"Access to justice in a Democratic South Africa": Lecture by ANC President Jacob Zuma to the Platform for Public Deliberations, University of Johannesburg, September 9 2008

Vice Chancellor of the University of Johannesburg, Prof Ihron Rensburg,
Deputy Vice Chancellor, Prof Adam Habib,
Members of the university community,
Members of the ANC NEC, Ladies and gentlemen,

We are pleased to be invited to share our views on this important topic at the Platform for Public Deliberations. This forum is a most welcome contribution to the promotion of democracy and open engagement.

The essence of this topic is that it is imperative for all of us to explore ways and means to ensure three things. Firstly, that even the poorest of the poor do have access to justice, and secondly, that the justice that people access is qualitative justice, and, thirdly that justice is attained speedily.

The ANC has throughout its existence promoted human rights, justice and human dignity. These were among the key issues that were at the heart and core of our struggle.

After the defeat of the African kingdoms, the South Africa Act of 1909 created a racially discriminatory legal and constitutional order that formally deprived black people of civil and political rights, land and its natural resources.

Meanwhile, the founders of our democracy were evolving an alternative vision of South Africa. In his address titled Upon My Native Land in 1892, John Langalibalele Dube called for a free, spiritual, humane and prosperous Africa. This was before he became the first President of the ANC in 1912.

Pixley Isaka Ka Seme echoed this call in his speech on the Regeneration of Africa in 1905 at Colombia University in the United States, calling for African renewal. He later became President of the ANC.

President ZR Mahabane challenged the colonial status of the African people in terms of which they were treated not as adult citizens with full rights but as children to be spoken for and controlled, in his seminal speech entitled We Are Not Political Children in 1921. In 1923 the ANC became the first political organization on the continent to adopt a Bill of Rights, which laid the basis of future development of the human rights perspectives and liberation struggle in the coming decades.

Africans participated in World War II, hoping that in the event of victory civil and political rights would be extended to them. But in 1941 Churchill and Roosevelt promulgated the Atlantic Charter that extended the right of self - determination and human rights to Europeans only.

In response the ANC adopted the African claims, which asserted the rights of black South Africans to self-determination and human rights.

We became the first national liberation movement to develop a homegrown human rights culture ahead of the international community. The UN, formed in 1946, only adopted the Universal Declaration of Human Rights in 1948.

The principle of humanity (Ubuntu-Botho) and its inherent values of freedom, equality and justice for all people irrespective of race gender or social status contained in the 1923 and 1943 Bills of Rights informed the formation of the Congress Alliance. This Alliance led to the adoption of the Freedom Charter at Kliptown 1955.

Our human rights culture found a definite and emphatic expression in the Freedom Charter in 1955.

In the mid-eighties when the country was ungovernable, the ANC issued Constitutional Guidelines for a democratic South Africa, which contained its human-rights-based vision of a Post-Apartheid South Africa.

The ANC sponsored the Harare Declaration in 1989, which laid the foundation for a negotiated settlement and establishment of democratic institutions.

I am giving this background to illustrate that the ANC is no stranger to human rights and access to justice, and that it worked tirelessly to bring us where we are today. As a part of that collective, and as an individual, I believe in this human rights culture. I believe in a free and independent judiciary that should operate without fear or favour.

I believe in the right of equal access to justice for all South Africans, rich or poor, black or white, urban or rural, educated or illiterate.

The Freedom Charter recognised the courts as an important branch of a just and democratic society. The Charter recognised that all matters for adjudication belong to the courts where: "All shall be equal before the law".

Our Isithwalandwe, President Nelson Mandela aptly outlined the society that we should live in, from the dock during the Rivonia trial in 1964. He stated:

"During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination.

"I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal, which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die''.

These ideals were consolidated by the adoption of the Constitution in 1996. Amongst the key principles in the Constitution is that of the separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.

We all accept the fact that the judiciary is the final arbiter of all disputes. The task of the women and men on the bench is to ensure that the supremacy of the Constitution and the rule of law prevail.

We rank amongst the most democratic and just societies in the world, due to clauses such as Section 165 of the Constitution, which provides that:

• The judicial authority of the Republic is vested in the courts.
• The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
• No person or organ of state may interfere with the functioning of the courts.
• Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

Like all institutions, the judiciary is also expected to undergo transformation. When we comment about the pace of transformation in the judiciary, it is not because we want to infringe on its independence. The intention is to ensure that it represents the demographics of the democratic State.

In early 1994, of the 166 judges in the country's superior courts, only three were black (male) and two (white) female. By 2005, however, these percentages had changed markedly although white males continue to dominate.

There were 198 judges in the superior courts, white men were in the majority with 96; and there were 50 African, 8 Coloureds and 16 Indian male judges. In addition, 28 were female of which 12 were white, 8 African, 3 Coloureds and 5 Indian.

Having said that, we however understand that the transformation of the judiciary is not just about the numbers in the Bench and changing its composition. It is also about inclusivity and the broader representation of women in the whole legal fraternity.

If the numbers of women and Blacks are low, we must interrogate reasons for that and look at obstacles that hamper their representation.

We also need to look at other creative ways of attracting successful black lawyers to the Bench, and devise long-term strategies of attracting them to the profession.

The executive and the legislature also enjoy as much independence as the courts.

Interference in the discharge of their duties and functions by the courts shall always only be as mandated by the Constitution. That is, to ensure the constitutionality and legality of what they do.

The ANC has, and will never advocate any other way of ensuring proper or appropriate checks and balances.

Section 34 of our Constitution states that dispute resolution institutions must be independent and impartial. I have also affirmed my belief in this principle.

However, that does not mean that the judiciary and other dispute resolution institutions should be beyond criticism. Criticism of the said institutions is allowed and indeed proper in a democratic society.

The test for such criticism put simply has always been that of being fair and informed.

The late Chief Justice Mahomed provided clarity when he said:

"Judges must consciously accept the risk that their judgments in crucial areas may be subject to vigorous attack and criticism. This should cause them no distress.

"A viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination. What they are entitled to and demand is that such criticism should be fair and informed; that it must be in good faith, that it does not impugn upon the dignity or bona fides and above all it does not impair their independence, because judges themselves would not be the only victims of such impairment".

This is in keeping with democracy. It is only in dictatorships and autocracies where criticism is viewed with contempt.

What is clear from the passage, among other things, is that the judiciary is one of the pillars of our peaceful, stable and orderly co-existence. To destabilise it will mean we are cutting our noses to spite our faces.

It is unavoidable that tensions will now and again arise between the Courts and the executive; the Courts and the political parties; the Courts and the individuals, and so on and so on. Such tensions can sometimes express themselves in utterances that are on the face of it unpalatable.

This calls on us to exercise restraint. We must not jump to conclusions on the one hand that there is an attack on the independence of the judiciary or that the judiciary is useless or failing in its duty on the other hand.

If such a situation arises there is a duty on both sides to step back and reflect, and on reflection, revert to the original mutual respect in the manner similar to that of sportspersons shaking hands after a gruelling duel.

The second leg of the provisions of section 34 of the Constitution is that the institutions of justice should be impartial. It is therefore important to find ways of alerting the dispensers of justice to their possible prejudices, which may adversely impact on their judgments.

This is essential as it minimises the risk to unwittingly bring one's bias to bear on the judgment, thereby stifling access to justice in criminal and civil disputes. This would obviously best be done at a peer level.

Let me underline that access to justice is the cornerstone of orderly co-existence of citizens of any country. Access to justice is not necessarily the ability to walk to and reach the building where justice is administered. It only becomes complete when one's dispute is settled speedily, in an unbiased manner and when one feels he or she has had access to qualitative justice.

Our concern as the ANC is the failure to have cases or disputes processed and resolved speedily. Justice delayed is justice denied: so goes the proverb. Part of the transformation of the system is to ensure speedy access to justice.

Poverty is still one of the major barriers for our people in enjoying or exercising their right of access to justice.

Some of the poverty related factors, which inhibit access to courts or justice, are:

• Long distances that many of our people have to travel in order to access the courts and related services.
• The prohibitive costs in getting lawyers and challenges in receiving legal assistance from the Legal Aid Board.

Thus fourteen years after the 1994 democratic breakthrough, many of our poor are unable to access courts or justice as so provided in Section 34 of the Constitution.

We cannot forget a key barrier to access to justice - language. Fourteen years after the democratic breakthrough, the language used in our courts and in the administration of justice is alien to many of our people who have to rely on interpreters many of whom are not always friendly or helpful.

The courts therefore remain a very hostile and traumatic experience for many of our people and this discourages many from using these forums to advance their rights or settle disputes. This is not healthy in a democratic society. The administrators of justice should make an effort to be conversant with indigenous languages.

Our legal fraternity must help to protect the poor and vulnerable, and to promote access to justice for them.

I applaud the South African Women Lawyers Association, which promoted legal services to disadvantaged women during women's month.

We know that there are time constraints but urge that SAWLA and other legal formations should consider providing this patriotic duty at regular intervals. A proactive and well-publicised outreach programme would assist to raise awareness of such services and create an appreciation of our legal system and rule of law.

Added to this long list are civil formations, which toil on a daily basis to dispense justice in a very unsung fashion. An important avenue of promoting access to justice is the Small Claims Court.

However they are constrained by the fact that they are run on a voluntary basis by private practitioners, and mostly in urban areas. We however acknowledge the contribution of lawyers who provide such voluntary services.

The participation of legal practitioners free of charge in the High Courts to hear appeals when Courts are in recess is also laudable, and must be pursued with some more vigour. It has to be made receptive to more legal practitioners to help alleviate the backlog and thus facilitate easy access to justice.

Ladies and gentlemen, we have made great strides in promoting access to justice in our country, but clearly, more still needs to be done. And whatever we do, we must ensure that we maintain the integrity of our institutions.

A caring society that we seek to build must be underpinned by a criminal justice system that respects and upholds the rules of natural justice, which say that:

No one must be a judge in their own cause.

The administrators of justice must hear the other side before they judge.

These rules are the bedrock of criminal justice in a democratic society.

The accelerated transformation of the entire court system will go a long way to further improve the confidence of the people, particularly the poor, in our criminal justice system.

As the ANC, we reiterate and affirm our belief in the rule of law, the independence of the judiciary and the constitutional mandate of our judiciary to be the final arbiters in disputes.

ANC leaders have stated this at various intervals, for example the Deputy President, Comrade Kgalema Motlanthe, the Secretary General, Comrade Gwede Mantashe and others.

We will never undermine these institutions, we seek to protect and strengthen them, as the ANC has always done since 1912.

I thank you.

Issued by the African National Congress September 9 2008

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