DINNER IN HONOUR OF
DURBAN COUNTRY CLUB : NOVEMBER 9, 2001
The Hon. Justice P.N. Langa, Deputy President of the Constitutional Court; the Hon. Justice R.M.M Zondo, Judge President of the Labour Appeal Court and Labour Court; the Hon. Justice J.M Hlophe, Judge President of the Cape of Good Hope Provincial Division of the High Court; the Hon. Justice V.E.M. Tshabalala, Judge President of the Natal Provincial Division of the High Court; honourable members of the national and provincial Government; distinguished guests; ladies and gentlemen.
I consider it an honour to gather this evening in the company of some of KwaZulu Natal’s greatest sons, to give due recognition to their achievements in the judiciary of South Africa and applaud their long-standing commitment to justice, law and order. I wish to take this opportunity to express my pride in the fact that these good men, the judges whom we honour tonight, have been raised from the soil of this Province and sent out from here to bring the benefit of their intellect, learning, experience, upright character and sense of justice, into our country’s highest courts. I congratulate them on having achieved personal and professional success, knowing well the burden that rests on their shoulders at this crucial time in our country’s history.
There are few men and women upon whom history bestows the burden and the privilege of shaping a nation. Looking to our present world context it is clear that as never before, the importance of the values of freedom and democracy are demanding world-wide recognition. There is a call throughout the world to establish the rule of law as mankind’s rudder, and the yardstick of how far civilisation has truly been entrenched in our societies. There is a resounding call to replace the rule of man, with its constant shadow of fear, oppression, power imbalances, cruelty and injustice, with the rule of law. Within our own country, we have gone to great lengths to reform the entire body of our law to reflect an historical shift towards political liberation and democracy which many have termed our South African miracle. Now that the laws are in place, we should not make the mistake of believing that that by itself means that the rule of law has triumphed.
The gap between legality and reality has widened as the law has embodied our aspirations. It is now our responsibility to bridge this gap by shaping a new reality which complies with the law and its underpinning values.
Today, we continue the struggle of bringing a new reality from the legality of freedom, equality and democracy which has been entrenched in our Constitution and the full body of our law. For instance, it is remarkable how many times the word "independent" appears in our Constitution to qualify the position of several bodies and institutions which are part of the complex system of watch-dogs and checks and balances entrenched in the Constitution. Yet I wonder how independent some of such independent bodies really are, and to what extent the notion has really permeated the hearts and minds of those who are charged with the responsibility of public affairs, that we are to serve the law and the Constitution, and not political interests or political potentates. At times I fear that certain people have merely been "deployed" to take over certain institutions to ensure that such institutions become part and parcel of the vision, interests and agenda of the ruling echelons of power.
If we are to consolidate the rule of law and ensure that it may finally replace the rule of man, we must grow out of the liberation movement mind-set which sees people deployed into the institutions of government with the task of continuing to serve the interests, agendas and objectives of the movement. We cannot have a centre of power behind the state, controlling the state, nor should we believe that all organs of the state must be bound to sing from the same hymn sheet. Indeed, the functioning of a constitutional democracy is that of a harmonious but differentiated set of functions which control one another exactly by means of disagreeing with one another and, in so doing, affirm the supremacy of the law and the Constitution above all of them and their actions. I am concerned that there are recent examples in which institutions of government have abdicated from the full measure of the responsibility of being independent and upholding the law to ensure that political and public interests are pursued if not serviced.
I also believe that it is the role of the judiciary to be blind to policy considerations and political visions, and to resist the call which at times is placed on them to become part and parcel of government efforts, no matter how meritorious and righteous such efforts may be. We must reinforce the notion that the judiciary is to serve the law and the law only, not to serve or create policies or participate in their implementation. For this reason, I feel that I must appeal to the new generation of judges who are now so valiantly coming to the fore, to participate in the consolidation of the rule of law by upholding and promoting the high standards of competence and judicial rigour.
We have paid a very high price because of colonialism, yet we must be big enough to recognise the value of the many good things which colonialism bequeathed upon us, amongst which is the highly developed tradition of the British legal system. It is our responsibility to ensure that what we have inherited from colonialism is not only preserved in its highest standards, but is also improved upon. This does not mean bending the law to make it fit perceived or real meritorious policies, but rather ensuring the highest possible quality of judgments rendered, and enhancing the technical aspects of the legal practice and administration of justice. Moreover, I believe that first and foremost, these efforts require that judges practice independence almost as if it were a religion which requires them to serve the law and the law only. It is only in the law that we can find refuge and guarantee. South African judges began this tradition of utilising the law as a defence against bad policies, even during the dark days of apartheid when many responsible judges utilised the law to curtail the abuse of power.
You will appreciate that with my personal and political history and in my present position, I have a particular appreciation for the rule of law. I must say that from my special point of observation in politics and within the institutions of government, I have often had the saddening experience of witnessing the disintegration of the fledgling rule of law, and I am very concerned about it. Often there is the perception that the law is there to serve the rulers rather than vice versa and can be changed whenever it is expedient, and that even the Constitution can be treated in such fashion. Throughout my life I have seen too many people being abused by others and even in my present position, I am the constant target of actions which are just not sufficiently right, and just should not happen in the type of democracy which I dreamt of and for which I have fought all my life. To me, the only solution is that of forcing people to stick to and act according to the rules, and to ensure that the rules cannot be manipulated as easily as they now often are. In this respect, only the judiciary can defend and protect our democracy and sound warnings against those who may tamper with it, protecting the rights of individuals against government, or those of provinces and local government, whenever they are threatened by other spheres of government with greater power and influence.
The challenge of consolidating the rule of law must be pursued at the top levels of our society as well as at grassroots level, as it is true that the fish rots from the head. It is also true that the tallest building collapses from weak foundations. The rule of law is unfortunately shaky at our community level and the very notion of a state is often not understood by large segments of our communities. We all need to join forces to promote an understanding of what the law is and how it operates. For instance, I am surprised to see how many of our people believe that they receive even basic services such as pensions or housing subsidies from rulers and political leaders, rather than from the abstract and independent entity of the state operating under the law. We need to draw a constant connection between the administration of justice and the upholding of the system of law which makes progress and peaceful cohabitation possible at all levels of society.
I believe that it is true that the way we mete out justice will determine the degree of recognition afforded the law within our society. If we fail to deal swiftly with crime, or an infringement of rights, or illegal actions taken in the work-place, we will silently encourage a sense of lawlessness, suggesting that the loud bark of the law has no teeth with which to bite. The mind-set sprung out of our divisive past is deeply rooted and we require a profound paradigm shift to supplant many of the wrong points of reference with the fact of equality. In truth, what we require is the moulding of new South Africans fully competent and fully willing to operate in a new South Africa. To achieve this end, we must be sure to give proper place to the law. There is truth to the saying that a society that willingly obeys a few laws need not be forced to obey many.
As we engage this challenge of bringing a new and natural respect for the rule of law into our changed society, a responsibility rests on the shoulders of those in leadership which can simply not be thrown off. For those who wield power in our new democracy, the temptation to accumulate personal power can just not be accepted. Any power the leadership of our country may have has been bestowed by the mandate of our people. It does not belong to the person, but to the position, and not because of status, but because of the responsibility that must be fulfilled. I am deeply troubled when I see leaders beginning to act as though they were untouchable, as though the rule of law bends when it reaches their doorstep and fails to encompass their own actions. Beyond this being absolutely wrong, it sends a message to South Africa that we cannot afford to send; a message that destroys any ground we may have taken in the struggle to right perceptions, change mind-sets and establish the rule of law.
Our country’s leadership must indeed be beyond reproach if we are to win our constant struggle. Those in positions of power, whether it be in politics, within communities, within our justice system or even our media, must recognise and accept the responsibility of shaping our nation towards greater justice, law and order, even through their own personal conduct. In this regard, I wish to applaud the achievements of the Hon. Justice P.N. Langa, the Hon. Justice R.M.M Zondo, the Hon. Justice J.M Hlophe and the Hon. Justice V.E.M. Tshabalala, for accomplishments worthy of their calling, and committing their lives to laying a foundation without which our country will never succeed.
The people of this Province were forged by a genius and a military strategist, King Shaka ka Senzangakhona. There was no anarchy during his rule and he laid foundations for a nation which for a number of generations after his demise, upheld the law as was understood in those times. I feel deeply hurt by the culture of lawlessness that has become such a prominent feature of our society. But I feel heartened that despite these developments, we as King Shaka's people can still produce such highly qualified and competent jurists whom we are gathered here to honour tonight. To one, that is a light at the end of this dark tunnel of criminality and moral decay, through which we are going at this time as people of this country. We are indeed engaged in the moment of truth. We dare not fail, for South Africa is poised to take up a leadership position in a revolution which may finally see Africa placed back on her feet, with dignity.
The challenge is not just for our country, but for what our country can achieve in the global context by fulfilling its role as a righteous champion of justice, freedom, equality and democracy. It is not just what is written on the pages of our law, but what flows out of the hearts of our people. Let us not make a mistake and ignore that in considering the progress and civilisation of our country, the eyes of the world will judge primarily the extent to which the rule of law is upheld within society and government alike. The rule of law must be seen to be a better option. It must be seen to work. It must be seen as the only route towards the prosperity this nation desires, causing our nation to embrace it.
I wish to urge the honourable judges whom we honour tonight to persevere in this noble task we have undertaken. May your perspective never shift away from the long-term goal, clouded by short-term difficulties. We have a long road yet to walk. My own commitment is to the rule of law. Let us rise and toast our good fortune that the commitment of so many members of the judiciary from KwaZulu Natal is likewise directed towards establishing in South Africa prosperity, democracy, justice and freedom.