Minister Mmamoloko Kubayi: Judicial Conference Dinner

Programme director, Judge president T P Poyo-Dlwati

Executive Mayor of Ethekwini, Councillor Xaba

Deputy Chief justice of South Africa, Dunstan Mlambo

Justice of the Supreme Court Of Appeal, Justice YT Mbatha

Justice of the Supreme Court Of Appeal, Justice W Hughes

Members of the judiciary

Distinguished jurists

Distinguished guests

Ladies and Gentlemen

Good morning

It is great pleasure to address you this evening as we open this very important conference for the judiciary. Let me thank the organizers for inviting me to join you this evening and for the conference. The theme of the conference "Towards a Single, Institutionally Independent and Accountable Judiciary" is timely and a demonstration of your commitment to good governance and accountability.

The constitution that we adopted thirty years ago, whose 30th adoption anniversary we are celebrating this year, is the supreme law of our nation and provides for the establishment of the structure of government and enshrines the rights of all citizens. The same constitution is a product of the struggles of the people of South Africa whose aspirations can be summed as the creation of just society in which it is possible to create a better life for all. It is for this reason that in our constitutional democracy, the Constitution binds all branches of the state, the executive, the legislature or Parliament, and the judiciary at all levels of government.

By providing fundamental rules about the source, transfer, accountability and use of political power in a society, the constitution, unlike in the past, has introduced the separation between the permanent, enduring institutions of the state, on the one hand, and the incumbent government, on the other. In other words, the constitution ensures that the government does not own the state: it simply manages the state, under the authority of higher laws, on behalf of citizens. Our Constitution sets out how all the elements of government are organised and contains rules about what power is wielded, who wields it and over whom it is wielded in the governing of a country.

Indeed, no law, policy or regulation can supersede or go against the constitution. For this system, which is referred to as constitutional democracy, to function, the Judiciary must independently interpret and enforce the Constitution without interference from other branches of the state. It is for this reason that the Constitution provides for the state to be separated into the legislature, the part which makes laws; the executive, the part which governs the country from day to day; and the judiciary which is the courts.

Rights, however, carefully drafted, require guardians. Chapter 9 of the Constitution recognised, with considerable foresight and accordingly established a set of independent state institutions whose specific mandate is to strengthen and sustain constitutional democracy. These institutions represent a deliberate constitutional choice to institutionalise oversight rather than leave the protection of rights to the discretion of those in power. They were built into the Constitution itself, rather than created by ordinary legislation, and this reflects a deliberate choice to implant oversight at the highest level of the legal order. Similarly, the powers of the courts are derived from the constitution.

Section 165(2) of the constitution says that "the courts are subject only to the Constitution and the law, which they are required to apply impartially and without fear, favour or prejudice." For the judiciary to discharge its functions impartially and without fear, favour or prejudice, it needs to be protected. It is for this reason that Section 165 (4) makes clear that "Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."

True to the letter and spirit of the constitution our judges have acted with independence and without fear and prejudice. Our judiciary has over the years acted as a pillar upon which our democracy has stood even at the most challenging moments. The men and women who have occupied the bench over the years have through their many judgements demonstrated that they are part and parcel of a society that is evolving and transitioning from an unjust racially segregated past to a non-racial and just South Africa.

Perhaps the most foundational category of proof of a transformative judiciary, is the deepening of the rule of law itself. Underpinning all of this is the Constitution's insistence on the rule of law and judicial independence, principles that may sound abstract until one considers what their absence looks like. The judiciary's authority to review and strike down legislative and executive actions has been exercised and has been exercised decisively. Courts have invalidated unconstitutional measures, and crucially, those decisions have, in the main, been respected. This is not a trivial achievement.

In Government of the Republic of South Africa v Grootboom in 2000 the Constitutional Court had to decide whether government has an obligation to take reasonable legislative and other measures within its available resources in order to provide access to adequate housing. The Constitutional Court ruled that the state must take "reasonable legislative and other measures" to progressively realize the right to adequate housing and specifically recognized the government's obligation to provide temporary relief to those in desperate need or crisis situations.

In this judgement, the Constitutional Court established that socioeconomic rights are enforceable, requiring the government to determine the nature of its statutory obligation entailed by the socio-economic rights and by implication the content of these rights through a reasonableness test.

In the matter between Constance Mogale & Others versus the National Assembly (NA) & Others, relating to how the National Assembly and nine provincial legislatures carried out public participation during the processing of the Traditional and Khoisan Leadership Act of 2019 the court was had to decide on the validity of the process followed for the adoption of the bill. The bill, which had been passed by the Assembly in 2019 and signed into law the same year by the President, was subjected to public participation by Parliament and the provincial legislatures, when it was introduced. In its unanimous judgement, the Constitutional Court held that the process followed by Parliament and the provincial legislatures in the processing of the Traditional and Khoisan Leadership Bill was deficient, failed to attain meaningful public participation, and therefore rendered the Act unconstitutional and invalid. 

In this judgement, the court reaffirmed the constitutional principle that by adopting the constitution we laid "…the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law". Public participation is a cornerstone and an indispensable feature of a democratic parliament, and it is a process through which people's views are solicited and factor in before laws and policies are passed.

Indeed, the courts have been an important pillar of our democracy and the defence of human rights. The sustenance and strengthening of our democracy are inextricably linked to the protection and independence of the judiciary.

It is within this context that President Cyril Ramaphosa, in his address at the 30 year anniversary celebrations of the Constitutional Court, said among other things that "To ensure that the judiciary execute their duties independently, effectively, and with dignity - government must and will provide a range of institutional, infrastructure, financial, administrative, and legal support. The support is crucial to maintaining judicial independence, which is a cornerstone of democracy and the rule of law."

In line with the commitment made by President Ramaphosa, I am happy to inform you that Phase 1 of the transition to Institutional Independence took effect on 1 April 2026. This marked a significant milestone in the transfer of retained and shared services relating to the Superior Courts from the Departmnet of Justice and Constitutional Development (DoJ&CD) to the office of the chief Justice (OCJ). The services transferred to the OCJ with effect from that date include Security Services, comprising guarding services in the Superior Courts, close protection services to Judges facing threats to their lives, repairs and maintenance of security infrastructure in courts, cash-in-transit services, and reimbursement of Judges for security measures installed at their private residences. The transfer also included Facilities Management Services, such as day-to-day maintenance, planned maintenance, minor capital works, lease management, municipal services, and user changes on state-owned facilities.

Phase 2 will entail the integration of lower courts and development and completion of policy and legislative framework. We will work closely with the judiciary to ensure that we achieve a single, independent and judiciary-led court administration.

The judiciary acts as the ultimate guardian of the rule of law in a democracy. It interprets and applies laws, ensures constitutional supremacy, protects fundamental human rights, and maintains the essential system of checks and balances by holding the executive and legislative branches accountable. I can assure that as the executive we cherish and are committed to the achievement of a fully independent judiciary and we shall provide all the support for the independence to be achieved.

Your deliberations in this conference must help us to respond to the questions that have sharply arisen as democracy matures. These include the following: what is it that must be done to increase public trust in the judiciary? What more needs to be done to safeguard the independence of the courts? What role should the judiciary play in transforming our society into an inclusive society wherein achieving a better life for all is possible?

I am confident that your deliberations will respond to these questions and many others that have also arisen from various communities. I look forward to the outcomes of this conference and I wish you well for the conference and your deliberations.

I thank you  

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