Theme: We the people of South Africa: Recognizing the supremacy of the Constitution and the Rule of Law
Premier David Makhura
Justice Albie Sachs, former Justice of the Constitutional Court
Hon. Lechesa Tsenoli
Advocate Bongani Majola, Chairperson of the Human Rights Commission
Advocate Mashabane, DG of Justice and Constitutional Development
Ladies and Gentlemen
It is a singular honour and privilege that today am joining you and all South Africans at home and abroad to celebrate 25 years since our Constitution came into effect. This Constitution is clearly a product of many years of struggle, which came against the backdrop of a history of apartheid, a central feature of which was inequality based on race. We remember and honour those South Africans who were the architect of the Supreme law of our land. Some of them have passed on but left us a legacy that we and the next generations will forever treasure because it marked the break from our colonial and apartheid past.
Interestingly, this event takes place when the Judicial Services Commission is undertaking interviews of men and women who have availed themselves for the post of Chief Justice in our land.
This has meant that our Minister of Justice is unable to be with us today, due to this mammoth task of searching for the Chief Justice, who will be the head of the judiciary and also faced with a responsibility of establishing and monitoring of norms and standard for the exercise of the judicial function of all the courts.
This very institution, the JSC is a product of a transformative legislation anchored in the roots of our Constitution. This very institution includes the participation of the legislature, the legal professional bodies and the Heads of Courts. The manner in which the process of interviews is done is transparent, allowing citizens to get a glimpse of who is the next judicial officer and for which layer of the court.
We wish those entrusted with this task the necessary wisdom as they make the recommendation of our Chief Justice, who will be the head of the judiciary in South Africa, clothed with the responsibility of exercising final authority over the functioning and management of the courts in our country.
Today's event offer us an opportunity to reflect on how this Constitution has contributed to the transformation our Country and the lives of her people.
Our country comes from a divided past which was reflected in racial, gender and other forms of discrimination. Such division left no institution untouched. Its impact will require a mindset change from all of us and in all three Arms of State. In essence transforming our society is our collective responsibility as public representative, the legislature, judiciary, and the private sector.
The preamble of our Constitution seek to: “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights” This preamble characterizes the past that we seek to change and a society we want to build. In doing so , certain principles are fundamental in guiding all arms of State on how we can put the building blocks for a new society that we all yearn for. This society must be anchored around the values of our Constitution, such as human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism, and non-sexism.
Chapter two of the Constitution is our Bill of rights, which is a cornerstone of democracy in South Africa. The Bill of rights, sets the basic inalienable rights that each citizen must enjoy. It is in this Bill of rights that certain responsibilities are given to the different arms of state on how we can go about in ensuring that such rights are realised by our citizens. In Section 25 of the Constitution the right to land, property and other natural resources are enshrined and also a framework on how the government can ensure the realization of such a right.
The test of our success or failures have been reflected in amongst others the judgements of our courts where adjudication has taken place. In remaining on the land issue, certain judgements have been made that are fundamental in changing our inherited statutes.
The case of inheritance in a customary land tenure is one such a piece of legislation that has shown how the exercise of our Constitution can challenge the patriarchal tendencies in our legislation, norms and practices.
The recently amended Upgrading of Land Tenure Rights Act will ensure that applications for the conversion of land tenure rights to ownership are realised in a manner consistent with the Constitution and the values it espouses. The amendment will make it easier for women, who most of them come from a rural setting to have a right to be bequeathed with land and property in equal terms like their men counterparts. Our progressive Constitution has ensured that the conversion of this right reflects the value of human dignity.
To illustrate the progressive nature of our Constitution, in one of ethe judgements of this court, which was delivered by Justice Jacoob in 2000, in the famous case of the Government of the Republic of South Africa and others v Grootboom and others. This case, grappled with the realisation of the state’s constitutional obligations in relation to housing, a constitutional issue of fundamental importance to the development of South Africa’s constitutional order.
When delivering judgement in this important case, Justice Jacoob said: “ the issues here remind us of the intolerable conditions under which many of our people are still living…” Justice Jacoob further said: “… it is also a reminder that unless the plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions. This case brings a harsh reality that the Constitution’s promise of human dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the country’s shortage”.
Of more interest is the equality clause in section 9 of our Constitution that sets a standard for the attainment of an egalitarian society, by recognizing that everyone is equal before the law and has the right to equal protection and benefit of the law. It is important to note that this equality includes the full and equal of all rights and freedoms. This Supreme law of the land has enabled us to bring matters to our courts in protection of our individual basic human rights and that of groups.
The egalitarian society which our Constitution seeks to create is illustrated in the case of Hoffman v South African Airways, this case concerns the constitutionality of South African Airways’ practice of refusing to employ as cabin attendants’ people who are living with the Human Immunodeficiency Virus (HIV). There were 2 critical questions to be answered in this case, the first one being whether is such a practice inconsistent with any provision of the Bill of rights and the second one was that if the answer to the first question is in the affirmative, then what should be the appropriate relief. Justice Sandile Ngcobo delivered a unanimous decision on behalf of this Court and held that the South African Airway’s practice constituted unfair discrimination and ordered that Mr Hoffman be employed as a steward for as long as his health permitted. This judgement is an illustration that at the heart at the prohibition of unfair discrimination is the recognition under our Constitution that all human beings, regardless of their position in society, must be accorded equal dignity. The dignity is impaired when a person is unfairly discriminated against, and this is what our Constitution guards against.
There are many examples that each one of us can site that shows the new norms and values that our Constitution has brought to society, such as the value of human dignity, equality, and freedom.
As we seek to change, new challenges emerge and demand new lenses and new ways in which we must tackle and change. Some of the changes has put to test some of the Constitutional provisions and new and uncharted ways of adjudicating on such matters emerge.
The Kollapen Judgement on District 6 did not only unravel one of the early settled Land Restitution Claim. The judgement reflects on how the adjudication of cases in our Constitutions dispensation also take into consideration the transformative elements of our Constitution. This case had to do with the desire of the District 6 claimants to resolve and to bring to finality their claims to restitution, which arouse out of the forced dispossession of their homes and properties in District 6. In his judgement, Justice Kollapen, who was also recently appointed to this court, said: “ The advent of constitutional democracy brought with it the hope that, to the extent possible, the suffering caused to this community would be recognised and appropriate mechanism would be put in place to bring justice to those affected”.
The other matter of interest was the judgement on Labour tenants, popularly known as the Mwelase judgement, in which the Constitutional Court affirmed the decision of the Land Claims Court which created the office of the Special Master whose role would be to supervise government in the speedy resolution of labour tenants claims. The main question that the Court had to answer in this case was whether the decision of the Land Claims Court constitutes a “textbook case” of judicial overreach. In his introductory parts of the judgement, Justice Cameron said: “… this court stressed that land and dignity were fundamental to realising other constitutional rights. Land reform could be “a catalyst for structural change in our society”,…” This, again is demonstrative of the progressive nature of our Constitution, which we celebrate today. At times, such judgements have caused debate in society as we grapple with understanding this very Constitution. What comfort us however, is that, when interpreting the Bill of Rights, a court, tribunal, or forum is required to promote the values that underlie an open and democratic society based on human dignity, equality and freedom.
Interestingly, some of the debates in the legal profession has been transformative continentalism. Former Chief Justice Langa and Justice Mbenenge in their articles on transformative constitutionalism raises very interesting views about the role of the judiciary in such transformation.
The late Chief Justice Langa also raises the issue on the legal culture of the past and how these if not transformed can leave our transformation agenda .
Mbenenge on the other hand raises the importance of infusing the values of our Constitution in the preparation and schooling of current and the new legal professionals.
Like all of us we have to unlearn some of the norms and values of our colonial and apartheid past not once or twice but continuous as we face new challenges.
As I close, it is important for all of us to recognise and respect the supremacy of our Constitution and also acknowledge that law and conduct inconsistent with it is invalid and the obligations imposed by it be fulfilled. If we all espouse the values enshrined in our Constitution, we would achieve what the Constitution sought to achieve, which the protection of the vulnerable and the creation of an egalitarian society.
I thank you.