Address by President Nelson Mandela to Bloemfontein Attorney's Association

16 September 1994

Mr Chairman,
Honourable Chief Justice,
Honourable Premier,
Judges of the Supreme Court,
My Fellow Attorneys,
Ladies and Gentlemen

It is a special pleasure for me to address the Bi-annual Dinner of the Bloemfontein Attorneys Association. Firstly it affords me an opportunity to discuss legal matters with members of my own profession. Secondly Bloemfontein has a special place in the history of our country. It was the seat of that brave Republic that dared to defy British imperial ambitions. But it is also the place where 80 years ago the African National Congress was born. On that occasion, Africans in this country came together for the first time, across tribal, provincial and language divisions, to insist that they too were South Africans, entitled to an equal place in the South African sunshine.

And pre-eminent amongst those far-sighted leaders were Thomas Maphikea and the Rev. ZR Mahabane, sons of this province.

Baie prominente individue is gebore en getoee in Bloemfontein. Ek wil graag in besonder hulde bring aan een, naamlik Bram Fischer. Hy word grotendeels onthou as 'n kommunis, maar ons onthou hom veral omdat dit vir hom moontlik was om verby rassisme te kyk na 'n verenigde Suid-Afrika.

Ek onthou hom as 'n persoon wat grootgeword het in 'n konserwa- tiewe gemeenskap, wat moontlikhede van rykdom en sukses in privaat en publieke lewe ten koste van homself prysgegee het, om te veg vir die regte van swart Suid-Afrikaners. Ek wil graag glo dat dit as gevolg van sy diepgewortelde oorsprong in Bloemfontein is dat hy so 'n uitsonderlike menslikheid en lojaliteit teenoor sy volksgenote kon toon - wit of swart. Nogtans het hy nie sy unieke Afrikaanse herkoms prysgegee nie.

Another son of the province, I should single out, is Kobie Coetsee, the current President of the Senate. It was he who, in 1988, collaborated with me in charting the first tentative steps towards negotiations which were to lead to our new democracy.

The New Constitution, we should note, confers more powers on the people of the Orange Free State to administer their regional affairs and the delivery of Governments services than at any time since 1910.

I fully understand BOTH the impatience of the people of the Orange Free State to get on with the task of governance, and their frustration at the slow pace of the assignment of the powers and resources necessary to govern.

I can only say that we are doing our utmost to expedite an extremely complex process of amalgamation, and restructuring of a public service of 1,2 million persons. I believe it was an error of judgement to think it could be done in 2 months. I assure you that the Government of National Unity is not, and has no intention of dragging its feet on this issue.

We also note that the New Constitution preserves Bloemfontein as the seat of the Appellate Division, and accordingly its continuing status as the judicial capital.

It seems appropriate, being in Bloemfontein, and amongst lawyers, that I should discuss the challenges and opportunities which now face the legal profession and the Government together.

Our New Constitutional dispensation has a special significance for all members of the legal profession. I do not here refer to the additional litigation, and hence fees, that the Constitution will, no doubt, generate.

But that, for the first time in our country's history the Constitution provides for a democratic non-racial and CONSTITUTIONAL order. This must contribute to increased respect for the institutions of governance, including the courts. The standing of those institutions - associated with the administration and enforcement of the laws of apartheid - South Africa was sadly tarnished in the eyes of large sectors of the population. Now that their standing will be enhanced, they will enjoy, greater domestic legitimacy. They will also benefit from, greater interchange with legal bodies and thinkers from other parts of the world. In Human Rights law, Constitutional law, and related fields we could profitably look forwards and outwards - not backwards as has been the hallmark of our jurisprudential tradition. However, the application of these increasingly universal legal principles will always have to be uniquely South African.

Secondly, the Constitution establishes a legal order premised on respect for universally accepted human rights. Many of these have previously been the subject of demands by various legal bodies and associations and councils. I congratulate the individual members of the profession who have played a part in achieving their due recognition.

While the existing interim Constitution will be replaced, the Constitutional principles guarantee that the future Constitution will contain the internationally accepted human rights.

My own party, proposed the adoption of a Bill of Rights as far back as 1924, 1944, and again in 1955, way before Human Rights became fashionable. I say this because there are inevitably suspicions that those who govern have only an expedient attitude to the observance of these rights. I can assure you of the consistency of our commitment to Human Rights.

I have recently urged the relevant Ministers to take the necessary steps to ratify those international human rights agreements and conventions to which South Africa is not a Signatory. This measure will also place the Government within an international framework of monitoring and reporting on its human rights record.

We also affirm that the central purpose of the Truth and Reconciliation Commission is not to seek out and to punish, but to promote a human rights culture and norms - to say loudly "NEVER AGAIN". This is necessary in the context of a country which lacks Human Rights tradition and has to develop one urgently.

To be sure there will be contests between state and citizens, heated contests, as to the nature, boundaries, and justifiable limitations on fundamental human rights. These will arise when rights are in conflict with each other, or with the implementation of a mandate given to the Government by the People.

It should be interpreted as the flourishing of democracy and a critical contribution to the evolution of our "Constitutional State".

Thirdly the Constitution makes it clear that the Constitution itself, not the President or Parliament, is the highest authority in the land. Within this constitutional schema the courts are granted a most prominent role.

The courts will ensure that I and Parliament play by the rules of the game. Our courts and those who work in them will now find themselves on the centre stage of our body politics. They will also be important players in making the Constitution work.

In accordance with this elevated role of the courts, practitioners (and judges) will, I believe, become keen guardians of our Constitution. I hope you will preserve it from threats posed by executive action. I want to believe that you will also promote its underlying values against threats from other sources.

This is an especially important task. The interim Constitution, codifies our widest collective aspirations. It simultaneously guarantees democratic government - and provides security for individuals and minorities. It is a compact binding of our diverse and divided people together. This will be as true for any succeeding Constitution. It is important that we, and especially lawyers, treat it with care and respect.

We must accordingly expect that the spotlight will focus on the legal profession, and its capacity to fulfil its broader role. In this regard there are some notable challenges facing the profession. Foremost amongst these will be making the legal system ACCESSIBLE, AFFORDABLE, EFFICIENT, and more REPRESENTATIVE of the country's population.

There are a number of testing challenges which I will briefly mention.

Firstly, the current in-accessibility and unaffordability of our legal system is in direct contradiction to the Constitution's promise of legal assistance to an accused whenever it is in the interests of Justice that he or she be so assisted.

In reality we have neither the means nor the available lawyers to meet the Constitutional prescriptions unless we have new arrangements.

As to the question of legal costs, it can not be said that any citizen can have his or her proverbial day in court. The delays and expenses of litigation have largely rendered this a luxury to be enjoyed by corporations. The most elegantly drafted human rights are worth nothing if only the wealthy can afford to enforce them.

Streamlining the court system, replacing practices and procedures which escalate costs and delay the process, creating less formal community courts, creating specialists courts, and the greater use of pre-trail mediation, will all have to be considered in conjunction with increased provision for legal aid.

Legal aid alone can not provide the solution. South Africa simply does not have the resources to fund legal assistance in all such cases at the current rates of such services unless we were to dig deeply into the funds allocated for health, housing and other needs. New and creative measures may include the use of a public defender system, granting rights of audience to para-legals and law students, and amending the requirements to practise so as to allow greater numbers of persons to enter into the profession.

Such access might, for example, be promoted by amending provisions which keep so many young black law graduates out of the profession such as the Latin language requirement. Articles of clerkship artificially and indirectly restrict the entry of female and black law graduates. I do not intend to prescribe here what measures would be most appropriate and indeed I am aware that suggested changes have been discussed by the various legal associations for some time, but it needs to be done comprehensively, not in a piece-meal fashion. These changes impact on educational institutions, the court and the profession.

The Constitution enjoins all aspects of public service to become representative of the people of the country. This is a prescription to remedy the colour and gender imbalances created by decades of exclusion and powerlessness. While the civil service will perforce have to address this, the legal profession will also have to respond to this challenge. The figures are very revealing. Of 94 Judges only 1 is black and 2 are women. Out of 172 senior counsel only 17 are black. (according to the Department of Justice). Out of 1,088 magistrates only 37 are black. Out of approximately 8,300 attorneys some 1,180 are black. It was, after all, only 11 years ago that the Bar Councils first consented to admit black members.

While remedying this imbalance can not be done overnight, it is clear that urgent steps are needed if the legal profession is to avoid the charge that the profession and the courts are the preserve of one group only, and predominantly service that group.

It is in the interest of the legal profession and of the legal system as a whole that all our people should feel that the system i ti tm The etaeshface tpfiaone. The administration of justice is of National concern.

A key element of our ultimate goal - of prosperity, safety and security for all - is the provision of a functioning legal system; one that quickly and fairly resolves conflict and tries criminal suspects. If this system does not work, despair, violence and self-help will result. Thus Government has a keen interest in promoting a legitimate and efficient system of justice. Government too has its own homework to do to make the courts more user friendly, and to ensure its justice personnel give expression to the values in the Constitution, EVEN when it hampers successful prosecutions and defences.

Government, the professions, the Universities that educate lawyers and the communities are the consumers of legal services, and must all make their voices heard, and contribute to the solution of these problems. Those that participate will know that the system is `theirs'.

In accordance with this approach the Minister of Justice has today announced the establishment of a Legal Forum - a body on which all the stake holders will be represented - to examine the functioning of the whole legal system.

While we must all be realistic about our goals, and the resources at our disposal, we must also be guided by our ideals.

I have consistently referred to the need for changes, as a CHALLENGE. They should not be viewed as hurdles to clear, but as OPPORTUNITIES to raise the standards of our legal system.

I say this because the challenge of change is often greeted with dismay at what is viewed as the lowering of standards. But, surely, to adapt our legal system so that it is more legitimate, more widely accessible, more affordable, and more efficient is to lift our standards. Creative ways of meeting these challenges can and must be found. I have every confidence that the legal profession, will meet this challenge.

Source: Nelson Mandela Foundation