The AD & Another Case
The Rights of Vulnerable Groups 2007Protection of abandoned children
Known as the Baby Ruth Case, this matter provoked profound emotion inside and outside Court. A baby a few weeks old had been found abandoned, and handed over to the family of an African-American pastor living and working in South Africa. After lengthy attempts to find adoptive parents in South Africa had failed, the pastor went to the High Court to get an order that it was in the best interests of the child to travel with the pastor's family to New York and then be formally adopted there. Advocates of children's rights in South Africa objected vigorously to the way in which the South African Children's Court had been bypassed. After vociferous disagreements by judges on the way up, the matter arrived at the Constitutional Court. Writing for a unanimous Court, Justice Sachs dealt with changing attitudes over the years to inter-country adoption, and particularly to the concern that people in the South had over the way affluent families in the more wealthy parts of the world would seek to find children for adoption in poorer lands. The solution in South Africa was to ensure that the local Children's Court balanced out all the different interests involved. Only in very exceptional cases, such as when a close family member of the child was seeking the adoption, could there be an application to the High Court. In this particular case, however, Baby Ruth had been with the adoptive family for so long that her interests clearly lay in her staying with them.
The August Case
The Rights of Vulnerable Groups 1999The rights of vulnerable groups
In preparing for South Africa's second democratic general elections, the Independent Electoral Commission decided that prisoners had, through their own misdeeds, lost their right to register to vote in their places of residence. The IEC's limited funds would be better spent in enabling elderly and infirm persons to record their votes. Acting on behalf of Mr August, a convicted prisoner, Lawyers for Human Rights asked the High Court to reverse the decision of the IEC and affirm the right of prisoners to vote. In the Constitutional Court, writing for all its members, Justice Sachs held that it was only Parliament, through legislation, and not the IEC, through an administrative act, that could limit prisoners' right to vote. In doing so, Parliament would have to bear in mind that in South Africa the right to vote had been hard fought for by the majority. It was more than just a democratic right. It was a symbol of dignity, equality and nationhood, uniting the most exalted and the most humble in a single polity. Justice Sachs comments that this decision was cited in the Canadian Supreme Court in support of a decision affirming an unqualified right of all prisoners to vote.
The AZAPO Case
Law, War and the TRC 1996Amnesty and the Truth and Reconciliation Commission
The family of an Azanian People’s Organization (AZAPO) member who had been murdered by the security police, challenged a provision in the Act establishing the Truth and Reconciliation Commission (TRC) which permitted the granting of amnesty from criminal prosecution or civil liability to persons who came forward to the TRC and acknowledged the crimes they had committed involving violations of human rights in the course of political conflict. Justice Sachs signed onto what he describes as a poetic judgment written for the Court by Deputy Chief Justice Mahomed which held that the Epilogue to the Constitution authorised parliament to make the agonising choice to grant amnesty as a means of getting to the otherwise hidden away truth.
The Baloyi Case
Gender Justice 1999Presumption of innocence and the right to silence in domestic abuse cases
A new law designed to empower women in dealing with domestic violence
enabled domestic partners to make a report to a magistrate who could
then issue a restraining order against their abusive partner. The law went
on to provide that if she went back to the magistrate to complain that her
partner was violating the order, the magistrate could have him summarily
brought to court and required on pain of imprisonment
The Barkhuizen Case
Miscellaneous 2007Small print limiting liability in a short-term insurance contract
Mr Barkhuizen, who lived in the upmarket area of Constantia in Cape Town, crashed his Mercedes. Two years after the accident, after recovering from a coma and a lengthy period of hospitalisation, he wrote to his insurers to claim for damage to his car. The small print of his voluminous motorcar insurance contract stated that if the insured person did not institute proceedings within 90 days of the accident, he would lose his right to have his dispute with the insurance company resolved by the courts. Was this a purely private matter in which, under the long-established law of contract, he had signed away his right to sue after 90 days? Or was the Court required to develop the law of contract to make it fairer and just for consumers?
Relying on the principle of pacta sunt servanda (the terms of the contract must be upheld), the majority of the Court said he had lost his right to sue because the 90 days had passed. Justice Ngcobo said that, on the facts of the case, he had waited far too long to say that principles of fairness and justice should operate in his favour. In a lengthy dissent, Justice Sachs challenged the notion of sanctity of contract, saying that there was nothing sacred about clauses in tiny print in standard form contracts which the insured person could never be expected to read and understand. Supporting views articulated by Judge Dennis Davis, he held that in our new constitutional era based on human dignity, equality, and freedom, it would be against public policy to enforce contractual terms that were manifestly unfair to the weaker party in the contractual relationship. He commented that the rich are also entitled to rights, which would be even more important for poor people who didn’t have access to lawyers and whose vehicles might have been old jalopies.
The Bel Porto Case
Governance and Administrative Action 2022Provincial School Administration
The Western Cape Government developed a comprehensive plan to transform and rationalise the racially divided school system provided for children with special needs. Workers who felt they had unjustifiably come off second best in the rationalisation challenged the plan. The majority of the Court agreed with Chief Justice Chaskalson that the restructuring was done on reasonable principles by the government, and the courts should not interfere. In a joint dissent, Justices Mokgoro and Sachs stated that the plans had failed to take account of the very special relationships between learners and educators in special needs schools.
The Biowatch Case
The Rights of Vulnerable Groups 2009Costs awards in relation to constitutional rights cases
Biowatch applied to the Department of Agriculture for information about authorisation it had given to multinational corporation Monsanto to utilise genetically modified seeds in South Africa. Dissatisfied with the lack of information provided, Biowatch asked a High Court Judge for an order compelling more comprehensive answers. Monsanto was joined in the proceedings. The Judge issued part of what Biowatch had asked for, but said that its request had been far too wide, and ordered Biowatch to pay the costs incurred by Monsanto. The cost order sent a shockwave through the public interest law community. Biowatch appealed unsuccessfully to the Supreme Court of Appeal and the matter came to the Constitutional Court. Biowatch faced two problems. The first was a rule of the SCA that it would not hear matters simply based on challenges to the costs award. Secondly, South African courts had held as a general rule that in civil matters the losing party pays the costs of the winner, and, in addition, that appeal courts would be very reluctant to rule against the discretion of the Judge who had originally heard the matter as to how costs should be awarded. Writing for the Court, Justice Sachs held that the approach to cost awards should be different from the normal when people came to Court to vindicate constitutional rights. Underlining the important role that public interest law groups like Biowatch played in helping vulnerable and marginalised communities to assert their rights, he held that in cases where the State lost, the State should pay the costs of the litigant, and where the litigant lost, each side should pay its own costs. The only exceptions would be cases that were manifestly frivolous. The Biowatch principle has now become well established.
The Booysen Case
Miscellaneous 2001Rights of immigrants
Writing for the Court, Justice Sachs confirmed orders of invalidity made by the High Court of sections of the Aliens Control Act of 1991 which adversely affected the rights of non-South Africans married to South Africans. In his comments he observes that the term ‘Aliens’ in itself is alienating, reducing the dignity of foreign nationals.
The Bothma Case
Gender Justice 2009Sexual abuse and the statute of limitations
This was a tragic case. Either an elderly man was being falsely accused of
sexual abuse decades back, or a woman whose life had been ruined as a
schoolgirl was being denied some form of justice or compensation year
later when she summoned up the courage to bring proceedings. The High
Court had ruled that in the absence of evidence and witnesses after this
long period of time, the man being subjected to a private
The Christian Education Case
Freedom of Conscience, Belief and Religion 1998The use of corporal punishment in schools
The issue in this case was whether Christian Education Schools that were
set up specifically on the principle of ‘spare the rod, spoil the child,’ were
entitled to a religious exemption from a general prohibition on the use of
corporal punishment in schools introduced into a new Schools Act. Having
been asked to write the lead judgment for the Court, Justice Sachs reflects
on the way in which two competing experiences of his own
The Coetzee 1995 Case - Part 1
Questions About Interpreting and Applying the Constitution 1995Interpreting and applying the Constitution
Did the new Constitution permit imprisonment for contempt of Court of debtors who had not paid up after judgments had been made by the magistrate’s court against them? Counsel for the Legal Resources Centre had argued that it was unconstitutional to lock up thousands of people every year who couldn’t afford to pay, to frighten those who could afford to pay. The Court unanimously agreed that the procedure was invalid because it permitted the debtors to be imprisoned without them having a hearing. In a separate judgment, Justice Sachs went further, stating that even if the law was amended to provide such a hearing, it was a constitutionally unjustifiable invasion of personal freedom to use imprisonment as a form of debt collection.
The Coetzee 1995 Case - Part 2
Questions About Interpreting and Applying the Constitution 1995Interpreting and applying the Constitution
Did the new Constitution permit imprisonment for contempt of Court of debtors who had not paid up after judgments had been made by the magistrate’s court against them? Counsel for the Legal Resources Centre had argued that it was unconstitutional to lock up thousands of people every year who couldn’t afford to pay, to frighten those who could afford to pay. The Court unanimously agreed that the procedure was invalid because it permitted the debtors to be imprisoned without them having a hearing. In a separate judgment, Justice Sachs went further, stating that even if the law was amended to provide such a hearing, it was a constitutionally unjustifiable invasion of personal freedom to use imprisonment as a form of debt collection.
The Coetzee 1997 Case
Questions About Interpreting and Applying the Constitution 1997Presumption of innocence
An argument by counsel that the prevalence of white-collar crime justified placing an onus on accused persons in a position of authority to prove that they did not know of and abet wrongdoing on their watch, prompted Justice Sachs to pronounce in a separate judgment as follows:
There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections [such as the presumption of innocence] of the accused become.
This statement was later picked up and cited with approval by senior judges in England.
The Commercial Catering Case
Miscellaneous 2000Judges’ recusal
The issue in this matter was of when Judges should recuse themselves for creating a reasonable apprehension (fear) of bias. In a case dealing with industrial action, workers had objected to appearing before a judge who had already made important findings of fact adverse to them in another matter. The majority of the Constitutional Court held that on the facts of the case a reasonable person would not have had a reasonable apprehension that the judge would be biased. In a joint dissent, Justices Mokgoro and Sachs said that applying the test of a reasonable person in the situation of a factory worker not learned in the law, the judge should have recused himself on the basis of a reasonable apprehension of bias. The video goes on to discuss the question of how the Justices of the Court had dealt with the challenge in the SARFU v President Mandela Case that several of them should recuse themselves because of a perception that they were biased in favour of President Mandela.
The Daniels Case
Freedom of Conscience, Belief and Religion 2004The right of Muslim widows to be regarded as wives
After her husband in a Muslim marriage died, the Cape Town City Council
sought to evict Mrs Daniels from the family home on the basis that she
had not been the lawful wife of Mr Daniels. Their contention was that the
courts had long held that Muslim unions were not recognised as marriages
because they were potentially polygamous. Writing for the majority of the
Court, Justice Sachs held that her rights could be vindicated
The De Lange Case
Miscellaneous 1998Detention without trial
The issue in this case was whether a provision in the law that enabled a magistrate in an insolvency (bankruptcy) enquiry to lock up recalcitrant witnesses until they answered questions, was compatible with the right to freedom in the Bill of Rights. In a separate judgment, Justice Sachs held that the matter should be determined on the right not to be deprived of freedom arbitrarily or without just cause [Sec 12(1)a] and not under the provision not to be detained without trial [Sec 12(1)b]. Justice Sachs explained that he himself had been detained without trial and seen the extent to which the whole criminal justice system had been turned on its head by the power given to the security police. He personally had included the express prohibition of detention without trial into the Constitution to ensure that it never happened again. He didn’t mention these factors in discussion with his colleagues or in his judgment. But he expressed his concern that if Section 12(1)b was used in an ahistorical and literal way to cover recalcitrant witnesses generally, or mental health emergencies, restraints could be justified. This could lead to undermining the firm rejection of detention without trial for political purposes.
The Democratic Alliance Case
Miscellaneous 2002Deliberative democracy in local government
The issue in this case was whether the Mayoral Council in local government should be treated as a council committee and have a balanced membership representing the diversity of council members. The majority judgment by Deputy Chief Justice Langa said no. In a concurring judgment, Justice Sachs said that even if the Mayoral Council was headed by a strong executive mayor, and made up of his supporters and allies, it would have to function in a balanced way, giving voice to all the currents represented in the council. He observed that the dialogical nature of deliberative democracy had its roots both in international democratic practice and indigenous African tradition. It had been through dialogue and sensible accommodation on an inclusive and principled basis that the Constitution itself had emerged. It would accordingly be perverse to construe its terms in a way that belied or minimised the importance of the very inclusive processes that had led to its adoption and sustained its legitimacy.
The Dikoko Case
The Rights of Vulnerable Groups 2006Parliamentary privilege
A political leader in the Limpopo Provincial Government unjustly blamed an administrator for failures of government. The administrator sued for defamation and was awarded R110,000 damages. In separate judgments Justices Mokgoro and Sachs both invoked restorative justice principles of African traditional law to hold that money awards in defamation cases should give way to an approach based on apology and restoration of the dignity of the defamed person.
The Doctors for Life Case
Participatory Democracy 2006Meaningful public involvement
Over objections that had been made by Doctor's for Life (DFL), the National Assembly of Parliament adopted an amendment to the health law allowing senior nurses to perform terminations of pregnancies under controlled conditions. DFL had asked for a hearing when the National Council of Provinces (NCOP) would be dealing with the matter. The NCOP told them that they needn't come to Cape Town, as the NCOP would be visiting the provinces to consult with the people there on the proposed amendment as well as on a law that would for the first time provide recognition for traditional healers. Sometime later, DFL learnt that the amendment and the law regarding traditional healers had both been adopted by the NCOP and signed into law by the President. DFL applied to the Constitutional Court to have the amendment, and the statute on traditional healers, declared invalid because they violated the constitutional requirement for the Legislature to take reasonable steps to involve the public in the adoption of legislation. Their challenge was upheld by the Court in a judgment by Justice Ngcobo which dealt extensively with the importance of participatory democracy as a means of re-enforcing representative democracy. In a separate concurring judgment, Justice Sachs underlined the importance to democracy of enabling the voices to be heard of groups in society that might not be well-represented in the influential political structures in Parliament.
The Du Plessis Case
Questions About Interpreting and Applying the Constitution 1996Horizontal and Vertical Application of the Constitution
A hot issue in this case was: Does the Bill of Rights apply only vertically to relationships between the State and private persons, or does it also apply horizontally to relationships between private persons? In his judgment, Justice Sachs contends that it applies diagonally, that is, to relations indirectly between private persons through its influence on the interpretation of statutes and the development by the courts of the common law.
The DVB Behuising Case
Miscellaneous 2000Land rights
This was a complicated matter dealing with the powers of a province to repeal a law dealing with rights to land. In a joint judgment Justices Goldstone, O'Regan and Sachs underline the necessity when repealing a manifestly racist law from the apartheid era, of not wiping out the limited but meaningful forms of rights of occupation that had been granted under it to marginalised communities.
The Fourie Case
Sexual Orientation and the Right to be Different 2005The right of same-sex couples to marry
The first big issue in this case was whether same sex couples had the
right to say ‘I marry you’ or whether they were simply entitled to have
their relationships regulated by law as civil unions. The second was, if
they had the right to use the ‘M’ word [Marriage], should that right start
immediately by the Court itself writing the gender-neutral word ‘spouse’
into the Marriage Act? Or should Parliament be given a year to
The Fuel Retailers Case
Socio-Economic Rights 2007Environmental protection
This case dealt with opposition by an organisation representing three white-owned petrol stations in a small town to the granting of permission to a black applicant to open a fourth petrol station. All the Judges on the Court agreed with an analysis by Justice Ngcobo on the important role environmental protection played in our new South Africa. The majority held that planning permission had been given by the Council before environmental protection regulations had been promulgated and had become out of date. Justice Sachs, however, stated that in granting permission the Council had in fact paid full and sufficient attention to environmental considerations, and the new black applicant should not be prevented from going ahead because of purely formal procedural objections raised, not by environmental groups, but by established white competitors.
The Grootboom Case - Part 1
Socio-Economic Rights 2000Provision of housing by the state
Although he didn't write a separate judgment in this seminal socio-economic rights case, Justice Sachs explains how he saw the issues and how the Court came unanimously to focus not on individual claims to get a house, but on whether the state had adopted reasonable measures to provide for housing.
The Grootboom Case - Part 2
Equality 2000Provision of housing by the state
Although he didn't write a separate judgment in this seminal socio-economic rights case, Justice Sachs explains how he saw the issues and how the Court came unanimously to focus not on individual claims to get a house, but on whether the state had adopted reasonable measures to provide for housing.
The Harksen Case
Gender Justice 1997Gender discrimination - wives as extensions of their husbands
The Harksen Case became famous for its step-by-step exposition of how
proportionality analysis should be used when balancing the interests
of persons whose rights were being limited against the public interest
being served by the limitation. But it also dealt with the issue of gender
discrimination. Harksen was a crook who gave his wife expensive jewellery
that she hid in her trainers in her gym locker. When he was
The Independent Newspapers Case
Freedom of Expression 2008Intelligence services withholding information of public interest
In this matter, Justices Yacoob, and Sachs each wrote judgments stringently attacking the use of manifestly autocratic apartheid-era legislation to enable security officials from the intelligence services to withhold from the public information of public interest.
The Joe Slovo Residents Case
Socio-Economic Rights 2009Eviction of members of a community occupying an informal settlement
This case deals with the rights of members of a community occupying the Joe Slovo Settlement next to the road to the Cape Town Airport, facing temporary eviction to allow for formal housing to be built, without guarantee of a right to return as occupiers of the new homes. In a separate judgment Justice Sachs quotes Sol Plaatjes in dealing with the history of landlessness in South Africa and its relevance to the concept of unlawful occupation.
The Jordan Case
Gender Justice 2002The decriminalisation of sex workers
The law stated that anyone who provided sex for reward was guilty of
a criminal offence. This law was challenged on the basis that it invaded
the privacy rights of sex workers and also discriminated unfairly against
them as women. The majority of the Court rejected both these challenges.
In a joint dissent, Justices Sachs and O’Regan accepted that the women
attenuated their privacy rights by offering their bodies to the
The Kaunda Case
Law, War and the TRC 2004Protection under the Bill of Rights for South African mercenaries held in Zimbabwe
A planeload of South African mercenaries on their way to kill the President of Equatorial Guinea were arrested in Zimbabwe where the plane had stopped for fuel. Members of their families approached the Constitutional Court to protect their rights under the Bill of Rights in the South African Constitution. In an emergency hearing, the Court held that South Africa's Bill of Rights did not extend to countries beyond South Africa's borders. Nevertheless, the South African government owed a duty to do what it could to protect South African citizens in captivity abroad against being subject to torture or to capital punishment. At the hearing, Justice Sachs observed that people who went into a lions' den shouldn't be surprised if they discovered that a lion was there. In a separate judgment, however, he held that even if the objectives of the mercenaries violated every norm of South African and International law, they were entitled to be protected from torture and the death sentence.
The Laugh it Off Case
Freedom of Expression 2005Trademark Infringement
A graduate of Rhodes University School of Journalism wished to challenge the power of commercial logos to colonise the mind. He made t-shirts which he sold online, parodying the logos of a number of corporates. Carling Black Label were not amused. When they saw t-shirts with 'Carling Black Labour' parodying the brand and condemning the company's labour practices, they went to the High Court. It granted them an order prohibiting the sale of the t-shirts, which was upheld in the Supreme Court of Appeal. Writing for a unanimous Constitutional Court, Justice Moseneke overturned the order, holding that Carling had not shown that the detriment to the sale of their beer outweighed the journalist's free speech rights. Writing in agreement, Justice Sachs asked whether the law has a sense of humour, and replied that he did, adding reflections on the role of parody and laughter as an elixir of democracy.
The Lawrence Case
Freedom of Conscience, Belief and Religion 1997Sale of liquor on Sundays
The supermarket chain, 7-Eleven, complained that a law which prohibited
them from selling wine and beer on Sundays, Christmas, and Good Friday,
violated the right of South Africans to religious freedom. A group of four
judges said it did nothing to impede the free exercise of religious rights.
Another group of three held that the prohibition would only be valid if it
was extended to the holy days of Muslims, Hindus, and Jews
The Makwanyane Case - Part 1
Supremacy of the Constitution 1995Capital punishment
The first case of the Court dealt with capital punishment. Justice Sachs’s
first case as a young advocate had included a possible death penalty.
Justice Sachs comments on the meaning that the issue of capital
punishment had had for his generation and deals with issues he raised in
his judgment including references to traditional African law and Ubuntu in
concurring with the decision to declare capital punishment
The Makwanyane Case - Part 2
Supremacy of the Constitution 1995Capital punishment
The first case of the Court dealt with capital punishment. Justice Sachs’s
first case as a young advocate had included a possible death penalty.
Justice Sachs comments on the meaning that the issue of capital
punishment had had for his generation and deals with issues he raised in
his judgment including references to traditional African law and Ubuntu in
concurring with the decision to declare capital punishment
The Mamabolo Case
Freedom of Expression 2001Freedom to publicly criticise a judge’s decision
In this matter, a senior government official had publicly criticised a certain decision by a judge. Without giving the official a hearing, the judge concerned had found him guilty of contempt of Court and imposed a penalty on him. The Constitutional Court was unanimous in holding that if someone insults a Judge during a court hearing, the Judge can indeed impose an appropriate penalty there and then. But if the critique is offered outside of the Court, the offender must be given a hearing before any penalty can be imposed. Where the Court divided was on whether the old common law offence quaintly entitled 'Scandalising the Court' still existed in our law. All the Judges agreed that freedom of expression allowed for the most robust criticism of judicial conduct. Justice Kriegler, however, stated that if the criticism had the effect of impugning the integrity of the judiciary to such an extent that the public would lose confidence in it, the offender could be prosecuted. Justice Sachs argued for a narrower position in which an offence would be committed only if the actual functioning of the Court without fear or favour would be placed in jeopardy.
The Manamela Case
Questions About Interpreting and Applying the Constitution 2000The rights of the accused
A minority judgment of Justices Cameron and O’Regan held that it was constitutionally justifiable to require persons found in possession of recently stolen property to prove on the balance of probabilities that they had acquired the property honestly. Writing jointly for the majority, Justices Madala, Sachs, and Yacoob held that it was justifiable to limit the right to silence by requiring the person in possession to provide an explanation. But it was not justifiable to place an onus on them to prove innocent acquisition. If their story, even if improbable, could reasonably be true, they would be entitled to acquittal. Their judgment emphasized that in doing the necessary proportionality analysis, the Court should not proceed mechanically ticking off different factors. Rather, it should look holistically at the balance between the public interest served by the limitation and the extent to which the rights of the accused were being limited.
The Masetlha Case
Governance and Administrative Action 2007Masetlha v President of the Republic of South Africa and Another
When President Thabo Mbeki lost confidence in Billy Masetlha, the person he had appointed to head the National Intelligence Agency, he summarily sacked him. Masetlha claimed that he had a right to a hearing before having his contract terminated. With one exception, the Justices of the Constitutional Court held that his was a political appointment and that neither under general labour law nor under the law governing public administration, was he entitled to a prior hearing. Justice Ngcobo would have found in his favour. Identifying himself with the majority view, Justice Sachs nevertheless underlined the fact that civility was more than just a matter of personal politeness in governmental relationships, it was an important element of democratic functioning.
The Matatiele Municipality Case
Participatory Democracy 2006Reconfiguration of provincial borders
This case dealt with a hotly disputed reconfiguration of provincial borders which would lead to portions of the Matatiele area being shifted from Kwa-Zulu Natal to the Eastern Cape. The Court held by a large majority that the constitutionally-prescribed processes of local consultation had not been followed. In support of the majority position, Justice Sachs wrote about the mutually re-enforcing elements of the rule of law and public accountability, observing that the legitimacy of laws made by Parliament came not from awe, but from openness.
The Merafong Case
Participatory Democracy 2008Public participation regarding altered decision on provincial boundaries
This case involved the re-arrangement of provincial boundaries to move Merafong from Gauteng to North West Province. In a minority judgment, Justice Sachs held that though Provincial and National governments were entitled to change their minds on boundary lines they had agreed upon after public consultations, if they did so, they had to have a fresh consultation with the community in the affected area.
The Mhlungu Case
Freedom of ExpressionLiteral and purposeful interpretation
Transitional provisions of the interim Constitution provided that Judges in office at the time the new Constitution came into force would remain in their posts and that all matters pending in Court should be dealt with as if the new Constitution had not come into force. Should this latter provision be interpreted literally with a consequence that the protections in the Bill of Rights would not apply to cases that had started but not been completed? Acting Justice Kentridge said yes, and was supported by a number of other Judges including Chief Justice Arthur Chaskalson (then referred to as the President of the Court.) Deputy Chief Justice Mahomed disagreed. Stating that the Constitution should be interpreted purposively rather than literally, he held that the words ‘dealt with’ implied a focus on the procedures of the trial and not the substantive rights of the accused. A majority of the Court agreed with Justice Mahomed. Justice Sachs supported the majority outcome but with different reasoning. In his view, the matter involved a clash between the clear words of the Bill of Rights and the clear words of the transitional arrangements. It was in this setting that the narrow purposes of the transitional arrangements should be aligned procedurally and not substantively with the broad purposes of the Bill of Rights. In his judgment, Justice Sachs points to the wide range of people to whom the Court’s judgments should be addressed, from the litigants and counsel, fellow Judges in the Court, and the judiciary as a whole, members of parliament and the government, the legal profession, legal academics, law students and the press.
The Minister of Education Case
Miscellaneous 2001Age of admission to school
Parents of a five-year-old child planning to attend a private school. They challenged the constitutionality of a notice published by the Minister of Education extending to private schools a notice that he had earlier made that children could only be admitted to public schools in the year in which they turned seven. The parents contended that the Minister did not have the power to regulate private schools in that manner, nor was it in the best interests of their child who would be ready to go to school in the year that he turned six, to have to wait a further year. In a judgment for the Court, Justice Sachs struck down the notice on the narrow ground that the Minister had cited the wrong provision in the Schools Act as the basis for the notice. In his comments Justice Sachs says that it had been amusing to see the Minister, his longstanding friend, colleague and comrade, Kader Asmal, furiously passing notes at the hearing to his counsel. He explains that the facts of the case did not provide a suitable basis for deciding very complex issues about the status of private schools and the best interests of children. So, he was happy for the first time in his judicial career to respond in a purely formal and technical way, and prove that, if he tried really hard, he could write a boring judgment.
The Minister of Safety Case
Miscellaneous 2007Unlawful detention
When the police arrest someone they have a discretion whether to lock them up before taking them to court, or simply to give them a warning as to when they should appear in court. The Minister of Police was in a quandary. A more tender judge had stated that this discretion was being abused and far too many people were being locked up when they should simply have been asked to appear in court. A tougher judge had leant strongly in favour of not interfering with the way the discretion was exercised on the ground, on the basis that a night in jail could be just what a drunken, rowdy reveller needed. The Minister of Police asked the Court for guidance. Writing for the Court, Justice Sachs pointed out that every police officer was given a document that set out extensively what the factors were that should be taken into account in whether or not to lock up accused persons or simply warn them to appear in court. The Court would not wish itself to try to improve on the document. It was not in the business of providing advice to the police as to how they should carry out their functions.
The Mistry Case
MiscellaneousSearch and seizure
A chemist charged with making dodgy sales of sample medicines, challenged a law which enabled regulatory inspectors to search pharmacies without a warrant. This produced the first case to reach the Constitutional Court on search and seizure. Writing for the Court, Justice Sachs observed that in the apartheid era South Africa had been a police state for the majority of the population; the police could enter the homes of black people at will to demand passes and search for liquor. The Bill of Rights now prevented these invasions. Search warrants granted by magistrates on reasonable grounds were required. There was no problem, however, with inspectors descending on pharmacies unannounced and without warrants to check up that regulatory standards were being upheld. But the relevant law was unconstitutional to the extent that, as in this case, it allowed inspectors to conduct searches without warrants with the specific intention of collecting evidence for a criminal prosecution.
The Mkontwana Case
Miscellaneous 2004Arbitrary deprivation of property
The issue was whether a provision that property could not be transferred from one owner to another if municipal rates and taxes had not been cleared was an arbitrary deprivation of property. The provision had ramifications for a number of members of the Court who didn’t live in Johannesburg and were considering buying property within easy distance of the Court. All the Judges agreed that the provision was not arbitrary. The main judgment by Justice Yacoob applied a relatively narrow test to arrive at this result. Justice O’Regan agreed on a slightly wider basis. In a single paragraph judgment Justice Sachs said he agreed with the main judgment and welcomed the additional factors referred to by Justice O’Regan.
The Moseneke Case
Equality 2000Racist Native Administration Act
When the father of Justice Moseneke, a former school principal died, his surviving family wished his will to be administered by the Master's Office and not under the racist Native Administration Act. The judgment upheld his challenge to provisions of an Act which had been at the heart of oppression of the black majority since 1927. At the same time, it acknowledged that the Act provided for relatively simple, speedy and inexpensive methods of dealing with the estates of millions of relatively poor black people, which should not be discontinued while parliament worked on necessary remedial processes.
The National Coalition of Gay and Lesbian Organisations Case - Part 1
Sexual Orientation and the Right to be Different 1998Sexual orientation and the right to be different
Justice Laurie Ackerman had written a comprehensive judgment for the
Court explaining why the penalisation by the common law of sodomy
represented a gross violation of the rights of men freely to express
their physical love for each other. Justice Sachs wrote a concurrence
emphasising the right to be different and to enjoy equality not through
submitting to mainstream pressure to conform, but through
The National Coalition of Gay and Lesbian Organisations Case - Part 2
Sexual Orientation and the Right to be Different 1998Sexual orientation and the right to be different
Justice Laurie Ackerman had written a comprehensive judgment for the
Court explaining why the penalisation by the common law of sodomy
represented a gross violation of the rights of men freely to express
their physical love for each other. Justice Sachs wrote a concurrence
emphasising the right to be different and to enjoy equality not through
submitting to mainstream pressure to conform, but through
The New Clicks Case
Governance and Administrative Action 2005A challenge to the Medicines and Substances Act
This nightmare case started with acrimony in the Western Cape High Court. It concerned a challenge made by pharmacies to caps placed by the Department of Health on the price of medicines. In his court, Judge President John Hlophe and a colleague upheld the constitutional validity of the price caps. Deputy Judge President Traverso, however, came to the opposite conclusion. When the pharmacies sought leave to appeal, the Judge President refused for weeks on end to hear the matter and grant or refuse the application. After some months had passed, the pharmacies went straight to the Supreme Court of Appeal, which divided on whether they should hear the matter, and if so, what their decision should be. The matter was then taken to the Constitutional Court, which also divided, though not acrimoniously. Separate judgments from nearly all the Justices ran to nearly 1000 pages. They covered a wide range of procedural and substantive issues. There was general agreement that Judge President Hlophe should have granted leave to appeal, and done so speedily; that in the interests of enabling people to exercise their right to healthcare, the Department of Health had the right in principle to cap the price of medicines; and that the main contributing cost to the high price of medicines lay in the charges made by the big pharmas. Yet the Justices split evenly on the critical issue of the validity of the processes followed in determining the capped prices. Justice Sachs observes that he found himself pulled in both directions. Ultimately, he held that the principle of legality required that the Department of Health should have given prior notice for comment by the pharmacies before promulgating the new notion of placing caps on the price of medicines.
The NM and Others Case
Freedom of Expression 2007HIV status privacy
In her autobiography, a prominent political figure mentioned the hard work she had done battling for the rights of women living with HIV in a poor township. The women concerned objected to the fact that she published their names. They sued her for damages for breach of medical privacy. A majority of the Court held that although revealing HIV status was not defamatory of them, it did violate their rights to dignity and privacy. In a judgment supporting this view, Justice Sachs observed that in other parts of the world the right to privacy was invoked by celebrities, while in South Africa it was particularly important for the most vulnerable. Justice Sachs adds that an ironical consequence of the decision he supported, cost the publishers so much that they had been obliged to cancel a longstanding commitment project to reprint his Jail Diary.
The Nokotyana Case
Miscellaneous 2009Concrete or ventilated improved pit latrines
The last case in which Justice Sachs sat on the Constitutional Court, dealt with a claim by occupants of an informal settlement a few kilometres away from the Court that for too long they had had to put up with the use of concrete pit latrines and under their constitutional right to dignity they were entitled to have VIP's (Ventilated Improved Pit Latrines).
Justice Sachs did not write a judgment in this matter but remembers the occasion well. Early in the proceedings Mbuyiseli Madlanga, then an advocate and now a member of the Constitutional Court, started his address by offering an apology to the Court for the long delay by the provincial government in providing the promised houses. Deputy-Chief Justice Moseneke, who presided over the hearing, informed him that instead of apologising to the Court, he should apologise to the litigants. When Advocate Madlanga turned to the litigants sitting in the Court and apologised to them in isiXhosa, they were notably pleased. On the facts of the case, it turned out that construction of the promised houses would soon begin. In these circumstances, the Court held that it would not make sense to spend money on VIPs for one year when they would soon be replaced by proper homes with indoor toilets.
Justice Sachs comments on how fitting he felt it was that his last case should have been one brought by people living in the humblest of conditions. He recalls a discussion he had had in Paris with Robert Badinter, the famed head of the French Conseil constitutionnel, who had observed that to include the right to sewerage in a Bill of Rights seemed to be going too far, and how he had answered that nothing represented the extreme inequality in apartheid South Africa more than the way people relieved themselves.
The Port Elizabeth Municipality Case
Socio-Economic Rights 2004Housing – occupation of private property
Justice Sachs explains how he considered resigning from the Court rather than fulfil his oath to uphold the law in support of an order requiring black families to take down their shelters and move from vacant land owned by white families in an upmarket adjacent suburb. However, stating that the Bill of Rights was nothing but Ubuntu writ large, he counterposed the occupants’ rights to housing to the owners’ rights to property, he introduced the concept of meaningful engagement in the form of mediation to balance out the competing interests in a just and equitable way. Since mediation hadn’t been tried, eviction without providing alternative accommodation was not just and equitable. Justice Sachs points out how the concept of meaningful engagement between the parties in order to find the fairest and most efficacious outcome was later picked up and developed by Justice Yacoob in the Olivia Mansions case.
The Pretoria v Walker Case
Equality 1997Differentiated policies for municipal service provision
The Court held unanimously that the cross-subsidisation involved in white neighbourhoods paying more for their water and electricity did not amount to unfair discrimination. The majority of the Court, however, signed on to a judgment by Deputy Chief Justice Pius Langa to the effect that a policy to take court proceedings against people in affluent areas, while adopting a more lenient approach to defaulters in the townships, did amount to indirect unlawful racial discrimination against white people. In a lone dissent Justice Sachs held that people in the white areas were not being targeted for living in those areas or for being white. People in black areas were living in grossly under-resourced circumstances. The council policy of encouraging them to move away from a culture of defiance against payment for inferior services, was contextually justifiable and did not prejudice the occupants of the affluent areas.
The Prince Case
Freedom of Conscience, Belief and Religion 2000The right of Rastafari to use cannabis for religious purposes
Should Rastafari be allowed an exemption from the general prohibition on
the use of cannabis, to enable them to perform their sacraments? Gareth
Prince sought a general exemption for all Rastafari, not just his for own
right to practise as a lawyer. The majority of the Court said it would be
impossible to police such an exemption. Writing for the minority, Justice
Ngcobo said it was not impossible. In support of Justice Ngcobo
The Prinsloo Case - Part 1
Equality 1997Equality law and negligence in a fire-controlled zone matter
This was the Court's first major case dealing with equality under the new Constitution. Justice Sachs was asked to write the lead judgment. He invited his colleagues Justices Laurie Ackerman and Kate O'Regan to join him in what became a Joint decision. The issue related to responsibility for damage created by a fire which spread from a landowner's property and caused damage to a neighbour. The challenged law provided that if the fire spread from an owner who undertook precautionary measures in a fire-controlled zone, the presumption was that the owner had not been negligent.
Conversely, if the owner had not ensured that his land was in a fire-controlled zone, the presumption was that the owner had been negligent. Did this raise an equality issue under the Constitution? The judgment said that it did not; all laws provided for differentiation, but equality law in South Africa was designed to provide protection to groups whose human dignity was being infringed by virtue of their belonging to a group subjected to systemic disadvantage.
The Prinsloo Case - Part 2
Equality 1997Equality law and negligence in a fire-controlled zone matter
This was the Court's first major case dealing with equality under the new Constitution. Justice Sachs was asked to write the lead judgment. He invited his colleagues Justices Laurie Ackerman and Kate O'Regan to join him in what became a Joint decision. The issue related to responsibility for damage created by a fire which spread from a landowner's property and caused damage to a neighbour. The challenged law provided that if the fire spread from an owner who undertook precautionary measures in a fire-controlled zone, the presumption was that the owner had not been negligent.
Conversely, if the owner had not ensured that his land was in a fire-controlled zone, the presumption was that the owner had been negligent. Did this raise an equality issue under the Constitution? The judgment said that it did not; all laws provided for differentiation, but equality law in South Africa was designed to provide protection to groups whose human dignity was being infringed by virtue of their belonging to a group subjected to systemic disadvantage.
The Quagliani Case
Miscellaneous 2009Extradition
This case dealt with extensive challenges to the constitutional validity of South African extradition law brought by people who had fled from South Africa to the United States and Australia respectively to escape prosecution on various serious charges of fraud. These challenges raised complex questions of the relationship between presidential powers and parliamentary responsibilities on the one hand, and between a general law on extradition and individual treaties with particular states on the other. Writing for the Court, Justice Sachs stated that it would be unduly limited to see extradition as an aspect of international relations in which ordinarily only states had an interest. An overly state-oriented approach could ignore the rights of individuals to freedom and fairness in the extradition process. In keeping with these principles, the Extradition Act contained provisions aimed at protecting the rights of individuals guaranteed in the Constitution. Yet extradition proceedings could not be looked at purely from the point of view of protecting individuals facing extradition. Transnational mobility of people, goods, and services, as well as new technological means, had contributed to increased mobility of criminals. In his view, none of the challenges succeeded.
In his comments, Justice Sachs refers to an American law clerk at the Constitutional Court who after seeing a draft of his judgment delicately asked him if it was appropriate to cite as authority the writings of an American law professor who had publicly defended powers exercised by President George W Bush permitting torture of people captured by American troops in Iraq. When the law clerk showed him the direct connection between the proposition cited and the justification of torture, Justice Sachs withdrew the citation.
Justice Sachs discusses his friendships with conservative American Judge Scalia and progressive Judges Ruth Bader Ginsberg, Stephen Briar, and Sonya Sotomayor.
The Refugee Women Case
The Rights of Vulnerable Groups 2006The rights of refugees to work
Using the law governing private security organisations, the Department of Home Affairs issued regulations to forbid refugees and asylum-seekers from working in private security firms without special permission. The Union of Women Refugees challenged the constitutionality of these regulations. All the judges agreed that the regulations were unconstitutionally over-technical, making it almost impossible for refugees to understand them and apply for exemption in any meaningful way. Justices O'Regan and Mokgoro held that at a more profound level the regulatory scheme violated the right to equality on grounds of national origin. Justice Sachs, who had been a refugee himself 'not once, but twice', took a less radical position. His point of departure was that South African refugee law had been adopted in a context in which African countries had received large numbers of refugees from apartheid South Africa; the relevant statute followed international law affirming the right of refugees to work in receiving countries. Nevertheless, a case could be made for keeping refugees, in relation to whom it was impossible to do security checks, out of security services involved in particularly sensitive forms of protection, for a period of five years after which they could get permanent residence. But a blanket exclusion that prevented refugees from working, for example as car guards, would not be justifiable.
The S v M Case
The Rights of Vulnerable Groups 2007The interests of the child in the imprisonment of a primary caregiver
M was a compulsive credit card fraudster. After being convicted of purchasing goods in a number of stores knowing full well she lacked the credit to pay for them, she was given a suspended prison sentence. She then committed the crimes again and while out on bail continued to do so for a third time. Finding herself faced with time in prison, she argued that this would separate her from her children for whom she was the only caregiver. The magistrate felt that she should have thought about her children before she committed the offences, and she ended up having to serve two years in prison. In the Constitutional Court all the Judges agreed that what was at stake was not her rights but the rights of the children. The majority judgment written by Justice Sachs used social work reports together with restorative justice principles of keeping her out of jail, subject to her paying back the money, receiving counselling for compulsive behaviour, and undertaking appropriate forms of community service.
The SABC vs NPA Case
Freedom of Expression 2006The right to have cameras in court
Did the South African Broadcasting Corporation have the right to have cameras in court during an appeal on the validity of search warrants in a case concerning an alleged corrupt relationship Schabir Shaik and former President Jacob Zuma? The Judges in the Supreme Court of Appeal rejected the SABC's application on the grounds that the cameras would distract from the hearing. A majority of the Constitutional Court said that although they themselves might have differed from that decision, they would not wish to impose their views on the SCA. On the other hand, Deputy Chief Justice Moseneke said that the right of the public to see justice being done overrode the reticence of the judges of the SCA. Justice Sachs agreed with the general approach of Deputy Chief Justice Moseneke but said that the SABC were at fault in springing their application on the SCA at the last minute rather than approaching them in good time to ensure that the cameras could record the proceedings without being unduly intrusive.
The SANDF Case
Miscellaneous 2000Soldiers’ right to a trade union
The issue in this case was whether soldiers had a right to be represented by trade unions and to take part out of uniform in public protests. Writing for the Court, Justice O’Regan said yes to both. In a concurring judgment, Justice Sachs stated that a blindly obedient soldier represented a greater threat to the constitutional order and the peace of the realm than one who regarded himself or herself as a citizen in uniform, sensitive to his or her responsibility and rights under the Constitution; the Constitution proclaimed that national security was not simply directed towards the maintenance of power but must reflect the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life.
The Sidumo Case
Questions About Interpreting and Applying the Constitution 2007Unfair dismissal of a public employee
Was unfair dismissal of a public employee a matter for proceedings under labour law processes, or something to be reviewed by the courts under the Promotion of Administrative Justice Act (PAJA)? The judges of the Constitutional Court all agreed on what the outcome of the case should be, but were split down the middle with regard to the legal route that should be followed to get there. In his concurring judgment, Justice Sachs held that, given the value system underpinning the whole of the Bill of Rights, the outcome should be the same whichever route was followed. Text and values work together in integral fashion to provide the protections promised by the Constitution. And by their nature, values resist compartmentalisation.
The Soobramoney Case
Socio-Economic Rights 1997Whether the Court should interfere with a medical decision on priority access to expensive dialysis.
In concurring with a judgment for the Court by Chief Justice Arthur Chaskalson, Justice Sachs stated that rationing was built into the very nature of the progressive realisation of socio-economic rights, and that appropriate bioethical, medical, and legal groups at the hospitals were better suited than Judges in determining who should have priority access to expensive dialysis with a limited number of machines available.
The South African Police Service Case
Equality 2006Interpretation of the word ‘may’
A new law said that the Commissioner of the Police 'may' take account of race when making promotions to senior levels. Given that the newly integrated police service was disproportionately led by white Afrikaans-speaking men, the commissioner actively set about promoting black police officers. A well-qualified white woman was turned down several times for promotion to a specialised post. Eventually she went to Court claiming that the commissioner was being unfair to her. The Court’s judgment held that although the word 'may' gave the commissioner a very wide discretion, that discretion had to be exercised fairly. To keep the post open after diligent attempts to find a suitable black nominee had failed, was unfair to her.
The Steenkamp Case
Miscellaneous 2006Out-of-pocket expenses
This case dealt with whether someone who had incurred considerable expense in successfully tendering for a governmental contract, could claim private law damages from the government for the expenses incurred when the contract was eventually set aside because of misconduct on the part of the government. For different reasons, all the judges expressed a reluctance to use private law remedies to provide compensation for public administration default. Justice Sachs held that compensation could have been asked for under the express provisions of the Promotion of Administrative Justice Act (PAJA) in the final Constitution, or under public law remedies implicit in the interim Constitution.
The Treatment Action Campaign Case
Socio-Economic Rights 2002The provision of antiretroviral medication for HIV-positive mothers
Justice Sachs did not write separately on this case, but he explains the manner in which the Court dealt with HIV-denialism at the highest levels of government, and how he found himself crying when as the Judges left the Court, he heard cheering from spectators who had been wearing t-shirts with the slogan HIV-Positive on them.
The Van Der Walt Case
Miscellaneous 2002The right to leave to appeal
This case dealt with an unfortunate situation where an application for leave to appeal in a civil matter had erroneously been referred to two panels of the Supreme Court of Appeal. The one had granted an application for the matter to be referred back to the trial court for further evidence. The other had refused the application. Justice says that he adopted a practical position in favour of sending the matter back for a further hearing. If the result was the same outcome the successful party could benefit from an appropriate costs order. On the other hand, if the application was dismissed the unsuccessful party would have been deprived of an opportunity to get to the truth of the matter.
The Van Heerden Case
Equality 2004Enhanced pension funds
Was the creation of enhanced pension rights for members of South Africa's new democratically elected parliament, who were overwhelmingly black, discriminatory against a member of the old racist parliament who happened to be white and continued to receive lower pension rates? Justice Moseneke said no, the Constitution allowed for redress for sections of the population previously disadvantaged on grounds of race and gender. Justice Mokgoro disagreed with this reasoning, saying that she agreed with the outcome but on the basis that the discrimination was not unfair. Justice Sachs said that although they disagreed with each other, he agreed with them both and that these were two different constitutional pathways to reach the same constitutionally fair result.
The Volks Case
Gender Justice 2005Unfair discrimination on grounds of marital status
If a woman has lived with a man for half a century; borne several children
with him; looked after him, their children, and their home; and nursed
him in the last years of his life, should she be regarded as a stranger to
his estate after his death because they had not been legally married? The
majority of the Court held that it was not unfair discrimination on the
grounds of marital status for the law to grant a right to
The Western Cape Case
Supremacy of the Constitution 1995Parliament delegate to Executive
Parliament requested President Nelson Mandela to issue proclamations
providing for the holding of South Africa’s first non-racial democratic Local
Government elections. The majority of the Court held that Parliament
could not transfer their responsibility for passing primary laws to the
President and declared the proclamations to be unconstitutional. Justice
Sachs contended that Parliament could in certain circumstances
The Wouter Basson Case
Law, War and the TRC 2004Charges in South Africa for serious war crimes committed in Namibia
Dr Wouter Basson, referred to in the press as Doctor Death, was prosecuted for serious war crimes he had allegedly committed as head of South Africa's chemical and biological warfare unit in Namibia. The trial judge struck down the charges against him on the basis that he could not be charged in a South African court for a conspiracy to commit a crime in Namibia. The State appealed to the Supreme Court of Appeal, which declined to hear the matter because the papers from the State were lodged out of time. On further appeal to the Constitutional Court, two of the issues were whether the case raised a constitutional matter, and if it did so, should the Constitutional Court interfere with a procedural discretion that had been exercised by the SCA? In a separate judgment, Justice Sachs, emphasised that the more heinous the charges, the more important it was that he received a fair trial. Nevertheless, the alleged commission of war crimes most certainly raised a constitutional issue and that the SCA's discretion had been wrongly exercised in giving more weight to a procedural technicality than to the gravity of the offences. Justice Sachs discusses the context of a rebuke he received from colleagues for saying in open Court to Dr Basson: ‘You are a liar, you say so yourself,’ explaining that the rebuke was justified but that he did not regret making it.