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Speech by Minister of Justice and Correctional Services, Michael Masutha, MP, (Adv) on the occasion of the farewell function for the President of the Supreme Court of Appeal, Justice Lex Mpati, Bloemfontein, 20 August 2016

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Chief Justice Mogoeng Mogoeng;
Deputy Minister John Jeffery
President of the SCA; Mr Justice Lex Mpati and his wife Mrs Nontobeko Mpati
Retired Justice of the SCA; Mr Justice Fritz Brand and his wife Mrs Elaine Brand
Newly appointed Justice of the Constitutional Court Madam Justice Mhlantla
Justices of the SCA;
Members of the Judiciary;
Members of the legal profession;
Families of Justices Mpati, Brand and Mhlantla;
Distinguished guests, Ladies and gentlemen

It is with great pleasure to be here this evening, on this very important occasion as we bid farewell to Justices Lex Mpati and Fritz Brand after such a long and illustrious career in the legal profession. I am saddened that with their retirement, the bench will undoubtedly lose excellent and memorable judges.  Upon receiving his profile as I prepared the speech for today, I was struck by the opening words that simply asserted the humble background in the rural village of Fort Beafort in the friendly province of the Eastern Cape. In spite of his disadvantaged background, Justice Mpati’s achievements are remarkable.

Justice Mpati is one of few South Africans who could not be deterred by any challenge in their pursuit for greatness. I have been reliably informed that while attending the St Joseph’s Catholic School in Fort Beaufort, he walked 5km every day to and from school. In addition to this exercise, where most gave up, Justice Mpati had to fulfil his duty as a cattle minder, looking after his family’s cattle. You will all agree that his humble background was demonstrated throughout his career as he displayed humility and kindness while sitting on the bench. All practitioners who appeared before him were surely comforted by that inviting smile that characterised his personality even though they would be subjected to a grilling interrogation as they fought for their clients.

Despite all this hard work in the pursuit of education, Justice Mpati’s journey to the bench was not easier. Very few would know that prior to his role in the legal fraternity, Justice Mpati worked as a petrol attendant, barman, salesman and taxi driver.  It was at this time that his commitment to the course of justice was reignited as he was forced to defend himself against the allegations of operating the taxi  illegally. While many had to spend time in jail after they had been arrested for various offences, Justice Mpati defended himself successfully during the trial and was acquitted.

Zotsho, Gema, Gengesi, Nonzaba, Sango lijongeMbo, allow me to address you directly not out of disrespect but because this is probably the only opportunity I will ever have to pay tribute to you and Justice Brand.

Most in the legal fraternity have never doubted your commitment in the promotion of human rights and willingness to serve the people. I am told that you used to attend court cases and got upset when people were sent to jail simply because they couldn’t ask the state witnesses the right questions. It was clear to you that the justice system was simply not working well and too many people were going to jail. What is remarkable about your story is that you decided to study law not for money but to ensure that access to justice is realised. This was later demonstrated in your extremely balanced judgments during your tenure as judge, and one such judgment is Hlantlalala v Dyantyi NO 1999 (2) SACR 541 (SCA), where you observed that at common law, an accused had a right of accused to be advised of his right to legal representation, and in particular of availability of legal aid through Legal Aid Board. To many of us, you are such an inspiration, especially as you had to overcome many adversities to serve in one of the apex courts of our land.

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This keen rugby player who now plays social squash has excelled in all positions he has occupied, from serving at the dawn of democracy in the delegation to Chile to study Truth and Reconciliation Committee, to being a member of the Trengrove Commission that determined the border between the Eastern Cape and his province of birth Kwazulu-Natal.

I am fortunate to have served with him at the Judicial Services Commission (JSC) where his leadership skills benefitted the JSC immensely when the Chair was not available. He made a meaningful contribution to our jurisprudence as member of the Judicial Education Planning Committee, subcommittee of the JSC. His academic prowess was recognised as he was appointed Chancellor of Rhodes University where he was also an external examiner. He put all these accolades to good use in his sterling years serving the justice system in his capacity as practising attorney, advocate and judge.

On his appointment as Chancellor of Rhodes University, Vice-chancellor Dr Saleem Badat said: “Judge Mpati personifies the values we embrace at Rhodes: of rising above self; of modesty, commitment and excellence; and of ethical behaviour. His is an inspiring story and we are honoured to have him as our chancellor.” As the justice department and government, we concur and will forever be grateful for the dedication he showed during his period on the bench.

During a lecture he delivered at the University of Pretoria on 29 October 2008, he said “Although they are, like other citizens, entitled to freedom of expression, belief, association and assembly, judges must always conduct themselves in such a manner as to preserve the dignity of their office. In this way the respect and confidence inspired by their independence and impartiality shall in my view be guaranteed. But the state on the other hand, has a duty to respect, protect and promote the independence of the judiciary as without it there can be no genuine democracy and thus no prosperity." he has displayed this characteristic during his term as presiding judge and President of the SCA. I am advised that he once sat in court when the former Chief Justice of the SCA, as he was called then, Ishmail Mohamed defended my cabinet colleague, the current Minister of Rural Development, Gugile Nkwinti in Grahmstown from the ruthless apartheid regime and that inspired him to become the brilliant jurist that he is as he ended up working under him at the SCA which he ended up as its President.

Much of his practice as an attorney coincided with the troubled times in the Eastern Cape in the late 1980s, and he was one of the few practitioners committed to the unfashionable work of representing the interests of far-flung communities throughout the Karoo, whose cases never made the headlines, but whose rights were as important as those whose cases caught the attention of the media.

Turning to Justice Brand, it is clear that choosing law was not by chance but by choice, and that academia and practice prepared in him a judge who could appreciate the intricacies and the practical reach of the law. An entire evening would not be enough to go through the manner in which Justice Brand has contributed to the judiciary. His involvement in the training of acting judges also does not go unnoticed. On behalf of government and the entire justice family, I take this opportunity to extend my earnest appreciation to Justice Brand for his eminent contribution to the SCA and to the legal profession, which will be remembered forever.

Ladies and gentlemen,
Allow me to point out that the issue of access to justice remains our foremost preoccupation as it is both a historical mission and a contemporary imperative, arising out of the persistent challenges to ensure justice for all our people. The courts remain the coalface in delivering justice, and to ensure that this happens efficiently and effectively we relied heavily on the services of Heads of Courts across the country. One related point I must stress is that we remain committed to the independence of the Judiciary in our country because it is our considered view that for justice to be seen to be done it must be impartial of all social, economic and political stakeholders on the various conflicts litigated in our courts.

It is for this reason that following the Presidential proclamation in 2010 with regards to the autonomous administration of the judiciary through the Office of the Chief Justice, we have moved with speed to ensure that all court administration are ultimately administered by the judiciary. This is because we have the view that indeed it could be true in many instances that court administration with regards to efficacy and efficiency can be linked to the essence of the attainment of justice in line with the injunctions that stipulates the separation of powers amongst the three arms of the State, and those being the Judiciary, the Executive and the Legislature. 

As further steps to ensure efficient and effective administration of justice through our courts, we have continued to embark on delivering more court buildings and closer to the people, particularly the poor many of whom were historically disadvantaged by apartheid. We are proud that the people of Limpopo now have a state of the art High court which commenced operation in January this year. The construction of the Mpumalanga High court is at an advanced stage and we hoping that it commence operation in the next financial year. 

Ladies and gentlemen
It is often said that it is not over until the fat lady sings hence now I turn to Madam Justice Mhlantla. She is the third woman judge on the Constitutional Court. Her appointment will go some way towards quelling criticism that the Constitutional Court was one of the least transformed in terms of gender. She was appointed as a judge in 2002 and to the Supreme Court of Appeal in 2008. She also had the longest acting stint at the Constitutional Court in Braamfontein and is known for the judgments she penned as an acting justice of the Constitutional Court. One of these was her judgment in the Rivonia Primary School case, a highly charged matter about the school’s refusal to admit a child. This led to a power tussle between the provincial government and the school’s governing board. Her judgment has been praised for carefully balancing the rights and obligations of the role-players, holding that while the provincial education department had control of admissions, its power had to be exercised reasonably. Madam Justice Mhlantla, we congratulate you and wish you well in your role at the highest court in the land.

Justice Mpati, we are grateful to your family who generously allowed us to share your time especially your wife sis Nontobeko and your children Lyle, Dawn, Kudi and Demi-Lee. Mrs Elaine Brand, thank you for being the woman behind this brilliant jurist. However, we are looking forward to your continuous support and guidance as we will occasionally recall you from retirement to assist as and when necessary.

I thank you.