Address by Mr Jeff Radebe, Minister of Justice and Constitutional Development at the Celebratory banquet to recognise contributors to Justice and Human Rights in South Africa and beyond, Elangeni Hotel
31 Mar 2011
Master of Ceremonies, Dr Kiru Naidoo
The Premier of KwaZulu-Natal, Dr Zweli Mkhize
Chairman of the KZN Legal forum, Mr Comfort Ngidi
Director-General of the province, Mr Nhlanhla Ngidi
Current and former Justices
Organised legal practitioners
Ladies and gentlemen
It is a great honour for me to be invited to deliver an address during this function where the contributions of legal practitioners and jurists in the justice and human rights field from the length and breadth of KwaZulu-Natal (KZN) and beyond is being recognised. The function is even more fitting considering that it takes place during the Human Rights month the highlight of which was the President’s address at the Athlone Stadium in Cape Town two weeks ago.
I am even more grateful to the organisers for having the depth to appreciate that the contributions of KwaZulu-Natal legal practitioners and jurists extend beyond the borders of our province. We are heartened by the fact that some of these illustrious individuals have climbed the ladder to international bodies and institutions.
Many of these luminaries have dispersed from their point of birth, KwaZulu-Natal, and have been deployed in other provinces and in other international bodies. They are however conscious of the fact that there is an umbilical cord that joins all of them together. Distance may mean that they may not always be with one another but they know deep down in their hearts that because of the specific history and challenges of their province, they should always be there for one another.
Allow me to raise some of this specific history and unique challenges of this province for the simple reason that any failure to do so may be wrongly misconstrued as misplaced self- gratification and a gratuitous creation of exceptionalism.
- Most of the human rights violations took place in this province and there was an extraordinary pressure on legal practitioners and jurists to raise the bar in so far as how they responded to these violations.
- The province represents the major population groups in South Africa. To the extent that the issue of human rights is also an issue of inter-human relations and diversity, there has always been a need for the legal practitioners and jurists in this province to understand the nuances and dynamics that inform the cultures and expectations of the constituent racial groups.
- With most of the province being rural, the issue of access to amenities and to justice and socio-economic rights takes an even more urgent need. Legal practitioners and jurists have to respond to these urgent issues of rural marginalisation.
- There is a high level of the marginalisation of women in this province. Legal practitioners and jurists have to lend a hand in addressing this issue of marginalisation while meandering through the intricate cultural and social aspects of the challenges attached to this issue.
- Each period of election invites uncertainty and fear, and the people’s freedom of choice are greatly compromised. We need a vigilant judiciary and a dedicated legal fraternity, working together with the Independent Electoral Commission, to assure our people of the freedom of their choice when they vote and the punishment of those who wish to control the electoral process through fear and intimidation.
Lawyers and jurists who were involved in human rights work were themselves victims of the system they were fighting against. So while they valiantly represented their own clients, many of whom, through pro bono work, they were also fighting to improve their own conditions within South Africa. Their numerous victories for their clients became their own victories.
As these gallant lawyers steadfastly chirped away at the apartheid edifice, they both proved how impracticable this obnoxious system was, and also proved the supremacy of the human rights culture and the rule of law for a future South Africa.
For their troubles, these lawyers suffered the same fate as their clients who were in the coalface of the liberation struggle. There is a body of evidence that those legal practitioners and judges who challenged the views of the apartheid state faced little or no prospect of being recognised for vertical mobility. They were under constant surveillance and were sometimes regarded as threats to the sovereignty of the apartheid state. There is also a body of evidence that others were punished by being sent to the backwaters of our country where the legal challenges facing the communities were at variance with their expertise. Carmel Rickard’s book “Thank You Judge Mostert” opens up the challenges which many justices faced during apartheid.
Even more severe was that many had trumped up spurious charges of mismanagement of trust funds and other issues related to ethical misconduct were leveled against them. In some cases the professional bodies which had to protect their integrities were themselves extensions of the state that sought to persecute them and became complicit in meting out injustice to their own members. But this pedigree of lawyers and jurists survived, even when the threat and reality of elimination such as it happened to the Mxenges , existed. It is this pedigree of lawyers and jurists that we are recognising today.
These were people of a different calibre. Defining the challenges which faced such people we are recognising today, the late Chief Justice Ismail Mohamed, the first Black Chief Justice in our democracy, touched on some of the attributes that the Judicial Service Commission is seized with each time it has to search for fit and proper jurists to the Bench. In his typical and inimical oratory style, he made it known that:
"Society is... entitled to demand from judges fidelity those qualities in the judicial temper which legitimise the exercise at judicial power. Many and subtle are the qualities which define the temper. Conspicuous amongst which these are scholarship, experience, dignity, rationality, courage, forensic skill, capacity for articulation, diligence, intellectual integrity and energy. More difficult to articulate, but arguably even more crucial than temper, is the quality called wisdom, enriched by a substantial measure of humility, and by an instinctive moral ability to distinguish from wrong and sometimes the more agonising ability to weigh two rights or two wrongs against each other which comes from the consciousness of our imperfection."
The overarching effects of apartheid also meant that no matter how good a lawyer or jurist was, his destiny in the legal and judicial field was determined by his or her pigmentation. For this reason many eminent jurists took it upon themselves to engage the system from within, and in most cases they succeeded. In cases when they did not succeed, it was not because of the formidability of the argument of the apartheid state, but its propensity to undermine and to disregard even the very inadequate laws that it made for its own sustenance.
Each time the Judicial Service Commission (JSC) is faced with the task of filling in vacancies in the judiciary, our sad past comes back to haunt us. We lament the limited opportunities that were granted to legal practitioners who are cultured in the human rights tradition and who would be perfect fit for the democratic jurisprudence that relies on respect for and reference to the Constitution of the Republic of South Africa. Had there been adequate appreciation for these practitioners’ contributions to our human rights culture before 1994, our pool for recruitment would be larger, and we would be in a position to deal with the issue of the shortage of female and African jurists in our courts.
As we recognise the contributions of these individuals we dare not forget the sacrifices of many others who had to forsake their legal professions to lead the struggle for human rights and justice in our country. Both President Nelson Mandela and former President of the African National Congress Reginald Oliver Tambo had a practice that took the issues of the poor and common people while at the same time engaged in the liberation struggle. In the prevalence of doom and gloom among our people, hopes for a better future were rekindled by those among us who were ready to commit class suicide and side with the poor rather than enjoy the fruits of their profession albeit amidst social, political and economic injustice.
The issue of human rights is neither new nor fashionable in the tradition of our movement. For example The African claims, penned in 1943 by a committee chaired by Z.K. Mathews and under the guidance of the then President – General of the ANC, Dr A.B. Xuma, was not only a precursor to the 1955 Freedom Charter but also the 1948 Universal Declaration of Human Rights. All these documents are captured in the Constitution of our country. The existing associations present today, such as the Black Lawyers Association, the National Democratic Lawyers Association, the South African Women’s Lawyers Association, Black Conveyances Association and the KZN Public Sector Lawyers, are continuing to capture the spirit of this tradition.
In this capturing we now understand human rights to be far more than the right to vote. Indeed our struggle was not only confined to the right to vote as this right is only but one of many which are enshrined in the Bill of Rights. Thus we understand human rights to be the women’s rights, children’s rights to be human rights and the rights of people with disabilities to be human rights too. Socio-economic rights cannot be seen in isolation because they are part and parcel of human rights.
The human rights field is not a terrain for the faint-hearted, and resilience is required to survive. This survival is informed by the determination and resolve to extend these rights to the marginalised. Practicing in human rights also requires a high level of objectivity. It is this objectivity which invites opprobrium from some elements in our society whose existence is threatened by an equitable extension of these rights. Thus when an eminent South African legal scholar and United Nations (UN) Rapporteur on Human Rights, Professor John Dugard gets castigated for his objective views as a “terrorist spokesperson with a UN license,” or Justice Richard Goldstone is derided for his Report on the Middle East, or the UN High Commissioner Judge Navi Pillay’s report is doubted in certain quarters, you begin to see that the challenges are huge, and you cannot satisfy all sections of society all the time. All these can be overcome by the resilience which is born out of absolute objectivity.
I am aware that the banquet is to recognise contributors from the Province of KwaZulu-Natal. I propose that in future functions of this nature, we should also include the role that has been played by KwaZulu-Natal’s academic institutions in the training of legal practitioners from the rest of the subcontinent. Through the machinations of the apartheid state, the University of Zululand provided legal students from other provinces with the necessary academic training, while the then Universities of Natal and Durban Westville played a similar role. The Law Departments of these Universities charted a way for many under privileged students to study law, thereby debunking the myth of law as an exclusive profession.
These law departments have continued to play a significant role even during the period of democracy such as the recent launch of the Ombudsmen Research Centre by the University of KwaZulu-Natal.
We also need to recognise the role that was played by established law firms in providing the mandatory articleships for aspirant lawyers from all over the country. There are many practitioners who appreciate the legal grounding they received from the established layers of the province. Without establishing any form of exceptionalism for this particular province, there is indeed a wealth of academic excellence, paralegal training, articleships and experience that this province does claim to the legal profession.
In our democratic dispensation, enabling conditions exist for the profession to thrive and prosper without any fear of restrictions from the government. I wish to reiterate that there are no plans in place to reverse the independence of the judiciary and the rule of law. We proclaim this truth to be self evident that South Africa is a government of laws and not of men, for when laws rule, objectivity is maintained, and when men put themselves above the law, their states become candidates for failed states. There is nothing in the immediate horizon indicating that our country will be a failed state. We are confident of this assertion because of our belief in our legal system.
As a state we subject ourselves to be sued, and to respect the decision of the courts as we have done in the past. All scare tactics that indicate that we wish to conflate the three arms of the State, the executive, the judiciary and the legislature, are not based on fact and are pure speculation. In spite of the red herrings that emanate now and then, from certain quarters, our Constitution is inviolate and as matters stand there is no intention of changing the Constitution upon which our human rights culture is based.
I may not be perfectly placed to take the thunder from the KZN Legal Forum’s selective criteria as to tonight’s awardees. There are however, cases that shine through and over whom there should be no debate as to their suitability for the awards. I have, in passing mentioned Judge Navi Pillay. I hope the House will agree with me that the role of former Chief Justice Pius Langa and current Chief Justice Sandile Ngcobo in the transformation of our judiciary cannot go unnoticed, even if the Legal Forum may have used different criteria that may or may not exclude them.
A special mention should also be made of those White justices who could have chosen the silence of their colleagues and the benefits of the past State but instead chose to highlight the issues of human rights even when this was detrimental to their own standing among their colleagues.
Tonight’s function should not blind us to the challenges that still exist in the profession. Cogent questions, foremost amongst which is the issue of transformation, still linger. To jog your memories about resistance to transformation, it was only recently that when there was a need to appoint, through a transparent JSC process, a Judge President for this province, former Judge President Vuka Shabalala, there were some of his colleagues who argued that he was too junior to be appointed.
When his replacement, who had been his Deputy, Mr Herbert Msimang was appointed, again through a transparent JSC process, cries of political connectivity and political interference were cited. This not only doubted the suitability of the two Justices but also doubted the scrutiny and the objectivity of the JSC which had appointed them.
Each time the issue of the Cape Judge President John Hlophe is resuscitated in Courts, there is a numbing feeling that there may be forces that are working against the imperatives of transformation. Colleagues in the JSC will attest that each time we sit to deliberate on the filling in of vacancies in the judiciary, accusations and doubts against certain candidates surface on the day of the interviews, and in almost many of them, the ability and the suitability of the Black candidates are doubted for reasons not apparent in their qualifications. In certain cases the interviews have been delayed because the JSC has had to give the candidates so accused the time to acclimatise themselves with the charges laid against them.
In conclusion I wish to extend my own congratulations to the awardees. It is these functions which show that as a democratic State we appreciate the role that is played by the legal practitioners and the judicial officers to sustain our democracy. It is even more fitting when such recognition comes from among the colleagues in the same profession.
The awardees could have chosen to wash their hands, like Pontius Pilate, on the challenges that faced them, but decided to grab the bull by the horns and continued to execute their duties through selfless industry and dedication. As I close, I wish to remind the recipients that such recognition is not an end in itself, but a call to arms to even better their contributions to access to justice for all our people. Much has been achieved, but there is still much much more to be done!
One more congratulations to the awardees!
Source: Department of Justice and Constitutional Development
Issued by: Department of Justice and Constitutional Development
31 Mar 2011
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