By Mkhokeli Pino (LLB) (NWU), International Trade and African Development (TMALI)
“Education either functions as an instrument which is used to facilitate integration of the younger generation into the logic of the present system and bring about conformity or it becomes the practice of freedom, the means by which men and women deal critically and creatively with reality and discover how to participate in the transformation of their world”- Paulo Freire
In and around the 15th Century, Holland developed from rural society into a trading center. The Dutch realised that the old Germanic customary law that the country subscribed to was no longer capable of settling disputes within the territory and ultimately not serving its purpose within society. The Dutch in addressing the problem adapted the Germanic customary law to suit the needs of their people, this brought about what is today known as Roman Dutch Law and forms the basis of common law in South Africa. This then is our task, to tailor our legal system so as to adequately respond to the needs of the people of the Republic.
The objectives of transformation of the legal system, are to overhaul old order legislation, policies and legal precedent which continue to perpetuate the legacy of apartheid and deprivation, to transform various branches of the law towards equal access and benefit and to put measures in pace to ensure access to justice for all.
The broad definition of transformation demonstrates, the mammoth task that confronts us. If transformation is viewed from this prism, then certainly one would be correct to conclude that; issues of the marginalisation of black and black female practitioners in the legal fraternity in particular is a byproduct of the social project of apartheid. This by no means seeks to underplay the significance of the racial and gender discrimination that permeates within our fraternity and society at large.
South Africa has been undergoing the agonisingly slow process of constructing a constitutional democracy for 25 years; based on the principles of the rule of law, freedom, human rights, and equality. Notwithstanding our world renowned Constitution and Bill of Rights, that specifically provide for the rights of woman and children, equality, human dignity, just administrative action amongst others, the reality of the situation is somewhat different.
I submit that ultimately the function of transformation would be to give life to values, spirit and purport of our constitution to be enjoyed by everyone in South Africa. A project of this magnitude, would most certainly require all quarters of society to accept the responsibility of engaging in a concerted effort to transform the legal system of our country for the benefit of us all.
Our history as a country has taught us that, the law is far from perfect and will need to move with the times. We must draw inspiration from the likes of Henry Silvester Williams, Alfred Mangena, Richard Msimang and Pixley ka Isaka Seme, who were acutely aware of the role of the law as a vehicle that drove apartheid, the disenfranchisement of black people, dispossession of land and ultimately dehumanising black people and turning them into appendages of white society. In discharging what they believed to be their duty, they immersed themselves in the struggle to bring about change in the country not for themselves but for the greater good of our society.
Under the prevailing democratic dispensation, and all the opportunities that have presented themselves, we have witnessed the accent of black practitioners, professionals, academics and officials within the three spheres of government and the private sector occupying positions of authority and trust. With the experience that we have as a country of depravation, it is all the more important that under the current government, people must enjoy a greater sense of protection and enjoyment of their constitutional rights for we have firsthand experience of what the converse thereof is. We shouldn’t guard against omission subjecting our own people to a life without basic human rights.
Some of the pertinent issues bedeviling our society and to which the legal system must respond include but are not limited to the scourge of violent crimes committed against woman and children, and corruption. In the Department of Justice and Constitutional Development Annual Report of 2017-2018 Minister Masutha reported the following:
1. Increased focus was placed on sexual offences and gender based violence matters. The improved conviction rate in sexual offences of 72% is an all-time high reflecting a firm commitment to deliver justice for the most vulnerable members of society; the victims of sexual offences and gender based violence.
2. If we compare the race and gender breakdown of the magistracy in 1998 with the position at the end of Feb 2018, there has been an increase of 163% black magistrates and a 249% increase from 62 in 1998 to 472 in 2018 an increase of 661%.
5. The Courts of Law Amendment Act protects the poor from actions of unscrupulous persons in the debt collection industry. By aligning the 1944 Magistrates Court Act with the requirements of a constitutional court judgment affecting emoluments attachment orders. The Court of law amendment act seeks to ensure that presiding officers considering issues of an Emolument Attachment Order (EAO) take into account factors such as the size of a debt, the circumstances in which it arose, availability of alternative recovery options, a judgment debtors’ income, the rights and needs of vulnerable people and children likely to be affected by an EAO and how much of the debtors income is required to meet the basic living expenses and those of his dependents.
6. Section 2,11 and 13 (b) of the maintenance amendment act were put into operation in Jan 2018 and provide amongst others that parents who default on child maintenance will have their personal information submitted to credit bureaus and face being blacklisted. This will prevent maintenance defaulters from continuing to receive credit whilst owing maintenance.
These are just but a few examples of the interventions of government aimed at giving expression to the values in our constitution. We must collectively acknowledge that; it is our responsibility to ensure that we educate people about their rights, and contribute positively to the spirit of constitutionalism as means to improve the quality of life of every person in South Africa.