House Chairperson, hon members, our Constitution, the Constitution of the Republic of South Africa, Act No 108 of 1996, was adopted by the Constitutional Assembly in 1996, after centuries of colonial and apartheid repression and exploitation, a protracted struggle for liberation and, lastly, intensive negotiations. Our Constitution is the product of that history. As one of the main architects of the Constitution, Cyril Ramaphosa, said in an article on the Constitution in City Press over the weekend, "The Constitution was not brought down from Table Mountain on stone tablets."
We need to recognise the historical context of our Constitution. It is a document from history and that history is recognised in the Preamble. For the benefit of hon members on my immediate left in particular, I would like to read parts of it. The Preamble to our Constitution sets out its historical context, and I quote:
We, the people of South Africa, recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as 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.
In what is effectively the introduction to the Bill of Rights chapter, the Constitution reads:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
The challenge facing all of us as South Africans is that we are a very unequal society, in which a large number of people live in conditions lacking in human dignity, where they are unable to enjoy the rights that are accessible to wealthier South Africans and where they are not free from want. The fact that this is the case nearly 18 years after the first democratic elections is not surprising given the enormous inequalities that have occurred in South Africa over the past 360 years. It is also not surprising that these inequalities are racially based. Those hon members here, or members of the public out there, who believe that we can forget about the past and move into what I think you call "an equal-opportunity society for all" without addressing the legacy of the past, I urge you to look at the statistics of the various racial groups in areas like literacy and education, infant mortality and the employment of school-leavers and graduates, to name a few.
It is important that we, as a country, continually debate these issues to see where we can do better. We cannot be restricted from including as part of this debate a consideration of the provisions of the Constitution and whether improvements can be made. [Interjections.] To remind hon members, in particular the hon Leader of the Opposition, our Constitution envisages review. It envisages an annual review by a Joint Constitutional Review Committee. [Interjections.] We have amended the Constitution 16 times already. I think, hon Mazibuko, that all those 16 amendments were introduced by the Minister of Justice, from the executive. We currently have a 17th amendment before this house, introduced by the Minister of Justice, which deals, among other matters, with the powers of the Constitutional Court. That amendment is not about reducing the powers of the Constitutional Court, but increasing them. Good grief! [Interjections.] Did you know that, hon Mazibuko? [Applause.] The amendment is before the Justice Committee and the issue we are debating there is this: As part of the political settlement in 1994, there was an agreement to keep apartheid judges. Prior to 1994, judges were appointed by the President in terms of Section 10 of the Supreme Court Act, Act No 59 of 1959, and it read - I think you should listen to this, hon DA members:
Chief Justices, Judges of Appeal, the Judge President, the Deputy Judges President and all other judges of the Supreme Court should be fit and proper persons appointed by the State President under his hand and the seal of the Republic of South Africa.
That was then, pre-1994. No Judicial Service Commission, no wider public involvement - the President could appoint who he wanted from among the senior advocates and, not surprisingly, the H F Verwoerds, the B J Vorsters and the P W Bothas appointed people who supported apartheid, many of whom regarded human rights as a communist plot. [Interjections.]
So, in 1994, with the introduction of the supremacy of the Constitution with the Bill of Rights, the problem was: Do you give this group of predominantly conservative white men - there was only one white woman judge at the time - the power of adjudicating on the Constitution? So there was an agreement to set up a new court to hear constitutional cases. This new court, or Constitutional Court, could include people who were not judges or advocates, provided that at least 4 of the 11 members of the Constitutional Court were existing sitting judges. Therefore, at that point you had the Supreme Court of Appeal, which was the highest court of appeal, and the Constitutional Court, which was the highest court for constitutional matters and issues connected with decisions on constitutional matters.
One of the amendments in the Constitution's 17th amendment is to widen the power of the Constitutional Court to consider any matter that the interests of justice require them to consider. This would effectively give the Constitutional Court the power to consider any appeal and one of the questions we need to ask ourselves is whether we need two levels of appeal court - the Supreme Court of Appeal and the Constitutional Court. So, when you appeal from a provincial High Court to the Supreme Court of Appeal and you do not like the decision that comes out of the SCA, you can petition the Constitutional Court to hear you.
Is this the best system, hon Mazibuko, in a country where most people cannot afford lawyers? I am told, for example, that all the current members of the SCA were appointed post-1994. So, were the concerns that caused the creation of the Constitutional Court still applicable? Should the Supreme Court of Appeal and the Constitutional Court not be combined? These are all legitimate questions that we should be asking ourselves. The Bill is with the Justice Committee and we are dealing with the matter. It was introduced last year. There was no fanfare, nor the gasps of horror we tend to be seeing now. We had public hearings, which did not get much coverage. We have met with some of the Supreme Court of Appeal judges and we will be meeting with the Constitutional Court judges next week. There is no party-politicking on this matter in the committee. In fact, there is a high degree of unity across party lines. We are endeavouring to come up with what is best for our judicial system.
Unfortunately, outside of the committee, these very rational debates have, hon Mazibuko, become clouded in hysteria. The leader of the largest opposition party - your leader, who ironically chooses not to take the position offered to her by the Constitution of leader of the opposition - accuses the ANC of having, and I quote:
... a heavily disguised plan to strip our Constitution of the checks and balances that empower people and limit the party's power abuse. If we allow that to happen, South Africa will become yet another failed transition to democracy, where people end up as oppressed as they were before they embarked on the struggle for liberation.
What rubbish! [Interjections.] For most of its 100 years of existence, the ANC has consistently advocated a Bill of Rights for South Africa, beginning in the 1920s with the Bill of Rights drafted by ANC president Pixley ka Seme, followed later by the African Claims Treatise of Alfred Xuma, writing in his capacity as president-general of the ANC and Secretary-Organiser of the Atlantic Charter Committee of South Africa. The African Claims Treatise document is dated 14 December 1943. There was also the ANC Youth League Basic Policy Document of 1948. [Interjections.]
Then, of course, we have the Freedom Charter, hon Maynier. When I'm talking about the Freedom Charter - you might have missed something here - we have a charter that, apart from stating emphatically that the people shall govern and be equal before the law, also had a specific section, which I think you may have missed, that all shall enjoy human rights. And throughout the 1950s, 1960s, 1970s and 1980s the programme of the ANC was a realisation of the demands of the Freedom Charter. [Applause.] It is only in the safety of a democratic South Africa of the last 18 years that it has become fashionable, hon Maynier, for others to claim allegiance to the Freedom Charter.
The ANC's Bill of Rights for a new South Africa of 1992 goes into great detail, including a right to judicial review, which stated that ...
... any person adversely affected in his or her rights, entitlements or legitimate expectations by an administrative or executive act shall be entitled to have the matter reviewed by an independent court or tribunal.
That is a provision in our Constitution! Quite frankly, it is mind-boggling that the ANC, the one organisation that has consistently and vociferously stood for democracy and human rights, and still does, can now be accused of wanting to tear up the legacy of the past 100 years. [Interjections.]
It is ironic that the people, hon Maynier, who, at best, stood silent or were actively involved in the promotion of or benefited from the crime against humanity that was apartheid should now be the ones who try and claim that legacy. [Interjections.] If one reads the Bible, Damascus moments are possible, but in the South African context one wonders if they are real or merely expedient.
We are accused of wanting to undermine the judiciary and the discussion document, as we have heard from the hon Mazibuko and her smallest ID sidekick, on the transformation of the judiciary system and the role of the judiciary in the developmental South African state is a case in point. [Interjections.] The document evaluates how far the judiciary and judicial systems have transformed and is published for discussion, hon Mazibuko. The recommendations seem eminently practical, such as assessing how the executive is implementing laws and court decisions, enhancing the efficiency and integrity of the Judicial Service Commission and the Magistrate's Commission, and the role of the Judicial Education Institute.
It also has a section proposing a research institution to assess the impact of Constitutional Court decisions on social transformation and the reform of law broadly. In this regard, I wasn't able to find any comprehensive research on that point but the fundamental question we should be asking, hon Mazibuko and hon Maynier and whoever else, is: Who is using the Bill of Rights to assert their rights? Is it primarily the advantaged or wealthy, or is it primarily the disadvantaged? While the Bill of Rights is available to everybody, it is primarily there to protect the disadvantaged, those who do not have the resources to stand up for themselves. Is this, however, the case? That is a legitimate question and not one to get hysterical about.
It is extremely ironic that some of those who vociferously support freedom of information on the one hand - hon member from ID or the former ID - want to stifle such a debate and set up no-go areas in the public discourse. [Interjections.]