Address by Mr JT Radebe, MP Minister of Justice and Constitutional Development at the occasion of the Annual General Meeting of Advocates for Transformation in paying tribute to the late Judge of the Constitutional Court, Justice Tholi Madala,Savoy Hotel, Mthatha, Eastern Cape

23 Jun 2012

Programme Director, 
Ms Madala and the entire Madala Family
Distinguished judges
Mr Qoboshiyane, MEC Local Government and Traditional Affairs in the Eastern Cape,
Adv Ntsebenza, SC, National Chairperson of the Advocates for Transformation
Distinguished Members of the legal profession
Members of the Madala Family
Comrades and Compatriots
Ladies and gentlemen

Thank you for inviting me to address this important gathering of distinguished jurists and a collective of legal minds who, together with the judiciary, are the architects of our evolving jurisprudence. I am pleased to have found my way to this part of the country which is home to many of our profound leaders including our icon, the first President of our democratic Republic, Nelson Mandela.

Just yesterday, in my other capacity I was part of a delegation that briefed South Africans on the forthcoming ANC Policy Conference which many South Africans are awaiting with much anticipation and hope. Also this morning I addressed a gathering of sheriffs in Bloemfontein, who constitutes another important pillar of the justice sector. I am glad the transformation of the Legal Profession in general and the Legal Practice Bill in particular are part of the agenda of your deliberations over this weekend.

It is both heartening and inspiring to address an Annual General Meeting of Advocates for Transformation, whose ideology and character befit the transformation agenda underpinned by our Constitution which is to build a united, non-racial, non-sexist, democratic and prosperous society, glued together by values of equality, human dignity and social justice. The formation of the Advocates For Transformation was a desperate and necessary call by Black and female advocates to be recognised as equal and able compatriots in the respectable trade of legal practice.

It appears that resistance against the exclusion of Black and women in the management structures of the Bars became apparent first in the Western Cape where the Judicial Service Commission, as many of you are aware, has its share of challenges in its quest to appoint judges who must reflect the racial and gender demographics of the South African society as a constitutional imperative. The resistance gained momentum in the Natal, Pretoria and Johannesburg Bars and culminated in the formation of Advocates for Transformation in the middle of 1998.

It is pleasing that this institution not only embraces the values that underpin the racial and gender transformation of our institutions, but continues to influence the transformation agenda of this noble profession, which the Legal Practice Bill seeks to advance. I do hope that Advocates For Transformation  will continue to play a prominent and influential role in transforming of the legal profession, and that you will identify with other progressive formations in pursuit of a common agenda that underlies access to justice.  It is imperative that the progressive formations are united in both their deeds and purpose in advancing the transformation objectives envisaged by the Legal Practice Bill and State Legal Services Reform.

Programme Director

Allow me therefore to use this event to pay special tribute to a great son of Mthatha and the Eastern Cape, the late Justice Tholakele Madala. Justice Madala's life story is well known among many admirers of this distinguished son of the soil and I am amongst those admirers.

This is a fitting occasion to ourselves, especially those who are following the footsteps of this remarkable fellow South African about a life well lived. Justice Madala started his career as a teacher and taught at the Lovedale Institute, in Alice, and in Swaziland before taking up law at the University of Natal in Pietermaritzburg in 1972. He was instrumental in setting up the first legal aid clinic on the Pietermaritzburg campus to service the indigent, a project which continues to serve the KwaZulu-Natal Midlands to this very day. Justice Madala lectured at the University of Transkei, initially full-time but later part-time until 1980.

He then practised as an attorney and was admitted as an advocate in 1982. Justice Madala handled many human rights cases. He and other lawyers interested in the protection of the rights of the underprivileged established the Umtata Law Clinic, under the auspices of the Umtata and Districts Lawyers' Association. He became the chairperson of the Transkei Attorneys' Association and was a founder member and director of the Prisoners' Welfare Programme, an association established in 1985 to provide legal, financial and educational assistance to political detainees, prisoners, ex-prisoners and their families.

From 1987 to 1990 he was the vice-chairperson of the Society of Advocates of Transkei. Between 1991 and 1993 he was the chairperson of the Society of Advocates of Transkei and represented the society on the General Council of the Bar of South Africa. Justice Madala took silk in 1993 and was elevated to the Bench in 1994, becoming the first black judge in the Eastern Cape and the fourth black judge to be appointed in South Africa.

In October 1994 he was appointed to the Constitutional Court of South Africa joining what is now fondly referred to as the Class of 1994.

Ironically, upon his appointment, Justice Madala was subjected to what Advocate Ntsebeza, SC correctly refers to as a ‘cesspool of slander' by some naive commentators who perceived him as not being up to the task. We could take this opportunity to ask the question of whether or not we will ever be up to the task in the eyes of such all-knowing arm chair critics. Justice Madala wrote numerous trailblasing judgments.

The motivation in his first judgment concurring with former Chief Justice Chaskalson in S v Makwanyane and Anotherperhaps is a summation of his judicial philosophy and ethos in his subsequent judgments. In Makwanyane he relied quite heavily on the concept of Ubuntu to outlaw the death penalty. He noted that against Ubuntu must be seen on the other side the inhuman side of humankind. He cited with conviction that great jurist Justice Thurgood Marshall's words inFurman v Georgia when he wrote ‘the measure of a country's greatness is its ability to retain compassion in times of crisis'. With that in mind, Justice Madala emphasised that Ubuntu calls for a balancing of the interests of society against those of maintaining law and order but that it certainly did not extend to degrading the individual. He affirmed that we must stand tall in troubled times. 

He affirmed that the need for Ubuntu expresses the ethos of an instinctive capacity for, and enjoyment of love towards our fellow men and women, the joy and fulfilment involved in recognising their innate humanity, the reciprocity this generates in interaction within the collective community, the richness of the collective emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve.

On a number of occasions and judgments, Justice Madala lamented the shallow dearth of research on African jurisprudence. The myriad of challenges that Justice Madala dedicated his life's work for remain with us today. As you can see, he pursued a life dedicated to serving the underdog. A common thread in his professional pursuits is that he was not motivated by glamour or financial prosperity but by the zeal to deliver justice to all people alike. It is therefore important that those in the profession who follow his steps never to betray the noble causes that he lived for.

Distinguished Delegates,

Allow me to reflect on the important programmes that are geared to advance the course of justice that many like Justice Madala stood for, to give the context within which the Legal Practice Bill must be viewed. It is important that this Bill is not seen in isolation but in the context of a series of other legislative reforms and programmes which are already in the public domain and are at different stages of development.

Initially the Bill was approved by Cabinet at the same time as the Constitution Seventeenth Amendment Bill and the Superior Courts Bill in December 2010. Whilst the latter Bills were tabled in Parliament early in 2011, the introduction of the Legal Practice Bill was kept back in a melting pot for almost a year and half during which we continued to exchange views, ideas and thoughts with the legal profession.

During this interface some of the fundamental concepts and principles that underscore the transformative goals sought to be achieved through this Bill were further defined and refined.  The Bill as introduced into Parliament two weeks ago was enriched by the wealth of intense intellectual debates and arguments put for and against those principles by a team of profound members of the profession, as well as ourselves as policy makers and government representatives.

Therefore, an unprincipled attack on the process and outcome of this vibrant and robust discourse not only undermines the value of our participatory democracy which underscores an open and democratic society founded not only on equality and human dignity, but also assails the integrity of men and women who walked the path of this laborious exercise.

Contrary to the ill-conceived views of the respected senior counsel, Adv Jeremy Gauntlett, who coincidentally comes from the Western Cape Bar, that the Bill "is the biggest single threat to an independent legal profession and an affront to the rule of law", it is in fact a watershed and rudimentary turning point for the legal profession and for all South Africans alike. Of course it is not the first tirade that Adv Gauntlett has unleashed to express what appears to be his discomfort with the unfolding transformation of the legal profession and the judicial system as a whole, and in doing so he joins all those who wish in vain to sustain the legacy of the past. 

That is why he gave the same factually impaired narration when he addressed the Middle Temple South Africa Conference on 22 August 2010, which was attended by both South African and international practitioners. In his address and in his recent article which was published widely by the media, Adv Jeremy Gauntlet misrepresented the state of our legal and judicial system that is still burdened by the legacy of apartheid that was enforced by policies, legislation, practices and tendencies of the past that our Constitution today seeks to redress.

The lack of access to justice manifests itself in many ways, including access to the services of a lawyer caused by, among others, the inhibitive cost of litigation, the lack of a sufficient pool of practitioners to service especially rural and underdeveloped areas, poor or non-existent court facilities in most of the rural and densely populated areas, the cumbersome and complex rules of courts and a court system that has not undergone a full cycle of transformation.

It is these realities that we seek to reverse through legislation and programmes that are advanced and implemented by the ANC led government.  To suggest that the reversal of the policies that inhibit access to justice, as Adv Gauntlett suggests, is against the injunction of the Constitution and the rule of law is being disloyal to the values that underpin our constitutional democracy.

The measures we have introduced, including the Legal Practice Bill, have an overwhelming support of the majority of our people, including many within the profession and who do not associate themselves with the views of Adv Gautlentt and those he purports to represent. I have deemed it necessary to respond to his criticism because of my desire to demonstrate the kind of tendencies that we seek to undo to build a profession consistent with the values of the new South African society that we collectively strive for as enjoined by our Constitution.

Let me also thank members of the profession for the intuitive comments they made in respect of both the Constitution Seventeenth Amendment Bill and the Superior Courts Bill which will enrich the end product that Parliament will table for the President to sign into law, hopefully before the end of this year. I would like to believe that Advocates for Transformation and the legal profession at large are gearing themselves for the imminent reforms envisaged by these Bills that will change the face of justice and that of the profession in particular.

We anxiously anticipate that the opening of the High Courts in Limpopo and Mpumalanga in 2013 will pave the way for new chambers and firms of advocates and attorneys respectively in the two provinces to symbolise the cutting of the umbilical cord in order to separate the two provinces from the Transvaal Provincial Division (which recently underwent a name change as the Gauteng North and South High Court), since its establishment in 1910.

In the interest of time I will not delve into the 54 page long Legal Practice Bill, but wish to stress that the Bill enhances the independence of the profession and opens the frontiers of access to justice by providing, among others, for a mechanism to keep fees within the reach of all South Africans in general and the poor in particular. The scheme of the Bill ensures that the legal profession becomes an active participant in the formulation of a criterion that will guide a structure for the determination of fees consistent with the competition laws of the country. I therefore urge Advocates for Transformation and all formations to seize the opportunity by participating in the Transitional Legal Practice Council and thereby contribute in the process of shaping our legal profession in accordance with the dictates of our Constitution.

The reforms envisaged by the Legal Practice Bill and the radical reforms to the State Legal Services we announced last month reinforce and complement each other. Much continues to be said about the challenges in the legal profession. Here I am referring to the intricacies of studying for a law degree, of enrolling for articles or pupillage which are hard to come by for Black law graduates, of setting up or joining large law firms, and of practising law in a habitually unsupportive and frequently hostile environment.

The legal stalwarts of days gone by such as Griffiths and Victoria Mxenge, Godfrey Pitje, Duma Nokwe, Oliver Tambo and Nelson Mandela defied the odds and overcame the obstacles and barriers that were posed by the apartheid laws and policies to pursue careers in this noble profession.. The distinguishing feature of the lawyers who were moulded during the struggle is that they chose the practice of law not for purposes of self-enrichment or self-aggrandisement, but to represent the defendless and the oppressed masses. They surrendered their own freedoms and gave their lives in exchange for the liberation of those they represented and fought for.

An emerging trend of worshipping self-interest and self-enrichment threatens the sacrifice and tradition of these legendary brave men and women who used their legal trade to fight for freedom and justice that we have come to enjoy today.  But I am confident that through the formations such as Advocates For Transformation we must ensure that they did not suffer and die in vain. Of course the new dispensation demands that we all make better livelihood beyond matters of struggle, but we dare not altogether forget the principles of ensuring that we develop holistically as a nation and leave no pockets of poverty in our midst.

Delegates, 

We must take cognisance of the important role of the legal profession in the transformation of the judiciary. The legal profession and in particular the advocates' profession has traditionally provided a reliable pool from which judges are appointed. Section 174(2) of the Constitution requires the judiciary to reflect broadly the racial and gender composition of South Africa.

It for this reason that a body such as Advocates For Transformation is seized with the responsibility of transforming the judiciary by swelling the ranks of the judiciary with men and women who understand the transformative values of our Constitution.  We must not be apologetic about this course of struggle, because indeed we need judges who will defend the letter and spirit of our Constitution, and not seek loopholes to preserve the apartheid legacy.

I have no doubt that this is what Justice Madala fought for in all the self-less roles described earlier. Transformation has been interpreted by some to mean lowering of standards, merely replacing White faces with Black faces or males with females. Such views are shallow and merely serve to perpetuate the thinking of the past and attendant privileges.

I therefore impress upon Advocates For Transformation never to drop the ball, never to compromise quality in the name of transformation and, at all times, to uphold the highest standards of ethics and integrity. If anything to transform is to become better not the other way round. It is propaganda to equate transformation with lowering of standards or production quality.

Some critics have in the recent past attributed the waning numbers of practitioners who make themselves available for judicial office, not to the depleted pool, but to perceptions of lack of credibility and confidence in the Judicial Service Commission, which I find totally baseless.  Judicial service is a national calling, a national duty. As in many other jurisdictions, prosperous lawyers have a much higher income than judges which would make a move to the bench financially less rewarding. With that in mind, I implore institutions such as Advocates for Transformation to take keen interest in contributing to the grooming of passionate men and women to replenish and sustain the pool from which judicial appointments can be made.

The measures we seek to implement through the reform of the State Legal Services are geared to enhance the transformation of the legal profession. The State, being the biggest law firm, must contribute in supporting new entrants in the practice of law, especially in specialised fields such as constitutional litigation, competition law, aviation, and others which are developmental in nature.

Part of these reforms envisaged is the institutionalisation of the Alternative Dispute Resolution Mechanisms to accelerate early settlement of disputes where this is desirable and necessary, and thereby save huge costs associated with litigation.  It is a matter that I am aware of that some of your members are passionate about and have participated in the drafting of the Court-connected Mediation rule by the Rules Board for Courts of Law and which I am considering.

I wish to assure the members of the legal profession that we are forging ahead, relentlessly, with the implementation of the drastic measures which I outlined during the New Age breakfast briefing two weeks ago. The implementation of these measures happen at two levels, namely, the implementation of immediate steps within the ambit of the current legislative framework which will enable us to implement a new framework for the allocation of legal work and briefs in terms of which between 65-70% thereof will be earmarked for Previously Disadvantaged Individuals; and the medium term solutions that encompass substitution of the State Attorney's dispensation with that of a Solicitor-General.

My Deputy Minister Nel has advised me of some of the concerns which were raised during his interaction with your Gauteng Branch of Advocates For Transformation early this week, in particular concerns that the department may not have the capacity to revolutionise the Office of the State Attorney as well as to monitor the allocation of legal work and briefs.  Internal process for the appointment of an Acting Head who will champion these reforms are at an advanced stage and the development of a tool to monitor the allocation of briefs across all spheres of Government is our priority.

A transformed judiciary is one which is purpose-driven to enhance access to substantive justice in a complex multicultural and multilingual developing society. It is how the laws as interpreted and applied by the courts impact on people's lives that will bring legitimacy of the judicial system to the people who are supposedly to be protected by the system itself.  The role of the advocates and attorneys is crucial in the interpretation and application of the law, as they provide the legal context, informed by a thorough research that guide the outcome of every case and thereby shape our evolving jurisprudence.

By default, an understanding of the transformational values of the Constitution will translate into an evolved jurisprudence. It is an established fact supported by experts such as Richard Posner in his seminal work "How Judges Think"  that judges are largely influenced by their professional background, their upbringing etc in how they formulate their thought process in deciding cases. I am confident that your contribution to our evolving constitutional jurisprudence and the development of the law in general will be overtly evident during the assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on the transformation of society which will get underway soon.

This assessment, and not the "review" of court decisions of our apex courts as some opponents of this exercise have maliciously used the latter term to discredit what is a legitimate government objective, is a necessary vehicle to measure the extent to which our jurisprudence has advanced the social and economic transformation of our society with a view to reversing persistent inequality and poverty that threaten to erode the gains of our democracy. The social and economic transformation, or the second transition if you like, is a significant evolution through which all our people will reap the fruits of our hard earned democracy.

Once I am I thank the Madala family and Advocates for Transformation for dedicating this important meeting to the late Justice Madala.

I thank you!

Issued by the Department of Justice and Constitutional Development, June 23 2012

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