By Nomfundo Manyathi-Jele
The Constitutional Court and the British High Commission in Pretoria recently held a reception to mark the 21st anniversary of the South African Constitution and the 800th anniversary of the Magna Carta. The event took place at the Constitutional Court in Braamfontein in June.
Speakers at the event were Chief Justice Mogoeng Mogoeng; Judge of the High Court, Queen’s Bench Division of England and Wales, Lady Justice Maura McGowan; Deputy Chief Justice, Dikgang Moseneke and British High Commissioner to South Africa, Judith Macgregor. The speakers spoke on the themes of democratic values, rule of law and human rights as enshrined by the respective documents.
In the welcome address Ms Macgregor said the two documents were iconic adding that they both laid down the foundations of the rule of law, democracy and human rights in the respective countries ‘and indeed are seen as models of constitutional frameworks across the world.’
Ms Macgregor said the Constitution marked the dawn of a new South Africa, based on democratic principles, the protection of human rights and the rule of law. ‘For the first time in the history of South Africa, all the citizens of the country were afforded equal rights and freedoms, which are protected by law,’ she said.
‘The sealing of the Magna Carta on 15 June 1215 marked the first step on the UK’s journey towards parliamentary democracy and respect for individual rights, a foundation for democratic values and for many of the rights and freedoms today. In sealing the Magna Carta, King John had to accept that his subjects were citizens for the first time, giving them rights, protections and security,’ she added.
Justice McGowan said both documents represent agreements borne out of political strife and a desire to improve and secure the rights of those affected, not just temporarily but permanently. ‘Although the Magna Carta was a concession forced from a reluctant king at the point of a sword and the people affected by its improvements were just a small number of noblemen,’ she added.
Deputy Chief Justice, Dikgang Moseneke, British High Commissioner to South Africa, Judith Macgregor, and Chief Justice Mogoeng Mogoeng, at the recent celebration of the Magna Carta and Constitution at the Constitutional Court.
Justice McGowan said today both documents are seen as social contracts that assist or enable society to function in the best interests of all and not just a few and that they ensure that the most fundamental right, the protection of the rule of law, is available to all.
Justice McGowan said that South Africa had a ‘web of mutually supporting rights’ because it started with a blank page and drafted a Constitution intended to meet every eventuality. She added that not that any constitution can, but in circumstances where it cannot foresee a problem or provide an answer, South Africa has created a living mechanism to deal with those unforeseen problems.
Justice McGowan said the Constitution starts with ‘[w]e, the people of South Africa,’ while the Magna Carta started with ‘John, the King’. She said this was a reflection of the consensus that the Constitution represents.
‘[The] Magna Carta is not a constitution, although the Americans used it as a blue print for theirs. It was certainly not the first written or codified expression of the rule of law. It is a totem that has inspired and guided the development of the common law and the spirit behind the drafting of statutes in our jurisdiction ever since,’ she said.
Justice McGowan added that there are only a few clauses of the Magna Carta that have survived and their spirit remains at the core of the UK justice system. She said clause 39, which speaks on the right to be tried by one’s peers was one of them. ‘It was not a jury that was intended then or even contemplated. It just meant that noblemen tried noblemen. But it has become the totem for the jury system, which we hold so important. In any criminal allegation serious enough to attract a sentence of six months imprisonment or longer we have the right to be tried by our peers, our fellow citizens as a jury. Will that remain? The current Lord Chief Justice, Lord Thomas, amongst many others, has raised the question of whether jury trial can or should continue in complex fraud cases. Equally, would an accused person in a notorious case of sexual abuse choose trial by a judge alone rather than jury if available? The position may change after all this time,’ she said.
Justice McGowan said the Magna Carta had the double jeopardy rule that the Constitution has but that it had been modified, ‘because Parliament felt that scientific advances, in particular, have meant that if there is new and compelling evidence, an acquitted person should be tried again for the same crime’, she said.
Justice McGowan noted the importance of Clause 40 and its effect on the development of rules of practice. ‘Clause 40 promised that justice would not be sold or delayed or denied. The author of that clause could never have imagined how it would survive into the 21st century. That clause has the greatest impact on our system of justice, both criminal and civil,’ she said.
Justice McGowan said Clause 40 states: ‘To none will we sell justice’ adding that ‘and we do not’. Justice McGowan questioned whether the costs involved in bringing an action meant that we sell justice in the sense that only the very wealthy can afford to buy in, to be involved in litigation?
‘We are determined to bring costs down, we are working towards greater efficiencies. In criminal cases Lord Justice Leveson, President of our Queens Bench Division has recently produced a report on how we can reduce costs and make the process in crime more efficient. Can some preparatory hearings be done on paper or electronically? Can some defendants play a part in their cases by remote link rather than being brought to court every time?’ she asked.
Justice McGowan said there is constant improvement and adaptation of the civil procedure rules to try reduce the burden of costs for litigants. ‘We are looking at forms of alternative dispute resolution and mediation. We must innovate and use technology and any other means to make the system more efficient and less costly. Vitally we must remember that we can cheapen our costs but never our values,’ she said.
Speaking on Clause 40 of the Magna Carta, which makes reference to justice not being delayed to anyone, Justice McGowan said in some cases courts will enforce their orders, even if it means stopping an individual action or defence. She added that the efforts to prevent delay means that the rights of all litigants in the system are equally important and one slow or mismanaged case cannot hold up the progress of the many others in the queue.
Judge of the High Court, Queen’s Bench Division of England and Wales, Lady Justice Maura McGowan at the celebration of the Magna Carta and Constitution at the Constitutional Court recently.
Paraphrasing Clause 40, Justice McGowan said ‘[t]o none will we deny right or justice’. She said the UK courts continue to introduce special measures to enable complainants in sexual abuse cases, especially children, to participate more fully in the trial in which they are an integral part, either as a witness or an accused. ‘We are redesigning the entire way in which we approach such cases. Preparatory hearings are an opportunity to assess what special measures should be put in place for defendants or witnesses. The accused are now tried in a way that is intended to enable them to understand as much as is possible of what is happening, to play as much of an active part in their own trial as possible. Equally we have special measures for witnesses, ranging from screens and anonymity to their giving their evidence through an intermediary and over a live video link or even by pre-recorded interviews by police officers and cross examination by counsel but conducted well in advance of the trial, at a time when the witness has a much better chance of remembering the evidence they are there to give,’ she said.
Justice McGowan said trial by ordeal, for witnesses or accused is not fair and in some cases may amount to the denial of justice to victims and defendants. She added: ‘We are working to improve the training of judges and advocates to ensure that the vulnerabilities of witnesses and defendants through old age or youth, through physical or mental disability never again means that they are denied justice.’
Deputy Chief Justice Moseneke said that when the South African Constitution was drafted, the drafters looked at the Indian, German, Canadian and American constitutions for ideas on how to go about drafting it. He added that they also looked at the Magna Carta.
Deputy Chief Justice Moseneke said the Constitution marks the end of bondage for many South Africans, and that it is testimony of a new world. ‘Our Constitution is legitimate, it is our covenant and we are bound by it,’ he said.
Chief Justice Mogoeng started his speech by asking: ‘Why do we celebrate the Magna Carta? Have we forgotten what they did to us?’ But added that these documents (Magna Carta and the Constitution) came into being for a reason and that people should not forget that.
The Chief Justice asked whether what was committed to be done in the documents had been done. He added that Clause 40 of the Magna Carta had elements of s 145 of the Constitution, which reads: ‘To no one will we sell, deny or delay justice.’
Chief Justice Mogoeng said the public’s perception is that justice is only available to the rich. He added that there is also criticism of the judiciary. Chief Justice Mogoeng said the judiciary cannot be blamed for people not being able to pay for justice. He added that the budget of Legal Aid South Africa should be increased as it is currently very low and there were many people that cannot access attorneys.
Chief Justice Mogoeng pleaded with the Law Society of South Africa and the General Council of the Bar to assist by compelling their members to take on pro bono cases.
Chief Justice Mogoeng asked what it was that needed to be done to ensure that the Bill of Rights has a meaning for all South Africans. He added that the Magna Carta was a wonderful document from the beginning, which was designed to address a political crisis of that time but that it failed as implementation was a problem.
‘A document is useless unless it is given practical implementation,’ he said. He added that those who the Magna Carta was drafted for (as well as the world) only benefited from the document many years later. ‘We cannot allow the Constitution to go this route,’ he said, adding that ‘we must all own up to our responsibilities and ask ourselves what it is that I can do to bring about change’.
Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.
This article was first published in De Rebus in 2015 (Aug) DR 9.
