Chairperson, one of the most important elements of transformation of the judiciary should occur as a self-driven and self- initiated process by the judicial officers in the various structures where they serve - in the magistracy, but also in the Judicial Service Commission. This has begun. However, we believe that much can still be done. In this context we accept the bona fides of the Judicial Service Commission in allowing members of the new administration to settle so that they can be effective participants in the process that seeks to take our transformation projects forward.
Envisaged in the Constitution of our Republic is a single judiciary. In giving effect to this constitutional directive, government developed a policy proposal that was criticised by those who believed that the proposal sought to break down or blur the existing distinctions between inferior and superior courts in our country - something they claimed was inconsistent with the Constitution.
Unfortunately these criticisms missed the point. What the policy really seeks to do is to give effect to the constitutional provisions with vast judicial authority in all courts, not only in superior courts. In fact, a single judiciary means that judges and magistrates would be appointed and regulated by a uniform body of rules, standards and norms that would recognise the hierarchy and different conditions of appointment applicable to its level.
While addressing racial and gender contradictions remains critical in judicial transformation, we must avoid overemphasising the form over and above the content in our analysis. Changing the face does not amount to changing the ideological orientation of the judiciary. The fact of the matter is that ideological orientation has its roots in colonialism and apartheid, which still underpins our judiciary.
Similarly, the issue of patriarchy applies in our case. One is reminded here of a recently decided case in the South Gauteng High Court where a woman from Ekurhuleni was raped by a group of young men. What happened was that the case dragged on for about four years and the rapists were released on bail and therefore given the opportunity to harass the victim. So, victims of rape in our country, given the privileged position that men have, are not treated equally before the law in our courts. Hence, we talk of the need for transformation - of the mindset, not just of the phases.
What we need to understand is that the judiciary is an integral part of the masses of the people and can only function properly when these masses of people have complete trust and confidence in the judiciary. We must all understand and appreciate the fact that the Constitution of our Republic does not embody something like the American founding fathers' jurisprudential contempt for the masses. In fact, ours acknowledges and is premised upon the need for antiapartheid transformation and for the democratisation of South African society.
When drafting the Constitution of the Republic, the framers of this Constitution sought to advance the interests of the masses of South Africa as a whole. In this context the question arises, can the judiciary be regarded as a neutral arbiter, which is above societal conflicts? The suggested answer is "no", because members of the judiciary are affected by factors such as class, race, gender and ideology if you look at the examples provided. These are "human beings, who, like all of us, have their hopes, fears and prejudices and their role must not be exaggerated and mystified by suggestions of infallibility", as from Mr R K Sizani.
Writing about what he calls transformative constitutionalism, Chief Justice Pius Langa conceded that all members of the judiciary enter all decisions with their own baggage, both on technical legal issues as well as on broader social issues. Hence, the approaches and decisions of some South African judges still reflect patriarchal, social and racial prejudices. This does not apply only to people of light skin or white people, it also applies to those who get assimilated by the system who happen to be black in colour, who then, given the history of this country, seek to emulate those who are seen as superior to them. They can be even more vicious in applying those laws against their own people.
While members of the judiciary are expected to be objective, impartial and fair, they also have an obligation to protect the poor and the most vulnerable sections of the population. As we move forward, we must all appreciate that judicial independence goes hand in hand with the goal of transforming the underlying attitudes and values of the judiciary - something that remains crucial, because our country needs what Budlender regards as transformative jurisprudence, firmly anchored on the fundamental values and principles that underpin our Constitution. I want to suggest that one of the best ways to do this is to ensure that the course on human rights, our Constitution, becomes a subject that is taught at entry level, possibly a compulsory course for all our children at elementary and tertiary level so that they grow up with these values, because transformation is not a one-time act, it is a lifelong exercise and journey into our future. I thank you. [Applause.]