Hon Chairperson, Minister, Deputy Minister, judges present and Members of Parliament, my remarks will centre around Chapter 9 institutions.
In the epilogue to his autobiography, Let My People Go, Chief Albert Mvumbi Luthuli contends:
If friendships make a man rich, then I am rich indeed. I grieve over the ban which, until May 1964, cut me off from my many friends in all parts of South Africa, but grieve more deeply for the men and women - their number is not known - whose desire for sanity in South Africa, whose insistence on no more than our human dignity, has led to banishment, deportation and jail, while their families suffer acute distress. I have no illusions. Their number will grow.
In the words of indomitable resilience and positive defiance, this icon of our struggle went on to say:
But the struggle goes on, bans, banishments, deportations, gaol or not. The struggle goes on as much in jail as out of it, and every time cruel men injure and kill defenceless ones, they lose ground. The supremacist illusion is that this is a battle of numbers, a battle of race. It is not. It is right against wrong, good against evil, the espousal of what is twisted, distorted and maimed against the yearning for health.
Chief Albert Luthuli was lamenting about human rights. The words above pierce our hearts as we are seated here today in the comfort of the democratic state delivered to us by the ANC in 1994 through the nexus of its four national democratic struggle strategies: underground operations, mass mobilisation, international solidarity, and armed struggle.
The essence of the words presents to us an accurate picture of what apartheid South Africa looked like and we dare not forget nor fail the martyrs of our struggle who never tasted the fruit of the freedom they toiled ceaselessly to attain. It is not assisting us ... [Interjections]
Today our Constitution is value-laden and sovereign because we decided that never again in this beloved country shall human beings be unfairly discriminated against, and never again shall anyone's human dignity be hurt by anyone with impunity. The values in our Constitution are not only implicit in its overall democratic design, but are explicitly set out in the preamble that we all know.
Professor Etienne Mureinik also fittingly observed that the negotiated revolution was like a bridge that we crossed from a culture of authority to a culture of justification. The mandate of the Chapter 9 institutions as guardians of democracy is underpinned by the imperative to determine whether differentiation between people on certain specific grounds amounts to unfair discrimination. In many instances, these institutions are expected to determine whether the state had taken reasonable measures within its available resources to realise the rights in question.
Respect for human dignity is a unifying constitutional principle for a society that is not only diverse, but still extremely unequal, and continues to be unequal. We thank the department for making all these courts equality courts. This is a step in the right direction.
An open and democratic society needs to ensure that citizens enjoy some degree of protection if their rights are breached, in particular in the event of administrative impropriety. However, litigation tends to be formal, expensive and dilatory to the point at which the ordinary man in the street is deterred from using it to assert or enforce his rights. In this instance, Chapter 9 institutions assist in maintaining and establishing efficient and proper public administration as they are able to insist that the administration acts within democratic principles.
The Office of the Public Protector was established, as we all know, for the purpose of ensuring government's accountability and providing remedies for maladministration, the abuse or unjust use of power, corruption, unlawful enrichment and other acts that unlawfully prejudice citizens of the country.
To this end, section 181 of the Constitution lists the Public Protector as a state institution strengthening constitutional democracy and declares it independent and subject only to the Constitution and the law. It also requires the Office of the Public Protector to be impartial and to exercise its powers and perform its functions without fear, favour or prejudice.
The Constitutional Court has set out a general test that can be used to judge the independence of an institution in its judgment in the Van Rooyen case. According to the Constitutional Court, the determining factor is whether, from the objective standpoint of a reasonable and informed person, there will be a perception that the institution enjoys the essential conditions of independence.
In this regard, the court clarified that the perception of a hypersensitive, cynical and suspicious observer cannot be the standard used to determine independence. I put it to this House without fear of contradiction that the Chapter 9 institutions, including the Public Protector, are sufficiently independent according to the perception of a well-informed, thoughtful and an objective observer.
Equally, the Bill of Rights holds out the promise to all South Africans, no matter how poor and marginalised, that their human dignity will be respected and protected against abuse not only by the state, but also by private institutions and citizens. The SA Human Rights Commission, therefore, has a vital role to play in honouring this constitutional imperative. Many poor and marginalised individuals in South Africa do not have easy access to the legal system and therefore do not exercise their rights without assistance from a strong, independent and impartial human rights body.
We are very appreciative of the Human Rights Commission's valuable work in promoting and protecting human rights. We also note the commission's co- operation with similar bodies elsewhere in the world, especially in Africa. We also wish to congratulate the commission on the quality of its plans.
I want to conclude by saying that justice has been portrayed as the blindfolded Roman goddess Justitia holding the scales of justice in one hand and a sword in the other. She is blindfolded because her decision has to be impartial. Her sword symbolises the effective justice supported either by punishment or compensation. Her scales indicate that both sides to a dispute should be heard and balanced against one another. Let us jointly support Chapter 9 institutions and move forward. I thank you. [Applause.]