Speaker of the National Assembly Max Sisulu, hon President of the Republic of South Africa Mr J G Zuma, retired Chief Justice Pius Langa, Chief Justice of South Africa Sandile Ngcobo, members of the judiciary, provincial Premiers and Speakers, Members of Parliament, distinguished guests, it is an honour to participate in a debate to bid farewell to the retired Chief Justice of South Africa, Pius Langa, and to welcome the new Chief Justice of South Africa, Sandile Ngcobo.
The occasion serves as evidence that our democracy is maturing. Now we have a balance between the number of former and current judges of the Constitutional Court. Today, 11 November 2009, the number of former judges stands at 11, which is the same for the current ones. By any measure, we are indeed maturing. With such a balance, there is no doubt that the change of leadership at the Constitutional Court last month is going to be a simple one.
As we celebrate the leadership of the retired Chief Justice, Pius Langa, and welcome the new Chief Justice, Sandile Ngcobo, we appreciate the opportunity to reflect on the meaning of an independent judiciary in a democracy. We also reaffirm the notion that South Africa is a constitutional state. In terms of section 165 of the Constitution of the Republic of South Africa, the judicial authority in our country is vested in the courts, which are independent and subject only to the Constitution and the law.
In his paper entitled An Independent Judiciary: The Core of the Rule of Law, Justice F B William Kelly, a justice of the Supreme Court of Nova Scotia in Canada, notes the evolution of the modern concept of judicial independence. He cites, amongst other things, an influential English philosopher, John Locke, who stated that established laws, with the right to appeal to independent judges, are essential to a civilised society, and that societies without them are still "in a state of nature".
He further states that at the core of this and more modern concepts of traditional independence is the theory of separation of powers - that the judiciary should function independently of the legislative and executive arms of government. This is an important test for the judiciary in any democracy - whether judges are able to perform their duties for the good of our society, without interference.
These principles are entrenched in the 1985 document of the United Nations on The Basic Principles on the Independence of the Judiciary. This seminal document states that:
The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
The document further notes that:
The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
It goes further to state:
In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
Since 1994, our judiciary has enjoyed the freedom to make decisions without outside influence. As we have observed, even when certain sections of society are not happy with the outcome of judicial processes, we have always expressed respect for the principle of judicial jurisprudence in a democracy.
The judicial independence we are talking about does not, however, mean that the judiciary cannot work with other arms of state, which is why we have, for example, the Judicial Service Commission which comprises members of the executive and the legislature. As a member of the JSC, I was humbled by the leadership that Justice Langa provided to this body. He had exceptional qualities and was impartial to the core. As a judge and later as the Chief Justice of the Constitutional Court, he displayed a great sense of commitment, honesty and high integrity - a judicial officer par excellence. We are confident that Justice Ngcobo will provide similar if not better leadership under new circumstances.
There are still challenges, though, with regard to transformation. One such challenge that still needs to be fully addressed, regarding the transformation of the judiciary, is the fact that women in general, and particularly black women, are few. Section 174(2) of our Constitution enjoins us to consider the need for the judiciary to reflect broadly the racial and gender composition of South Africa. This is very important, and I think this is an issue we need to attend to because it is a constitutional obligation. We can't run away from it. [Applause.]
Another challenge that we have is the issue of access to justice itself, particularly the issue of the use of other languages in the courts. In many of our courts, proceedings are primarily conducted in English and Afrikaans. It is common knowledge that these are not easy issues to deal with in the first 15 years of our democracy, especially given the challenge of the triple oppression of women in the past and the marginalisation of indigenous languages.
Retired Chief Justice Langa's view is that transformation envisages a society that will always be open to dialogue and contestation and guards against self-congratulatory complacency when it ceases to imagine that things could be better.
As we bid farewell to a man of the calibre and stature of the eminent Chief Justice Langa, it is fitting for Parliament to offer the same tribute to the other three judges who have retired with him. They are Justice Albie Sachs, Justice Kate O'Regan and Justice Yvonne Mokgoro, as well as Justice Tholakele Madala, who retired last year. [Applause.] These are the founding judges of the Constitutional Court; we must not forget that. Their records speak for themselves. Parliament wishes all of them a long and happy retirement.
I have never retired in my life; I don't know how retirement feels. During lunch I consulted with Justice Langa. After a few days he must share with me what it means to retire - whether you forget in the morning and pick up your briefcase, open the gate and go out thinking that you are going to work! Then, when you are ten kilometres away, you start remembering, "By the way, I'm retired!" [Laughter.] I don't know.
These judges have written the history of our country through transforming jurisprudence. We ought to be kind to them as they enter into retirement as veterans of the law. I hope they will continue to assist some of us who would like to be like them. One day I would also like to be on the Bench. Thank you very much, ladies and gentlemen. Go well. Justice Ngcobo, we wish you well in your new job. Thank you very much. [Applause.]