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KEYNOTE ADDRESS BY THE DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: MR A NEL (MP) SOUTH AFRICAN WOMEN LAWYERS ASSOCIATION (SAWLA) NATIONAL AGM: GALA DINNER : PROTEA HOTEL, BLOEMFONTEIN ON11 MARCH 2011

Programme Directors, Mrs M Pooe and Adv S Chesiwe
Judge President of the Free State, Honourable Mr Justice Musi
Judge President of the Labour Courts, Honourable Justice Mlambo
Judge President of the Nothern Cape, Honourable Mr Justice Kgomo
All Judges and Magistrates present
Honourable Mrs B Mabandla, Patron of SAWLA
Honourable Mrs Ngubentombi, MEC for Health, Free State Province
Free State Law Society President, Mr Moroka
Cape Law Society President, Mr Lobi
Other esteemed members of the Judiciary and the legal profession
SAWLA members
Ladies and gentlemen

It is a great honour to be here with you today on the eve of the 3rd Annual General Meeting of the South African Women Lawyers Association (SAWLA). I am also privileged to do so in the company of your Patron, Comrade Brigitte Mabandla, the former, and indeed first women Minister of Justice and Constitutional Development in South Africa. Minister Jeff Radebe, MP, has also requested me to convey his warm greetings

We are gathered here tonight against the background of the recent 100th Anniversary of International Women’s Day on 8 March, as well as the forthcoming Commemoration of Human Rights Day on 21 March. The linkage is significant: women equals human rights! The theme for this year’s national human rights day celebrations, which will be held in the Athlone Stadium in Cape Town, is, ‘Working Together to Protect the Human Dignity for All’.   

It was a joyous occasion for both Government and the Department of Justice of Justice and Constitutional Development when SAWLA was established on 7 May 2006. We share in and support your key programmes which include the following:

  • Research and writing capacity building for women in legal careers.
  • Economic empowerment for women in legal careers.
  • Access to justice for marginalized groups and communities.
  • Leadership and professional development programme for women in legal careers.
  • Input into the transformation of the legal profession.
  • Women Lawyers History and Icons Project .
  • Participation in the women’s movement.

SAWLA will soon be celebrating its 5th Anniversary (on 7 May 2010). I have no doubt that your annual general meeting will give you the opportunity to reflect on your past with a view to consolidate and strengthen your future.

In the same vain, the Department of Justice and Constitutional Development also had to reflect on its past programmes  in finalizing its Strategic Plan which sets out its policy priorities, programmes and project plans for the current five-year planning cycle,  within the scope of available resources. Allow me to mention some of the Department’s programmes, as it also impacts, directly or indirectly, on that of SAWLA and the legal profession as a whole. The Minister, the Deputy Minister, the Director- General and the Department have, among others, committed ourselves to the following:

  • Ensuring that everyone in South Africa is and feels safe.
  • Developing policies for protecting the rights of vulnerable groups and victims in our society.
  • Prioritising access to justice for people in poor and rural areas.
  • Supporting efforts to increase the finalisation of court cases, as well as an increased use of alternative dispute resolution mechanisms, the diversion of cases and the use of restorative justice processes.
  • Administering deceased and insolvent estates efficiently.
  • Providing appropriate legal advice and litigation services to organs of the state.
  • Promoting legislation and constitutional development to meet the needs of society.
  • Managing all funds under the auspices of the Department, including the Criminal Assets Recovery Fund, the Guardian’s Fund, the President’s Fund and Third Party Funds.
  • Creating more jobs in line with government’s priorities in this regard.

The Constitution as the basis for the transformation of the justice system 
In the South African context, the transformation of the legal system, which includes the transformation of the justice system, is mandated by the Constitution. Fundamental policy initiatives contemplated for implementation in the current MTSF cycle, focus, among others, on the following areas:
(i)         Transformation of the judiciary, including institutional reforms to enhance the capacity of the Office of the Chief Justice to perform its constitutional mandate;
(ii)        Transformation of the courts and the attainment of a single judiciary. Part and parcel hereof is the envisaged overhaul of the Magistrate’s Courts Act, to ensure it is in line with the principles that underpin the Superior Courts Bill and the Constitution;
(iii)       Strengthening the independence and accountability of the National Prosecution Authority, by providing, among others, a legislative framework that establishes the National Prosecuting Authority as an entity, accounting on financial matters separate from that of the Department;
(iv)       Providing a legislative framework to overhaul the management of monies in trust, including the development and implementation of appropriate policies and legislation to address the current weaknesses in the management of Third Party Funds.
(v)        Strengthening our constitutional development portfolio.
(vi)       Continuation of the implementation of the 7-Point Implementation Plan to transform the Criminal Justice System and improve its efficiency.
(vii)      The review of the Civil Justice System to improve access to and address the weaknesses in the civil justice value chain.
(viii)     Addressing the Department’s capacity to provide quality legal advisory services, including the rationalisation and consolidation of the Office of the State Attorney and the Ddepartment’s other functionaries that provide legal advisory services to the State.

Substantive progress has been made with regard to the following initiatives:
 
•     Institutional Reforms to Strengthen the Office of the Chief Justice

The Constitution Eighteenth Amendment Bill introduces fundamental changes to the judicial system to bring it in line with the Constitution. This Bill seeks to provide a constitutional framework for the Chief Justice to exercise his or her judicial leadership role. The enactment of the proposed new section 165(6) of the Constitution is intended to affirm the Chief Justice as the head of the judiciary and confer upon him or her, among others, the responsibility of developing and monitoring the implementation of norms and standards for the exercising of judicial functions of all courts. The amendment will also empower the Chief Justice to exercise oversight over the Judiciary – both in respect of the lower and superior courts.

Transformative initiatives to establish a state-funded Judicial Education Institute (JEI) to provide judicial education to aspirant judges and magistrates and continuing education to serving judges and magistrates, have been put in place.

•           Rationalisation of the Superior Courts
The Constitution Amendment Bill and the Superior Courts Bill seek to give effect to item 16(6) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, in terms of which all courts must be rationalised with a view to establishing a judicial system suited to the requirements of the Constitution. 
The rationalisation of the courts is therefore a constitutional imperative. The Constitution Amendment Bill seeks to achieve the above transformative goal, among others, by means of the following:

  • Affirming the Constitutional Court as the apex court in the Republic in all matters and further regulating the jurisdiction of the Constitutional Court and the Supreme Court of Appeal (SCA).  Under the current constitutional framework, the Constitutional Court is the highest court in constitutional matters only, while the SCA is the highest court of appeal except in constitutional matters.
  • Providing for a single “High Court of South Africa”, comprising various divisions with the view to rationalising the current separate high courts. The Superior Courts Bill, 2011, aims to operationalise the constitutional principles envisaged in the Constitution Eighteenth Amendment Bill.

The Legal Practice Bill , seeks to, among others remove some of the known impediments which militate against the advancement of women in the legal profession. The vocational training implemented under the current articleship and pupilage do provide adequate measures to address the systemic and structural deficiencies that perpetuate the gender imbalances in the profession. The Legal Practice Bill provides opportunities to implement progressive measures, including steps to remove the hardships experienced by women entrants into the profession achieve gender equality. 

The enactment of the Legal Practice Bill will also give legal effect to the Legal Services Charter. The adoption by the Department early this year of a policy that will ensure that 65% of legal state work is allocated to the previously disadvantaged practitioners and firms, underscore the Department’s commitment to the transformation of the legal profession.In the 2009/10 financial year, 23%  female advocates were briefed. 15% of the total value of briefs were awarded to women. The total value of briefs constituted R307 635 000 to all advocates.   In 2010/201,1 in the first quarter, 28% female advocates were briefed, 14 % of the total briefs were awarded to women. The total value of briefs for these two quarters were R 129 656 689. One can already see an improvement of the percentage of briefs to women.

Re-alignment of magisterial districts with municipal districts
The Department continues to implement programmes that seek to correct the old magisterial districts that were based on the racial and geopolitical boundaries of the defunct self-governing and independent states (homelands) and the former RSA territory. The significance of the conversion of the branch courts into full-service courts is the elimination of the current fragmented system in terms of which communities in the traditional black areas and rural villages only have access to services relating to the adjudication of criminal cases in the local courts in their vicinity.They are therefore compelled to commute to remote cities and towns  in order to access services relating to civil matters, including maintenance, small claims courts and deceased estates.

Review of the Civil Justice System
While the transformation of the lower courts remains a medium- to long-term project, intermediate legislative interventions have been implemented to address some of the pressing gaps in the lower courts. These include the amendment of the Magistrate’s Courts Act, 1944, to extend civil and divorce jurisdiction to regional courts.

As part of continuing efforts to improve the civil justice system, various new small claims courts were established during the 2009/10 financial year to bring the total number of these courts to 224.  The target is to establish a small claims court for each of the 384 magisterial districts by 2014, subject to the rationalisation of the areas of jurisdiction of lower courts as explained above. The reason for the slow pace in the establishment of these courts, is, inter alia, the lack of an adequate number of legal practitioners with appropriate experience who are willing to be appointed as commissioners. I would therefore  encourage all SAWLA members who have practised as an attorney or advocate for an uninterrupted period of 5 years, to avail yourself for appointment  as  a Commissioners for Small Claims. I have attended many sittings of the Small Claims Court and the experience of seeing civil disputes of R12 000 and less being adjudicated on  in an informal manner to the benefit of very often the poorest of the poor, is enriching.

I would like to quote the late Ismail Mohamed, former Chief Justice of South Africa when he was addressing the Johannesburg Bar:

“The new Constitution has ushered in momentous times for all of us. For the Bar it is time for the discovery of its potential greatness, a time for renewal and cohesion. A time for strong leadership with a faith that is optimistic and temper, which is positive. It is not a time for dissipation and fragmentation or a time for despair, pessimism or retreat”.

I believe that one of the factors that will determine the relevance of the SAWLA will be its sustained ability to make a difference in the legal profession, the judiciary and the lives of ordinary people, particularly women.

Some of the programmes that the Department facilitated in order to provide assistance to  SAWLA include the following:

  • Access to Justice Week – this project gives women in the legal profession an opportunity to give free legal advice to women and rural people.
  • Candidate Attorney Programme – expansion of access to the legal profession for female law graduates. This project has been piloted in Cape Town and the Eastern Cape in partnership with the Cape Law Society. Further, the aim of this project is to provide support to women lawyers who cannot afford to be appointed as a Candidate Attorney.
  • Legal Research and Writing Programme – To give women in the legal profession an opportunity to contribute  throught leadership programmes and  to bring the history of their  lives and experiences into the South African legal scholarly writing field and transformation dialogues.
  • Participation in Law Reform, Transformation, and Policy Dialogues on the judiciary and the legal profession – SAWLA has been requested to make and submit inputs to the SALRC’s discussion papers. 

 I have been informed that the Department  also made it possible for Ms Buyiswa Majiki, the outgoing President of SAWLA, to visit New York in 2008 in line with and support of the objectives of some of the programmes referred to above..

We trust  that the Legal Research and Writing Programme will assist SAWLA to conduct a survey on the retention and promotion of women in law firms, focusing, among others, on the following:

  • partnership structure and the impact thereof on women;
  • profit sharing do women share in the profits or do they earn a salary despite being expected to bring in equal work?;
  • statistics on appointments, resignations and terminations, for  example,  how many women are on contract, full time employees or equity partners?;;
  • compensation gaps; etc  

 SAWLA members should also play a leading in the following:

  • Human Rights Litigation and other Pro bono matters on issues that affect women, especially those that have not been tested in court.
  • Women lawyers creating networks to support each other and  to engage in frank discussions on  career development, strategic decision making, and the means to improve skills and knowledge.
  • Establishing partnerships in order to bid for government briefs and tenders.

As mentioned, on 8 March 2011 the  world celebrated a centenary (100 years) of women making a difference.  As SAWLA women embark on a journey of  empowerment, the memory of other women, and children and men who are disempowered and disadvantaged, should always be a guiding light.

I thank you all and wish you well with your AGM