Hansard: Joint Sitting: Farewell to former Chief Justice Sandile Ngcobo and welcoming of Chief Justice Mogoeng Mogoeng
House: Joint (NA + NCOP)
Date of Meeting: 31 Oct 2011
Summary
No summary available.
Minutes
Tuesday, 1 November 2011
Proceedings at joint sitting
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Members of the National Assembly and the National Council of Provinces assembled in the Chamber of the National Assembly at 14:08.
The Speaker of the National Assembly took the Chair and requested members to observe a moment of silence for prayers or meditation.
JOINT SITTING TO BID FAREWELL TO CHIEF JUSTICE SANDILE NGCOBO, AND TO WELCOME CHIEF JUSTICE Mogoeng Mogoeng
The SPEAKER: Hon member, please note that the co-ordination system for the safe that keeps the Mace has jammed. The Mace will be brought in as soon as this matter is resolved.
The Speaker: Order! Hon members, the President has called this Joint Sitting of the National Assembly and the National Council of Provinces in terms of section 42(5) of the Constitution of the Republic of South Africa, read with Joint Rule 7(1)(b) of the Joint Rules of Parliament, in order to bid farewell to former Chief Justice Ngcobo and to welcome Chief Justice Mogoeng Mogoeng.
Hon members, it is important to note that we have today, represented in the House, the three arms of state, namely the executive, the judiciary and the legislature. While each of these arms of democracy has distinct functions, they nevertheless work together to give effect to the constitutional provisions that underpin our democracy.
The President, political parties and the two Chief Justices will participate in the Joint Sitting. I now call on the honourable President of the Republic to address the Joint Sitting. [Applause.]
The PRESIDENT OF THE REPUBLIC
The SPEAKER
The PRESIDENT OF THE REPUBLIC: Hon Speaker, the Deputy President of the Republic, Deputy Speaker, Chairperson and Deputy Chairperson of the National Council of Provinces, Chief Justice Mogoeng Mogoeng, Deputy Chief Justice Dikgang Moseneke, former Chief Justice Sandile Ngcobo, Ministers and premiers, Deputy Ministers, the President of the Supreme Court of Appeal, heads of courts and members of the judiciary, heads of Chapter 9 institutions, hon members, distinguished guests, I called this Joint Sitting of Parliament to enable the three arms of the state: the executive, the legislature and the judiciary to bid farewell to former Chief Justice Sandile Ngcobo, and to welcome honourable Chief Justice Mogoeng Mogoeng.
The coming together of the three arms of state for such an event is a joyous occasion. It is recognition of the fact that in 17 years of democracy, our institutions stable, fully functional and working to promote and protect the rights of the people of South Africa.
We are reaffirming that we have an independent judiciary that can be trusted by our people to be the final arbiter in disputes in our society. We are also, in essence, celebrating the Constitution of the Republic, which underscores the independence of the judiciary, and affirms the rule of law.
These are some of the gains made of the freedom we obtained in 1994, after a tireless struggle waged by generations of freedom fighters. [Applause.] As government we promote and underscore judicial independence and also value the co-operation and relationship we have with both the judiciary and the legislature. It is with that background in mind that we today honour two compatriots who have served our people in the judiciary for many years.
Hon Speaker, hon Chairperson, today we pay tribute to former Chief Justice Ngcobo for his contribution to our country's jurisprudence and the promotion of access to justice for all, and we welcome Chief Justice Mogoeng. Former Chief Justice Ngcobo's passion for access to justice was formed at an early stage in his career.
As an attorney-at-law, he handled criminal cases involving issues such as the ejection of tenants from townships; the forced removals of black communities to the homelands; influx control laws; police torture and assaults; wrongful detentions; labour disputes; and the eviction of black squatters.
It is not surprising, therefore, that the transformation of South Africa's judicial system and the promotion of access to justice served as key focal points of his short tenure as Chief Justice of the Republic. The former Chief Justice also paid specific attention to improving judicial governance and administration, as well as financial efficiency.
It was during his leadership that renewed hope developed that the Constitution Seventeenth Amendment Bill and the Superior Courts Bill, which have been under discussion for more than 14 years, would finally see the light of day. The Bills are now before Parliament.
Hon members, the strengthening of the judicial governance arrangements are another example of the high-level contribution made by former Chief Justice Ngcobo. He has played a pivotal role in the finalisation of the Judicial Code of Conduct. I am advised that the ad hoc committee appointed by Parliament will soon finalise the code.
The code will serve as a shield for ordinary people who feel aggrieved by the conduct of judges when they appear in court. The code will also help to address the delays in finalising cases, and the challenge of judgments that are reserved for unreasonably long periods of time. This deprives litigants of access to justice.
Hon members, the July Access to Justice Conference hosted by former Chief Justice Ngcobo in July this year is still fresh in our minds. One key feature was that all three arms of the state were invited to participate. This augured well for promoting good working relations while maintaining the independence of each arm of the state.
Secondly, the conference adopted very profound resolutions in order to further strengthen the administration of justice, particularly ensuring that it is accessible to all our people. The promotion of access to justice that occurred under former Chief Justice Ngcobo's tenure was also evidenced by the successful campaign to reduce the number of long-outstanding cases on the court rolls. We applaud him for progress made. [Applause.]
There was a 9,7% in the number of outstanding cases, from 218 660 to 197 391, from March to June 2011. [Applause.] And there were further reductions from June to July this year. We therefore bid farewell to former Chief Justice Sandile Ngcobo on a high note as he has served the country in a very distinguished manner. [Applause.]
Hon members, distinguished guests, allow me to welcome Justice Mogoeng to this important and prestigious office in the judiciary. Looking for a Chief Justice is not an easy task. Judges, by definition, have to be beyond reproach if they are to be seen as fearless and impartial defenders of justice. These sentiments informed our choice of Chief Justice Mogoeng Mogoeng. [Applause.]
Chief Justice Mogoeng entered the public space under unprecedented public scrutiny, some of it intensely personal, and perhaps also unfair. [Applause.] The advantage of that spirited exercise is that South Africans have a Chief Justice that they know well, as his entire career was publicly scrutinised for two days.
His detailed response to the critics endeared him to many in the Republic, and convinced them that in his hands the highest court in the land was safe. [Applause.] As all attentive South Africans should know by now, Chief Justice Mogoeng has been a judge since 1997, serving first as a judge in the North West High Court, later as the Judge President of that court, then as a judge of the Labour Appeal Court and, finally, a judge of the Constitutional Court. In total, he has been a judge for more than 14 years. [Applause.]
Allow me to quote what the Chief Justice said during his public interview regarding his role:
As a judge I took the oath to be faithful to the Republic of South Africa, to uphold and protect the Constitution and the human rights entrenched in it and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.
Key to my oath of office is the obligation to uphold the foundational values of our constitutional democracy, which include human dignity, equality, freedom, transparency and accountability. As a judge of the Constitutional Court it is therefore my duty to uphold these values, and if I am appointed as the Chief Justice, I will continue to uphold these values.
[Applause.]
As Chief Justice Mogoeng worked closely with former Chief Justice Ngcobo, he has a good idea of the challenges that lie ahead. The two justices also share a passion for some of the key priorities, such as the transformation of the judiciary and the promotion of access to justice. They also share a strong belief in the separation of powers and the independence of the judiciary.
There is no doubt in our minds that Chief Justice Mogoeng will efficiently lead the campaign to continue reducing the backlogs in the courts, so that people do not wait for years before justice is served in promoting access to justice. In the North West, where he was Judge President, some judicial officers have embarked on working on Saturdays to reverse case backlogs in our system. [Applause.]
In addition, Chief Justice Mogoeng, in his capacity as the Chairperson of the North West Provincial Caseflow Management Forum, hosted annual conferences which looked at the efficiency and effectiveness of the justice system.
At a national level he chaired the Caseflow Management Committee, which reports to the Chief Justice and the heads of courts.
During his interview, his views on improving the functioning of the courts also came out clearly. We are then assured continuity and added vigour when it comes to improving our court systems.
I am also personally confident that under his leadership, the Constitutional Court will also connect more closely with ordinary people, especially the poor in rural and remote areas of our country.
Hon Speaker, hon Chairperson, in paying tribute to our former and current Chief Justice, we reiterate our firm belief in the principles of the rule of law, the separation of powers and judicial independence. Having said that, we also wish to reiterate our view that there is a need to distinguish between the areas of responsibility of the judiciary and the elected branches of the state, especially with regard to policy formulation.
Our view is that the executive, as elected officials, has the sole discretion to decide policies for government. [Applause.] I know that the last time we raised this point, we generated heated debate within the legal fraternity, some of whom did not see that it was actually an affirmation of the doctrine of the separation of powers.
This challenge is perhaps articulated clearly by Justice V R Krishna Lyer of India, who observed that:
Legality is within the courts' province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule.
In our view, the principle of the separation of powers means that we should discourage the encroachment of one arm of the state on the terrain of another, and that there must be no bias in this regard.
We respect the powers and role conferred by our Constitution on the legislature and the judiciary. At the same time, we expect the same from these very important institutions of our democratic dispensation.
The executive must be allowed to conduct its administration and policy-making work as freely as it possibly can. The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
We also reiterate that in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections. [Applause.] This interferes with the independence of the judiciary.
Hon members, esteemed members of the judiciary, as I conclude, allow me to reiterate that this is a day upon which we must collectively rejoice, because even if we have conflicts - which are many in this vibrant democratic society of ours - we have agreed on the fundamental platform for their resolution; that is through the Constitution of the Republic, as administered by our courts, at whose helm are the esteemed judges that we have in our midst today.
In congratulating former Chief Justice Ngcobo, we also recognise the contribution of all the members of the judiciary that he worked with. On behalf of government, let me extend our fond farewell to former Chief Justice Ngcobo ... [Applause.] ... and indeed a very warm welcome to Chief Justice Mogoeng Mogoeng. [Applause.] We look forward to working with Chief Justice Mogoeng and the legal fraternity in general to debate some of the issues we feel strongly about, and also in building and consolidating our democracy. I thank you. [Applause.]
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END OF TAKE
Mr L T LANDERS
The PRESIDENT OF THE REPUBLIC
Mr L T LANDERS: Hon Speaker, hon Chairperson of the National Council of Provinces, honourable President, hon Deputy President, honourable Chief Justice Ngcobo, honourable Chief Justice Mogoeng Mogoeng, hon Members of Parliament, distinguished guests, as the honourable President has said, we are gathered here to bid farewell to Chief Justice Sandile Ngcobo and to welcome new Chief Justice the honourable Mogoeng Mogoeng.
My presence in standing here in this forum is a particular privilege and honour. As the honourable President has said, this is an occasion when the three branches of government come together to reflect on their roles and expectations in relation to their shared and exclusive obligations, as entrenched in our Constitution.
The Constitution of the Republic states that the judicial authority of the Republic is vested in our courts. The Constitution further prescribes that the courts are independent and subject only to the Constitution and the law, which they must interpret and apply impartially without fear, favour or prejudice. It takes men and women of vision to be able to fulfil this role, and the two justices that are present with us today have displayed such vision.
Since his appointment as Chief Justice in 2009, Justice Ngcobo has served the Constitutional Court with extreme honour and dedication. Since his appointment, he has been at the forefront of transforming our judiciary, the result of which is that today we have an Office of the Chief Justice proclaimed by our honourable President in September 2010, with the status of a national department.
Chief Justice Ngcobo has displayed himself as an activist who embraces change and wants to actively participate in the process of change for the better, in recognition of the values of our constitutional democracy.
Throughout his stewardship, he has always made it clear that his intention is to ensure that courts function in an efficient, effective and accessible manner. The report-back given by the judge, at the Access to Justice conference earlier this year, bears testimony to the fact that the tenure of Justice Ngcobo has been a process of embracing change and moving forward with it.
Justice Ngcobo has contributed tremendously in maintaining and upholding the confidence of the public in our judicial system. As Justice Ngcobo said in his address at the Claude Leon Public Lecture:
The confidence of the public in the judiciary is of utmost necessity for the preservation of the rule of law, performance of judicial functions and ultimately for the preservation of our constitutional democracy.
If you were to ask me who Sandile Ngcobo is, I would have to refer to his curriculum vitae. His curriculum vitae, however, doesn't tell you much about the man. We are reliably informed, though, that he prides himself on his cooking and culinary expertise. [Laughter.] [Applause.]
On first impressions, he comes across as a very serious person who has little time for life's lighter moments. Again, we are reliably informed that behind that exterior, lies someone with a very good sense of humour, who enjoys a good laugh.
A story is told of a conversation Chief Justice Ngcobo had with a colleague who was the head of a court. This head of court informed the Chief Justice that he had been advised by his court manager to buy an overhead projector. Justice Ngcobo asked him what a projector is, to which the head of a court replied, "I don't know what it is." Justice Ngcobo then told the head of court that as he did not know what he was going to do with the projector, he did not need one. [Laughter.]
It is common knowledge that Justice Ngcobo is a very hardworking, dedicated, committed and caring person, who does not stand for sloppy work. We also know that he is very strict when it comes to deadlines. Those who have had the good fortune to have worked with him have benefited from his high work ethic and very sharp legal intellect. We are reliably informed that it is not easy to get a compliment from Justice Ngcobo, but when you do, you know that you have earned it.
As we bid him farewell, we thank him for the exceptional contribution he has made to the Constitutional Court during his tenure as its head, particularly with the transformation of our justice system and the profession itself.
Mapholoba, you have demonstrated bravery in your judgments. The jurisprudence you leave us with shall ever be a shining light on the path to a truly open and democratic society based on human dignity, equality and freedom. You demonstrated in the Bhe case that you believe that indigenous law has space to develop in South African law. When the majority abolished primogeniture, your minority counsel was that the defect can be cured by developing customary law, not by eroding it. Your view, Sir, was that violation of section 9 of our Constitution can easily be cured by excising the word male from primogeniture to enable female first-borns to inherit. In the Tongoane case, you made a compelling argument on how indigenous law was not only marginalised but mutated.
After investigating the defects in the now struck down Communal Land Rights Act, you demonstrated restraint and respect for the mandate of the legislative arm of the state by neither excising words nor reading words into the text, but by referring the legislation back to the legislature to cure those defects. Such leadership deserves applause, and we applaud you. [Applause.]
We are here to also welcome Chief Justice Mogoeng Mogoeng. Sir, we wish you all the best in this huge responsibility that you have undertaken. We believe that your extensive experience will prove invaluable as head of our judiciary.
As the honourable President has told us, the appointment of Chief Justice Mogoeng Mogoeng came about through a consultative process, in terms of section 174(3) of the Constitution. In terms of this process, the President bears the responsibility to consult the Judicial Service Commission and the leaders of opposition parties represented in this House, and thereafter the Chief Justice is appointed by the President.
This appointment is historically important, in that, as the President reminded us, it was a truly open, robust and transparent process. The Judicial Service Commission interview of Justice Mogoeng Mogoeng was open and broadcast on national television for all South Africans to view. We believe that this is a manifestation of the maturity and openness of our progressive government, led by the ANC. [Applause.]
Justice Mogoeng, your vision of the justice system has not escaped us and we stand in support of your intention to strengthen the traditional court system, deepen ubuntu values and develop ubuntu jurisprudence. Our Constitution aspires to a South Africa that is based on reconciliation and ubuntu values. Ubuntu favours the re-establishment of harmony in the relationship between parties, and that such harmony should restore the dignity of the plaintiff without ruining the defendant.
Your articulation of the trias politicais refreshing indeed. The common understanding of the substance of the separation of powers and the independence of the judiciary is that the judiciary is independent only from other arms of government. However, your expressed view is that the judiciary is also independent of pressure groups and other such civil-society formations, the media not excluded. [Applause.]
We think this observation is fundamental as we have seen a plethora of pressure groups seeking to use the judiciary to reverse the gains of transformation in the pretext of protecting our Constitution. Many of those who lose battles in legitimate democratic platforms seek to have a second bite through the judiciary.
We are persuaded that the judiciary should not lend itself to being easily involved in matters that are best solved by the democratic institutions of this country and their democratically elected public representatives.
We have heard your clarion call, Sir, in relation to the briefing patterns in the private and public sector that perpetuate the underdevelopment of black lawyers. This subsequently hobbles speedy transformation of the judiciary. It is your view - and we have but to agree with the logic of it - that government departments tend to procure the services of white attorneys and advocates in lawsuits. The downside of this propensity, as you argue, is that black lawyers are deprived of the necessary exposure to complex legal questions, through which, were they to be actively involved, they would develop and be poised to make a more strategic contribution, the judicial bench not excluded.
Transformation of the judiciary and the justice system is our commitment, and with the powers vested in us by the Constitution, as we exercise oversight, we shall not falter in ensuring that substantive transformation is a reality for all our people.
With those words we say to you both, "Hamba kahle Fuze, Mapholoba, we are grateful for your diligent service and know that as a patriot you will continue serving your country with distinction."
Setswana :
"Re a go amogela Rre Moegong. Ntlo eno ke ya rona rotlhe."
English:
We are confident that the justice system of our country will grow from strength to strength. We are now faced with the task of continuing with the reforms that need to take place, which reforms there has been general consensus about. Thank you. [Applause.]
Mpho (English)/LM/(Setswana)/ UNH (Checked Eng)
END OF TAKE
The LEADER OF THE OPPOSITION
Mr L T LANDERS
The LEADER OF THE OPPOSITION: Mr Speaker, Mr President, Chief Justices and hon members, the blindfold worn by Lady Justice represents the impartiality of the judiciary. When all are equal before the law, justice is blind, and those entrusted with meting it out do so without fear or favour. This is what our Constitution demands. It is what every citizen of our great country deserves.
Chief Justice Sandile Ngcobo has proven, in word and in deed, that his loyalty lies with the Constitution above all else. And, so, every South African represented by each hon member in this House joins hands in saluting him today.
We salute him for his work as an attorney in Durban in the 1980s when there was no such thing as equality before the law. Indeed, the oppressive system of apartheid advanced the precise opposite. By representing victims of forced removals and police brutality, Justice Ngcobo did what he could to ensure that justice was served, even in that fundamentally unjust system.
We salute him for securing judicial reforms aimed at addressing the crippling delays in the judicial system, and we hope that these will get the wheels of justice turning more quickly. After all, justice delayed is justice denied.
But, above all, we salute the outgoing Chief Justice for his quiet humility and love of the law; for his steadfastness in defending and upholding the Constitution of this land.
I follow in the giant footsteps of a great parliamentarian and fierce defender of liberty, the late Helen Suzman. Once, when asked why she did what she did, she replied, and I quote: "I hate bullies. I stand for simple justice, equal opportunity and human rights."
The values Ms Suzman espoused then are entrenched firmly in our Constitution today. The drafters of our Constitution understood that limiting power abuse was the key to preventing a recurrence of tyranny. They sought to ensure that the law would never again be used by the strong to oppress the weak.
We are privileged to have one of the architects of our supreme law in our ranks here today. Few people have done more for constitutionalism in our country than the hon Dene Smuts, and I am proud to call her my colleague. [Applause.]
There are many of us, on both sides of this House, who cherish our constitutional values. After all, our Constitution transcends party politics. It was a product of negotiation and compromise. It was our founding compact, the very bedrock upon which our rainbow nation was built.
But, not everybody sees it that way. There are some in our country who believe they are above the law; who believe that might is right. They enrich themselves at the expense of the poor and use race to divide our people. They wish to destroy our Constitution. They are the bullies of our time.
It is said that a Constitution is only as strong as the character of those charged with upholding it. That our Constitution is thriving today, despite pressure on it from some quarters, is testament to the characters of Chief Justices Chaskalson, Langa and Ngcobo.
That tradition has now been passed on to Chief Justice Mogoeng. In his hands rest the hopes and dreams of millions of South Africans. It is no exaggeration, Justice Mogoeng, to say that our success as a nation depends on your success as the Chief Justice. It is an awesome responsibility.
We believe that you will adjudicate the cases before you with wisdom and fairness. We trust that you will build on the foundations laid by your predecessors. We pray that you will have the wisdom to know who the weak are and who the strong are. And, above all, we wish you the strength to stand up to bullies. I thank you. [Applause.]
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END OF TAKE
Mr M G P LEKOTA
The LEADER OF THE OPPOSITION
Mr M G P LEKOTA: Mr Speaker, honourable President, Deputy President, Judge Ngcobo, Chief Justice Mogoeng Mogoeng, members of the House, distinguished guests, for the majority of my life and years of political activism I have dreaded appearing before judges and magistrates. Our elders often spoke and told stories of passes, of magistrates and of prisons. That dread was increased when some of the judges sent me to jail in later years - not that that was a unique personal experience; it was the road many of us in this country travelled.
Today, luckily, we join with you as members of the bench to share lunch and bid farewell. We sit with you today here not before you but behind you. We are not in front of you; we are not here to be judged. We are here to say that we have confidence in the judiciary. We believe that the work you are doing is contributing to the society of our dreams, one in which men and women, the rich and poor, live with their conscience without fear.
This is somewhat reassuring. I say "somewhat reassuring", because one has to be guarded about what one says about a judge. We, as ordinary people, are not in business of judging professionally. We do not have the art or the vocabulary of judges.
The easy part of my task is to say farewell to Judge Sandile Ngcobo; the more difficult part is to say something about what he stood for and what contribution he made to the constitutional dispensation of our country.
Not being a judge or a legal person, I lack the advantage of knowing the inner man Justice Ngcobo is. Fortunately, when judges are appointed, their peers give them a thorough going over. Therefore, in April 1999 Justices Mahomed and Chaskalson interviewed Judge Ngcobo following the death of Justice Didcot. In that interview Judge Ngcobo declared that he had been stimulated by a magnificent professor of law at Harvard Law School. That professor was Professor Parker. According to Judge Ngcobo, Professor Parker taught constitutional law as a philosophical analysis of constitutional argument. I, too, could relate to this. Here was a door to understanding Judge Ngcobo's contribution to our constitutional democracy.
For all of us living in postapartheid South Africa, the critical issue is that of understanding what informs constitutional argument. This is necessary for our judges to arrive at the proper constitutional adjudication.
In the upper reaches of constitutional law there is an intersection with philosophy. Questions on what is good law and what the purpose of law is must indeed receive as much attention as what the law says. In the past, when our most senior judges excluded an enquiry into the goodness of law itself, justice was destroyed. For justice in our country to thrive, a philosophical analysis of the constitutional argument must occur side by side with a technical interpretation of law. We regard this as your great contribution to our jurisprudence. I hope that you will ensure that this idea is widely canvassed and takes root in our fertile South African soil.
Mr Speaker, ladies and gentlemen, Judge Ngcobo was very alive to another matter of great importance in our constitutional democracy, with a previous history of racial oppression. Law, as he rightly pointed out, can be used as an instrument to impose racial oppression and law on the other hand can help to remove racial oppression.
Prior to 1994, law in South Africa was used to oppress sections of our population. Today, any South African who feels oppressed may seek refuge through the law. Our courts have handed down landmark judgments and have made bold to find even against opposition parties and the government itself. This has shown South African democracy at work. Any law not aligned to our Constitution is struck down, and, frustrating as this may be either to the opposition parties or to the ruling party, it is good for South Africa. Governments can come and go, but the legal precedents that are set by the judiciary will go on forever.
The work of judges lives on in their judgments and pronouncements. They remain alive as advocates and judges now and in the future, here and abroad. They get cited in courts in various parts of the world and the directions they give cannot be challenged.
The fact that Judge Ngcobo was awarded a human rights fellowship programme in his earlier years will have strongly influenced him in his long and distinguished career. Our law, as I understand it, is about human rights, human rights and human rights. Irrespective of what politicians may say, our Republic's Constitution is the supreme law of the land. The upholding of human rights is a central tenet of our Constitution, and the judges who by conscious choice uphold human rights leave a proud legacy for succeeding generations. This is what, by common consent, Judge Ngcobo has done. His training was tailor-made to the significant role he was to play in advancing justice and human rights in South Africa.
On his return from the United States, Judge Ngcobo worked in the field of public interest law. This also perfectly equipped him for the signal role he was to play as Chief Justice of South Africa. A man who had witnessed the suffering of ordinary people will have carried with him the obligation to use his high office to achieve justice for all.
All throughout history, humankind has sought justice. For much of history, humankind sought justice in vain. Oppression has been the normal order of the day. That is why a judge like Justice Ngcobo, with his unique training, experience and world view, has been such a boon to South African society.
Our Republic's Constitution is regarded very highly all over the world. Without judges fully committed to constitutionality, it would be a piece of paper signifying nothing. Our nation is beholden, therefore, to the late Justice Mahomed, and to Justices Chaskalson, Langa and Ngcobo for upholding our Constitution in the noblest way possible. Today our Constitution is kept secure through the faithful adherence to it by our respected judges.
Justice Ngcobo was always conscious of his destiny. In reply to a question by Judge van der Merwe, he responded:
The first few years of this court, the Constitutional Court, are very crucial. It is involved in the shaping process, shaping our democracy in much the same way that our Constitution was a product of a process where many participated.
You have served our nation well, Sir. You will still have an important role in its shaping because this process is far from over. You did us proud. As you leave, your colleague Chief Justice Mogoeng Mogoeng has now succeeded to the highest judicial office in the land. He follows a band of illustrious jurists. We congratulate him on having been chosen to walk us further forward along the path pointed out by Justices Mahomed, Chaskalson, Langa and you.
The view that constitutional law must be a philosophical analysis of constitutional argument is one that we trust that Judge Mogoeng Mogoeng will make further contributions to. We believe implicitly in the separation of the powers of the legislature, the executive and the judiciary. Thus far, our judges have played their independent roles superbly and if, like their counterparts in India, they keep leaning towards the people's rights, our democracy will grow deeper and more stable.
Justice Ngcobo, you have earned a well-deserved retirement. You leave conscious of the fact that you made a great contribution. You also leave with the knowledge that you protected the independence of the judiciary. As a result of your effort, the judiciary remains a trusted organ of state.
Judge Mogoeng, we wish you all the success in the task ahead of you, Sir. It is now your obligation to build on the efforts of your illustrious predecessors. There will always be voices of dissatisfaction and condemnation among the ranks of society when judgments are handed down. It is the task of other leaders of society ... [Time expired.] [Applause.]
SP//GC/END OF TAKE
Mr J H VAN DER MERWE
Mr M G P LEKOTA
Mr J H VAN DER MERWE: Chairperson, it was hardly a year or two ago when we said goodbye to Justice Langa and welcomed Justice Ngcobo. In saying goodbye to Justice Ngcobo today, I pay tribute not only to a brilliant lawyer, but also to an outstanding manager of the judiciary. I have so far served on the Judicial Service Commission under five Chief Justices, and I rate Judge Ngcobo very highly. He was a patient, wise and outstanding judge.
I wanted to say more good things about Judge Ngcobo, but I am a bit reluctant because I recently lost a big case in the Constitutional Court where he wrote the judgment. [Laughter.] That only proves that if you have two lawyers you run the risk of getting three legal opinions. [Laughter.]
In welcoming Chief Justice Mogoeng, I need not remind him that I voted against him becoming the Chief Justice. But after he had received the majority vote, I congratulated him, as I am a democrat. I also assured him of my loyalty and that I will respect and support him.
Both these two Chief Justices Ngcobo and Mogoeng do not fall, fortunately, in the same category as the former Chief Justice of England, one George Jeffreys, not John Jeffery. [Laughter.] This Chief Justice heard a case following the Monmouth Rebellion in 1685, and sentenced 200 people to death and 800 to become slaves abroad.
Talking about the death sentence, I am regularly reminded that the first white woman ever to be hanged in South Africa was a Mrs van der Merwe. [Laughter.] I see that they are reorganising the gallows. I hope it is not for another Van der Merwe. [Laughter.]
I wish to raise some very serious legal issues. Firstly, I want to say to the new Chief Justice that as the Chief Justice he is the custodian of the Constitution, which is a massive responsibility, because our democracy is squarely based on the Constitution.
The Chief Justice must play a leading role in protecting the independence of the judiciary. He must, at all times, ensure that all judges execute their responsibilities without fear, favour or prejudice. Judges are to be true only to the Constitution and their consciences.
The second issue I wish to raise is the future of South African law. Our legal system is based on Roman Dutch law, English law and the law which we have created ourselves. But we live in Africa. We are all Africans. I am therefore concerned that not enough in-depth research is being done in respect of African law, indigenous law, the law of ubuntu and the law of our traditional communities.
I make a plea today to the new Chief Justice to tackle seriously the many other challenges facing our judiciary, and publish how we have to solve these problems. The language problem is one example. Litigants are entitled to litigate in their mother tongue, but this is a huge problem.
Access to courts is another problem. The vast majority of our people do not have the money to go to court. Overcrowding in prisons is a terrible problem, as is the delay in getting trial dates. Some people wait for two to three years before they can go to court. And then there are reserved judgments that remain outstanding for long periods.
We need continual high-level training of our judges and magistrates. There are many new developments and in particular new laws passed by this Parliament. One example is the complicated new companies law. Judges and magistrates need to be fully briefed.
My serious and urgent plea to Chief Justice Mogoeng is to dedicate special time and intellectual effort to lead the judiciary from the front, to continually study and publish proposed possible solutions, and to arrange more public seminars and debates about legal challenges.
Justice Ngcobo, your task, even in retirement, is to strengthen our judiciary in devoting quality time to identifying solutions for our problems. You have the intellectual capacity and the experience to do that.
We say goodbye today to Judge Ngcobo with a tear or two in the eye. We welcome Chief Justice Mogoeng with high expectations. We pray that he will be successful.
Allow me to tell you of a big case in England, where the client said to his advocate, "Shall I not send a case of whisky to the judge?" The advocate said, "No! No! Then we will lose the case!" So, in the end, they won the case. The client then said to his advocate, "You see, it worked. I sent the case of whisky to the judge, but I sent it in our opponent's name." [Laughter.]
IsiZulu:
Mapholoba, mhlonishwa Ngcobo, siyabonga, hamba kahle baba.
Sesotho:
Moahlodi e Moholo, Ntate Mogoeng Mogoeng, na o tsohile? Tsamaya leeto lena leo o tla le nka hantle, o tsamaye le Modimo. [Ditsheho.] Kgotso, re tla bonana. Sebetsa hantle. [Ditsheho.] [Legofi.]
Mr J J McGLUWA
Mr J H VAN DER MERWE
Mr J J McGLUWA: Hon Koos, the word is ...
Sesotho:
... dula hantle. [Ditsheho.]
English:
Chairperson, since his appointment by former President Nelson Mandela to the Constitutional Court in 1999, Justice Ngcobo has proven to be a true patriot of South Africa as he has served and made our country proud.
In 2009, President Jacob Zuma confirmed and gave recognition to Justice Ngcobo's service by appointing him as Chief Justice of the Constitutional Court of South Africa, which was met with much controversy. In turn, he proved to the country and the world that he was diligent, capable and objective in his duties which earned him the respect of the government and its people.
In less than 18 months as Chief Justice, he has been at the helm of the judiciary and has made an incredible mark on this esteemed and highly respected office. His competence was evident, which led to President Zuma's decision to extend his service. It was, however, a great pity that Justice Ngcobo became a victim of circumstance, but, even under those circumstances, he chose to put the interests of the judiciary and the country first. Judge Ngcobo, we wish you well for the future.
We are proud of this country. Matters raised in the past concerning the judiciary should be seen as matters of principle, as the judiciary plays an integral and important part of society.
Mr President, we respect your choice. We are not here to oppose your choice or views, but to congratulate and welcome the new Chief Justice Mogoeng Mogoeng on his new position. He has stood the test of time. We will always respect you as the head of the judiciary although we may not always agree with the positions you take.
Afrikaans:
Na die onlangse kommentaar deur ons gerespekteerde Hoofregter toe hy gesê het, "Waarna ons opsoek is, is transformasieagente in die regsbank", wil ons 'n beroep doen op die Hoofregter om te onthou dat geregtigheid geen kleur het nie en dat transformasieagente byde swart en wit kan wees.
English:
I was glued to my television set for 15 hours at the time of his interview. During this time, Justice Mogoeng, who hails from the same province as I do, has always displayed the attributes of a leader who is not afraid to confront controversy.
There have been many detractors who believe he is too young for the job. But these detractors have used the same argument against the newly elected Leader of the Opposition, the hon Lindiwe Mazibuko. I have no doubt that both of them will rise to the occasion and deliver beyond expectations. [Applause.]
We respect the Constitutional Court and we trust and hope that Justice Mogoeng Mogoeng will uphold its values at all times, especially given the contentious issues he will face in his next 10 years as Chief Justice. Justice Mogoeng, you have big boots to fill and we look forward to your demonstration of due diligence to all constitutional processes of this country that we have fought so hard for.
Sesotho:
Sebetsa hantle. [Ditsheho.] Ke a leboha. [Mahofi.]
C.I /
TH (Afr)//nvs
A N N(ed)
END OF TAKE
Mr B H HOLOMISA
Mr J J McGLUWA
Mr B H HOLOMISA: Chairperson, honourable President, Deputy President, honourable Chief Justices, hon members of this House and the hon Lindiwe Mazibuko - congratulations on your new role, sisi - I join the House and my colleagues who spoke before me in congratulating Judge Mogoeng Mogoeng on his appointment as South Africa's new Chief Justice. Sir, we wish you well in your new assignment. The country looks forward to seeing you work hard to both assert and defend the independence of your institution.
To you, Justice Ngcobo, your wealth of experience, knowledge and hard work in the Constitutional Court have left an indelible mark in the minds of many South Africans. The people would like to see you continue to play a significant role in our country's development. We hope this is not the last time we hear your name.
In conclusion, the valuable lessons we have learned from the saga which preceded today's sitting has proven beyond reasonable doubt that South Africans do not want to be left behind in the building and strengthening of the country's institutions. The process may have been painful for some, but it must be understood in the context of South Africans trying to uphold the country's constitutional values, namely transparency and consultation, to mention but a few.
Finally, the decisions taken by some government leaders since 1994 in certain cases, such as the arms deal, the Hitachi-Chancellor House deal, "Oilgate", etc, have revived the people's appetite for civic vigilance. South Africans want to play increased roles in the affairs of their country. Thank you. [Time expired.] [Applause.]
Dr C P MULDER
Mr B H HOLOMISA
Dr C P MULDER: Hon Chairperson, honourable President, hon Deputy President, honourable Chief Justice and former Chief Justice, colleagues, chapter 1 of the Constitution deals with the founding provisions of our Constitution, and section 1(c) specifically refers to the supremacy of the Constitution and the rule of law. This is also said in section 2 of the Constitution.
The whole trias politica doctrine is the cornerstone of our constitutional state: the separation of powers. We do not have a military dictatorship in South Africa, because if we had, Chief Justice, you would have worn a very nice flashy uniform today with a nice cap and a lot of medals. But that's not what we are. We are not a military dictatorship. We are also not a populist democracy. We are a constitutional state, and in a constitutional state it's the judiciary that holds the key.
Chief Justice Sandile Ngcobo, you are leaving today and the question you are asking yourself is: "Did I make a difference?" And, the answer is: "Yes, Sir. You made a difference." You made a positive difference and we thank you for that. [Applause.]
Today is a very important day because we bring together the three spheres of our government, and we see each other in the reality of how we operate and work. Chief Justice Mogoeng, I want to say to you that you did not come to this House today to be tactfully told by us, the politicians, that you and the judiciary should bow to the wishes of the majority. That's not the message.
You came to this House so that we could pay recognition to the fact that you are the Chief Justice. But, in the end, this document: the Constitution, is what counts. And the responsibility that you and the judiciary have is to protect and uphold this document – the Constitution.
It's true that the wishes of the majority need to be respected, but it's also true that the wishes of the majority may be in conflict with this document. Then it is up to the Constitutional Court to uphold the wishes, not of the majority necessarily, or the minority, but of what the Constitution of South Africa says.
We wish you well, Sir, and I believe that you will be a success. I respect your faith and you have the Constitution on your side. Thank you. [Time expired.] [Applause.]
Mr A J NYAMBI
Dr C P MULDER
Mr A J NYAMBI: Chairperson of the National Council of Provinces, Speaker of the National Assembly, President and Deputy President of the Republic, former Chief Justice Ngcobo, Chief Justice Mogoeng Mogoeng, hon members and distinguished guests, it is a great privilege for me to say a few words on this important occasion. I join others in paying tribute to outgoing Chief Justice Ngcobo. He and his predecessors laid a good foundation for our judiciary.
In paying tribute to the former Chief Justice, we must continue to draw inspiration from the preamble of our Constitution which states that:
We, the people of South Africa,
... Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
Our Constitution derived its roots from the Freedom Charter, which culminated in the 1988 constitutional principles of the ANC and finally, the 1992 "Ready to Govern" policy.
It is these profound documents that have mapped out the future of this new constitutionally democratic South Africa with distinct separation of powers among the judiciary, executive and legislature.
In the past 17 years of our democracy, the judiciary has not ignored its role to become part of the Constitution of South Africa that recognises the inherent dignity of its people. We are all together in promoting equality, nonracialism, nonsexism and democracy. Our Constitution is about these progressive values. They are the values of a democratic order that are articulated in the preamble. It is important for all of us to uphold these fundamental values, in particular the Constitutional Court, in order to secure our constitutional democracy.
Retired Chief Justice Ngcobo was true to his oath of office. He acted without fear, favour or prejudice. He kept the highest standards and traditions of judicial excellence. We appreciate his contribution. At all times, former Chief Justice Ngcobo worked to protect the integrity of the office of the Chief Justice and the esteem of the judiciary as a whole. There is no doubt that he was an outstanding jurist who has contributed immensely to the country's jurisprudence.
The Chief Justice has made a substantial contribution to the judiciary since his appointment. He has an outstanding track record in defending the marginalised and in upholding human dignity and human rights, as well as promoting access to justice for all. You promised that you shall remain true and faithful to the Constitution of the Republic and your colleagues.
As a country, despite our challenges, we have made tremendous progress in transforming the judiciary. Our judiciary is independent, impartial and accountable to its people, and must continue to do so.
In a constitutional democracy, unlike during apartheid, our courts must be subjected to public scrutiny and constructive criticism. However, such criticism should be informed and fair. It should not impugn their dignity or bona fides. Above all, it should not impair judicial independence and the integrity of that office. This should guide us or the public, irrespective of the individual Chief Justice being appointed. The amount of public involvement should not be used for personalisation of the office of the Chief Justice.
Internationally, the judiciary is a contested institution. In a constitutional democracy, it is contested by various interest groups, big business, different political parties and the media. I wish to welcome Chief Justice Mogoeng. He is a capable Chief Justice being a lawyer himself, having served in various capacities as a judge. He has the responsibility to take over where Chief Justice Ngcobo has left off.
Chief Justice Mogoeng's determination to defend and protect the gains of our hard-won struggle for liberation, freedom and democracy should be welcomed. He promised to defend fearlessly the independence ...
The CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Hon Nyambi, order! Hon members, you are conversing very loudly here. Hon member, could you please take your seat and listen to the debate. Hon Nyambi, continue.
Mr A J NYAMBI: During your public interview, a question was asked as to how you would ensure access to justice for all. Your response was that part of your approach would be to invite communities, involving traditional leaders, religious leaders and civil society, to a conference to discuss the matter. You also believe that the courts could play a critical role. Traditional courts are central to the transformation of the judiciary and court system. They are rooted in African tradition and are in line with the concepts of public involvement, transparency and open justice.
In African societies, both civil and criminal trials were conducted under a tree or next to a kraal to ensure that members of the community attended the proceedings. Access to justice for all is a constitutional demand. Public access to justice builds confidence in the work of the courts to dispense justice.
Given your stated vision as Chief Justice, experience and proven leadership role, we are confident that you will contribute immensely to the trust of transforming the judiciary, and you will get the required support and co-operation from your colleagues and society as a whole. Your commitment in ensuring access to justice, the proper functioning of our courts, access to judicial processes and sound administration to support effective justice must be applauded. Our commitment to judicial independence recognises these judicial tasks to ensure that judges can perform their very important constitutional role and, more particularly, that they can decide individual cases on their merits, informed by their understanding and interpretation of the law, without fear of interference or intimidation.
The highest traditions of the principles of independence, impartiality and accountability accept that there are times when courts have to make unpopular decisions, which may not find favour with the public. There could chaos if judicial decisions were tailored to meet the demands of sectional interests or so-called public interests. Unpopular decisions or judicial judgments are part of constitutional democracy. No judge must fear them. Public interests are often used as used a mask to cover the interests of an elite group in society.
This point suggests some emerging or post-1994 continuing challenges. The role of the judiciary and perception in a constitutional democracy with a history such as ours continues to pose a challenge. The economic distribution of this country remains highly skewed and level of poverty persists. Rights entrenched in the Constitution and in various progressive pieces of legislation passed by Parliament could be accessed by the rich few. Distribution of resources, public education and community awareness of these rights and laws need to be promoted in a sustainable manner to ensure access to justice.
I believe that the new Chief Justice and the judiciary as a whole will help us to respond successfully to these challenges, as we continue to create the space for these and other matters to be debated. The debate about the role of the judiciary in South Africa should never be portrayed as an intention or desire to interfere in any manner with the judiciary's independence.
The processes of equality, transparency and accountability of our courts and that of the Judicial Service Commission should not be used to attack the very same institution.
I'm reminded of wise words by Marin Luther King Junior when he said: "The ultimate measure of man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy."
In conclusion, we have made some gains and achievements in transforming and legitimising the judiciary. Working together we can do more to tackle the contradictions and challenges that still lie ahead. I wish Justice Sandile Ngcobo a restful retirement and wish Judge Mogoeng Mogoeng a successful tenure. I thank you. [Applause.]
Nb/
END OF TAKE
Ms M SMUTS
Mr A J NYAMBI
Ms M SMUTS: Hon Chairperson, never have we bade farewell to a Chief Justice with such a sense of loss. During the brief tenure of Chief Justice Sandile Ngcobo the creative atmosphere of transitional South Africa - state crafting and Constitution-making South Africa in 1990s - was recaptured in the field of justice.
From as early as 2003, Judge Ngcobo has said that one cannot, at a conceptual level, talk about the judiciary as genuinely independent if it is substantially dependent on the executive branch not only for its funding but also for many features of its day-to-day functions and operations. While judicial officers may be free to hand down fair and impartial decisions according to law, their ability to do this, he said, may be constrained in various ways notably by the financial, human and physical resources available to perform their tasks.
Eight years on, Sir, with the exception of the lavishly funded Constitutional Court, his every word still stands, with our judicial officers bravely struggling on despite deteriorating libraries, hopeless computers and court managers who sometimes simply cannot manage. The judiciary, as Judge Ngcobo said, must control its own resources and be able to determine its policies and strategic priorities.
The way was cleared towards this goal: the goal of institutional independence, when this our honourable President and this hon Minister of Justice and Constitutional Development, at the second National Judges Conference in July 2009, made it clear that the new government would no longer seek, as did the previous Ministry, to amend the Constitution to place court administration and the rule-making powers even more firmly under the executive.
It was therefore under this government possible to start implementing the vision of Chief Justice Ngcobo, and the institution-building process so reminiscent of the transition began with the creation of the Office of the Chief Justice, to be followed by a policy-making judicial council and an independent administrative agency to run the courts. As Prof Richard Calland of University of Cape Town said, of the Office of the Chief Justice: "One hopes that from this small acorn will grow a sturdy oak."
Now even as the seed was germinating, Judge Ngcobo turned the Chief Justiceship into the tree under which we could all sit to confer about the proper separation of the powers and the three branches of the state. Nothing could be more appropriate: the institutional image and the very architecture of the Constitutional Court itself, which he led, capture the idea of the tree of justice under which we sit to resolve disputes. The slanting columns in the entrance to the court are metaphors for trees and the concrete roof has slots that allow light in as if dappled by a canopy of leaves.
He took the conversation, which he believes we all ought to have, to law societies and to universities in every province, also as a way of establishing accountability of this branch of state to the broader public. At one such address last year, he postulated the concept of the constitutional dialogue between the three branches, and said that it should be the defining feature of the distinct South African doctrine of the separation of the powers.
In his view, the criticisms directed at the judiciary from time to time, usually triggered by a judgment perceived to stray onto another branch's turf, miss the point that a certain tension is to be expected in circumstances where the Constitution assigns each branch its role but contemplates some encroachment of one upon the other. It so contemplates a certain encroachment.
Our two Chief Justices will be interested to know that we had a skirmish on just this subject here last week, and that the hon Ngoako Ramatlhodi and I look forward to a full debate on the subject. It may turn fierce, but it will be conducted in friendship. Tension need not to be conflict, as Judge Ngcobo has said.
Now the honourable our President today reiterated his remarks at the July judicial conference. He reiterated – he restated – everything he said at that conference verbatim. I think that hon members should note that Judge Arthur Chaskalson, at that conference, said that he saw no assault on the judiciary in the President's remarks, and they are the same remarks.
I say, as Judge Ngcobo, that tension must not necessarily be seen as conflict. Honourable President, we will approach the courts whenever our constitutional rights are at issue. We will! [Applause.] And I think it is unfortunate to suggest that we do so when we do not win elections. That, Sir, is beneath you. It is beneath this House. We will approach the courts. It is part of our constitutional scheme, and if that causes tension, so be it. But please, hon members, tension need not be conflict. That is what Chief Justice Ngcobo says.
Dialogue, in his words, is aimed at harmonising relations in the structural unit built by our Constitution to keep it from falling apart. As he knows, I believe that putting this harmonisation in the framework of co-operative governance is taking a good thing too far. But, I think, that the concept of the constitutional dialogue will be one of his great legacies.
The other legacy is the reform, which he has precipitated, to make justice accessible to South Africans. It is a great comfort to us that our new Chief Justice is not only committed to the same goals, but has in his time and in his own province implemented many of them. By this, I am greatly impressed. He has been at the former Chief Justice's side while the institutional changes on which we are embarking were debated and considered by committees and conferences. He sits under the same tree, and we will be there with him in this spirit. We look forward to working with you. You are our Chief Justice and you are very welcome, Sir. [Applause.]
Mr S N SWART
Ms M SMUTS
Mr S N SWART: Chairperson, honourable President, Chief Justices, the ACDP shares in expressing our gratitude to former Chief Justice Ngcobo. He has guided the judiciary admirably during his term and laid a solid foundation on which to build. He has left a legacy of sound constitutional jurisprudence, and for that we thank and honour him and wish him Godspeed in his future endeavours.
The ACDP would also like to congratulate the new Chief Justice, Justice Mogoeng, on his appointment. We are unapologetic in our support for the President's nomination and were outraged at the attacks on Justice Mogoeng's faith. Have we become so secular that it is foreign for a leader to seek divine guidance when availing himself for such a high calling? Are the majority of South Africans not believers? Is our Constitution so opposed to religion that it causes angst when a nominee for Chief Justice relies on God for guidance? We think not.
Whilst public scrutiny and robust questioning regarding previous conduct and judgments are acceptable, to ridicule a person's faith is most definitely not. This unfair treatment, as alluded to by the honourable President, also shows a deep misunderstanding of the relationship between the sacred and the secular as carefully crafted in our Constitution. It protects freedom of religion without preferring one above the other, and goes further to allow religious observances. It includes the concept of nonderogable or inalienable rights – God-given rights – that no man can take away.
Our nation faces many and varied challenges. We would do well to also follow the example of the new Chief Justice in seeking God's wisdom and guidance for solutions. Chief Justice, we would urge you to walk worthy of your high calling. Your Heavenly Father has already shown you what is good and what He requires of you: that is to do justice, to love mercy and to walk humbly with your God. I thank you. [Applause.]
AZM MNGUNI/VM
END OF TAKE
Mrs M N MATLADI
Mr S N SWART
Mrs M N MATLADI: Hon Chairperson, honourable President, to Chief Justice Ngcobo, as we bid him farewell today, I would like to quote an Irish blessing that goes:
May the road rise up to meet you.
May the wind always be at your back.
May the sun shine warm upon your face,
and rains fall soft upon your fields.
And until we meet again,
May God hold you in the palm of his hand.
Your contribution to the legal fraternity and to South Africa cannot be summed up in words. We are blessed to have people of your calibre. Whatever you shall engage your skills and experience in, we believe that it shall continue to enhance lives and continue to enhance and cultivate good faith in people, in leaders, and shall say to all of us that it is possible to have leaders of integrity. It is possible to have moral leaders that are free from scandals. Go well and be blessed.
To Chief Justice Mogoeng Mogoeng, on behalf of the UCDP it gives me so much pleasure and pride to stand here and welcome you to the position of Chief Justice. We have not much to say because we believe in your capabilities, in your experience, in your meticulousness, in your leadership qualities. The President could not have a more suitable person.
You have walked the walk, and you know with conviction that you shall make us proud. We look forward to your term in this office and we believe it shall be marked by positive changes that will enhance the justice system and the legal fraternity and thereby enhance our democracy. Congratulations and welcome.
Setswana:
Mme ke fetse ka gore, go wena Rre Mogoeng Mogoeng, ke ne ke re e re ga o le mo loetong le, o gadime, mme e re o gadima o gakologelwe mafoko a a reng mmetla kgola ya borwa o e betla a e lebisitse wa gaabo o direle Maaforikaborwa. Ke a go leboga. [Legofi.]
Mr L M MPHAHLELE
Mrs M N MATLADI
IsiZulu:
Mnu L M MPHAHLELE: Sihlalo, Msholozi, namhlanje sizothi hamba kahle mfoka Ngcobo, Fuze, Mapholoba, Mashiya amahle sengathi azoshumayela. [Ihlombe.]
Setswana:
Gompieno re amogela Rre Mogoeng ka lentswe le le lengwe – Pula. Mohurutshe, tshwene makopo ga ke naiwe, ke naiwa mmeleng. Ke batho ba ga Sebogodi motshweneng, Ntšwanyana ya go lwantsha sebata e bonwa mabotobotong.
English:
Chairperson, our jurisprudential base is currently anchored on Roman Dutch law, which is spiced with English law and international law. You will find the concept of ubuntu in this cocktail in a vague and undefined way.
We need to establish an African jurisprudence commission which will research the precolonial jurisprudence of Africa in general and Azania in particular. [Interjections.] Only then can we talk of a decolonised and transformed judiciary. We need an independent judiciary that empathises with all sections of society, especially the poor and the powerless. The training and education of lawyers must focus on transformation and the Africanisation of the judiciary. Thank you. [Applause.]
Mr R B BHOOLA
Mr L M MPHAHLELE
Mr R B BHOOLA: Chairperson, honourable President, today I am reminded of the beautiful Zulu proverb: Umuntu ngumuntu ngabantu. [I am because we are.] or [No man is an island.] And Judge Ngcobo has lived up to expectations absolutely in that people are who they are because of other people. But, of course, the parting of ways is a sad moment, and the MF laud Ngcobo's efforts, impeccable leadership and his incredible contribution in raising the levels of expectation of our justice system based on integrity.
Honourable President, you are on the right path. Leadership does not only come from a particular society. The MF notes with great pleasure that great legal minds come from KwaZulu-Natal. [Laughter.] Judge Ngcobo has made many critics hang their heads in shame, and the MF wishes him all of the very best on his retirement.
Mr President, the MF respects your choice of the appointment of Chief Justice Mogoeng Mogoeng, and we believe that he has complete faith in his ability and credibility to take our justice system to greater heights. We strongly believe that the best person must be appointed for the job, irrespective of race, colour or creed.
We support young, dynamic and responsible individuals that are responsive to the changing times of our country, and at this juncture I want to congratulate the hon Mazibuko. We strongly believe that Judge Mogoeng is the man and will do justice.
The DA, however, must be reminded of its formation. Before 1994, in respect of the appointment of judges, judge presidents and chief justices, the Nats overlooked seniority and there was no murmur from the opposition. When Tony Leon retired as leader of the DA, Joe Seremane, a black who was a deputy leader, was able, outstanding and capable, yet was outvoted by a very, very minor white called Helen Zille. [Laughter.] The DA must realise the great meaning of the words: Those who live in glass houses should not hurl stones. [Laughter.] For the record, Judge Neville James was made Judge President by the Nats. He was promoted above the heads of senior judges.
Let us be reminded of the great words of our father of democracy, Madiba, who said: "I have fought against white domination, and I have fought against black domination." [Interjections.] Chief Justice Mogoeng, we wish you great success and everything of the very best. Thank you. [Applause.]
Mr N T GODI
Mr R B BHOOLA
Mr N T GODI: Chairperson, honourable Comrade President of the Republic, comrades and hon members, on behalf of the APC I join this House in bidding farewell to Justice Sandile Ngcobo and in welcoming Chief Justice Mogoeng Mogoeng.
There is universal acclaim of the way in which Justice Ngcobo led the judicial arm of the state during his tenure. Your integrity greatly enhanced our democracy and confidence in the judiciary. You have left your indelible footprints in the transformation of the judiciary. We wish you well in your retirement and hope that you will, as a patriot, continue to serve your country.
The challenges facing our judiciary are varied but glaring. There can be no doubt that the transformation of the judiciary is an immediate and urgent challenge. It cannot be that our legal system and the application of justice do not bear substantive resemblance to the values and approaches of the majority and the indigents. We cannot perpetuate a silent but screaming suggestion that the majority had no sense, form or system of justice. This is a colonial hangover. Is this Africanist? Of course, this is Africa, not Asia or Europe.
The APC congratulates you, Chief Justice Mogoeng. We have confidence that you will live up to the expectations of the majority from whom you come. I rest my case. [Applause.]
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END OF TAKE
Mr A WATSON
Mr N T GODI
Mr A WATSON: Hon Deputy Chairperson, hon Speaker, honourable President, hon justices and the hon Leader of the Opposition, if all goes according to plan, I will be vacating my seat in the National Council of Provinces soon to take up a seat in the National Assembly. This will be my last address to a joint sitting as a delegate of the NCOP.
Whilst I join all those who have welcomed and congratulated the new Chief Justice Mogoeng Mogoeng – and I do so most wholeheartedly – I would like to devote the rest of my address to one who has also recently vacated his seat in another house. And it is indeed with sadness and regret that we offer our farewells to the honourable former Chief Justice Sandile Ngcobo. He is a man who has served the Constitutional Court and, indeed, the nation with distinction, dignity and fairness. He has maintained the integrity of the judiciary through wise leadership and ushered it through a challenging period in our history unblemished.
We commemorate that achievement here today, but, in many ways, that high office was just one of the many accomplishments he has earned during a long and impressive career.
IsiZulu:
Ngalowanyaka azalwa ngawo ngo1953 eThekwini nami ngangiqala ukufunda isikole eThekwini. [Uhleko.] Umama nobaba wami basuka eMatatiele baya eLesotho bangithumela laphaya eThekwini. Thina sasihlala kahle esikoleni saseThekwini ehostela. Safunda esikoleni esikhulu esihle endaweni ebizwa ngokuthiwa Umbilo, eThekwini. ONgcobo bafunde ngaphandle ngaphansi kwamahlathini. USandile Ngcobo wasuka lapho waqhubekela phambili, wayofunda eNyuvesi yaKwaZulu wathola iziqu ze-BProc. Ngiyakholwa ukuthi kwakuyikhono elintulekayo ngaleso sikhathi.
Afrikaans:
Dit het hom egter nie van stryk gebring nie, want, met sy loopbaan in die regte, het hy net van krag tot krag gevorder. Later in 1985 is die graad LLB deur die Universiteit van Natal aan hom toegeken.
English:
After this, he spent the next few years in the United States distinguishing himself as a student at Harvard University, a legal clerk at the United States Supreme Court, and as a teacher of the relationship between race and the law at the universities of Stanford and Harvard.
From here he could have gone on to a comfortable academic career as a law professor at an Ivy League university, but instead he returned to South Africa in its greatest hour of need in the early 1990s, when our nation embarked on its difficult transition.
Former Chief Justice Ngcobo worked as an advocate in Durban where he worked his way up the ranks and also assisted with the work of the Truth and Reconciliation Commission, TRC, and the Independent Electoral Commission, IEC. Finally, in 1999, it must have been a dream come true when he was appointed to the Constitutional Court by President Nelson Mandela.
IsiZulu:
Laba engifunde nabo esikoleni esikhulu eThekwini kuyiqiniso akekho noyedwa oyijaji elikhulu ofikelele kulendawo, kodwa uNgcobo ofunde ngaphandle emahlathini ufikile khona. [Ihlombe.]
English:
It was therefore only fitting that, in 2009, when former Chief Justice Pius Langa retired, Justice Ngcobo was asked to lead the Constitutional Court as its Chief Justice. For those of us whose litigation sometimes reached the Constitutional Court, it was always a relief to know that the issues would be adjudicated by Justice Ngcobo's fair and rigorous mind, for even if we did not always prevail, we nevertheless understood that our matters were in good hands and that our issues would be handled fairly. Indeed, the whole country was able to trust the former Chief Justice's wisdom as they asked him to decide on their issues.
Sesotho:
Re a o dumedisa Moahlodi e Moholo. O phomole hantle ntate wa rona mona Afrika Borwa. Tsamaya ka kgotso. Pula! Nala! Ke a leboha. [Mahofi.]
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END OF TAKE
The PREMIER OF THE NORTH WEST (Mrs M Modiselle)
Mr A WATSON
The PREMIER OF THE NORTH WEST (Mrs M Modiselle): Deputy Chairperson of the NCOP and all presiding officers, your excellencies the President and the Deputy President, former Chief Justice Sandile Ngcobo, Chief Justice Mogoeng Mogoeng, hon members, ladies and gentlemen, it is a great honour and privilege for me to stand here today on this important occasion of bidding farewell to Justice Sandile Ngcobo and of welcoming the new leadership of our judiciary, Chief Justice Mogoeng Mogoeng.
Let me first express my heartfelt appreciation to Justice Ngcobo for his devotion in upholding and promoting the Constitution of South Africa. Since 1994 our country has been guided by the ideals of accountability, transparency and accessibility. These unique principles have also served us to a greater degree in the past 17 years of transitioning to democracy, of racial and cultural integration and of nation-building.
The preamble to the Constitution says that we have a commitment to healing the divisions of the past and to establishing a society based on democratic values, social justice and fundamental human rights; to lay the foundations of a democratic and open society; to ensure that government is based on the will of the people and that each citizen is equally protected by the law.
I am mandated by the majority of provinces as well as the ANC to say congratulations, Ntate [Mister.]. We are very happy with his outstanding service to the Constitutional Court and the legal profession, and for his serving the community of South Africa with distinction. We want to humbly convey our thanks to you for everything you have done for this country as a South African.
We have seen during your tenure in the Constitutional Court that you served our judiciary with excellence and dedication. You have been an effective leader, a balanced individual and a good judge. In all the matters you have presided over, you have proved your knowledge of the Constitution.
Chief Justice Ngcobo, you have always respected the rule of law. You have never abused power. You have maintained the independence of the judiciary from the other spheres of government. You have made sure that there is no interference by the executive in the judiciary.
South Africa is one of the newest constitutional democracies in the world. The independence of the judiciary and the trias politica are the foundational principles of this constitutionalism, and that is why we need, at all costs, to be committed to the Constitution's founding values which are democracy, dignity, equality and freedom.
Thank you, Sir, for a journey well travelled from the time you were a law clerk, a judge and the Chief Justice of South Africa. You have been the guardian of our Constitution. You have done us proud. You have protected our Constitution and, therefore, our freedom. We thank you for delivering fair, impartial and quality justice to all citizens of this country.
You leave us, however, with a few challenges which I will refer to your successor. We want to thank Mrs Zandile Ngcobo and the family for allowing Chief Justice Ngcobo to serve this nation. [Applause.] We wish the former Chief Justice well in his retirement, and I do trust that we will continue to seek his judicious insight.
Allow me to join the millions of South Africans in conveying our heartfelt congratulations to Chief Justice Mogoeng Mogoeng on his appointment to the highest judicial office in our land. Your candidacy was heavily opposed and you were criticised from all corners of this country. I want to commend you for the dignity you displayed during this the toughest time of your life. [Applause.] What you have shown during this tough time - during this test you went through - is what we need as South Africans: humility and honesty.
Chief Justice Mogoeng, you assume office at a time when the judiciary is facing a number of challenges. An example is the accessibility of courts. That is still a challenge for the poor and the rural. This is still a challenge for the women and for the children of this country.
The judiciary is still faced with challenges around sentencing and, generally, the image of court. We note that all forms of crime seem to be on the decline, except for sexual and domestic violence. The courts continue to mete out ridiculously lenient sentences, especially if the victim is African and female. Surely, justice must protect the poor, the weak and the feeble?
We are concerned that black life continues to be very cheap in this country, and I can cite examples here of the Skierlik massacre, the plight of farm workers and farm dwellers, and of people who live in the rural areas and who have absolutely no understanding of how the courts work. Some courts tell us, Chief Justice Mogoeng, that Africans look like little baboons; that they look like little dogs, and therefore ridiculous sentences are passed.
Recently, a policeman's life was exchanged for R750 000. Surely, we must be concerned as Africans and as black people in this country? Are our lives that cheap? Couldn't the courts have done anything? Have we set a precedent? Are we supposed to expect more of these exchanges of R750 000 for our police and our black people.
These are the challenges. Sir, we have confidence that with the team at the Constitutional Court behind you, you will make efforts. You
will have to confront these challenges, and you will have to restore the confidence of the nation in the judiciary.
We must, at all costs, build a nonracial and nonsexist society in which every citizen enjoys fundamental rights and freedom. Such freedom must recognise the diversity of our languages, of our beliefs and of our traditions.
This freedom must respect the different sentiments and even the interpretations thereof about our histories - different as they may be - our cultures and the heritages of all South African people. No identity must be denigrated. No identity, no culture, no language, no script, no song must enjoy more attention than others. [Applause.] No court of law must be used to rubbish any people's identity or history, whether they are the majority or the minority, black or white, female or male.
We urge you, Chief Justice Mogoeng, to commit to the noble sentiment of upholding the ideals of the separation of powers. The judiciary is guided by our Constitution toco-equal with the executive and the legislative branches of government. There are instances in which the blurring of lines is very evident, in which the judiciary seems to act above the other branches of government. Space for the legislature and the executive must be given so that each of these branches can do their constitutional mandate properly. [Applause.]
The judiciary has been given wide powers to uphold our constitutional democracy and to bring law into line with our Constitution. In exercising these powers, as I said before, our courts must appreciate and respect the role of other branches of government in our constitutional democracy. It is also our duty as government and fellow citizens to respect and observe the independence of the judiciary.
Judges must be accountable, independent or not, because this will ensure that they earn the trust and the confidence of the people of this country. They must adhere to the highest ethical standards. They must have and maintain appropriate legal knowledge. They must acquire and exercise complex and unique skills in leadership, in decision-making and in administration.
The role of the Judicial Service Commission must be strengthened. The Judicial Service Commission must continue to play the important role of establishing a judiciary which is representative of, and which is responsive to, all South Africans
In conclusion, freedom and equality of justice are essential to us as citizens of South Africa.
Setswana:
Rre Mogoeng ...
English:
- the challenges are big; you must fix them.
Setswana:
Bokamoso ba molaotheo wa Aforika Borwa bo mo magetleng a gago. Batswana ba re Tshwene e jewa matsogo. Rona baagi ba Bokone Bophirima le baagi ba Aforika borwa yotlhe ga re batle go tlhabisiwa ditlhong rra. Re batla go tsamaya re ikonka, re kokoroga, re itumetse ka mongwe wa rona a beilwe mo setlhoeng mme rona re itsi gore fa mongwe wa rona a beilwe mo setlhoeng rotlhe re beilwe mo setlhoeng, dira rra, o itumedise Aforika Borwa, ke a leboga. [Legofi.]
Mn/src (ch)
END OF TAKE
Justice S NGCOBO
The PREMIER OF THE NORTH WEST (Mrs M Modiselle)
Justice S NGCOBO: More than 15 years ago, I took the oath of office in which I undertook to uphold the law and the Constitution without fear, favour or prejudice. When I did so, I did not make any exceptions in terms of where I would do that – in my house, at the Constitutional Court and in this House. It is a violation of the Constitution to interfere with the judiciary in the performance of its functions. I am here to perform that function. Therefore, Deputy Chair, I do not need any interference in relation to the time I spend. [Laughter.]
Hon Speaker of the National Assembly, hon Chairperson of the National Council of Provinces, Your Excellency the President of the Republic of South Africa, hon Deputy President of the Republic of South Africa, Chief Justice of the Republic of South Africa and members of your family present here, members of this House present here, distinguished guests, ladies and gentlemen, thank you, Mr Speaker, and the Chairperson of the National Council of Provinces for convening this special Joint Sitting of Parliament in order to bid me farewell and to welcome Chief Justice Mogoeng. I am, indeed, humbled by this honour and the privilege. Thank you too, Mr President, all Members of Parliament, the premier and everyone else who spoke this afternoon for your very kind expressions of goodwill on my retirement and for the extraordinary tributes that you paid to me this afternoon.
I must confess, though, that as I listened carefully to what was being said this afternoon, I began to wonder whether this was about my retirement; whether you were talking about me. Indeed, I am deeply humbled by your generosity.
I have had a very long and very fulfilling career in law, culminating in the privilege of being the third Chief Justice of the Republic of South Africa. The journey commenced some 48 years ago when, as a 10 year-old-boy, I accompanied my father to a traditional court. This was the very first hearing that I attended and it was held under a tree – as the hon Nyambi reminded us. It is therefore befitting that, 48 years later, the journey that took me to the highest office in the judiciary, presiding in the highest court in the land, also ended under a tree – as the hon Smuts observed. But, this time, it is the tree of justice which marks the logo of the Constitutional Court.
As Chief Justice Mogoeng has no doubt quickly discovered, the job of Chief Justice is one that knows no limits in terms of the demands that it places on one's time and one's family. This is due, in part, to the dramatic change in the number of administrative functions the Chief Justice, over the years, has been asked to undertake, as evidenced by the approximately 50 different statutes that call upon the Chief Justice to perform one or another function in addition to his or her core judicial functions. Families pay a high price when one of their own is entrusted with the responsibility of being a leader of a branch of government.
After all the tributes that have been paid to me, I would therefore like to say that I've been very privileged indeed to have had a very tolerant and supporting family. [Applause.] For their patience and for their general understanding, I am profoundly indebted to my wife Zandile, our daughter Nokwanda, our two sons Ayanda and Manqoba. [Applause.] Their love and support was unconditional. I would not have been able to fulfil my oath of office without their support, and for that I thank them. I hope that now that I'm retired, I can devote all my time to my family and make up for lost quality time. [Applause.]
In my professional career, I have been privileged to work with men and women of unsurpassed ability from within the judiciary and other institutions, organisations and other arms of government. They are too many to enumerate. Together with my family, these individuals - to borrow the words of my mentor and teacher, the late Chief Judge A Leon Higginbotham of the United States Third Circuit Court of Appeal:
In different ways these individuals have profoundly and positively influenced my life. They have given me the encouragement and the strength to seek institutional changes that move from the shades of freedom to the fuller sunlight of justice, human dignity, freedom and equality.
Mr van der Merwe, I apologise that you lost a case before me ... [Laughter.] It is part of the package. But as the longest serving member of the judiciary, you will recall, Mr van der Merwe, that in April 1999, when I was interviewed for a vacancy in the Constitutional Court, I said that it would be an honour and a privilege for me to take part in the development of our constitutional jurisprudence.
Having now written more than 44 judgments on various aspects of our Constitution, I am immensely grateful to our great democracy for affording me the chance to participate in the development of our constitutional jurisprudence and, as Chief Justice, to spearhead reforms directed at enhancing the independence of the judiciary.
In July 2003, as the hon member Smuts observed, at the first judges' conference, I presented a vision for judicial reform that emphasised the need for an administratively independent judicial branch of government An independent judiciary – one that enjoys functional and financial autonomy - is essential to any democracy. It protects the impartiality of the judiciary and helps to guard against real or perceived bias. Little did I know then that I would one day have the platform to pursue such reforms as the Chief Justice, but when I was named the Chief Justice in 2009, that is exactly what I set about doing.
The process of fortifying the independence of the judiciary commenced in earnest on 3 September last year, when the President issued Proclamation 44 of 2010. The President's proclamation gave the Office of the Chief Justice the necessary autonomy to begin initiating critical judicial reforms, reforms designed to move the judiciary towards administrative and financial autonomy and enhance judicial independence.
When I left the office, we were working through the initial interim phase in the establishment of a truly independent Office of the Chief Justice. Research on an appropriate model of an independent Office of the Chief Justice that has the same status as the Auditor-General is now complete. [Applause.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Honourable Justice Ngcobo, I will give you five extra minutes. [Laughter.]
Justice S NGCOBO: I still have a long way to go. On a point of order ... [Laughter.] ... that is interference, Madam. [Laughter.]
In this regard, I would like to express my sincere gratitude to the Democratic Governance and Rights Unit under the leadership of Prof Richard Calland for conducting the initial research and to my predecessors, former Chief Justices Chaskalson and Langa, who led a team that synthesised the research comprising more than 17 models of Offices of Chief Justice from around the world.
The next phase will involve research into a model of court administration that will give the judiciary the administrative autonomy and enhance the independence necessary for its fulfilment of its constitutional mandate. But the establishment of the judiciary with administrative autonomy requires commitment.
The enactment of the Constitution Seventeenth Amendment Bill as well as the Superior Courts Bill is crucial in this process. The Minister of Justice and Constitutional Development has repeatedly emphasised the importance of the Constitution Amendment Bill to this process. In his budget speech in June 2011, he told this House that the Constitution Seventeenth Amendment Bill provides a constitutional framework for the judiciary to take charge of court administration. And he announced that a court administration framework that was commensurate with the model of the separation of powers in our Constitution would be developed. In July this year, he told the Access to Justice Conference that the enactment of the Constitution Amendment Bill would put the judiciary on course for the ultimate goal of administrative autonomy, which would enhance the independence necessary for the rule of law.
It was a privilege for me to have participated in the initiation of this process. With the able assistance of a team led by retired Justice Yvonne Mokgoro and Adv Sizani, a solid foundation has been laid for the implementation of this vision. This, however, is work in progress. I am confident that Chief Justice Mogoeng will continue with this important work. And I am confident that this House will take the steps within its power, in terms of the Constitution Amendment Bill and the Superior Courts Bill, to help achieve the independence necessary for the judiciary. which the Minister so eloquently argued for in this House.
May I plead for an extra couple of minutes just to wind up?
Judges in South Africa occupy, I believe, a very unique role by virtue of our nation's bloodied and divided past. I have ever been aware, as I engage with complex constitutional questions, that I must undertake my task with reverence for the constitutional directive to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.
Indeed, as I sought institutional changes that move from the shades of freedom to the fuller sunlight of justice, human dignity, freedom and equality, I was inspired by the goals that we, as a nation, have fashioned for ourselves in the Constitution, which include the goal to establish a new society, one that is founded on democratic values, social justice and fundamental human rights. The establishment of this society requires fundamental changes to the political, social and economic conditions that previously existed in our country. A commitment to address the disparities of our past and to transform our society into the equitable one envisioned in the Constitution lies at the very heart of our constitutional democracy.
Let me remind this House that our Constitution is a promissory note. It is a promise of a new society that is based on democratic values, social justice and fundamental human rights. The people of South Africa have entrusted the responsibility to establish this society to the three tiers of government. The three tiers of government must therefore make good on the promise of the society contemplated by the Constitution. They cannot afford to return this promissory note to the people of South Africa marked: "Insufficient funds".
Key terms and conditions of this constitutional promissory note are the rights enshrined in the Constitution and the Bill of Rights. Each branch, however, of government must therefore observe the constitutional limits on its powers and its authority. There is no branch that is superior to others in the service of the constitutional mission of the Republic, be it the judiciary, the legislature or the executive.
In addition to ensuring that they observe the constitutional limits of their powers and authority, government must seek to maintain public confidence. In the case of the judiciary, that confidence is not earned by virtue of a court being pro- or anti-executive. A court does not earn the public's confidence merely by overturning legislative Acts on review or by consistently upholding them. It is earned by the judiciary demonstrating, through its conduct and well-reasoned judgments it produces, that it holds the scales of justice evenly.
Public confidence is earned when the judiciary demonstrates, in the words of the Constitution, that it is independent, subject to the Constitution and the law, which it must apply impartially and without fear, favour or prejudice. After all, the judges owe allegiance to nothing except the Constitution and the law, which they must apply impartially without fear or prejudice. The judicial branch of government will only have confidence of the people it serves if it is truly independent.
Chief Justice Mogoeng, I need not remind you of the challenges facing the judiciary. Foremost among them is that the constitutional promise of a transformed judiciary is still a distant dream.
Of the current judges of the Constitutional Court, only two are women. This needs to change. Of the 10 Superior Heads of Court, only one of them is a woman. During my tenure, I had set up a special committee of the Judicial Service Commission to explore how the pool of qualified female candidates could be increased. I hope that with the establishment of the High Courts in Limpopo and Mpumalanga, consideration will be given to finding suitably qualified women to head these courts. [Applause.]
I need not remind you of the challenges relating to access to justice. These were fully explored at the July conference that you and your team so ably helped to co-ordinate. We all look forward to the plan of action that you will develop in the light of the discussions that we had in July. I am confident that you will effectively manage these challenges, and I wish you strength and fortitude in your role as the Chief Justice of the Republic of South Africa.
May I conclude, once again, by thanking the hon Speaker of the National Assembly and the Chairperson of the National Council of Provinces for convening this Joint Sitting of Parliament, our honourable President for the trust and confidence that he has shown in me by appointing me to a position that I have no doubt will stand as the greatest honour in my life; and I thank everyone who has spoken this afternoon for their extraordinarily generous remarks. Finally, I thank all state and other dignitaries present, my colleagues in the judiciary and everyone else in attendance today, for the goodwill they have shown by taking the time to be here for my farewell.
My time as a servant of the nation has not ended with my retirement. I will continue to serve this country if called upon to do so, but please, do not call me; I will call you. [Laughter.] [Applause.]
/Mohau//Mia
END OF TAKE
CHIEF JUSTICE M MOGOENG
Justice S NGCOBO
CHIEF JUSTICE M MOGOENG: Your Excellency the President of the Republic the honourable Jacob Zuma, the Deputy President of the Republic the hon Kgalema Motlanthe, the hon Speaker of the National Assembly and the Deputy Speaker, the hon Chairperson of the National Council of Provinces and the Deputy Chair, the honourable former Chief Justice of the Republic Sandile Ngcobo and Sis Zandi, the honourable heads of courts and members of the judiciary, hon Members of Parliament, distinguished guests, including my dear wife ... [Applause.] ... and fellow South Africans, I take this opportunity to express my gratitude to the leadership of Parliament for having acceded to the President's request that a Joint Sitting be convened. I find it a great honour and priviledge to deliver this address in this august House of members of the executive, the legislature and the judiciary.
It is quite a humbling experience indeed, and possibly even a daunting task to step into the proverbial shoes of a man who was my Judge President when I first acted in the Labour Appeal Court and who later rose through the ranks to become Chief Justice – my Chief Justice - for almost two years, a man with a razor-sharp intellect and a hard taskmaster who performed his role and function with total dedication. I was privileged to serve with him directly and closely in various capacities, in particular as joint conveners of the monitoring committee elected by the judges of this country at the 2009 conference.
I am talking about a man with whom I have shared, over the years, the passion, in practical terms, for the education and training of the magistracy and the upper judiciary for access to justice, court efficiency, transformation and the independence of the judiciary. That man is none other than the honourable former Chief Sandile Ngcobo. [Applause.] I could say much more about this visionary, but I wouldn't risk being called to order in Parliament. [Laughter.]
As the judiciary, we regard the oath of office we take as a covenant of service, a solemn pledge to uphold the Constitution and dispense justice without fear, favour or prejudice. We assure the nation of our commitment to the separation of powers, the rule of law and our relentless pursuit of the independence of the judiciary, so as to perform our constitutional mandate with the utmost integrity and competence.
It goes without saying that this is a task that the judiciary cannot undertake alone. Co-operation between the judiciary and other arms of the state is essential in this regard. We trust that the healthy relationship between the judiciary and the executive will continue to flourish in years to come. This is crucial at this stage in the development of our new democracy, for as President Jacob Zuma said at the 2009 National Judges Conference, and I quote, "... we can only succeed if we work together in harmony. We must respect each other's independence, while also noting the fact that we are interdependent in fulfilling our obligations to South Africans."
This constitutional partnership was actualised when the judiciary brought together all arms of the state to the Access to Justice Conference, and caused the leadership of each branch to speak to the issues relating to access to quality justice for all.
I was with the hon Speaker of the National Assembly and the Chairperson of the National Council of Provinces, just last week, when they raised the need for a more structured and, at least, annual engagement between the leadership of Parliament and the judiciary. I welcomed the proposal without hesitation, for I view that as an opportunity to raise issues relating to, for example, the regulations necessary to facilitate the establishment of a judicial conduct tribunal without which those serious cases of alleged misconduct, now before the Judicial Service Commission, cannot be proceeded with.
We also need the finalisation of the judicial code of conduct, for much in the area of discipline depends on the passing of those regulations ... [Applause.] ... otherwise it may look like the judiciary or the Judicial Service Commission is covering for judicial officers. Evidently, we desperately need these regulations to facilitate judicial accountability and, as I have indicated, to enforce discipline when judges commit, or are accused of having committed, misconduct.
Talking about court efficiency, regular complaints about inordinate delays in the disposition of cases, from the beginning of cases to the delivery of judgments, have not gone unnoticed. We have therefore identified a more effective case management model, which allows judicial officers to take control of the pace of litigation, as opposed to the current situation where judicial officers, to a large extent, are at the mercy of the litigants and their legal representatives. That approach has, elsewhere in the world, dramatically curbed the rate of postponements and reduced the size of backlogs.
While we are waiting for the rules of court that will facilitate judicial case management to be promulgated, we have initiated the process of developing a harmonious set of practice directives designed to give judicial officers more control over the pace of litigation.
In line with the Access to Justice Conference resolutions and expert advice on the implementation of these court efficiency measures, we shall run pilot projects in select High Courts in the near future, before a full-blown implementation programme can be rolled out to all the courts.
Rest assured, judicial case management is a practice that the judiciary in this country has always sought refuge in, in relation to complex and long drawn-out cases, to ensure prior and thorough preparation by all involved, tight observance of the rules, the avoidance of unnecessary delays and postponements, and the facilitation of efficient and speedy finalisation of cases. This is achieved by getting the presiding judge and the legal representative to work together much earlier in the case so as to ripen it for trial. We will extend the use of this unquestionably efficient system, which has borne healthy fruit in other countries as well as in the Constitutional Court, to all trials, civil and criminal, as well as to appeals.
Additionally, the thousands of arrests that take place before the investigation is complete clog the court roll because an arrested person must, in terms of the Constitution, appear before court within 48 hours of arrest. Time which should be reserved for trials is instead devoted to postponements for further investigation and bail applications. And I'm just afraid ... I could tell you who is said to be responsible for some of these untimely arrests. In this regard, it is important, where feasible, to co-ordinate arrests with the ripeness of the matter for trial.
If you permit me, I would tell you that parliamentarians are accused of forcing the police to arrest people before a proper investigation has been undertaken. If it is true, I appeal to you to please desist. [Laughter.]
At the SA Judicial Education Institute, which is charged with the responsibility of training and educating judicial officers, we'll build a pool from which to appoint judges by offering training programmes to men and women who aspire to become judges, orientate newly appointed judges, and offer on-going judicial education and training, including leadership capacity-building programmes. We have prioritised these programmes, and steps have already been taken to initiate their implementation before the end of the current financial year.
One of the major steps taken to strengthen the independence of the judiciary is the establishment of the Office of the Chief Justice, which the former Chief Justice has alluded to. We will continue to advance that project and build on the progress already made by implementing the three predetermined phases of the Office of the Chief Justice. The first two phases are primarily about building capacity around the Chief Justice to enable him or her to lead the judiciary more efficiently.
In partnership with the Minister of Justice and Constitutional Development, we are working on mechanisms for the transfer of some administrative functions to the Office of the Chief Justice.
Phase three is a more elaborate undertaking, which requires a policy shift to enable a transition from an executive court administration to a judicial court administration. And this, from what my predecessors and experts in his office have told me, could take between seven and 10 years. This can only be achieved through a functional partnership and collaboration between the three arms of the state. It is such a partnership between the three arms of the state that will ensure that our democracy remains vibrant and serves the interests of all South Africans.
The judiciary will move with deliberate speed and play its part alongside other arms of the state in the process of implementing resolutions taken at the recent access to justice conference in relation to delivering accessible quality justice for all. I include other arms of the state, because there are issues which the judiciary simply cannot tackle as effectively as it ought to without the effective and more meaningful participation of the other arms of government. The need to transform the judiciary in a manner that ensures proper representation of women cannot be overemphasised. [Applause.] And in that regard, the SA Judicial Education Institute has a critical role to play. That is just about the essence of the vision that the judiciary is going to pursue from now henceforth. I thank you all. [Applause.]
ARM/END OF TAKE
The MINISTER OF JUSTICE AND CONSTITITONAL DEVELOPMENT
CHIEF JUSTICE M MOGOENG
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: His Excellency the President of the Republic, the Deputy President, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, Chief Justice Mogoeng Mogoeng, the President of the Supreme Court of Appeal Lex Mphathi, former Chief Justices Chaskalson and Ngcobo, Cabinet colleagues, hon members, heads of courts, members of the judiciary, and distinguished guests, allow me to add to the kind words heaped on both the former Chief Justice Ngcobo and Chief Justice Mogoeng, and to express my personal delight for the privilege and opportunity to pay tribute to these outstanding and distinguished fellow South Africans.
The kind words expressed by members of this House have confirmed once again that as we sprout into our full potential as a nation, we have agreed on the platform from which healthy and democratic differences must be handled. This House represents both our unity on the one hand and our various diversities on the other, as enshrined in our democratic Constitution. The differences often expressed in this House are therefore an affirmation of our flourishing democracy, and that instead of war we have chosen peace and democracy as our constitutional foundation to forge a future that must be commonly shared by all of our people.
Today's occasion symbolises a very rare moment when the three arms of the state put aside their separate identities and converge under one umbrella - to make a united pledge of working together for the common good of our nation.
The three arms of the state are fundamental to the sustainability of our democracy as elaborated in our Constitution, as speakers before me have indicated. Often the case, we see destructive tensions amongst these, as spelled out in the public discourse when, in fact, whatever heated tensions there may be, they must be seen as part of a creating force to forge our democratic progress as a nation state.
As this House, we continue to appreciate the role of the judiciary and today epitomises the smooth transition from one Chief Justice to another, characteristic of our maturing democracy. Not long ago we celebrated the retiring of esteemed commissioners of the Independent Electoral Commission, led by its former Chair Dr Brigalia Bam, distinguished fellow South Africans who have served our country outstandingly since the dawn of democracy in 1994.
The manner in which Justices Ngcobo and Mogoeng exchanged batons has striking ironies. Justice Ngcobo served one of the shortest terms in the highest office of the judiciary in the history of our democratic government, serving just under two years; while Justice Mogoeng endured the longest interview since the establishment of the Judicial Service Commission of two days. [Laughter.]
When Justice Ngcobo's 12-year term to leave office suddenly arrived, he still had both the energy and advantage of age that could have kept in the acting position for the next five years. At the end of two days of gruesome interviewing, Chief Justice Mogoeng still had energy reserves in store, more than what the interviewing judicial service commissioners had bargained for. [laughter.]
The time that Justice Ngcobo served as Chief Justice, added to the time that Justice Mogoeng is eligible to serve in this highest judicial office, is equivalent to a term of office of a Constitutional Court judge as prescribed in section 176 of our Constitution.
I am sure that the provisions of this section, as well as the section 8 of the Judges Remuneration Act of 2001 remain fresh in our minds as parliamentarians. I have personally known the retiring Chief Justice Ngcobo, back during our days at Ngoye, the then University of Zululand, whilst studying Law. His rise to the highest office in the judiciary was not a surprise to me, because if there was any person who endeavoured for excellence it was retiring Chief Justice Sandile Ngcobo.
He passed his courses with distinctions and always strived for overall excellence in his academic work. His passion for justice was evident even early then as students, and we could always count on him for fairness amongst the company of friends that we commonly shared. If I had more time, I would regale the House with more amusing details of our friendship and the persona of the former Chief Justice.
I was therefore very excited and proud to see one of my own contemporaries rise to assume the most senior responsibility in our judiciary when he was appointed Chief Justice of our Constitutional Court. I therefore concurred with the kind words of our President and members of this House on the integrity and the passion of Chief Justice Sandile Ngcobo.
Allow me to also concur with the kind words of various members of this House on our new Chief Justice Mogoeng Mogoeng. The passing of this baton was made easier by the co-operation evident between the two justices before we could even begin the process of seeking a new Chief Justice. When the inevitability of retiring Chief Justice Ngcobo became apparent back in 2009, following the convening of the Judges conference that year, Chief Justice Mogoeng and retiring Chief Justice Ngcobo were chosen by their peers to oversee the implementation of the 2009 Judge's conference resolutions.
The choice of other judges was not misplaced as they had indeed seen the leadership acumen in Chief Justice Mogoeng. [Applause.] He was the convener of the case management committee of the heads of courts. In just under two years the committee had amassed sufficient research and case studies that they were able to convene the Access to Justice conference in July 2011.
The conference, as we all know, was a resounding success, and members of the Portfolio Committee on Justice and Constitutional Development will attest to the strict schedule and commitment of Justice Mogoeng's running of the conference. So decisive and result-driven was Justice Mogoeng, that he earned the title of "General" from some of the presenters at that conference.
He has the energy required to lead the judiciary in the transition towards a self-accounting judicial governance framework that is consistent with the doctrine of the separation of powers. The Access to Justice conference was a watershed in the history of relationships amongst the three arms of the state in our country.
This conference saw the participation of the executive and the legislature on a platform whose host was the judiciary. It was proof that the judiciary deems itself integral to the overall mandate to ensure access to justice for all our people, as contemplated in our Constitution. As Chief Justice Mogoeng was responsible for convening this conference, he had to summit the outcomes to the retiring Chief Justice who was the principal host, and, at that time, the first amongst equals.
I will not delve into the details of those resolutions, except to say that I am confident that this House will agree with me when I say that we fully support their speedy implementation as they will go a long way in making our democracy consistent with the contemplations of our Constitution to access to justice.
How ironic therefore that today as we sit, it is now Chief Justice Mogoeng's responsibility to implement those resolutions. He is now the first amongst equals. Chief Justice Mogoeng's appointment, following his nomination by our President, was characterised by gruelling public interviews whose robustness for the faint-hearted could have suggested that his stature was being demeaned.
However, his resilience in responding to the various questions put forth before him revealed his capacity to withstand the enormous pressure that comes with this very important task of leading the judiciary of our country as Chief Justice. He remained straight to the point. Through the courtesy of e.tv, the world was privy to witness his vindication. [Applause.]
It is patently clear that we are a maturing democracy and that the mutual re-enforcing roles of the three arms of the state are slowly simmering into maturity. As this House, we must be proud about the manner in which, as a nation, we continue to evolve from strength to strength. The transition from Chief Justice Ngcobo to Mogoeng represents this ongoing link in the chain of the stability of our democracy.
We are here not just to celebrate the career highlights of the two Chief Justices, but, in fact, to celebrate our maturing democracy and successful implementation of the text, as well as the spirit that is enshrined in our Constitution.
I therefore take this opportunity to wish retiring Chief Justice and friend Sandile Ngcobo well. He has built a solid foundation that was laid by predecessors such as Justices Langa, Chaskalson, Mahomed and Colbert, who themselves were legal stalwarts in their own right.
As we often say within the judiciary, when judges retire they, in fact, do not retire, because from time to time we call upon their expertise to resolve challenges that require judicial wisdom. I am confident that the history of our judiciary would be incomplete without the role of former Chief Justice Ngcobo and his enormous contribution to the evolution of our jurisprudence.
Allow me to wish the new broom, Chief Justice Mogoeng Mogoeng, well. Having participated in the Judicial Service Commission interviews, prior to his appointment, I have no doubt that Chief Justice Mogoeng is more than capable of leading our judiciary. I am confident that this House will agree when I say that we must fully support the new Chief Justice, whose ascendency to the most senior post in our judiciary was as a result of our democratic process. His expertise and willingness to render this to the service of our people is most welcome.
I am that sure he will continue with the good work started by retiring Chief justice Ngcobo. As the Department of Justice and Constitutional Development, we will continue to grant him the support that he requires as he forges ahead.
Allow me once more to thank Chief Justice Sandile Ngcobo, and believe his family is the happier today as he will be more available for their indulgence as a husband and a father.
IsiZulu:
Fuze, Ndawonye, mashiy' amahle sengathi azoshumayela. UnguMapholoba wena, owavuka ekuseni wancinda umunwe wakhomba phezulu – laphaya, lakhanya bha Ilanga! [Ubuwelewele.] Silwane. Khondoma konjilo ibinda langa lakhe. Kuthiwa inkosi ayiqedwa. [Uhleko.] [Ihlombe.]
English:
Finally, allow me also to wish Chief Justice Mogoeng Mogoeng well, and we pledge to give him our full and total support as this Parliament and the Department of Justice and Constitutional Development.
Setswana:
Motshweneng, mohurutshe, mothageng, mokalaka, thaga e tala, ke ole ka mangole. Pula a e ne! [Legofi.]
English:
The SPEAKER: Order! I thank the hon the Minister of Justice and Constitutional Development. I wish to advise members of the NCOP that they should immediately go to the Old Assembly Chamber after this sitting. This is on the strict instructions of the Chief Whip of the NCOP. [Laughter.]
The Speaker of the National Assembly adjourned the Joint Sitting at 16:59.
END OF TAKE
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