Prestige Lectures by the four departing Constitutional Court Justices
The fourth Prestige Lecture Series presented by the Faculty of Law, University of Pretoria proved to be exactly what it promised – a highly prestigious affair.
Apart from the main speakers at the event, Chief Justice of the Constitutional Court Pius Langa, Justice Yvonne Mokgoro, Justice Kate O’Regan and Justice Albie Sachs, the guest list included the new Vice-Chancellor and Principal of the University of Pretoria, Dr Cheryl de la Rey, the Deputy Minister of Justice and Constitutional Development, Mr Andries Nel, Adv George Bizos SC, Nobel laureate Ms Nadine Gordimer, former Chief Justice of the Constitutional Court, Justice Arthur Chaskalson, a number of Ambassadors and representatives from the European Union, United Nations and other dignitaries.
Departing Chief Justice Pius Langa spoke first, and opened with an anecdote of how he had gone to Nelson Mandela to seek advice on exactly what it is ‘that retired people do’. Former First Lady Graça Machel told him that he was talking to the wrong man. Although light-hearted, the story shares a serious truth – that men like Nelson Rolihlahla Mandela and Pius Langa are integral to a better South Africa, and that men like these, although technically retired, will never retire from their devotion to the nation.
Pius Langa explained that the coming into being of the Constitutional Court was based on two factors: that the court is a ‘consequence of the past’, and that people ‘felt the need to guarantee the future’. Indeed, a central theme amongst all the speakers was how the Constitutional Court represents a break from the injustices from the past and a commitment to make certain that they never happen again. Justice Langa stressed the importance of the transformation of the judiciary, and spoke in particular of the lack of women serving on the Court’s bench, as only two out of the 11 justices are female.
The international recognition and acknowledgement of the Court's jurisprudence was brought to light, as Langa spoke of his experiences both in the United States of America and the United Kingdom, where individuals expressed a deep-founded respect for the work of the South African Constitutional Court.
Justice Yvonne Mokgoro indicated that although the establishment of the South African Constitution represented a move towards Constitutional supremacy and away from parliamentary sovereignty, the public at the time of the Court’s establishment did not realise this.
She spoke of how, in 1993, public hostility towards the judiciary was palpable, as the courts had been utilised for the squashing of individual rights and freedoms under Apartheid. An anonymous man had asked Justice Mokgoro with astonishment, ‘now that Madiba has appointed you, do you set aside his decisions?’.
It was clear that at the time of the Court’s establishment, the public did not comprehend the principle of the separation of powers. Justice Mokgoro iterated that the ‘decision to bring the concept of judicial review to the general public was one of the best decisions we have ever made’. She indicated how the aforementioned decision had shown dividends, by indicating that in ‘cases of high social or political relevance’, the Court is packed with people from the rural areas who indicate an understanding of the judgments. She indicated that ordinary individuals ‘pin their hopes’ on the Court and that, indeed, the Court gives them hope for the future.
Justice Kate O’Regan, a woman who has never been afraid to stand up for the rights of individuals, spoke next. She indicated that through ‘institutional culture’, as she called it, people may become oppressed. In the past, the institutional culture of the courts was largely centred around particular racial, gender and cultural roles and Justice O’Regan stressed that the development of the Constitutional Court’s culture was, in this context, absolutely crucial. She further mentioned that there was no seniority on the Constitutional Court. The female justices were certainly not presumed to be the one’s who would pour the tea (this was done by a man – Justice Arthur Chaskalson to be precise), and a ‘willingness to allow disclosure’ during debate was encouraged. This state of affairs was exemplified by Justice O’Regan’s statement that, ‘if people need to bang the table sometimes, so be it.’
The Constitutional Court was shown not only to put forward the notion of equality through its jurisprudence, but also through the friendly relations between all the members of this institution that extended from the upper echelons of Chief Justice to the lower strata of cleaners. No one in the Iistitution presumed to be above another, and that is exactly the kind of South Africa – one built on the absence of discrimination – which bodies such as the Constitutional Court mean to see made manifest.
Justice Albie Sachs spoke last. It was great to see that the strength of his jurisprudential writings was matched by his character in person. Despite the loss of his right arm in the Apartheid struggle, Justice Sachs is jovial, lively, incredibly witty and straightforward. His hilarious tales of his fellow Justices had the entire room in laughter again and again.
Doctor Skelton, who introduced all the speakers, indicated how Justice Sachs as a 6-year-old boy had intended to be a soldier in the fight for liberation in World War II and that his wish to battle for the rights of others, was, indeed, granted through his becoming a Justice of the Constitutional Court.
Justice Sachs referred to the ‘permanence of the tension behind the Constitution’ – that there is a tension between the knowledge of individual conscience and the collegiality of the Court, and also between the need to be rational and the need to be involved in the realities that plague society.
His frank and forthright approach was welcomed, and his ability to entertain the audience after so much had already been said, is a tribute to the man itself.
South Africa thanks those brave souls willing to sacrifice endless hours, and maybe even their popularity now and again so as to stand up for the rights of all South Africans. The Constitutional Court stands as a bastion against a past of which our country cannot be proud, and as a symbol of a future built on fundamental human rights and dignity.
By Michael Shackleton (LLB III)
Faculty of Law, University of Pretoria