Hon Chairperson, hon Minister and Deputy Minister, the judiciary, Public Protector and legal fraternity present, members of this august House and distinguished guests, I will confine myself to two topics, namely the resuscitation of the sexual offences courts and the transformation of the state legal services, and in this sense I will confirm the transformational issues and steps mentioned by our Minister today. In my view, and as the Minister mentioned, these steps are part of the cleaning-up process.
Equality, human dignity and freedom are the values that underpin our constitutional democracy. Accordingly, all teleological or purposive interpretations of our Constitution have to meet the section 36 standard of an open and democratic society based on human dignity, equality and freedom. These values of our Constitution flow directly from the Freedom Charter's declaration, "All shall enjoy equal human rights."
I hasten to add that the right to human dignity, as per section 10, is a non-derogable right. Though the right to equality can be limited, subject to section 36 of the Constitution, it is absolute with respect to "unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language".
Our history of racial oppression, economic exclusion and gender discrimination has caused us to put a high price on human dignity and equality as fundamental human rights, unlike others in this House, who put the highest premium on freedom of expression.
According to the Harksen test for unfair discrimination, where discrimination is on grounds analogous to those listed in section 9(3), the background of the victim of the alleged unfair discrimination becomes an issue. Unfairness is often deduced when the victim is of the thin-skull or egg-shell type, who is more vulnerable because of her past history of discrimination.
It is a common cause that colonialism of a special type victimised black women the most. These most treasured members of our society suffered from racial oppression, class exclusion and gender discrimination. It is therefore apposite that discrimination on the basis of sex is not only one of the listed grounds but a negative right protected absolutely. It is accordingly beholden on the state to protect women from any form of violation of any of their fundamental human rights. This was confirmed by C J Mohamed in the case State v Chapman, when he contended:
Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation.
Women in this country are entitled to the protection of these rights. Arguably, therefore, the case of Carmichele v the Minister of Safety and Security and the Minister of Justice and Constitutional Development stands out as a sharp admonition of the state pertaining to its obligation to protect women. In that case in Knysna, a certain Francois Coetzee had on two occasions perpetrated crimes of a sexual nature accompanied by brutal violence on women. Furthermore, Coetzee acknowledged that he had great difficulty in controlling his sexual impulses. However, the investigating officer and the prosecutor failed to bring this abnormality to the magistrate's attention during Coetzee's bail hearing and did not oppose bail, leading to Coetzee being released on his own recognisance. While Coetzee was out on bail, he assaulted and attempted to rape a certain Ms Alix Carmichele, his neighbour. Appearing as amicus curie in that case, the Centre for Applied Legal Studies asserted:
Sexual violence and the threat of sexual violence go to the core of women subordination in society. It is the single greatest threat to the self- determination of South African women. The courts are under a duty to send a clear message to the accused, to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights.
In the recent past, we have seen sporadic incidences of brutal sexual violence against women, such as, to mention a few, the despicable, inhuman acts of the Modimolle monster, the rape of a mentally unstable minor and the rape and eye-gouging of an eight-year-old girl. We want to send a sharp warning to perpetrators and potential perpetrators of sexual offences that we are resolute and will stop the invasion of women's dignity. We will stop at nothing and will do everything legally possible in a democratic dispensation to achieve that goal.
In that regard, we congratulate the Minister for resuscitating sexual offences courts. We firmly believe, Minister, that it is critical to roll out and strengthen these special courts to ensure that perpetrators face the full might of the law and victims do not suffer from secondary victimisation at the hands of poorly trained police officers, who demonstrate a poor sense of empathy with the victims.
In 2009, the Minister of Justice and Constitutional Development said:
Bearing in mind that the state is the largest consumer of legal services in the country, there is merit in recognising that the procurement of government litigation services be seen to be a vehicle and effective driver for this transformation imperative. In order to give effect to this goal, the department is considering ways in which it can ensure an equitable distribution of its legal work to the benefit of the previously disadvantaged practitioners.
I will leave out the following paragraph and conclude by quoting the words of Aristotle in The Sage of Athens:
The Just then is this proportionate, and the Unjust that which violates the proportionate; and so there comes to be the greater and the less: which in fact is the case in actual transactions, because he who acts unjustly has the greater share and he who is treated unjustly has the less of what is good: but in the case of what is bad this is reversed: for the less evil compared with the greater comes to be reckoned for good, because the less evil is more choiceworthy than the greater, and what is choiceworthy is good, and the more so the greater good. This then is the one species of the Just.
I support the Budget Vote. [Applause.]