By Mapula Sedutla
The Johannesburg Attorneys Association (JAA) held it’s 71st annual general meeting (AGM) late last year. Guest speakers at the AGM were Agang political party leader, Dr Mamphele Ramphele and Judge President of the North and South Gauteng High Courts, Judge Dunstan Mlambo.
The subject of Dr Ramphele’s speech was ‘The rule of law as a democratic foundation’. She saw this as an opportunity, as a South African citizen, to speak about her understanding of the rule of law and how crucial it was to the health of the country’s constitutional democracy. She reminded attendees that s 1 of the Constitution enshrines the rule of law and also of the three key principles of the Constitution, which are human rights, equality and freedom. She added that the three principles cannot exist without the rule of law anchoring them. She believes that the Constitution affords South Africans a wonderful opportunity to have an open society on a continent not known for establishing open societies.
Dr Ramphele said: ‘I often visit campuses and ask by a show of hands how many students know the Constitution and it is usually less than 10% of most audiences. That is a problem because if you have a wonderful Constitution that remains a dead letter in the book that only the judges and the lawyers can interpret, then we do not have an effective constitutional democracy and therefore the rule of law is at risk.’
She added: ‘We need to ask ourselves, when we reflect on the past 20 years, what is the state of the rule of law in South Africa. If we go back to the definition of the rule of law provided by the World Justice Project, which is committed to promoting the rule of law around the world, … the rule of law refers to a rules-based system in which the following four universal principles are upheld:
According to Dr Ramphele, the process of enacting laws, access to justice and independent and ethical adjudicators are also important parts of the pillars of the rule of law. She believes that the neglect of the socio- economic rights of 80% of South Africans makes the law illegitimate and undermines the legitimacy of the rule of law. She said that ‘studies show that inequality is bad for any society, for both rich people and poor people. But when you have a situation that enshrines socio-economic rights and you do very little to ensure that those rights are actually respected and are seen to be accessible … we are undermining our Constitution every day. … You and I have a duty to ask ourselves: What is our role as citizens?’
Quoting the former Chief Justice Arthur Chaskalson, in his speech at the first World Justice Forum in Vienna in 2008 when he spoke about the apartheid system, Dr Ramphele said: ‘What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair, and the laws themselves were not fair. They institutionalised discrimination, vested broad discretionary powers in the executive and failed to protect the fundamental rights.’ She added: ‘That was then, if we hold that mirror in front of us now what does it tell us? The former Chief Justice’s words underscore the importance of the rule of law for our young democracy.’
Bench and the profession
The second speaker of the day, Judge Mlambo delivered a speech on ‘The partnership between the Bench and the profession and its influence on access to justice’. He said that access to justice has featured in many discussions but the stark reality was that achievements in that regard were not enough. He added: ‘The provision of legal services for the poor is one of the greatest challenges to the legal profession across the world, and even more so in Africa and South Africa where there are enormous problems that require a large output of time and resources to ensure access to justice.’
Judge Mlambo said that the judiciary does not exist in a vacuum as it is an institution founded in society and the profession is the pool from which judges are drawn. He believes that judges require the respect and faith of the profession and the communities they serve to be effective and that public confidence is therefore critical to the administration of justice.
Speaking on the profession and the Bench working together, Judge Mlambo said: ‘I believe in the independence of the judiciary and the legal profession, but that does not mean that the judiciary and the profession cannot work together to give effect to the transformative nature of the Constitution. I am not suggesting in any way that the legal profession should give up the independence to become subservient to the demands of the Bench.’
Context of the judiciary
Judge Mlambo reminded delegates that, in the previous era, the judiciary and courts were very effective tools of oppression and were viewed with apprehension by the majority in the country. However, he added, South Africa has ‘come a long way from those dark days, taking account of the strides we gave taken to restore human dignity, equality and compassion for our society’.
Judge Mlambo noted that: ‘As judges our job is to adjudicate matters that come before the courts impartially, without fear or favour and in an expeditious and efficient manner. That is the final end of access to justice and it is one of the most critical in instilling confidence in society and our justice system and the rule of law. That happens when, as judges, we convict and sentence people accused of crimes should the facts and law justify that conclusion.’ He added that political agendas, ideologies, wealth or race should not play any role in how judges preside over cases.
Judge Mlambo believes that a transformed Bench is a necessary prerequisite to true access to justice. He added that transformation is not only necessary regarding the race and gender of the Bench, it is also required in briefing patterns. Judge Mlambo said that ‘the attorneys’ profession, the Bar and the judiciary have an obligation to transform the current unacceptable situation in line with the transformative demands of our Constitution’.
Reiterating the importance of pro bono services, Judge Mlambo said: ‘Perhaps the most important role the profession can play in advancing meaningful access to justice is to embrace pro bono legal services with more vigour than we have seen. Some 20 years into our democracy we have regressed to the point of becoming one of the most unequal societies in the world with the highest disparity in income levels.’
In closing Judge Mlambo said: ‘The issues that really matter to the poor and the vulnerable members of a deeply unequal society deserve much more from us as key stakeholders in the justice system. Our country and the Constitution require us to come together as the profession and the Bench to transform our society so that we have meaningful access to justice for all.’
Mapula Sedutla, mapula@derebus.org.za
This article was first published in De Rebus in 2014 (March) DR 30.
