large must, as the late Chief Justice Mohammed would attest, interpret laws that seek to buttress our democratic order in line with the general injunction of the Constitution. These laws by and large are instruments enacted by the Legislature. 

This is an important principle, because the crafters of our constitution had full knowledge of the inherent tension in the interplay amongst the three arms of the State, hence the powers to make laws do not reside with judges but with the legislature. 

Similarly, the power and mandate to interpret the law does not reside with the legislature or the Executive but with the Judiciary. On the other hand, the Executive is charged with political administration to ensure transformation and development, and not with the Judiciary. The Executive does not make laws nor is it its duty to make impartial interpretation of the laws in instances of conflicts. 

Honourable Members, 

The Constitutional Court continues to have a significant role in the transformation of society which is underscored by a series of landmark judgments by the highest court of the land. These judgments including, amongst others, theMakwanyane judgment which outlawed the death penalty and reinforced the values of human dignity and ubuntu; the Grootboom judgment which gave effect to the right to housing enshrined in the Bill of Rights; as well as the TAC judgment which gave effect to the right to basic health care and access to anti-retroviral drugs. 

Our evolving jurisprudence championed by the Constitutional Court should always strive to advance the values of a democratic society, to improve the quality of life of our people. It is within this context that the judgments of the courts, in particular of the Constitutional Court will generate debates and criticism which is not unusual in a constitutional democracy. 

However, any factual criticism in this regard will always be welcome as stated by the late former Chief Justice Mohamed, and I quote:

"What they are entitled to and demand is that such criticism should be fair and informed; that it must be in good faith, that it does not impugn upon the dignity or bona fides and above all it does not impair their independence, because judges themselves would not be the only victims of such impairment."

The assessment of the impact of the judgments of the Constitutional Court on the transformation of society seeks to evaluate the impact of our jurisprudence on the democratisation process. This must therefore not be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution. 

The ANC led Government continues to implement laws and programmes to safeguard the constitutional values that advance the national democratic principles that underlie our rainbow nation. 

The Constitution Seventeenth Amendment Bill, its accompanying Superior Courts Bill currently being debated and the President's Proclamation that establishes the office of the Chief Justice as a separate independent entity seek to affirm our commitment to the independence of the Judiciary. 

The measures we have introduced are not an ideological onslaught on the independence of the Judiciary as some of our detractors argue but are constitutional imperatives entrusted on our government. This includes the obligation to establish a judiciary that reflects the racial and gender demographics of the South African Society. 

The transformation of the judiciary extends beyond the endeavours to change its racial and gender composition and includes changing the mind-set of the members of the distinct arm of the State and the transformation of the legal order to advance the attainment of a national democratic society.

Honourable Members, 

In conclusion, let us be reminded that over the years, the ANC won over enemies, as attested to by the founding President of the ANC, John Langalibalele Dube, on the letter accepting his election as ANC President in 1912 when he said 

"Many are the difficulties I foresee in our way - enemies without, fierce and frank; dangers within, undersigned perhaps, but still more harmful. It will be an uphill fight, but our watchword shall be ‘excelsior' - onward, higher, cautiously, ploddingly!" And he continued to say " the nobility of our character shall we break down the adamantine wall of colour prejudice and force even our enemies to be our admirers and our friend".

In striving for a better life for all underpinned by our vision for a non-racial, non-sexiest, democratic and prosperous society, we have persistently encountered obstacles mainly due to the legacy of the 350 years of colonial oppression which has produced an economy predominantly led and owned by white males. Our agenda is informed by a framework for a mixed economy, where the private sector and our Developmental State interplay to resolve this legacy of colonialism and apartheid. 

On this occasion of the ANC Centenary, we must call upon all South Africans to look beyond their differences and ensure we all work towards the vision of the a National Democratic Society envisaged by the Constitution. We will continue to build a stable, peaceful and prosperous society, where the fruit of our country are enjoyed by the people as a whole, as outlined in the Freedom Charter and further consolidated in our Constitution.

I thank you! 

Issued by the Department of Justice and Constitutional Development, February 14 2012

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