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7 November 2008

Programme director,
Mr Peter Horn, President of the Cape Law Society Council,
Members of the society,
Honourable guests,
Ladies and gentlemen,

It is a special privilege and honour for me to be invited to address you here this morning on this important event on your calendar year – the Annual General Meeting (AGM).

This AGM takes place at a time of exciting developments both here at home and abroad. Change has become a reality of our lives. I am sure that the legal practitioners gathered here today and the constituencies they represent are reflecting on change in the context of this noble profession. I intend to dwell on this aspect more philosophically later.

Let me thank the legal profession for allowing their members to participate in the different regulatory bodies and structures, such as, the Judicial Service Commission, the Magistrates Commission, the Law Reform Commission, the Board for Sheriffs and the Rules Board, all of which have critical roles in the transformation of the State and society. Over 110 attorneys and advocates preside in the 170 small claims courts, established country-wide, on pro bono basis. This is to ensure that the indigent and the vulnerable members of society are able to access justice. I seek your indulgence as we consider measures to transform these courts. Part of these initiatives are intended to address some of the challenges facing the small claims courts, such as, the lack of adequate capacity, security, lack of reimbursement for transport costs borne by the practitioners and possibilities of having the small claims courts sit on Saturdays. Saturday sittings are likely to be convenient to the practitioners and litigants. The move to Saturday sittings could alleviate the pressure on the court rolls and avoid night courts, which pose security risks to those who travel from far.

Ladies and gentlemen,
The debate about the independence of the judiciary and the rule of law has recently occupied a prominent space in the local and international media.

While the debate is essentially beneficial to our fledgling democracy, we need to acknowledge that in some quarters it is fuelled by reckless or intemperate statements that may have the effect of undermining the integrity of the judiciary. As the South African government, we have the responsibility to protect State institutions, including the judiciary against unwarranted criticism.

We should however be mindful of the fact that in a democratic society, decisions of the judiciary will constantly be subjected to public scrutiny and criticism. However such criticism must be rational and informed.

I am of the firm view that the concerns that the independence of the judiciary is under threat, are exaggerated. It is however, important that we all conduct ourselves in a manner that will not erode the integrity of the judiciary in the eyes of the public. As Chief Justice Pius Langa observed during his address to the Commonwealth Magistrates' and Judges Association in October:
"…any attempt to denigrate the judiciary excites great public alarm and attracts great adverse publicity for the person or institution who is so ill advised as to do it."

Ladies and gentlemen,
The pursuit of a transformed judiciary is also largely dependent on the legal profession which constitute the main pool from where judicial officers are appointed. You will recall that prior to 1994 judges were appointed solely from silk, while the prosecution was a career-path for promotion to the position of a magistrate. The constitutional dispensation has brought with it significant changes in this regard. The Bar and the side Bar are equally eligible to nominate candidates for the High Court bench. The process of removing magistrates from the executive control and integrating them into the judiciary is complete. The Chief Justice is the Head of the judiciary which includes magistrates and we are currently consideration to integrate the work of the Magistrates Commission into that of the Judicial Service Commission to ensure full independence of the magistracy. Members of the profession would have noticed that the advertised positions for judges and magistrates which have been gazetted in the past week indicate a substantial increase of between 25 and 35 percent. In this year alone 31 positions of judges and 65 positions of Regional Court magistrates were created, many of which will be largely filled from the legal practitioners. This reflects the government's commitment to increase the pool of judges and magistrates thus improving the working conditions of judicial officers.

Female judges make up only 19 out of 194 in the superior courts. If indeed we are committed to gender equality, equity and empowerment we must take urgent steps to correct the situation. My predecessor and the Chief Justice had initiated a training and development program for aspirant female judges, which has produced unbelievable results amongst participants especially with regard to improving their judicial skills. Similarly, transformation of the lower court bench is lagging behind. I want to draw the attention of the practitioners, particular attorneys, to the Amendment of Regional Courts Bill, 2007 which will be assented by the President soon.

This piece of legislation is both radical and progressive as it provides huge opportunities for practitioners and opens the possibilities of more economic professional services to our citizens.

The effect of this legislation is that both the civil and criminal jurisdiction of the regional courts will be increased, thus reducing the work load in our high courts. In this way divorce and other family law matters and civil disputes of an amount determined from time to time by Notice in the Gazette, will be within the jurisdiction of the regional courts. This therefore means that attorneys will have the opportunity of representing their clients in matters where they ordinarily briefed counsel, and this will in turn reduce the cost of litigation and therefore increase access to justice. Let me take this opportunity to invite your views on the jurisdictional amounts for the various causes of action in respect of which the regional court will have jurisdiction.

We are mindful that more experienced and skilled regional magistrates will be required to handle the more complex civil cases and we would rely on the legal profession for providing the requisite capacity and expertise. The training of regional magistrates around this legislation will definitely become the first task of the much anticipated judicial education institute. The Act which establishes the institute has been promulgated and we are providing all the support required for the judiciary to take the lead in the implementation of this Act. I am advised that the Chief Justice has commenced with the process of establishing the governing council, which will also include the legal profession. I am very confident that the Law Society of South Africa (LSSA) will nominate capable practitioners who will represent its constituency in the council.

"Change" is often associated with transformation. Interpreted narrowly it may suggest that transformation speaks to the need to ensure that the judiciary and the legal profession must become more representative. Yet, change or transformation, is more dynamic, progressive and radical. It implies a change of mind-set, embracing the ethos and values of our constitution, living the reality of our constitutional commitment to social justice, embracing the values of human dignity, equality and freedom in a manner that ostensibly reflects the change.

Change must be progressive. Transformation suggests moving across the rubricon of separation and isolation and celebrating our diversity. Change or transformation means recognising the reality of a transformed world. Given the huge strides in technology, information and communication technology (ICT) in particular, can we say that as practitioners we are equipped with the skills that are relevant to access information, to communicate, and generate knowledge and ideas through the medium of available technology? Should ICT proficiency form an element of the fundamental skills that every practitioner should have?

Change in the context of our new constitutional dispensation suggests an expansive view of the law, not bound by the narrow prescripts and precedents of yesteryear. It means that and indeed we, are invited to, in the constitution to do several things to ensure that the spirit and purport of the Bill of Rights permeates all legislations, recognises and affirms the need to refer to international law, and invites us to look at comparative foreign law when interpreting the Bill of Rights.

Some may argue that this is the task of constitutional lawyers, yet a closer examination would reveal that whether you are dealing with housing, water, land, property or freedom of expression, the Bill of Rights becomes the moral and legal compass which informs our approach. Given our commitment to the generation of civil, socio-economic, environmental and other fourth generation rights, the conclusion is inevitable that all practitioners are or must become constitutional activists. This means a commitment to life-long learning as our horizons in interpreting and understanding the law expands in our globalised world.

Change, suggests a move away from a homogenous environment to a diverse and heterogeneous environment, calling on practitioners to summon not only their intellectual but also their social (affective) skills to develop sound interpersonal relationships. This sensitivity is equally necessary for practitioners and judicial officers. So I humbly suggests that change or transformation calls for introspection and reflection, and honest assessment as to the journey from repression to freedom, was indeed an authentic one which we can honestly change the head, the heart and the hand – how we think, how we feel and how we Act.

Back to reality…
I am aware that the Legal Practice Bill which is crucial to the transformation of the profession has been a thorny issue for a very long time. While there has been some delays which were reasonably caused by consultative processes that must inform certain policy positions, it must also be acknowledged that lack of consensus on certain aspects by the profession, such as the regulatory framework for the profession which could see the establishment of a single profession, have contributed to the delay. However there has been significant progress with the Legal Services Charter. The Charter was handed over to me by my predecessor to promote through Cabinet in order to facilitate its implementation. I want to thank the legal profession and the Law Society of South Africa, in particular, for its unequivocal support of and participation in the Charter process.

Institutions like law firms, law societies, bar councils and other like groupings need to internalise these values of our constitution and ensure that they create an environment that is conducive to our revolutionary change.

Ladies and gentlemen,
May I take this opportunity to highlight some of the programmes of the department which will affect the legal profession. The process of realigning areas of jurisdiction of the courts as part of the rationalisation of the courts is at an advanced stage. As part of this exercise the department will publish, during this month of November, a notice in the Gazette designating certain branch courts as full services courts. This will have the effect of increasing access to justice in that matters currently not dealt with at the branch courts such as civil matters and family law services will become available at the designated full services branch courts. The Rules Board is to review the kilometre rule that will regulate civil processes at these courts and the main courts in the magisterial district. This arrangement will require law firms in the affected areas to align themselves to these changes.

The Rules Board is reviewing tariffs for attorneys and I await its report in this regard. In relation to the sheriffs, it worth noting that the department has completed the amendment to the regulations which are geared to improve the appointment processes relating to sheriffs and to enhance efficiency in the service of court processes. The regulations are awaiting certification by the state law advisers and will be published soon. Vacant offices of sheriffs, which have increased to 167 during the last three years when the department was busy with the drafting of amendments to the regulations, will be advertised after the publication of the regulations in the Gazette.

My best wishes to you in your deliberations.

I thank you!

Issued by: Ministry Justice and Constitutional Development
7 November 2008
Source: Department of Justice and Constitutional Development (www.doj.gov.za)