Commonwealth Magistrates and Judges Association's Conference

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                                         JUSTICE AND CONSTITUTIONAL DEVELOPMENT
                                                 REPUBLIC OF SOUTH AFRICA
  Private Bag X276, PRETORIA, 0001 ● Momentum Building, Cnr. Prinsloo and Pretorius Streets, PRETORIA ● Tel: (012) 315 1761/2/3, Fax: (012) 315 1708 ●

                    Private Bag X256, CAPE TOWN, 8000 ● 120 Plein Street, CAPE TOWN ● Tel: (021) 467 1700, Fax: (021) 467 1730 ●

   Address by Mr ME Surty, MP, Minister for Justice and Constitutional
  Development, During a dinner in honour of the delegates attending the
    Commonwealth Magistrates and Judges Association’s Conference,
                                On Monday, 06 October 2008, In Cape Town

Programme Director;
Honourable Minister of Public Enterprise, Ms Brigitte Mabandla;
Honourable Chief Justice, Pius Langa;
President of the Commonwealth Magistrates and Judges Association; Chief
Justice Richard Banda;
Chief Justices from the Commonwealth;
Deputy Minister for Justice and Constitutional Development, Adv Johnny de
Chairpersons of the Justice Portfolio Committee and the Select Committee on
Security and Constitutional Affairs, Chairperson of the Portfolio Committee on
Public Enterprises;
Members of Parliament;
Distinguished judges and magistrates from abroad and the various parts of
South Africa;
Honoured Guests;
Ladies and Gentlemen;

It is a special privilege and honour for me to host eminent jurists and
distinguished members of the judiciary from the Commonwealth. I am delighted
that my predecessor, Minister Mabandla, who is now the Minister of Public
Enterprise, is here with us this evening. I also wish to thank our Chief Justice,
Justice Pius Langa for hosting this vital and significant Conference. I believe that
the experiences and lessons that will be shared during the deliberations will
benefit the South African judiciary and the Commonwealth Magistrates and
Judges Association constituencies.

Distinguished guests, the theme that you have selected for the Conference -
“Constitutional Independence for the Magistrate and Judge with reference to the
separation of powers" is timely, current and relevant, especially in the South
African context. South Africa is a constitutional democracy and our Constitution
reigns Supreme. Our Constitution is premised on the separation of powers and
the rule of law which together are the pillars of our democracy. The distinct and
separate role of the legislature, executive and judicial organs of the State are
clearly spelt out in the Constitution: The executive initiates, develops and
implements policies, the legislature exercises legislative authority and has
oversight role over the executive and the judiciary upholds the Constitution and
the law, which they must apply impartially and without any fear, favour or

The separation of powers provides checks and balances in which the judiciary
plays a sensitive and crucial role as an independent arbiter where one organ of
State has encroached the functional boundary of another.

Our Constitution prescribes the character and caliber of, and the environment
within which the magistrate and the judge profiled in the theme chosen for this
Conference must perform this delicate role. Judicial officers must be fit and
proper persons, who must broadly reflect the racial and gender composition of
the South African society. The requirement of “fit and proper person” connotes
persons of high competence and integrity. The integrity and ethical standards of
the judiciary lies at the heart of a fair and impartial judicial system envisaged by
the Constitution. The late Chief Justice, Ismael Mahomed, when addressing the
Second Annual General Conference of the Judicial Officers Association of South
Africa, reiterated that professional and ethical standards as well judicial temper
should inform the conduct of Magistrates in the pursuit of justice. I quote from
his speech:
      “The ultimate power of the courts must therefore rest on the esteem in which the
      judiciary is held within the psyche and soul of a nation and in the confidence it
      enjoys within the hearts and the minds of potential litigants in search of justice.
      No public figure anywhere, however otherwise popular, could afford to be seen
      to defy the order of a court which enjoys, within the nation, a perception of
      independence and integrity.“

These sentiments were echoed recently by the Chief Justice, Pius Langa, when
he addressed the audience at the Inaugural Lecture in Memory of the late
Justice Mahomed, when he reiterated:
      ‘It stands to reason that a weak, unprincipled judiciary will be powerless to stem a tide
      of human rights violations and to keep state power in check.         It is accordingly in
      everybody’s interest that the courts should be enabled and protected so that they can
      do their work properly and impartially, without fear, favour or prejudice in protecting
      these rights. At the same time, we should demand the highest ethical standards and
      the utmost competence and integrity among members of the judiciary.’

The duty of the courts in deciding disputes and protecting the rights of
individuals is immense. In performing these functions the courts are guided by
the Bill of Rights and the rule of law. It is not insignificant that in the final
Constitution, unlike in the 1993 Constitution (Interim Constitution), the Bill of
Rights binds all organs of State, including the judiciary. In the Interim
Constitution, the exclusion of the judiciary from the organs of State that are
bound by the application of the Bill of Rights had the effect of limiting the
interpretive role of the court in balancing the fundamental rights enshrined in the
Bill of Rights. This limitation was recognised by the Constitutional Court in its
minority judgment of Du Plessis and Another v De Klerk and Another, when it
expressed the view that the supremacy of the Constitution manifestly entailed
the horizontal application of the Bill of Rights and its binding effect on all
legislative, executive and judicial organs of State at all levels of government.
Whilst the situation has been remedied by the final Constitution, which put to
rest the debate on the horizontal application and the binding effect of the Bill of
Rights on the judiciary, we need to ask ourselves the question: What does the
paradigm shift from the position which prevailed under the Interim Constitution
to the position that obtains under the final Constitution mean for the South
African judiciary in terms of its functions and responsibilities?

The rights protected in our Constitution are not arranged in any pecking order
nor do they follow any hierarchical preference. It is also not insignificant that the
Constitution enjoins the courts, when interpreting the Bill of Rights, to promote
values that underlie an open and democratic society based on human dignity,
equality, and freedom. Given the pre-eminence of human dignity as a right and
a value a question may be asked how the courts will, for example, resolve a
tension between human dignity, as a right and value, and freedom of

The relevance of the emphasis on these fundamental values lies in the fact that
the judiciary itself must be guided by the ethos and values that underlie an open
and democratic society. The Constitution enjoins the three organs of State to
work together to serve the public interest or the interest of a democratic and
open society. Therefore the Supremacy of the Constitution and the rule of law
form an important yard stick that guides the court in executing its judicial
function. It is this yard stick that ensures that courts cautiously exercise their
judicial power.

At the heart of the principle of separation of powers is a commitment to enhance
democracy, increase accountability, and protect, promote and fulfill our
fundamental human rights which are the cornerstone of our democracy. The
common thread binding the functionaries of the three organs State is the
commitment to respect, protect and uphold the Constitution which is the pledge
every public office-bearer must make before he or she assume public office. I
imagine that the extent to which constitutional precepts inherent in the
constitutional democracies with adequate checks and balances such as ours are
applicable to the judiciary may arise in the context of the debate.

Distinguished Guests
It is common cause that constitutional democracies across the globe are
characterised by the inherent tension that exists between the three arms of
Government as they jostle for pre-eminence. There is no common approach
through which different countries have organised and managed the complex and
at times contentious relationship between the three arms of government. In the
judgment of Van Rooyen v the State, the former Chief Justice, the Honourable
Arthur Chaskalson contended that different democracies have drawn the

boundaries at different places depending on their constitutional framework and
socio-political context while maintaining the universally acknowledged core
principles of judicial independence as articulated in the United Nations Basic
Principles on the Independence of the Judiciary. The manner and approach by
which the three Organs of State manage their relationship is paramount. The
Constitution and the interest of society are the primary guiding factors to be
taken into account in the process of easing and normalising these tensions. The
challenge presented by the delicate balance is particularly important in South
Africa, where the Executive has a duty to implement policies that are necessary
to transform a society which is emerging from centuries of institutionalised
oppression, inequality and poverty. Our Constitution is explicit in committing all
organs of State to achieve this national goal - it obliges organs of State to
cooperate with another and act in mutual trust.

This Conference today takes place against the backdrop of interesting
developments in our political landscape. The independence of the judiciary and
the rule of law has recently occupied a prominent space in the local and
international media. While the debate is essentially beneficial to our fledgling
democracy, we need to acknowledge that in some quarters it is fuelled by
reckless or intemperate statements that may have the effect of undermining the
integrity of the judiciary. As the South African government, we have the
responsibility to protect State institutions, including the judiciary against
unwarranted criticism. We should however be mindful of the fact that in a
democratic society, decisions of the judiciary, as is the case with the conduct of
other branches of Government, will constantly be subjected to public scrutiny
and criticism. However such criticism must be rational and informed. The late
Chief Justice Mahomed observed, during an address at the University of Cape
Town in 1999, that criticism which is persistently uninformed and unfair and
which improperly impugns the integrity and the reputation of the judiciary,
corrodes public confidence in its legitimacy and may ultimately diminish its
capacity to enforce its will in the defence of the citizen seeking redress against
injustice. It is therefore important that we all conduct ourselves in a manner that
will not erode the integrity of the judiciary in the eyes of the public. Both the
President of the ruling party, Jacob Zuma and the President of the Republic
have unequivocally pledged their commitment to the independence of the
judiciary and the rule of law.

Ladies and Gentlemen,
One of the challenges we face today is that of achieving a common
understanding of the meaning of judicial independence and the boundaries of
separation of powers, particularly between the judiciary and the other arms of
Government. It is a source of some comfort for us to note that we are not alone
in our search for answers to these questions. This is a global quest.

This therefore calls for the jurists and legal minds gathered here to consider a
number of probing questions posed elsewhere in this paper, including the

How does the magistrate and the judge entrusted with the responsibility of
controlling the exercise of power by other branches of State avoid encroaching
into the arena of policy making, in particular within the peculiarity of the South
African Constitution with a justiciable Bill of Rights?

How does the judiciary ensure that in interpreting the Bill of Rights which it must
uphold in respect of every citizen, it does, itself not violate or is perceived to
violate any of the rights in the Constitution?

These are difficult and complex questions that require jurisprudential responses
which I hope will help find permanent solutions to the constitutional challenges
that continue to arise in democratic jurisdictions. I am hopeful that the
meaningful inputs that will derive from the discussion will help shape our judicial
education training programme. This could not have come at a better time as
South Africa stands at the threshold of realising its watershed dream of
establishing a Judicial Education Institute for the training of judges and
magistrates. Not only will the Institute be a reservoir of judicial knowledge and
jurisprudence in Southern Africa and the Continent, but it will also facilitate an
exchange of knowledge with the rest of the world. That Institute, will be
managed by a Council and chaired by our Chief Justice, reflects South Africa’s
commitment to the independence of the judiciary. My predecessor and the Chief
Justice have worked tirelessly for the realisation of this dream.

I wish you well in your deliberations over the next few days and may I, then on
behalf of the South African government and the people of South Africa welcome
you to our beautiful country. I hope that in your busy schedule you will find time
to enjoy the many beautiful sights among which are Table Mountain and our
historical world heritage site, Robben Island.

Please enjoy your dinner.

I thank you!