Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Finals of the National Schools Moot Court Competition, Constitutional Court, 8 October 2017
Justices Kollapen, Madlanga and Kathree-Setiloane;
Deputy Judge President Mojapelo,
Chairperson of the South African Human Rights Commission, Prof Majola
Former United Nations High Commissioner for Human Rights, Judge Navi Pillay
Member of the UN Human Rights Committee, Prof Christof Heyns
Member of the UN Committee on the Rights of the Child, Prof Benyam Mezmur
Former Deputy Chairperson of the SA Human Rights Commission, Dr Zonke Majodina,
Adv Tembeka Ngcukaitobi
Representatives of Cliffe Dekker Hofmeyr
Participants in the Moot Court Competition, educators and parents
Ladies and gentlemen
It gives me great pleasure to be part of this prestigious event – our 7th annual National Schools Moot Court Competition.
The first annual National Schools Moot Court Competition took place here at the Constitutional Court on National Human Rights Day, 21 March 2011 and the event really has gone from strength to strength.
The competition, an important constitutional awareness initiative, is a collaboration between the University of Pretoria, the Department of Basic Education, the Department of Justice and Constitutional Development, the South African Human Rights Commission and the Foundation for Human Rights.
The National Schools Moot Court Competition has become extremely popular with learners. The aim of the competition is to create greater awareness in schools and communities in South Africa about the Constitution and the values that it embodies through active participation and human rights education.
And it is fundamentally important that everyone in our country knows their human rights and knows the Constitution.
The Constitution applies to nearly everything we do – we exercise our constitutional rights daily, often without even giving it a second thought.
The practical impact of the Constitution on people’s lives is far-reaching.
This is evident if one looks at some of the court judgments handed down in the past few weeks alone.
For example, the Jordaan decision that the Constitutional Court handed down recently has brought much-needed relief for many new homebuyers when the court found that municipalities cannot hold new homeowners liable for debts incurred by previous homeowners.
Imagine you are saving and looking forward to buying your dream house for you and your family, you get ready to move in, only to find out that the house cannot be transferred into your name because the previous owners, with whom you have nothing to do, owe an outstanding amount on their rates and services account.
In another recent case two elderly widows had been married to the same husband in terms of a Muslim marriage. When he passed away, they had to approach the Western Cape High Court because the deeds office refused to register a portion of their late husband’s home in each of their names.
The Court held that the Wills Act, which refers to a singular "surviving spouse," did not pass constitutional muster. The Court said that the Act should state that "A ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygamous Muslim marriage solemnised under the religion of Islam."
In other words if there are two or more wives in a polygamous Muslim marriage both will be protected by the law.
Another aim of this competition is also to provide a unique opportunity for learners to develop their research, writing and oral advocacy skills as they endeavour to come to grips with some of the constitutional issues that are presently facing our country.
A total of 159 teams submitted essays and 83 teams progressed to the oral provincial rounds. There are 38 teams in the national rounds, bringing it to 76 learners participating in the national rounds. The case that you were given to argue is, of course, a hypothetical case. But the issue of hair policies in schools has been the topic of much interest, as we’ve seen in the media. And there was a similar reported case of A v Governing Body, The Settlers High School, which is a 2002 case.
In the Settlers High School case, the learner became interested in various religions at an early age and decided to embrace the principles of the Rastafarian religion. One of these principles is that Rastafarians are required to grow their hair into dreadlocks and that Rastafarian women should cover their heads.
During the first school term the learner and her mother approached the headmaster of the school on several occasions for permission to wear dreadlocks and a cap, as an expression of her religion, while attending school. When no permission ensued, her religious convictions prompted her to attend school with a black cap covering her dreadlocks. The cap was crocheted by herself and matched the prescribed school colours.
The school said that she was acting in conflict with the school's code of conduct and regarded her defiance of school rules and authority as a disciplinary matter requiring referral to the governing body of the school. She was then summoned to attend a disciplinary hearing. At the hearing the learner was charged with serious misconduct.
The Court set aside the finding of misconduct. Importantly, the Court emphasised a spirit of mutual respect, reconciliation and tolerance. It held that:
“The mutual respect, in turn, must be directed at understanding and protecting, rather than rejecting and infringing upon, the inherent dignity, convictions and traditions of the offender.
Most importantly adequate recognition must be given to the offender's need to indulge in freedom of expression, which may or may not relate to clothing selection and hairstyles.”
The right to religion, to cultural expression, to language and so forth are but some of the many human rights we find in the Bill of Rights.
All of these aspects make us who we are – unique human beings. And the Constitution seeks to protect us from discrimination and prejudice when others infringe these very rights that make us who we are.
We are increasingly living in a world that focuses more and more on difference, a world that it becoming increasingly intolerant.
It is for this reason that we are currently working on the new Prevention and Combating of Hate Crimes and Hate Speech Bill. The Bill aims to prevent and combat hate crimes and hate speech that are based on race, gender, sex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, HIV status, nationality, gender identity, intersex, albinism and occupation or trade.
Nationality, gender identity, HIV status, albinism, intersex and occupation or trade are not mentioned in section 9(3) of our Constitution - but it has been argued that they should be included in the Bill because of the hate crimes that have been committed on the basis of these grounds. We are hoping that by passing this legislation persons will think twice before making racist, sexist, homophobic or any other discriminatory utterances or engaging in any discriminatory conduct.
I want to thank all the various institutions and persons who work and contribute to make this competition a success year after year.
I also want to encourage law firms and legal practitioners to “adopt a team”. If we can succeed in getting legal practitioners around the country to consider serving as coaches to the learners of a school in their vicinity, and help the learners who want to participate in the competition to do so, it will be a significant way of giving back to their communities.
Legal practitioners could assist in guiding them in the preparation of their essays, and if they are selected for the further rounds to help them to develop the skills to speak in a court of law with confidence.
I will definitely be encouraging legal practitioners and legal bodies such as the various law societies and bar councils to get more involved in this competition.
A couple of visits to the school - or inviting the learners to one's office where appropriate - will in many cases already make a huge difference.
We have found that lawyers of all backgrounds who have in the past done such coaching - advocates, attorneys, judges, magistrates, prosecutors and others - have found it to be an enormously rewarding experience, and an opportunity to make a direct contribution towards making our democracy work.
I want to congratulate each and every one of you on your remarkable achievements in this competition.
I know that in a few years from now, many of the judges that you see here today will still be on the bench and many of you will be appearing before them, in this court, as attorneys or advocates.
For those of you who plan to embark on studying law, there is a saying in legal circles, that many candidate attorneys are taught, namely “If you can’t convince them, confuse them…”
I can assure you from personal experience that that does not work….
I want to wish you all the best – for your school career and your future studies. You have been given a talent. Harness that talent and use it to greater good of society. As the late President Nelson Mandela said:
“A good head and good heart are always a formidable combination. But when you add to that a literate tongue or pen, then you have something very special.”
I thank you.