TRANSCRIPT: I PUT MY NAME FORWARD
So, we’re very close to our goal – elections, one person, one vote, majority rule, basic rights protected for everybody in South Africa. And there are hundreds and thousands of us wondering: what happens to us, where do we go now? Phew, this has been your life – almost your death – for decades. And in my case, it was quite sharpened, quite strong. It was like mission accomplished. We’ve got democracy. Now I can do other things.
And the other thing was maybe become a judge. I’d never, never, never imagined being a judge. The judges were up there, some of them were quite decent, lots of them were horrible. But it was far, far, far away, very remote. But now, to be a judge on the Constitutional Court, defending the new Constitution we’d invested our lives in – that seemed to be very exciting.
The need for transformation in this country, the need for narrowing the gap between the promise of the Constitution – the dignity, the equality, freedom for everybody – and the life as lived for everybody, that was still there. And I thought if I could get on to the Constitutional Court then I can be part of that process. It would be a continuation of my life, of the dreams, the goals, the values but in another setting. So, I resigned from the National Executive at the very last meeting before the elections, and from my branch in the ANC just after the elections.
I put my name forward; I stepped right out of politics. I’m not sure exactly who formally nominated me. And a body called the Judicial Service Commission had been established under the Constitution to nominate ten people to fill six positions on the court. The names of the ten went to President Mandela. He had to choose. He’d already chosen Arthur Chaskalson to be the President of the Court. And there were four acting judges serving at that time, who in terms of that constitutional arrangement, had to be on the court. And now there were six others to be nominated, to make a total of eleven.
We went up to be interviewed in Johannesburg. And I combed my hair, and I thought it would be an absolute walk in the park. In fact, it was the roughest of all the interviews. Very, very painful. What I would have regarded, and I think what for the majority of South Africans would have been seen as strong qualities in favour of my being appointed – having been raided, having been in solitary confinement, having been blown up and surviving it, having worked in the struggle in terms of the internal morality and legality of the struggle, and having taught at the Eduardo Mondlane University in Mozambique and the Dar es Salaam law faculty and the Harare law faculty in independent Africa – that those experiences would have counted as enormous pluses for the diversity, if you like, of experience on the court. I happened to have a PhD from the University of Sussex, and I happened to have published the book Justice in South Africa. But maybe a nice article in an Oxford law journal or a law review in Harvard, and so on, would have counted for more than all of that put together… I don’t know.
But the people who opposed me, they were actually good lawyers, they were honourable and at least conceptually and intellectually, were in favour of transformation in this country. But I think imaginatively, the idea of the good lawyer was still the lawyer who was clever with words and concepts and had been part of the anti-apartheid critique, if you like, but not necessarily part of the struggle. And I think people thought I would simply be an ANC person deployed to be on the court, that I wouldn’t be independent. Whereas if anything, I would have held the ANC to a higher standard, not a lower standard because our morality was so intense, the meaning of it was so significant, if I leant any way in a matter involving the ANC, it would be in favour of the rigour of a Mandela, the rigour of an Oliver Tambo in terms of the basic morality. But when it came to it, we had many cases involving the ANC in the years that followed. And I didn’t feel I was ever torn. Those of us who’d worked in the struggle in the ANC, we’d invested our morality, our vision of a just society, into the Constitution. So, upholding the Constitution was upholding the things we’d been fighting for. And it wasn’t a question of loyalty to a particular party or a particular leader.
My interview went on for well over an hour. It was done in public. There were no cameras there. I was cross examined by one of the most brilliant advocates on the commission. It turned out to be very painful, very rough but I totally supported the idea that if people had objections to me, better that it’s out in public.
The main challenge was based on a small commission that the ANC had set up to investigate the death of an MK commander called Thami Zulu, who had been locked up by ANC security for many, many months. He came out, he wasn’t looking well and a few days later he died. So, this commission was established by the National Executive of the ANC before we came out from exile. And I was one of three commissioners appointed. We went into the evidence very, very carefully. I remember when I started, I felt, you don’t die when you come out of detention unless something terrible has happened. And I was indignant, and I wanted to expose it. But we got medical evidence; he’d been seen by many doctors. It turned out that he was living with HIV, and he’d actually told his friend with whom he stayed afterwards he hadn’t been physically ill-treated. But he was indignant about having been held at all. And there were some indications that there was some poison in his blood. And I remember taking a phial to London to have it investigated. But by then the blood had degraded. There was no proof. It was a very mysterious case. And we felt on the medical evidence, he hadn’t died as a result of the ill-treatment. We felt that there were grounds which had justified his being placed in detention in the first place. Something like ten ANC guerrillas had been captured on the Swaziland border when they crossed into South Africa and executed. And only three people knew about their movements, and Thami Zulu was one of the three. And there were some other indications that pointed to him as a possible source. But I felt quite strongly that the length of his detention was unacceptable. So, the report said that the majority on the committee felt that the detention was not too long. And it was understood I was in the minority. And the challenge to me was: if you were in a minority, why didn’t you write a dissent? Now this wasn’t a court of law. This was a report to the political leadership of the ANC. And the implication was that I wasn’t brave enough to write a dissent.
The newspapers carried headlines about, ‘Albie Sachs supported torture’. There were two editorials saying, ‘We know he’s an honourable person and for the sake of the integrity of the court, he must step down.’ These were from the liberal, English language newspapers. The Sowetan, on the other hand, said, ‘We know Albie Sachs is somebody who’s been fighting for freedom all his life and we support him.’ It was [an] extremely painful period for me and I couldn’t protest, I couldn’t campaign. I couldn’t defend myself to the legal community. I had to just sort of bear that.
I think what was particularly painful for me was that I’d taken a very active role inside the ANC in the whole process of forbidding torture at Oliver Tambo’s bidding. I’d actually drafted the code of conduct that excluded the use of torture in interrogations. I’d presented that at the Kabwe Conference of the ANC, 1985 – getting huge support from the delegates there. And when I’d come back from exile and one of my first public meetings at the University of Cape Town. And people were cheering and singing freedom songs. It was very exciting. And I was quiet, quiet, quiet and I sat on a chair. My opening sentence was, ‘There’ve been reports in the newspapers that ANC used torture in the course of the struggle. Those reports are true.’ I felt I had to say that. We had to come back with clean hands, acknowledging what we’d done. And I said, ‘But we took steps to deal with the torture,’ and I mentioned the code of conduct and the report and so on. I felt for me, it was so important that the freedom struggle, the liberation movement, if it had failed, if it had violated its own norms, had to own up to that and do so in an honest and open way.
Phew! I commented actually afterwards, I’d been attacked in my mind, solitary confinement by the Security Police years before. I’d been blown up. My body had been attacked and I’d lost an arm. But this attack was on my dignity, on my integrity. And in a sense, it was as wounding, although it didn’t involve solitary confinement. It didn’t involve any maiming of me. A very, very hard period of my life.
In any event, we waited and waited and waited to hear. June, July, August, September… still no declaration by the president who’d be on the court. And finally, I think it was on the 11<sup>th</sup> or 12<sup>th</sup> of October, I was actually at the Thursday night symphony concert at the City Hall, when the judge president of the Cape Division of the Court, Gerald Friedman, leant over and he said, ‘Congratulations Albie.’ And I said ‘What?’ He said, ‘You’ve been appointed to the court.’ And that was the first that I heard.
I was told afterwards, in fact, a very big majority of the Judicial Service Commission voted in favour of me, and I was chosen by Nelson Mandela as one of the six. So that was… uhmm… a complicated period in my life. But from then onwards, it was like re-ignited with joy and an extraordinary 15 years on the court.
