Speeches

Remarks by the Minister of Justice and Constitutional Development, Mmamoloko Kubayi, on the occasion of the NCOP Debate on Freedom Day and Workers’ Day, Wednesday, 29 April 2026

election has now become our Freedom Day which we celebrated two days ago.

These elections paved the way for a new social contract, one that was enshrined in South Africa’s Constitution that is based on the Rule of Law. The adoption and signing into law of the constitution in 1996 marked a significant milestone in the irreversible march towards substantive freedom for the majority of South Africans who for years had been dehumanised and impoverished by colonisation and apartheid.

In recognition of our difficult past, the Preamble of our constitution says that “We, the people of South Africa, Recognise the injustices of our past. It does not stop there, it goes further to say that: “We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; and Improve the quality of life of all citizens and free the potential of each person”.

Broadly speaking, our constitution was drafted to achieve peace, unity and stability after many years of painful and violent struggle and secondly, to lay a foundation for a transformation of the South African society.

Thirty years after the adoption of the constitution, South Africa is a constitutional democracy that is at peace with itself and all of us have been at work building a South Africa that belongs to all who live in it, united in our diversity. Admittedly, it is the transformation of the South African society which is closely linked to social justice that remains a work in progress.

Our constitution enjoins us to collectively strive towards the attainment of social justice that provides everyone with equal economic, political and social rights, and opportunities. Our efforts are aimed at ensuring that there is a just distribution of wealth, opportunities, and privileges within our society.
To this end, we have, through our Constitution and legislative measures, taken the approach of social justice as a core value and principle, by placing an emphasis on securing the basic needs of all.

South Africa has built one of the most progressive constitutional democracies in the world, firmly anchored in the rule of law. An independent judiciary continues to act as a guardian of rights and a check on the abuse of power. Our courts have defended the vulnerable, enforced socio economic rights, and consistently affirmed that no one is above the law. The transformative approach of our judiciary in the interpretation of our laws has been bolstered by the transformation of the judiciary itself.

Not only has the judiciary been exemplary in demonstrating excellence of the judicial officers who are reflective of the racial demographics of our country, it has also led in the gender mainstreaming project.

The transformation of the judiciary and affirming women jurists in the judiciary is an achievement that we should all celebrate. In 1994, when we attained democracy, our Judiciary comprised of 165 Judges of which 160 were white males, three black men and two white women. South Africa had no black woman Judge in 1994.

Today, the Superior Courts have, including 2 recent appointments to the constitutional court, 257 Judges in all of which 131 are men and 126 women Judges. This puts the proportion of women judges at 49%. In our recent JSC interviews we have recommended 8 women judges which still have to considered by the president.

Regarding women leadership in the Judiciary, out of 15 Superior Courts, 6 of these courts are led by women inclusive of the Constitutional Court, South Africa’s apex court, led by Chief Justice Mandisa Maya and the Supreme Court of Appeal the second highest court in the land, led by Judge President Mahube Molemela.

The magistracy has made better strides in terms of gender transformation in that of the 1626 magistrates, 898 are women. This means that 55% of the total number of magistrates are women.

This kind of progress in the transformation of the judiciary is a demonstration that transformation is possible in all spheres of our society. Gender equality, women’s empowerment and the elimination of all forms of discrimination against women are all constitutional imperatives.

The Bill of Rights ensures the foundation for a non-racist, non-sexist and human rights-based society in which equality in terms of gender, sexual orientation, class, and social security, among others, are primary considerations.

The message of S v Makwanyane reinforces the theme, that every person possesses inherent dignity and worth and set the tone for South Africa’s constitutional jurisprudence wherein making dignity real requires ethical governance, accountable institutions, inclusive economic participation, and active citizenship.

It demands that constitutional values inform daily decision-making across all spheres of government and society. The Court in the Government of the RSA v Grootboom advanced the understanding of the right to housing, the right to health care and access to HIV/Aids treatment was confirmed in the Minister of Health v Treatment Action Campaign.

The obligations of the state in the provision of socioeconomic rights were outlined in the constitutional court’s judgement on the Grootboom case. In its wisdom, the Constitutional Court adopted the reasonableness test to determine the nature of government’s statutory obligation entailed by socio-economic rights and by implication the content of these rights.

The Court rejected the notion of a minimum core in favour of an approach that seeks to judge each socio-economic right on merit. The Constitutional Court held that the provision of socio-economic rights by the State is subject to the principle of progressive realization of these rights and the availability of resources.

It is true that inequality remains stubbornly high. Unemployment, particularly among the youth, has reached crisis levels and poverty remains corrosive factor particularly amongst black women. For many, political freedom has not translated into economic opportunity. When hope stagnates, frustration grows, and the social contract weakens.

It is within this context that the state has intervened through social protection. We have expanded social protection on a scale unprecedented in our history. Millions of South Africans rely on social grants that have softened the harshest edges of poverty and helped prevent social collapse. These are not insignificant achievements. They represent real efforts to honour the state’s obligations to its people.

Honorable members,
We have extended socioeconomic rights to many poor households in line with the constitutional court ruling which held that the provision of socio-economic rights by the State is subject to the principle of progressive realization of these rights and the availability of resources. These includes housing, health, water, education and electricity. Access to electricity and water in South Africa has improved historically, with about 91% having access to water and over 86% to electricity.

The number of households who reside in informal dwellings has declined from 13,6% in 2011 to 8,1% in 2022;” and that “households residing in formal dwelling units increased to 88,5%, an increase from the 65,1% recorded in 1996.”

Perhaps the deepest wound has been inflicted by corruption and state capture. The diversion of public resources for private gain hollowed out institutions and betrayed the constitutional ethic of public service.

While these wrongs have been exposed, we remain deeply concerned that strong checks and balances were breached. It is incumbent upon the state to close these gaps decisively and to ensure that those who betrayed public trust and broke the law are held accountable.

It is on this aspect of fighting wrongdoing that our constitution has also registered significant achievements. Our chapter 9 institutions, independent bodies established by the Constitution to strengthen constitutional democracy, which include the public

protector and Auditor General of South Africa have been at the forefront of fighting against wrongdoing and wastage of public resources.

Supported by our law enforcement agencies and the courts, they have been at the forefront of holding individuals and institutions accountable thus becoming a pillar of our constitutional democracy.

The ongoing struggle for socio-economic equality remains a prevalent issue, necessitating continuous reform and engagement from all sectors of society. As the government endeavours to navigate these complexities, it is imperative for citizens to be vigilant and proactive in defending their rights and fostering an environment that supports democratic values.

Honorable members,
Freedom is sustained when the law affirms equal worth, protects the vulnerable, and enables every person to participate fully in social, economic, and civic life. When the rule of law is upheld with fairness and humanity, it transforms our painful history into a shared future, one in which unity is strengthened, not weakened, by difference.

In reaffirming the rule of law, we reaffirm a simple yet profound truth: that power must serve the people; that freedom thrives under law, not above it; and that equality and tolerance are the foundations of lasting peace.

I thank you.