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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at the Final Round of the Third National Schools Moot Court Competition, held at the Constitutional Court of South Africa, on Sunday, 11 August 2013

Good Morning everybody
It is a pleasure and privilege to be here today to participate in the 3rd National Schools Moot Court Competition.

I am reminded of a quotation from President Nelson Mandela who in 1995, in a letter to the organizers of the African Human Rights Moot Competition, wrote:

“One could hardly think of a better way to advance the cause of human rights than to bring together students—who are the leaders, judges and teachers of tomorrow…”

On behalf of the Department of Justice and Constitutional Development I would like to extend our gratitude to the organizers of this event, the University of Pretoria, in collaboration with the University of Venda, the Department of Basic Education as well as the Foundation for Human Rights, which is the implementing agency of the Access to Justice and Promotion of Constitutional Rights Program of my Department.   

We are pleased and encouraged to note that the National Schools Moot Court Competition is increasing in popularity and participation every year. The involvement of members of the judiciary, the Legal Profession and Juta Publishers must also be commended.

When the Department of Justice and Constitutional Development was approached to support the initiative, we embraced the opportunity. Improving access to justice is one of the most important tasks of the Department and one of the greatest challenges we face. How do we ensure that each and every one of our people, rich or poor, urban or rural, adult or child, is able to access the justice system and be ensured of the rights and protections that it provides?

The Department has a programme called “Access to Justice and the Promotion of Constitutional Rights”, which is funded by the European Union and implemented by the Foundation for Human Rights.  Under this programme the Department has been working with civil society on improving access to justice for vulnerable and marginalised groups, improving awareness and knowledge of constitutional rights in South Africa; and enhancing participatory democracy through public policy dialogues and strengthening civil society organisations.

As there are so many young people, here today, I would like to take a few steps back and talk about our past as it informs the type of society we live in today.

The opening line of the novel The Go-Between by LP Hartley reads: “the past is a foreign country: they do things differently there.”   The same can be said of our own country’s past - a time of injustice, before the advent of democracy. Things were very different and we often forget just how different they were.  It was a society where the vast majority of South Africans were excluded from not just from voting but could also not decide in which areas they wanted to live, where people could not marry freely, where there were separate beaches – the better ones - for whites and the rocky beaches for blacks, separate entrances to the post office, separate benches in parks and so forth.  Today it seems unimaginable. 

The bedrock of our democracy is our constitution which is informed by the values of social interdependence and Ubuntu. It takes cognisance of our divided past and it is viewed as one of the most progressive constitutions in the world.  Last year, US Supreme Court Judge Ruth Bader Ginsburg said in an interview:

“I would not look to the US Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa.”

But in the same interview she also said,

“If the people don’t care, then the best Constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the Constitution. “

It is our Constitutional Court which has the final say on the interpretation of the Constitution.  The reason we have so many levels of courts is – as you have seen from the split decision in the Moot Court Judgement today – because judges can hold different views on a matter.  The Constitutional Court hears a case and takes a decision en bank which means all of them or at least 9 of the 11 Judges sitting together.  The Constitutional Court judgments have been far-reaching and have made a significant impact on various aspects of the daily lives of ordinary South Africans. You may have come across some of these judgments in your research, such as the case Government of the RSA v Grootboom, which deals with the right to shelter and housing; or the case of Soobramoney v the Minister of Health, Kwazulu Natal, which addresses the right to health care and emergency medical treatment; or the matter of Khosa v The Minister of Social Development which give permanent residents the right to access social grants.

Rights such as the right to housing, water, health care and education are called socio-economic rights.  If socio-economic rights are not accessible to our people, then the better life, that our Constitution envisages for all our people, will simply not be achievable. In our present society where poverty and inequality is a reality, the inclusion and enforcement of socio-economic rights is vital.  

In addition to socio-economic rights, our Constitutional Court often has to adjudicate on matters that affect learners, and their constitutional rights. In fact, this court has recently had to examine a matter which is very similar to that of Nadia September and Tsepo Mashaba – the case that was argued in the Moot. In the recent matter of Head of Department, Department of Education Free State Province v Welkom High school and another the Constitutional Court handed down judgment in a case that concerned learner pregnancy policies and the powers of the Provincial Education Department to instruct principals to ignore these policies.

In another matter before the Constitutional Court, namely that of MEC for Education; Kwazulu-Natal and others v Pillay  the Court once again had to adjudicate on the fundamental rights of a learner.  In this case, the Constitutional Court heard an appeal from the KwaZulu-Natal High Court concerning the right of a learner to wear a nose stud to school.  In 2004 Sunali Pillay returned to Durban Girls’ High School from the spring holiday with a small nose stud.  This was not very popular with the school which told her to remove it.  Her mother took the matter the Equality Court alleging that the school had unfairly discriminated against Sunali and had violated her religious and cultural rights as a Tamil and a Hindu

The Equality Court found that the school had not unfairly discriminated against Sunali.  On appeal, the High Court overturned the decision, finding that the school had discriminated against Sunali and that the discrimination was unfair.   

Finally, there’s the matter of Le Roux and others v Dey.
Three high school learners – boys -  created and published a computer-generated picture in which the face of Dr Dey, who was then the deputy principal at their school, was super-imposed alongside that of the school principal, on an image of two naked men.

Dr Dey sued for defamation and injury to his feelings. The High Court upheld both claims. The Supreme Court of Appeal however held that to uphold both claims entailed an impermissible accumulation of actions and the appeal came to the Constitutional Court.

How would you have argued the matter? Which right is more important and which right should be limited? The deputy principal’s right to dignity or the learner’s right to freedom of expression? Could one argue that this was merely an example of “normal schoolboy behaviour”?

All of the above clearly illustrates that our human rights law is a vibrant, ever-changing field of study. It is not simply a list of empty promises on paper, but a real and practical subject that has a direct impact on the way human beings live their day-to-day lives. It is dynamic and adapts to meet the ever-changing needs and demands of our society.
If we are to strengthen our democracy we must work harder to make people aware of their rights and the rights of others.   By doing so we will be able to strengthen respect for human rights and fundamental freedoms and enable all persons to participate effectively in a free and democratic society governed by the rule of law.
Finally, it is said that a further aim of a moot court competition is also to encourage talented young people to consider pursuing a career in law.  As the Minister of Magic asks Hermione in Harry Potter and the Deathly Hallows:

“Are you planning to follow a career in Magical Law, Miss Granger?”
“No, I’m not,” retorted Hermione. “I’m hoping to do some good in the world!”
As an aside, I wonder if Harry Potter has ever been quoted before in this Chamber!

There are many excellent jurists who are doing a lot of good in the world we live in today; lawyers who have changed the lives of ordinary people and have changed the societies in which we live.

I wish to take this opportunity in congratulating the winners of this competition and all of you who have participated. I hope to see you one day on the Bench of the Constitutional Court, perhaps the future Chief Justice of South Africa, or perhaps legislative drafters in the Department of Justice and Constitutional Development, State Prosecutors, State Law Advisers or human rights’ lawyers.  I hope that you will leave here today inspired by our Constitution and by its vision to create a better life for all our people.

I thank you for your attention.