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26 October 2006

Programme Director
Mr Hennie Barnard, Chairperson of Balsillies Strauss Daly
Mrs Farieda Omar, veteran of our struggle and wife of our great friend and leader, the late Dullah Omar
Mr Mninwa Mahlangu, Chairperson of the National Council of Provinces (NCOP)
Members of Parliament
Mr Andries Nel, Deputy Chief Whip of the African National Congress (ANC)
Directors of Balsillies Strauss Daly
Distinguished guests;
Ladies and gentlemen

This is indeed a memorable day which I am certain you have looked forward to for a long time. It is a great pleasure for me to share in your celebration.

As a rule I tend to shy away from accepting invitations to address individual law firms for obvious reasons. I usually only accept invitations to address collectives of lawyers, like law societies and advocate councils. However, I regard this occasion as an exception. Firstly, because it is your centenary celebration and secondly, because I was asked to speak on transformation, something that is highly unusual from a law firm which is predominantly white-owned. My experience of such firms is to ignore or shy away from issues like transformation and do the minimum in this regard. So I was interested in meeting these people who were prepared to act contrary to the perceived wisdom.

Ladies and gentlemen, Balsillies has over the past 100 years established itself in specialised fields of the law and has become one of the prominent legal firms in South Africa. The firm is not only celebrating its centenary this year but it is also growing stronger and bigger as evidenced by the merger to form Balsillies, Strauss Daly. This growth, obviously, is testimony to the fact that it is built on a foundation of excellence in service to clients and integrity in its dealings.

However, in celebrating this centenary, it is important that Balsillies reflect on its past not just of the firm but also of the South African legal system it has served and on the long and sometimes painful journey that we have travelled to get to where we are today. It is this journey that has indeed shaped who we are today and where we are going tomorrow.

In doing this we will then be able to look forward to a confident future one where all South Africans have access to quality legal services and justice. It is because of the legacy of our past that we now face enormous challenges in constructing a completely new legal system. It is because of this past, that our legal system is going through one of the most fundamental and yet exciting processes of transformation ever experienced.

Balsillies itself is no stranger to change. Established in 1906, as AA Balsillies and Co, it has undergone many changes. Therefore, as an institution that has existed for a 100 years the process of change or transformation at Balsillies not just the change in logos and names, I imagine, has come to reflect the changing values in society as the broader community which it serves has itself changed and demanded the same from it. This is because legal firms like many entities in any society, do not exist in isolation. The changes they undergo are often a reflection of the broader changes that take place in communities in which they are located, because they are part of that society.

Ladies and gentlemen, the all-embracing transformation of our country as a whole is a constitutional imperative and remains one of the most important and biggest challenges facing all of us. While the process of transformation in most sectors of our society is well advanced, in others, such as the legal services sector, there still lies ahead a very difficult and painful path. However, it is a pathway that has to be negotiated if we are to breathe life into our Constitution and make it real to the ordinary people of this country, who on a daily basis come into contact with the legal services sector. The issue of social equity quite apart from the numbers constitutes a very real challenge for us. In recent months through the Sandton Legal Services Charter Indaba held in August and the follow up provincial workshops, we have sought to discover with all stakeholders the nature of the challenge we face in transforming the legal services sector and what it is that stakeholders are thinking on these issues?

I am sure that for many in legal practice as is witnessed more generally in our society the transformation processes currently sweeping our society and the legal services sector in particular, may be causing some discomfort and concern. This is not entirely unexpected.

The honest truth is that we all generally fear change and that which we do not know.

However while we acknowledge that this is not an easy process and it is also frightening to some of us, it is instructive to heed counsel by the former Chief Justice, the late Ismael Mohamed who said that some of us "are intimidated by the depth of the challenges involved in meeting the need for transformation to a just and equitable society instead of being inspired by the energies which can be released in confronting the challenge. They are immobilised by an assessment of what is, instead of being activated by what can be, they allow the few thugs who invade our hard won peace, to paralyse their responses instead of coalescing their energies to reverse the conditions which create and sustain such criminals, they allow the empire of fear to suffocate the power of love".

Ladies and gentlemen, so what is this transformation everyone is fussing about? And what is required of those of you in legal practice in respect of this transformation?

The system of apartheid declared a crime against humanity by the international community consisted of millions of acts and omissions, big and small performed daily consciously and sub-consciously which were interwoven into a system which not only ensured privilege to a few but also deliberately attempted to criminalise, degrade and dehumanise from the cradle to the grave those excluded from such privilege. It is, therefore, that I strongly argue that the very essence the very soul of apartheid permeates and perverts each aspect of our individual and collective lives and is interwoven into the very fabric of our political, legal, social, economic, psychological and institutional life and structures. Even today still this is very much the case. Although as we transform our society and move ever deeper into our new democracy this stranglehold the apartheid legacy has on every facet of our country will with ever-increasing speed diminish.

The government led by the African National Congress (ANC) has called for a comprehensive integrated and holistic approach to deal with this vast task of dealing with the legacy of our apartheid past. Our approach is best captured in our strategic objective during this transitional period which amounts to the social transformation of our society into a united, democratic, non-racial, non-sexist and prosperous society.

I think the problem we are facing and trying to address through this all encompassing term "transformation", is best captured by the eloquent words of the former Chief Justice, the late Ismael Mohamed who remarked, "This pervasive and continuing legacy of racial inequality is potentially capable of seriously impairing the fulfilment of our vision to build a single and united South Africa which is morally just, politically stable and economically vigorous. It is a legacy which therefore needs urgently to be addressed and reversed."

Ladies and gentlemen, transformation is an all embracing, holistic, inclusive and integrated project to change the attitudes, consciousness and material conditions of our people in a meaningful and effective way to reflect the values that we struggled for and which are embodied in our Constitution and in the human rights culture we strive towards.

The main content of this transformation project is the transformation of the political, economic, social, ideological, moral, institutional and all other spheres and aspects of the apartheid dispensation by the building of a single South African nation which acknowledges the diversity of its people, the forging of a new progressive patriotism, the healing of the wounds of a shameful past, the de-racialisation of society, the progressive eradication of gender inequalities and women's oppression in particular, uplifting the quality of life of all South Africans through the progressive sustained eradication of poverty and attainment of the basic needs of the majority and creating and maintaining a culture of democracy and human rights. Flowing form the above, the triad of essential elements of this project namely reconciliation, reconstruction and development have been identified as forming the kernel of our social transformation project during the transition. Each element of course has a distinct and separate existence but they are also inter related and inter dependent. The one without the other would constitute a defective and incomplete social transformation project.

Unfortunately in the last four years, particularly through commentary by and in the media, such transformation processes have simplistically been equated with the mere changing of the racial composition of institutions or with delivery of services. However, as important as the attainment of these two goals is, they obviously do not contain the sum-total of what transformation is. It is obvious that if we are trying to change not only the material conditions which are the consequence of apartheid but the mind sets and the consciousness that underpinned or were forged by apartheid and its existence, then clearly a much longer term process is being embarked upon in which changing the racial composition of institutions or delivery of social services are merely but two, albeit two important, aspects of this transformation project.

In a nutshell the envisaged transformation processes are meant to change fundamentally, in the shortest time possible, the political ideological and socio-economic relations which existed under the apartheid dispensation to power relations more in accordance with the principles captured in our constitutional dispensation. But this must not only be achieved formalistically as the substance of our society and our very existence must reflect this reality. In other words we want a society where all citizens do not only enjoy the freedoms and liberties of a liberal democracy as important as these may be but one where the principles of non-racialism, non-sexism, equality, dignity, humanity and diversity are given real meaning for ordinary citizens and becomes interwoven into the very fabric of our society.

Needless to say, to achieve this kind of transformation where the odious and noxious legacy of apartheid which still today pervades and is interwoven into the very fabric of our society has to be ripped out and replaced with a more caring, equitable, humane and dignified society will take much time, effort and pain. There is no quick fix solution for this kind of transformation of a society, especially our apartheid stricken society whose singular greatest achievement is its abiding legacy of having been declared a crime against humanity.

Despite this Herculean task we have undertaken, this is the pact we entered into with our people and we shall prosecute it to its successful conclusion. We also at all times are mindful and remain so even when all around us lose their heads that transformation is a process and not an event.

In summary, therefore, transformation at the very least means or implies change from one state or form to another. The equivalent in nature would be the transformation from a caterpillar to a butterfly. In the context of South Africa, it therefore means to change in accordance with the Constitution from a judicial system under an apartheid state to a judicial system under a constitutional state. But it is not change merely for the sake of change. So it is not merely a question of wholesale change of everything that was there before 1994 but to change only that which was wrong, which in the South African context happens to be a substantial part of the old system. In its broader sense the transformation of the judicial system means a judicial system which is consistent with the values and principles underpinning our constitutional democracy. Key to this value system is the establishment of a legitimate, accessible, efficient and transformed judicial system including a court system that responds to the needs of the citizens as enshrined in the Constitution. In the context of the transformation of the judiciary the concept also refers to a judiciary that broadly reflects the racial and gender composition of South Africa as envisaged by the Constitution.

Ladies and gentlemen, let me deal with the issue of diversity transformation in some detail as it seems to be the matter that attracts all the adverse attention. Equitable demographic representation and inclusiveness by race, gender and other legitimate constitutionally recognised identities (which I refer to as diversity transformation) are important values and rights within the Constitution, not least under Sections 1 and 9 of the Constitution. Clause 9 of our Constitution (the equality clause) is unique within international jurisprudence and reads amongst others:
* Everyone is equal before the law and has the right to equal protection and benefit of the law.
* Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination, may be taken.

To the extent that "transformation" at the very least means or implies change from one state or form to another for purposes of improvement of the justice system, no one can reasonably argue that broad representation is not an essential element of transformation.

Otherwise, the imperatives of provisions such as those in Section 9 and 174(2) of the Constitution would be devoid of any meaning and value.

Addressing this very same important matter of diversity transformation, in 2002, President Mbeki said, "It also seems obvious that one of the issues we should discuss is the building of a pool of potential black and women candidates (for the judiciary and magistracy). The objective situation suggests that we must attend to this challenge in a conscious and consistent manner. If we fail to do this the historic discrimination referred to in our Constitution will guarantee that the racial and gender imbalances will for the foreseeable future, remain unchanged."

Despite the slew of empowering policies and enabling legislation that has been enacted since 1994, many black and female legal professionals continue to face prejudice and marginalisation in the workplace. One of the many reasons for the status quo is that equality is not realised solely through policies and legislation, equality is a state of mind. If we are to eliminate prejudice, equality is a value that needs to be inculcated and shared and upheld by the entire community, men and women alike. Institutions like law firms and law societies too need to internalise this value and make their environments affirming to all those individuals that enter them. Countenanced by the very same question of equality, in 1965, the then President of the United States (US) Lyndon Johnson said, "We seek not just freedom but opportunity, not just legal equity but human ability not just equality as a right and a theory but equality as a fact and as a result."

Ladies and gentlemen, this whole discussion around transformation, ultimately and for the foreseeable future will always, inevitably lead to the big R word (Racism). Even as I say it I can imagine many of us, inwardly blanching. Not necessarily because we are racist but rather because we know it is amongst us, ingrained in our every day existence. The silent assassin! The unspoken obscenity of our society and our everyday existence!

Most people who are victims of racism do not merely want to be told how nice they are and get patted on the back for being a jolly good fellow. The issue at stake here is the human dignity, integrity and self worth of that human being and not mere platitudes or niceties.

Racism is about the perceived superiority of some people over the perceived inferiority of others, usually based on worthless criteria like race. Racism hits at and negates the inner core of the existence of a human being on the basis of the race he or she belongs to. The dignity, integrity and self worth of each human being are sacrosanct and non-negotiable.

However, to further complicate the matter it is also true that one of course can negate or infringe upon the human dignity, integrity and self worth of a human being in other forms and not only in the form of racism. It is when you do it on the basis of race that it becomes racism. Therefore, one can sometimes impinge on the dignity, integrity and self worth of an individual without being racist. But because one cannot regulate how that individual will experience it, one cannot dictate whether he or she will experience it as racism or not.

That is what makes it so precious but also so extremely difficult and complex to deal with.

It is the most subjective of subjectivities. Because just as the maxim goes, 'one person's freedom fighter is another's terrorist so too can one say one person's racism is not necessarily that of another'. Obviously even persons of the same race may not experience the exact same gesture, word, act, action or omission experienced in the exact same circumstances or conditions, as racism. It is the sum total of a persons existence which is unique to each one of us that makes us to experience such gesture, word, act, action or omission as racism or discrimination. Therefore, that racism exists and that it is engrained within the very fabric of our human existence and therefore into the very tapestry of our social existence and our very society, is as undeniable a fact, as the fact that the sun will rise tomorrow morning and the day after.

Whether a particular hurtful act which impinges on the human dignity, integrity and self worth of another is in fact racism depends on whether it is actuated by the perpetrator's belief that a person of another race is inferior to the race he or she belongs to and not on some other factor like political or social preference, ideological disagreement, dislike of the person, competition and so on. And herein lies the rub. Very few people go around openly saying that the race they belong to is superior to another. And therefore, it is the process of our human interactions with each other which are mostly couched, subtle and unspoken that our unconscious beings manifest our inner, unarticulated prejudices and preferences. In these circumstances especially in a country like ours that was established, built and maintained on a racist premise to decode a gesture, word, action or omission as racism is fraught with possibilities of contradiction, denialism, misunderstanding and obfuscation.

Racism should become something we should not run away from, shy away from. It is an issue we must confront daily, in our everyday thinking and existence and we need to do so honestly and sensitively, with one goal in mind to understand it and then to do all within our ability to eradicate it. This is the task of each individual South African and all South Africa institutions, like Basillies. However, it is also true that racism could also be highly divisive and can be used to deepen the fissures and fault lines in our society and lead to further fragmentation of our social fabric and social cohesion. But this will only be true if we allow one of two things to happen. If we either, firstly, ignore it or stifle any interaction around it or secondly, if we leave the raising of the issue to people who may want to use this highly explosive issue for their personal aggrandisement or benefit or some other self seeking or racist agenda. Thus we have no alternative, but to deal with it.

And to do so boldly and unapologetically but always with the wisdom of Solomon and within the parameters of our African value system of ubuntu. In other words we need wise and bold leadership on the issue. And for that we need bold leaders, who deal with it sensitively in a solution seeking and reconciling manner yet devoid of maudlin sympathy, cynicism and paternalistic platitudes.

Ladies and gentlemen, the third aspect of transformation namely of the procedures, processes, rules (and structures) of our justice system seems to get forgotten all the time. However, the transformation processes have to permeate not only aspects of diversity and the value system of our society but also the structures, processes, rules and the procedures of the legal system. As you know a lot of the conservative and oppressive procedures, rules, processes or structures that we follow in court and elsewhere in the justice system remain completely intact from the apartheid era. Somehow now in this democracy, 12 years down the line, I am always fascinated when one starts questioning the assumptions and the values behind or underlying those procedures, processes, rules and structures you become the enemy and they are vigorously defended often by persons who have a track record of having fought apartheid and injustice! Some of these procedures, processes, structures and rules are just absolutely discriminatory and continue to marginalise the poor. They need urgently to be touched with the same transformation brush.

Ladies and gentlemen, I will remind you that the government's approach in dealing with issues which may broaden the social cohesion deficit like transformation and racism is always to remind ourselves that South Africa belongs to all those who live in it and it is therefore our duty, all of us, black and white, male and female to unite in our diversity in order to ensure our collective success. This approach is most cogently captured by President Mbeki who advised that, "All of us, as South Africans, need to understand that as the struggle for freedom from white minority domination had its price so will our efforts to achieve non-racism and national reconciliation have their price. That price will have to be paid by both black and white South Africans. All of us would have to internalise the reality that our very collective future depends on the ability of all our people to understand that the success of black South Africa is conditional on the success of white South Africa and that the success of white South Africa is conditional on the success of black South Africa."

Let me conclude this part by saying to those amongst us who may still harbour silent fears of this monster called transformation I can do no more than to leave you with the words of wisdom of economist and author, Dr Hazel Henderson who gently reminds us, "If we can recognise that change and uncertainty are basic principles, we can greet the future and the transformation we are undergoing with the understanding that we do not know enough to be pessimistic."

Ladies and gentlemen, briefly moving from the general to the specific it is very important that we start reaching consensus around what transformation in the legal services sector means. At the moment if you go around this room you probably will find 50 different versions of such transformation. However, transformation in the legal services sector has to have a core value system which must be easy to agree on. We need urgently to reach consensus on such core values.

As government particularly the Department of Justice and Constitutional Development we firmly believe that a systemically transformed, strong, vibrant, economically sustainable and independent legal profession is a fundamental component of our respected democracy. However, as I tried to highlight above substantive transformation therefore means more than merely admitting more black and women legal practitioners into the profession. Clearly merely opening the doors for all the people of this country into the existing system is important, but it is not sufficient.

Therefore, at the Legal Services Charter Indaba there was consensus that the legal services sector requires an innovative, holistic and comprehensive plan to ensure that the legal services sector is completely and comprehensively restructured and transformed.

For those of you in the legal services sector in practical terms transformation should, therefore, mean that it is imperative that we institute changes in the legal system in order to ensure that it is responsive to the needs of all South Africans and does so fairly and speedily. At the same time we also need to ensure that the justice system does not only serve those that can afford to pay for lawyers, but also those that are marginalised and poor and have no meaningful access to quality legal services and justice. One of the key objectives of a justice system rooted in a democratic dispensation is the question of meaningful access to justice. All South Africa's people, irrespective of their wealth or station in life should have access to quality legal services and justice. For this to be realised we, firstly need to redefine the legal services sector as broadly as possible and not only to include the legal profession and we need, secondly to redefine the roles of the various role players in this broader legal services sector. This includes the role of lawyers and the legal profession, including the approach to legal qualifications and the rules relating to admission as legal practitioners, the role and place of the prosecuting authority in the system of justice; the role of legal assistance by the State, including services provided by the Legal Aid Board, the role of paralegals and advice offices, the content of legal education and the role of the public and non-government organisations (NGOs).

All these proposed transformation processes within the legal services sector always must take place with the objectives of fulfilling our constitutional obligations of, firstly, creating a progressive rights based society and secondly of providing access to all our citizens of quality and professional legal services. All other objectives we pursue or achieve in pursuance of the type of transformation outlined herein, should be subservient to the objectives stated above.

The recent Legal Services Charter Indaba provided us with the first public opportunity to engage, understand and contribute to the debate of the meaning of transformation, equity and empowerment in the context of the legal services sector. The follow up provincial visits (29 September to 15 December 2006) by members of the steering committee are intended to ensure that the practitioners who could not attend the Indaba have another change to interact with the Draft Charter so that at the end of the process, we have a Charter that is a product of inputs by the majority of practitioners and other stakeholders.

We therefore hope that the provincial workshops will provide all of us with valuable insight into issues and perspectives from the various role players that will be impacted upon by the development of such a legal services charter. Some of the resolutions of the indaba were that written inputs should be made to enhance the draft Legal Services Charter. We await such inputs from individuals or law firms. Furthermore, it was recommended that bilateral meetings should be considered between the Ministry and key stakeholders within the legal profession and the legal services sector. We are proceeding to organise such bilaterals.

Ladies and gentlemen, it is appropriate to say a few words about Balsillies at the end. I congratulate you on your centenary and wish you well with your celebrations during the course of the year. I trust that over the next 100 years you will continue to draw on the good in the past as you build a new future and that the new merged firm will be every bit as successful as it has been up to now. It is particularly pleasing for me to note that during the transformation of your legal firm to what it is today, the issue of black economic empowerment (BEE) seems to feature. I see that 30% of the Balsillies Strauss Daly is held by black shareholders that are actively involved in the day-to-day running of the new firm. It is interesting to note that the Draft Charter talks about changing the ownership of legal practices in five years time to be 40% black owned. Balsillies seems well posed to reach this target and set an example for the rest of the legal fraternity. I watch developments in this regard with interest.

You have chalked up a major milestone, 100 not out, but the journey is still long. There are still many other challenges ahead during the next 25 years and thereafter and your expertise and experience gained over the last century will be called on. Finally, I want to say that you are fortunate that I am recovering from a cold. Otherwise I would have treated you to a fine rendition of happy birthday to Balsillies Strauss Daly. As it is I will confine myself to saying, 'many happy returns Balsillies Strauss Daly on a centenary of achievements'. We all look forward with confidence to your next century.

As a word of encouragement for the next 100 years I would like to leave you with these wise words of Nigerian poet, Ben Okri who reminds us that,
"They are only the exhausted who think
That they have arrived
At the final destination
The end of their road
With all of their dreams achieved
And no new dreams to hold."

I thank you!

Issued by: Ministry of Justice and Constitutional Development
26 October 2006
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za/)