Minister Mmamoloko Kubayi: Nadel Conference and 38th AGM

Program director: Deputy President Machini
HE Ms Esther Armenteros, The Ambassador to Cuba;
HE Mr. Carlos Feo Acevedo, The Ambassador to Venezuela;
Mr Xola Nqola -Chair of the Justice Portfolio Committee
President of Nadel, Mvuso Notyesi
Distinguished guests
Ladies and Gentlemen

Thank you for inviting me to your 38th Annual General meeting and conference held under theme “Placing Nadel in community Development Through Legal Instruments”. I am particularly interested in your intention of placing your organization in community development. This is because I, myself, am very passionate about community development and it so happens that’s where I started my career working for NGOs. I believe that community development is one of the most effective ways in which we can transform society to create a better life for all. A society in which we all enjoy human rights as outlined in the bill of rights.

In the more than thirty years of democracy, the democratic government has done a sterling job in extending the democratic dividend to all corners of country. In their study of Qwaqwa in the Free State province, under the project democracy at 30, the HRSC made the following observation:
“…, QwaQwa was a homeland and had been used to self-governance even before 1994. Democracy has been met with mixed feelings, and while the benefits of democracy have greatly improved the lives and livelihoods of many people, this is also met with differing voices on the effectiveness and experiences of democracy. The high levels of corruption in QwaQwa, the high unemployment, limited opportunities, closure of public schools, infrastructure decay and the closure of firms have contributed to mixed feelings about democracy.”

The concrete experience of the people in QwaQwa is a microcosm of what people around the country have experienced under democracy. This finding by the HSRC is just an example of our democracy has positively impacted the lives of ordinary citizens though the extent of the benefits will differ for each individual. Great strides have been made since the dawn of democracy, however, all of us will agree that there are many challenges that remain to be tackled in our communities which include poverty, inequality and unemployment.

The triple challenges I have just mentioned are the major contributors to an additional challenge which is more relevant to the legal profession and that is access to justice for all. Though we have been striving to fulfill our constitutional mandate of ensuring there is access justice for all, significant sections of our society still have limited access to justice. A society that has a limited access to Justice is not enjoying a full bouquet of its rights.

Amongst the leading factors for the limited access to justice are the following:

• The high costs of litigation and legal advice.
• The long delay in resolving legal disputes and court cases;
• The approach to the regulation of legal costs in which an unsuccessful litigant bears the costs of a successful party limits access to legal proceedings by individuals;
• Many South Africans live long distances away from courts. This is particularly true of the Supreme Court which is only located in certain major centres. In addition, many people living in rural areas do not have effective access to lawyers to seek legal advice;
• The limited availability of legal aid in South Africa, particularly in civil cases. This situation adversely affect the position of individuals who have legal disputes or potential disputes with large corporations.

At the centre of the factors I have just mentioned are poverty and unemployment. The high levels of poverty and unemployment in our country have relegated a sizable portion of our population to informality, lack of access to basic services and exposure to hunger. The communities in which the poor live and try to eke out a living have become a breeding ground for all sorts of social ills.

It is in these communities where we have seen the rise of drug use and violent crimes. Gender based violence & femicide has also risen, in these communities, to alarming levels. According to a report by Human Rights Watch, people in South Africa are in living in communities where “Entrenched sexual violence and discrimination prevent the realization of the rights of women and lesbian, gay, bisexual, and transgender (LGBT) people. While guaranteed in legislation, the rights of older people and children have come under threat, and xenophobia against African and Asian foreign nationals continued….”

Nadel was born out of mass democratic movement and has always been at the centre of the people’s struggles. After more than thirty years of democracy our communities are crying for intervention. The theme that you have adopted for this gathering which speaks about community development is in a sense taking NADEL back to the basics. By providing legal representation, advice, and assistance to individuals navigating the legal system in poor communities you can ensure that these communities get what is due to them.

Your intervention through legal instruments can ensure that orphans get access to their guardian fund; you can ensure that a deceased estate does not end up in wrong hands; you can ensure that beneficiaries of the road accident fund get what is due them and that victims of medical malpractice get what is due to them.

Those who give themselves the task of getting involved in Community development have to be guided by honesty and integrity. They have to be deeply steeped in their commitment to ethical conduct. I believe that Ethics in the legal profession are not just a matter of adherence to rules and code of conduct; they are a foundation without which the system designed to uphold justice and fairness in society would collapse. The immense power and responsibility with which legal practitioners are entrusted requires a strict adherence to ethical standards.

Four days ago, the citizen online publication had a screaming headline which said: Lawyers who steal: R1.4bn trust fund theft ignored. It went on to say that “Unscrupulous lawyers have plundered their clients’ trust funds to the tune of R1.4 billion with more than 500 cases documented but only 59 convictions were made in seven years and just 25 resulted in jail time”. About the poor consequent management in these instances of theft, one of the commentators said that that regulators may be reluctant to aggressively pursue cases that could further erode public confidence in the legal system. I think that the many cases of theft and fraud that are surfacing without any consequent management will do more damage to the profession than if they are acted against. The question is: what is it that you are going to do to root out this wayward behavior in your mist so that your community development work can be more meaningful?

In the quest to build a sustainable democracy and create a transformed and inclusive communities we all have responsibilities. For our part as government, we have a role to play in ensuring that we have functional institutions and that the legal profession is transformed so that we can eliminate the Imbalances of the past. The only way of ensuring access to Justice for all is by transforming both the judiciary and the legal profession to reflect the demographics of our country.

In the transformation of the judiciary significant progress has been made. At the advent of our democracy in 1994, our Judiciary comprised of 165 Judges of which 160 were white males, three black men and two white women. There was no black woman Judge in 1994. Today, there are about 252 Judges in all the Superior Courts of which 131 are men and 121 women Judges. Progress has been made however, more still needs to be done to ensure gender parity which we will vigorously pursue.

With regard to women leadership in the Judiciary, out of 15 Superior Courts, 6 of these courts are led by women inclusive of the Constitutional Court, the apex court and the Supreme Court of Appeal, the second highest court in the land. The Magistracy has fared much better in terms of gender transformation in that of the 1724 magistrates, 934 are women. This means that 54% of the total number of magistrates are women.

The slow pace of transformation of the legal profession remains a sore point and it must be tackled head on. The legal sector code which has been challenged through the courts by the big law firms provides a framework through which the briefing patterns, the ownership patterns and the participation of vulnerable groups such as youth and women will be fundamentally changed for the better. It cannot be that thirty-one years after democracy there are still areas of the economy and professions in which black people barely participate not because they lack the capacity but because opportunities are closed to them. As government, we will defend the legal sector code against any challenge.

Transformation is a fundamental principle that all us as South African must agree on. Our constitution enjoins all us to acknowledge the injustices of the past and to do whatever is in our power to heal the injustices of the past. We shall not relent on our quest to transform the legal profession.

Your work in community development can only make a positive impact if it is matched by functional, ethically and operationally efficient institutions of government. In this regard, we have made our priority to intervene decisively to turnaround both the Masters office and Solicitor General’s office. Working closely with the private sector we will introduce digital systems and improved operational processes in the Masters office. These systems will work seamlessly with the South African Revenue Services and the Home Affairs systems. We will be making an announcement in the next weeks in this regard.

We have commenced the process of appointing a Solicitor General and we will conclude this process as soon as possible. The overhaul of both these offices will include ensuring that at all levels these offices are led by people who adhere to ethical standards. By conducting lifestyle audits on the people we recruit, we will minimize the risk of our institutions collapsing under the weight of corruption and unethical conduct which destroys lives of widows, orphans, victims of GBV&F and communities.

The democracy that NADEL fought so hard to bring about requires eternal vigilance. If we allow our communities to collapse and to be disillusioned about of our democracy because they are not enjoying their rights, we are risking instability which will destroy all of us. Let us all work together to develop our communities and ensure that there is access to justice for all.

I thank you.

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