Chairperson, Minister, Deputy Minister, and the hon Chief Justice, in the time allocated to me, I will concentrate on the deepening, consolidating and broadening of the judiciary operations in our country.
The new democratic dispensation was crowned in February 1997 with the new Constitution coming into effect, which mirrored in many ways the spirit of the Freedom Charter. The Constitution did not just displace the parliamentary supremacy that churned out unjust laws and subjected the judiciary to enforcing draconian laws which changed with lightning speed. The apartheid regime had, of course, pushed this country into isolation.
Our Constitution does not only declare collective ownership of South Africa as does the Freedom Charter, but also entrenches and extols equality, which is the antithesis of separate development and racial segregation practiced by the past regime. It is therefore absurd to imagine that the judicial infrastructure which was tailor-made to protect the privileges of the oligarchic racial minority and to suppress the majority, will automatically present itself as a trusted servant in the hands of a democratic dispensation based on the values of equality, human dignity and freedom.
While one does not seek to venture into the terrain of questioning the fairness of the blindfolded lady justice, it is not far-fetched to imagine that the orientation of those who are responsible for the fair administration of justice and the alignment of the infrastructure should match the national agenda; that the judiciary is independent as part of the three arms of the state as function of the Constitution. The ANC is determined to protect the independence of the judiciary and to support the judiciary at all times. It is a fact that a legal system of any country is a function of power relations recorded in history.
It is a historical fact also that Roman law was not accepted in England and that England continues to practise English common law which is a product of the wise judgments of its own jurists. The question begs an answer then as to why South Africa would seek to continue practising a mixed legal system which is a product of a compromise in the Treaty of Vereeniging at the end of the Anglo Boer War, which itself was triggered by the refusal of the Boers to accept English common law. Whilst one might not be advocating for wanton jettisoning of Roman Dutch law and English common law, at least one is contending for African jurisprudence, which is underpinned by the values of Ubuntu Botho, which avers that a person is a person because of others and by extension extols collectivism and individualism.
The question should be asked whether indeed legal positivism, which seems to drive Roman Dutch law, is a philosophy that can foster social cohesion and nation-building. Should we be saying that the law does not have to be moral for it to be right or should we embrace natural law and say in Latin lex inuista non est lex? If the law is unjust, then it is not law at all. Should we not subject our legal system to our values? The question begs an answer whether the adversarial system, which purports adversity and conflict between the parties in a lawsuit, is a system that can foster rehabilitative justice.
Should we as South Africans continue with jurisprudence that isolates the accused from the society and seeks to punish an offender in a retributive way? African jurisprudence, as practised throughout the continent of Africa, despite marginalisation, is inquisitorial and reconciliatory. It seeks first to reconcile the parties in dispute among themselves, and the community later. African jurisprudence does not see a lawsuit as a war between the parties, but as a misunderstanding or deviant behaviour that can be remedied or in exceptional circumstances shunned and punished.
In reference to the transformation of the judicial system to which the Minister and the Deputy Minister referred, the Polokwane National Conference contends that:
There should be a single, accessible and affordable court system, including the integration of the Judicial Service Commission, JSC, and the Magistrates' Commission, MC, into a single appointment mechanism and the establishment of a single grievance procedure for judicial officers.
This resolution is in recognition of the quasi federalism that is obtained in the administration of justice in our country today. The status quo ante is that Provincial High Court decisions stand uninfluenced by other Provincial High Courts, but the doctrine of stare decisis, judicial precedent, binds each Provincial High Court to its own decisions and subsequently binds all lower courts in that province to the precedent set by that High Court.
The effect of this practice is that there are noticeable differences between the legal practices in different provinces, which at times mean that similar offences are dealt with differently in different provinces. This was more pronounced during the days of the TBVC states where some Bantustans had outlawed the death penalty while others had not. The matter of the JSC and MC, as it was mentioned by the Minister and the Deputy Minister, tends to impose a difference between Presiding Officers on the basis of which court they preside upon.
This situation is undesirable as it breeds unnecessary inconsistencies and imposes a hierarchy whose only effect would be to affect operations. Mostly this situation causes duplication of scarce resources on two bodies with the same mandate but occupying different levels. Maybe there should be one National High Court with provincial divisions to foster coherence and to ensure consistency in the judicial operation and fairness in the administration of justice.
A few remarks about the traditional courts, as showing transformation - these courts have been mentioned by the Minister, Deputy Minister and hon Sibanyoni. They seek to affirm the recognition of the traditional justice system and its values, based on the restorative which underlines justice and reconciliation, to provide for the structure and functioning of traditional courts in line with constitutional imperatives and values.
Our Constitution recognises the institution status and role of traditional leadership. We cannot doubt that. The essential motivation behind the introduction of the Bill is not to create a parallel justice system against the ordinary system of our courts, but to affirm the values of the traditional justice system which are based on restorative justice.
Another area of transformation is indicated by the Child Justice Act. I will not go into the details of this Act, but basically this Act has established a criminal justice system for children who are in conflict with the law and are accused of committing offences. It provides a number of items that I won't mention because of time.
This Act transforms our justice system by creating a parallel system for children which are in conflict with the law. The transformation of the judiciary is not complete without the alignment of the demographical representation among judges. Some commentators have argued that representation should be trumped by at least 15 years' experience. The unfairness of this statement derives from the fact that very few black people were jurists 15 years ago. Thus if such a statement were to be followed to the letter, the judiciary would remain dominantly white and male for the next 58 years. [Time expired.] Thank you. [Applause.]