One of the pillars of peace, stability and order
The African National Congress has throughout its existence promoted human rights, justice and human dignity. These were among the key issues that were at the heart and core of our struggle.
After the defeat of the African kingdoms, the South Africa Act of 1909 created a racially discriminatory legal order that formally deprived black people of civil and political rights, land and its natural resources.
Meanwhile, the founders of our democracy were evolving an alternative vision of South Africa. In his address titled 'Upon My Native Land' in 1892, John Langalibalele Dube called for a free, spiritual, humane and prosperous Africa. Pixley Isaka Ka Seme echoed this call in his speech on the Regeneration of Africa in 1905 at Colombia University in the United States, calling for African renewal.
ANC President ZR Mahabane challenged the colonial status of the African people in terms of which they were treated not as adult citizens with full rights but as children to be spoken for and controlled, in his seminal speech entitled 'We Are Not Political Children' in 1921.
In 1923 the ANC became the first political organisation on the continent to adopt a Bill of Rights, which laid the basis of future development of the human rights perspectives and liberation struggle. We became the first national liberation movement to develop a home-grown human rights culture ahead of the international community. The United Nations only adopted the Universal Declaration of Human Rights in 1948.
The principle of humanity (Ubuntu-Botho) and its inherent values of freedom, equality and justice for all people irrespective of race, gender or social status contained in the 1923 and 1943 Bills of Rights informed the formation of the Congress Alliance.
The Freedom Charter recognised the courts as an important branch of a just and democratic society. The Charter recognised that all matters for adjudication belong to the courts where it said: "All shall be equal before the law".
Our former President, Isithwalandwe Nelson Mandela, aptly outlined the society that we should live in from the dock during the Rivonia trial in 1964. He stated:
"During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination.
"I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal, which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die''.
In the mid-eighties when the country was ungovernable, the ANC issued 'Constitutional Guidelines for a Democratic South Africa', which contained its human-rights-based vision of a post-apartheid South Africa. The ANC also sponsored the Harare Declaration in 1989, which laid the foundation for a negotiated settlement and establishment of democratic institutions.
All these ideals were consolidated by the adoption of the Constitution in 1996. Among the key principles in the Constitution is that of the separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.
We all accept that the judiciary is the final arbiter of all disputes. An order or decision of the court binds all persons and organs of state. Today, we rank among the most democratic and just societies in the world, due to clauses such as Section 165 of the Constitution, which provides that:
- The judicial authority of the Republic is vested in the courts.
- The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
- No person or organ of state may interfere with the functioning of the courts.
- Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
The ANC has never and will never advocate any other way of ensuring proper or appropriate checks and balances. Section 34 of our Constitution states that dispute resolution institutions must be independent and impartial. However, that does not mean that the judiciary and other dispute resolution institutions should be beyond criticism.
Criticism of the said institutions is allowed and is proper in a democratic society. It is only in dictatorships and autocracies where criticism is viewed with contempt. The test for such criticism put simply has always been that of being fair and informed. The late Chief Justice Ismail Mahomed provided clarity when he said:
"Judges must consciously accept the risk that their judgments in crucial areas may be subject to vigorous attack and criticism. This should cause them no distress.
"A viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination. What they are entitled to and demand is that such criticism should be fair and informed; that it must be in good faith, that it does not impugn upon the dignity or bona fides and above all it does not impair their independence, because judges themselves would not be the only victims of such impairment."
What is clear from the passage, among other things, is that the judiciary is one of the pillars of our peaceful, stable and orderly coexistence. To destabilise it will mean we are cutting our noses to spite our faces.
It is unavoidable that tensions will now and again arise between the courts and the executive; the courts and the political parties; the courts and the individuals, and so on. Such tensions would sometimes express themselves in utterances that are on the face of it unpalatable.
The second leg of the provisions of section 34 of the Constitution is that the institutions of justice should be impartial. It is therefore important to find ways of alerting the dispensers of justice to their possible prejudices, which may adversely impact on their judgments.
This is essential as it minimises the risk to unwittingly bring one's bias to bear on the judgment, thereby stifling access to justice in criminal and civil disputes.
Access to justice is not necessarily the ability to walk to and reach the building where justice is administered. It only becomes complete when one's dispute is settled speedily, in an unbiased manner and when one feels he or she has had access to qualitative justice.
Our concern as the ANC is the failure to have cases or disputes processed and resolved speedily. Justice delayed is justice denied: so goes the proverb. As a country we have made great strides in promoting access to justice in our country, but clearly, more still needs to be done. Whatever we do, we must ensure that we maintain the integrity of our institutions.
When we comment about the pace of transformation in the judiciary, it is not because we want to infringe on its independence. The intention is to ensure that it represents the demographics of the democratic state.
The transformation of the judiciary is not just about the numbers on the Bench and changing its composition. It is also about inclusivity and the broader representation of women in the whole legal fraternity.
A caring society that we seek to build must be underpinned by a criminal justice system that respects and upholds the rules of natural justice, which say that: No one must be a judge in their own cause; the administrators of justice must hear the other side before they judge. These rules are the bedrock of criminal justice in a democratic society.
The task of the women and men on the bench is to ensure that the supremacy of the Constitution and the rule of law prevail.
As the ANC, we reiterate and affirm our belief in the rule of law, the independence of the judiciary and the constitutional mandate of our judiciary to be the final arbiters in disputes. We will never undermine these institutions, we seek to protect and strengthen them, as the ANC has always done since 1912.
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