Speech by the Chief Justice of the Republic Of South Africa Chief Justice Mogoeng Mogoeng at the special official funeral service of the late Judge President of the Land Claims Court Judge Fikile Charles Bam

27 Dec 2011

Programme Directors 
Mama Xoliswa Bam; All members of the Bam and Madikisa Families, Friends and Relatives
Former President of the Republic, His Excellency Thabo Mbeki and Former First Lady, Mrs Zanele Mbeki
Former Deputy President of the Republic, Honourable Phumzile Mlambo-Ngcuka
Minister for Justice and Constitutional Development, Honourable Jeff Hadebe
Honourable Ministers: Lindiwe Sisulu, Nosiviwe Maphisa-Nqakula and Thulas Nxesi
Former Chief Justice Pius Langa
Mama Graca Machel
President of the Supreme Court of Appeal, Honourable Justice Lex Mpati
Honourable Judges President
Honourable Premier of the Eastern Cape Province, Mama Noxolo Kiviet
Honourable Members of the Judicial, Executive and Legislative Arms of the 
State
His Grace, the Archbishop of Cape Town, Rev Dr Thabo Makgoba
His Worship the Mayor of Mhlontlo Local Municipality, Councillor Thandekile Sabisa 
Honourable Traditional Leaders
All Members of the Faith Based Community
Fellow mourners, Molweni bantakwethu

Today is a particularly sad day for us in the Judiciary as we are gathered here to bid farewell to a legal giant, whom some of us had the privilege of knowing during his 36 years of service as a brilliant lawyer and judge. 

However, while we mourn the untimely passing of the Honourable Judge President Fikile Bam, we are also here to celebrate a life well-lived. I am especially honoured to have had the privilege of knowing and working closely with Bro Fiks as a fellow Judge President and more recently, in my capacity as Chief Justice.

I hasten to take this opportunity to express the Judiciary's gratitude to His Excellency President Jacob Zuma, for acceding to our request that the Honourable Judge President Bam be given an Official Funeral. In the same vein, we are grateful to the Minister for Justice and Constitutional Development, Honourable Jeff Radebe, for not only supporting our proposal, but also causing it to be processed speedily all the way through to finality.

That the national flag was flying at half-mast; is also indicative of the high esteem in which leaders of the Judiciary are held by the state. We note this, and what was done for our late colleague the Honourable Judge President Msimang, with a deep sense of appreciation. For, this is a new and positive development which affirms the correct standing of Senior Judicial Officers in this country.

In the pursuit of equality and the restoration of human dignity to our people; one of the most important institutions remains the Land Claims Court - of which Judge President Bam was a leader for more than 15 years.

In its many years of existence, under his prolific stewardship; the Land Claims Court has remained a shining example of ‘democracy in action' - with the handing down of some of the ground-breaking judgments that sought to right the injustices of the past. And this has been accomplished with fearless gallantry by the men and women, who served alongside Judge President Bam.

Judge President Bam and his initial team of four other judges had the authority to and did make rules which gave all South Africans, especially the unrepresented poor and dispossessed communities, who were to bring land claims, easy access to the Land Claims Court.

This rule-making authority which only the Land Claims Court, the Labour Court and the Constitutional Court have; makes it possible for the Judiciary to make or change any rule relating to court procedure, speedily and easily to facilitate court efficiency.

Bro Fiks gave meaning, in a very real sense, to the concept of an "activist judge". His vision of designing and creating a premier legal institution, that would make justice and law accessible to the poorest of the poor through restorative justice; was accomplished in the court which he led from inception.

It was through this court that he contributed to the restoration of land to thousands of previously dispossessed land owners. The court travelled to far-flung parts of the country in order to make justice accessible to all.

Bro Fiks dedicated his life to selfless service to humanity, nation building and the reconciliation of the people of South Africa. The highest price he paid was sowing, over a decade of his life in Robben Island, in order for the nation to harvest a trans-generational legacy of freedom, peace and prosperity.

As one of the people who played a prominent role during the liberation struggle, it came as no surprise that following the demise of apartheid, Bro Fiks not only led the Land Claims Court but also became part of the national leadership of the South African Judiciary, in a forum known as the Heads of Courts. This forum comprises the Chief Justice, the President of the Supreme Court of Appeal; the Judges Presidents of the Divisions of the High Court, the Labour Court, the Competition Appeal Court, the Land Claims Court and the Electoral Court.

That Bro Fiks was born and is being laid to rest in a rural area; brings into sharp focus the aspirations of the rural poor in relation to access to quality justice. It must also provoke the need to go back to our roots, and to reconsider how justice can be made truly accessible to all. Justice continues to be largely inaccessible and elusive to the vast majority of the rural poor.

Courts are far-removed from where they live and access to legal representation is still but a dream, particularly in civil cases. This is so, because Legal Aid South Africa helps mostly accused persons in criminal matters, due to circumstances beyond their control.

The African traditional justice system which is steeped in simple, practical and restorative justice, designed to mend relationships strained by crime, rather than damage them further; needs to be embraced rather than relegated to an historical footnote.

Serious attention also needs to be paid to re-introducing the possibility, of a perpetrator of crime being punished for his crime while at the same time being ordered to restore to the victim of crime, what was lost through the commission of that crime, where possible. This is a virtue that lies at the heart of the African traditional justice system, whose value is often trivialised.

Our pre-occupation should not be with catching up with the legal developments and practices in the western world. It should rather be about recognising that Africa is a poor continent, with special needs that require special and extra-ordinary solutions, particularly for the poor.

Legal fees are prohibitively high. The people of Goqwana and other poor African communities cannot afford to go to court twice about the exact same matter; the only reason being that, in order to have a sanction imposed on a criminal, a criminal process must be followed, whereas damages are generally recoverable through a civil process.

This approach to matters may even be responsible for some of the backlogs that we experience in our justice system. Call it simplistic or even strange, I say it is probably the route to go.

A deeper exploration of what provisions such as section 300 of the Criminal Procedure Act can yield, may well be the way to go, coupled with taking a fresh look at the study that was conducted by the South African Law Reform Commission in this regard.

Let us learn from the African traditional justice system - which may be suitably modified to be constitutionally compliant - to build a justice system which Bro Fikile's community and all poor communities can relate to, and benefit from. We dare not legitimise the pre-existing and current stereotypes that Africa never had, still does not have and will never have anything good to offer the world. We must bear in mind at all times that civilisation started in Africa.

For the benefit of the poor, like the community of Goqwana, I believe that suitably restructured and resourced traditional courts, small claims courts and community courts would make justice cheaply and speedily available to them; without compromising on quality.

Additionally, the vast majority of our people are illiterate or semi-literate. For this reason, the only Judge or Magistrate they can relate to is the interpreter. Their cases, particularly when they are unrepresented, or represented by a person who is not proficient in the language of the witnesses, stand or fall by the interpreter. Language services must therefore be professionalised and only highly skilled trainers ought to train our interpreters.

Those of us who speak African languages are only too aware of the many instances where poor interpretation could have resulted in grave injustices, to the illiterate and poor, but for our timely intervention.

The Judiciary that Bro Fiks soldiered side by side with his colleagues to build, is a truly independent one. Not one that is pursuing popularity, or approval or is beholden and partial to; or afraid of, anybody, be it the Executive, the Legislature, the Opposition, the rich and powerful; the Lobby Groups or the Media.

It is the Judiciary which enjoys both institutional and individual independence, with the result that no Judge or Magistrate may ever be afraid to say, in any judgement, what she or he considers to be the right thing to say, just because someone or some force disapproves of it, and will probably persecute them for the position they take. 

And a truly independent Judiciary is not one that is out to support or oppose anybody, but one that is determined to apply the Constitution and the Law impartially and without fear, favour or prejudice.

A truly independent Judiciary is one that had the courage to find the death penalty unconstitutional, knowing that the majority of South Africans are opposed to that outcome.

For indeed, the Judiciary must never allow itself to be led by public opinion, otherwise it would be betraying its constitutional mandate. This is the Judiciary we are, and ought to be.

We were looking forward to the impending retirement of Bro Fiks, hoping that he and other retired Heads of Courts and Judicial Officers could be approached for assistance, in the light of their highly flexible schedules that generally come with retirement. This could be in the form of being part of the faculty of the South African Judicial Education Institute and mentoring other Judicial Officers, to mention but a few possibilities.

We appreciate it when serving and retired Judges and Magistrates criticise the Judiciary, provided they do so collegially and constructively. We do get concerned though, when it begins to look like the only thing, some of them ever say in public, is to criticise their serving colleagues and do so rather strongly, at times without offering possible solutions to perceived wrongs.

This new and unfortunate trend of a few serving and retired colleagues being quick to go public about whatever concerns they may have about the system or their colleagues; cries out for a more careful reflection and introspection.

Our law regards and treats retired Judges almost the same as serving Judges, subject to the same Judicial Code of Conduct which lays some emphasis on collegiality and a need to protect the dignity of the Judiciary. A collegial Judiciary is one that Bro Fiks waged the liberation struggle to bring into being, and that he was busy building when he passed on.

The question then arises: How different is the South African Judiciary that sent Bro Fiks to Robben Island, from the post-apartheid Judiciary that he has helped to transform. Then, we had a Court System packed with Judicial Officers who were feared and whose mere mention and presence immediately transmitted a fearsome current of imprisonment or the death penalty down a person's spine even if no charges had been preferred against them. As former President Nelson Mandela put it during the historic Rivonia Treason Trial under that Judiciary, he felt like a black man in a white man's court.

It was a white male judiciary, virtually inaccessible to the poor, enforcing oppressive laws, largely because of the architecture of the justice system and the orientation of those charged with the responsibility to run it. The Judiciary that Bro Fiks has helped to build is, broadly speaking, a transformed one which reflects the racial and gender composition of South Africa. However, I would be the first to admit that more still needs to be done.

Bro Fiks departed at the time when the South African Judicial Education Institute had finalised arrangements for the much-needed training of Judges, Regional and District Court Magistrates, scheduled to take place in January 2012. A National Department, known as the Office of the Chief Justice, has been proclaimed, and posts have been and continue to be filled to build capacity in that department. What remains to be done is a transfer of functions to it so as to strengthen the Chief Justice and the Judiciary's capability to deliver services.

Bro Fiks left at a time when we were working hard to implement resolutions of the Judiciary's July 2011 Access to Justice Conference, which yielded solutions to court performance challenges.

We will sorely miss Bro Fiks' level-headedness and measured temperament, his effective diplomacy, his wisdom, his commitment to the cause; his fellowship and ever-flowing sense of humour. He did everything with great ease. He was a man of integrity and an affable servant of the people. The Judiciary is more the poorer without him.

On the first two occasions when I met Dr Brigalia Bam, I realised that these qualities ran in the family, including the facility to take the steam out of a stormy situation thus enabling everybody to calm down, relax and focus more productively on the issue at hand.

Once again, Mama Xoliswa, the children, grandchildren and the Madikisa and Bam families; be strong. Akuhlanga lungehliyo.

May God give you strength and comfort you.

Issued by the Constitutional Court of South Africa, December 27 2011

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